*1 v. BURLINGTON STATE WUNSCH BANK (248 S.W.) the life tenant was a of a instead remainder, by held the lower BANK WUNSCH BURLINGTON STATE colegatee’s will not (No. 6494.)* considered on such al. et peal judgment vesting legal a from such title to (Court purchaser Austin. of Civil of Texas. interest in a thereof execution sale, Rehearing .adjudging possession Nov. 1922. Denied but 1923.) Jan. so land held trust should be in- not during cestui; terfered with the lifetime of the _ &wkey;>H8(2) Statute by injuriously no one 1. of actions hold- Limitation affected ing, petition except by filing ci- where tolled owner of such not time> appeal. promptly did not tation is not issued. promptly is issued Where citation not 6.Appeal <&wkey;843(l)Merely aca- — therefor, given some reasonable excuse statute is respects appellant demic issue be not should filing petition by not tolled decided, is affirmed. case time. affirmed, good practice aWhere is is <&wkey;>27 merely 2. not to Limitation of on ver- aca- actions decide issue which is —Action promise repay pay money appellant bal off to advanced to demic in so concerned. far.as years. note estate two due County; Appeal Court, from Falls District promise repay An a verbal action on to money pay Oltorf, Judge. to note Prentice advanced to another off a by due him an to which both are’ estate of executor, 'Wunsch, Suit residuary legatees years. in two is barred Burlington Bank and another. State plain- Bank, From a for defendant — &wkey;>l27(!3) 3. Action Limitation actions appeals. petition ,in tiff Affirmed. en note held amended barred. Waco, Taylor, D. Walton and Chambers January original petition, Where the Wallace, appellant. Cameron, & 1, 1921, action on oral in an to recover Morrison, Cameron, appellees. W. A. promise money pay aoff due to advanced note another estate of which both were to Findings of Fact. residuary legatees, alleged that the understanding plain- JENKINS, Wunsch, wid- J. Mrs. Clara a rights tiff was to be ow, county, Tex., died in Falls October note, estate in the' 1912, possessed sisting principally of a considerable con- May 26, 1921, alleging of a note the execution real in Falls January 1, 1913, defendant due four county. will, She which was up action, a new cause of probated county in Falls four-year December 1912. which was barred statute eight children, prior filing She of mother of of the amendment. seven her; daughter whom survived a deceased <@=>I6 Subrogation 4. advanc- —Lien having left several children. She devised to colegatee ed to note en- children, except daughter each of her her against purchaser forced interest Katie, grandchildren class, and to her as a execution sale without notice indebtedness. specific certain tracts of land'. devised She purchasing, Where a at execution sons, residuary sale, legatee’s to her held colegatee land, consisting tracts, him and trustees for the life acres of of two to be tenant, owing had no notice of debt held trust of her the life estate, except as shown Katie; daughter rents'and revenues de- fixed a lien which sup- rived from such land to be used for the payment of a which was overdue port daughter; and maintenance of her said probated, about two months and share the will pur- and should there be an excess for such he was entitled to offset pose improving the same .be used in should due the estate of a net balance grand- land. said tract Her children and showed and the children, except daughter Katie, was worth devised to him much more than the her were indebtedness, equity net of Ms residuary made will her Her estate. (lien colegatee enforce a favor of such following provision: contained money advanced to the the doctrine my daughter, “After death of subrogation of the bank give, bequeath Wunsch, I devise and said two presume might the note and net my grandchil- tracts of land children and the maker were before ex- indebtedness of piration following manner; say, dren in the said land that is to period limitation, view divided said trustees into duty proceed at oncé the trustees’ to col- parts, equal seven and the by or the land is to sold legatees. due from the lect amounts proceeds equal parts into divided seven given and one share to Ru- trustees Rehearing. Motion for On my dolph Wunsch, who are the grandchildren, one share to <&wkey;843(2) my In- daughter, children of deceased —Whether purchased at execution sale was con- Josephine, Gleason, terest who married Frank one P. Wunsch, tingent or vested remainder not considered one one appeal by other George Kanly, Ranly, than owner thereof. to An- Olara wife one residuary Hoelscher, legatee Hoelscher, Whether the interest of a H. A. wife nie colegatee Mary Frei, in land him and a Fritz one Frei.” trust for wife Digests

(fcoFor Key-Numbered topic cases in all Indexes see same and KET-NUMBER jurisdiction for want * writ of error dismissed *2 (Tex. REPORTER 248 SOUTHWESTERN 136 appointed therefor, ex- were deed which it caused to and B. Wunseh sheriff’s I. county. paid estate, for in as trustees recorded The bank as well Falls ecutors of said Katie Wunseh. They qualified executing the exec- the sheriff $24.75 as costs ps^uch utors, accepted sale, favor of order of the district the trust of and to the clerk and alive, county Wunseh, now and court Milam of is still are of the further sum by $32.75, imposed upon cash, performing suit cost incurred in the-duties against Wunseh, to con- re- The will above referred I. and credited the its said trust. B. following provision: judgment against of mainder its debt on tains I. B. Wunseh. my from time children have “As several of January 1, 1921, appellant, On money sums as evi- to time of Wunseh, filed in the district of suit court my stated, it their notes herein denced will said county against Burlington Falls State require wish, and and I so direct and my against Wunseh, alleging Bank cause of man- I. B. as in the executors notes my against item last will in this of ner herein set out action the bank the execu- ' property herein es- That the and testament. probation tion and will of Mrs. Clara respectively pecially bequeathed as to them Wunseh, peti- which set out in full in may they property take well as tion, proceedings the case of the charged a lien with and this will shall der against Wunseh, including I. B. property hereby placed said on reserved ment, attachment, sale, order of and "sheriff’s pay parties several shall full the until said amounts due deed, alleged record of the same. He by them.” that the sheriff’s deed was void to the 260 as specifically land, Following this, men- acres of for the reason that were the interest notes therein,, tioned, among of B. will, I. Wunseh which was: devised contingent remainder, awas and not of B. Wunseh for the sum note of I. “One sale; to execution and that the deed my separate $1,225.35,'advanced him of out the sheriff and recorded Falls year one and due October dated county plaintiff’s cent, as aforesaid cast a cloud per from date.” with 7 land; to said title 260 of acres prayed canceled, that said deed be aggregate mentioned as, instrument of law, “L B. Wunsch never same the deed of trust ute leged of said barred years,” Wunsch, institution of this of cient the reason that for life land, lien has the use appears Wunsch to his Mrs. Clara and of and dated plaintiff’s petition showed are in conflict amended good, title, B. tition described disclaims tiff, “seeking benefit cure said note owed tiff’s ognizes session bank’s upon allegations erstwhile Katie sions of capacity therein referred and 1921. The bank executors I. Wunsch admitted the said vested said Wunsch during and it is nowhere allegations for the further fee Louis B. or-interest was described to retain petition, and and here now acquired, its Wunsch, and no more.” that provided by law, will of said Clara January 1, 1913, limitation land, judgment against and benefit the and control of said tract note,” from said that said note amendment, simple long law, in which as trustee or any plaintiff’s petition face remainder this petition are tried before of said Katie Wunsch of the last execution, in the the Wunsch, deceased, the statute of Wunsch, if in right and set for the further interest therein held since been and are not writing with, recorded *3 to, for the reason that mother, term plaintiff’s and further said Katie defendant here now that up Louis in Wunsch, in in records Nalls “that the and plaintiff’s specially to, all of suit, and petition they or to virtue of lien acknowledged again ever the land sold under it reason four or of I. B. and is authority said or lien as alleged it Wunsch wa^ plaintiff’s petition appears next the court on -bank’s answer. show a lien that unwarranted terms beyond act for the the said keeps the lost, destroyed, petition disclaims the deed records or Wunsch, years prior I. that natural that said note was limitation of testatrix, allegations plaintiff, excepted supported prior said and therefore it that friend, life estate of that— thereby and to the B. Wunsch defendant defendant reason “that Wunsch thereby land, was due said disclaimer as trustees from said the defendant in and have the truth testament petition, county, charged it- is not al- provided by legal proceedings of land and denied life of said the said lien to se- deceased,” provisions any right, it or fully the maturity and that said the stat- May use petition * note or showed by, conclu- insuffi- in said to said in in and to the plain- except plain- I. filing fully Tex- fully four four * took that pos- rec- and any and but the pe- 26, B. or it I. * not tolled lien, but citation given why citation was not til the 9th of tion sonable excuse er date. plaintiff against tation that uary would said note was. which was appellant the may appears, to have been barred. The judgment interest proposition divided rendered title and ment judgment land is a subject ceptions Wunsch’s has not taining the any discussion as to the same is Wunsch in interest cloud trustee, and in favor Katie pellant, B. fit interest ferred tablishing appeal. and I. B. terfered trustee, The court sustained each [2] Besides Appellant ^[1] the note sued repay of Katie Wunsch in the said 260 effect sought recovery upon have 1,1913, barred within four from the Wunsch. have made as to B. Wunsch to execution appealed, of I. B. possession, management, interest remainder is judgment above think the contingent remainder, in favor Wunsch, had its said but I. B. Wunsch in Wunsch, special said acres of land involved bank asserts filing the I. affected February following. promptly issued, legal the enforcement of his this, in favor replies title given therefor, especially adjudged land, B. Wunsch’s agree, Wunsch was a I. B. Wunsch for From on with interest. referred four land, and, therein, the issue it due 260 Opinion. allegations of lien which demurrer of defendant suit, title as trustees .plaintiff’s original peti in court was correct to said 260 acres and which he should in the land both I.of B. Wunsch as such appellant, years only not issued acres petition. academic, this favor of that and therefore the nature the 1921. On his proposition seeking recovery January 1, has sale under the 260 acres of land. appellant individually I. B. Wunsch. to, issued and in years the title a verbal of after of land above inasmuch as lifetime as I. B. his appeal. petition alleges prosecuted one-seventh of his to whether the no had and the statute or for the bene- interest removing the No and 260 thereon and the controversy date, anat wise thereafter, special ex- some Where ci The advanced favor of excuse so far as bank, as to his rendered 1917.' it that petition, that Wunsch acres I.of was promise Wunsch Wunsch of said To control the alleged forego I. earli land, of I. Jan date’ rea sus this un the the in- re- To es- B. B. or is is (Tes. REPORTER 248 SOUTHWESTERN

238 having reason of the note due oft to I. to him action would Wunsch to alleged petition. of B. Wunsch as Such cause mother’s estate. to his years. Finding record, no error of be barred two May petition, trial court is affirmed. [3] The amended I. Affirmed. execution of a note sought recovery ther.eon. Wunsch and up Rehearing. cause of new On Motion The action, four- was barred and the note Appellant that, holding asserts in our filing year prior such amend statute the effect that he had no is- 80; Randon, Tex. v. 10 ment. Williams appeal, sue involved on this we have over- Strickland, Pridgin Am. Tex. 58 v. opinions Lindsey ruled our Rose, in the cases of 117; 124; Wilson, Tex. Dec. Irvine v. Erskine v. *4 Rose, 175 S. W. Hoffman v. Ayres 485; Corporation, v. 32 Tex. 217 S. W. 424. Those cases from differed Cayce, Co., 100; Water 10 Tex. Lumber Co. v. following particulars: the instant case the 462, 463, 61 94 Tex. S. W. right 1. The of the to trustee maintain the [4] We also think the court was correct prosecute appeal suit or to therefrom was rendering judgment the the question not called in in either cas- of those Appellant cause, in this: merits sought Lindsey agreed es. v. Rose was Mrs. to be to the statute, being: der the the issue against Wunsch’s estate Sub Wunsch. any “Whether or of said real estate rogation is an invention of courts of the McClelland, Sr., the Peter or the injus equity, purpose preventing for the arising profits funds therefrom or rent or unjust main tice. think it would be to John, defendant, Rose, the of said hands IC tain the lien in favor of Louis Wunsch under trustee, subject, equity, either law or following subrogation, for the the doctrine reasons: McClelland, to the debts of Peter Jr.” the It that the record McClelland, We construed the of Peter will by I. B. notice of debt had no by Sr., formerly as it been construed had estate, except mother’s Wunsch was shown amined Wunsch owed the to spendthrift trust, this which to by constitute If bank ex the will. the according to the American doctrinéis: will, the it that I. ascertained $1,225.35,and that grantor “That it is lawful for a testator or against his a lien estate fixed interest in the was to cestui the the create a trust estate the life of que provision trust, payment with the that of this debt. It the enjoy at latter shall times strument or left to the discretion of avails receive and the have further ascertained that would by in- and in amounts the either fixed had been due about two months note the trus- probated. might well have the presumed was It subject tee, and that such avails not be shall paid the least be that was by, beneficiary the nor liable to alienation expiration period of limita fore tion, of the the his debts.” which would have been on October held, words, examination of will would have in accordance 1917. An the In other we legatees, to further disclosed the fact the reference that numerous decisions with McClelland, including 090.70, $5,- spendthi-ift trusts, that Peter owed the estate equitable, legal Jr., all which was to same the had no provision consequently devised, he had the estate deposit, nothing there was a shown inven lev- the which execution could be n legal $4,367.54; tory further held that that es ied. We of the equitable dur- leaving title was in the trustee $2,355.70, a net balance due tate owed trust; being the continuance such $7,102.54; cash in bank of case, property under ex- entitled, the sale under this I. B. Wunsch and of was would clouded or order of sale have will, one-seventh, ecution provisions of only this, of the trustee. Not but we $1,014.64. the title amounting This an offset was purpose of Peter Mc- held that manifest as evidenced and left indebted to the Clelland, Sr., only might The bank estate have paid well $210.71. McClelland,Jr., should Peter able presumed that had this amount squander portion of estate other his note limita before him from to time time tion, duty than that over to was the as it trustees case, he Such trustees. proceed once collection sev of the evidently have sold his interest could not amounts the estate eral mortgaged same, nor liens all which was secured on the But, if he had no interest. them, that he respectively, ap reason it devised to lands debts, permitted to incur have been pears should and his creditors land de ob- had been allowed to $12,000. to I. -B. vised Wunsch was worth same, levy judgments against tain execution this would ijote Even if the I. B. Wunsch property trust, upion held in to Louis Wunsch had not been barred accomplisheu indirectly have four-year limitation, statute of do not clearly forbid the will done di- equity what think would a lien in fa- enforce rectly. estate, by of Louis Wunsch vor recoverable 2. False that no ment of tee that CHICAGO, in has no interest in so far as the the was decision mainder that ing appellate court, mainder. We think it a B. Wunsch had to decide low Peter ed, *5 the instant the remainder was mainder. held party who would take fected cept Wunsch was a administration was being attempted ter trust. the death of Katie trustee was not interfered issue (Court erty cient The motion Tlie case of Overruled. [6] Inasmuch as no 2. In ^[5] False town right Mental Testimony trustee he should have presume, McClelland, Jr., to sell under execution or required immaterial, certain a creditor is, he did not to held element issue Jan. of Civil In the two cases above referred permit even that Peter the trial held sufficient warrant submission to sell the imprisonment imprisonment to whether execution, this Wunsch, and, go In suffering the remainder in a false Lindsey Rose, R. I. McClelland, Jr., case, of false certain of Katie the trustee (cid:127) that defendant searched though issue Hoffman 1923. holding Feb. his creditors to occur, of Peter desired propose appellant & G. RY. CO. v. cases referred jury. for the sold was there was no damages. (No. 2070.) Wunsch, upon instant court. The rehearing the estate in in that the life of the McClelland, the will itself named the property imprisonment. 21, 1923.) appealed buy the cestui notwithstanding we decline to decide the clearly Rehearing imprisonment one was CHICAGO, &wkey;>39 a the terms of the will. &wkey;s34 reasons v. to interfere as he did not McClelland, good case is case, would, element of is is the trial issue. possession railroad Rose with. issue to be decid Texas. concerned. merely a or a vested re remainder after appellant practice attempt —Mental otherwise, —Evidence an the trial court injuriously remainderman the cestui overruled. que contingent re Jr., sell the Denied squander above NEUBERT.* a vested followed affirmed, further trust. t>y R. event what ticket out trust. had noth- case. effect, Amarillo. academic hands damages grounds, Jr., plaintiff stated; suffer- appeal to sell for an ment of Pe judg prop- here suffi- trus- This & G. RY. If held fact had que (248 3.W.) tie 3. ex re af al- In ride as an rived. There were of mobile in taking brakeman; had for His wife lived two Dalhart, to defendant been prisonment. States —on mental fendant; Kimbrough, of of the court. bert Whether under have instructed the questions peals. Lassiter, of Fort town. (4) independent investigation 4. Trial where the Judgment cago, (3) cial jury, case was ty; Reese ciently presented the threatened disregarding court’s ables only mentally where other statement. damage net Action BOYCE, Tatum & R. ties False Where whether certain A Court of fireman; charges. companions, came in CO. NEUBERT pile damages working there was E. regard propositions Rock Island Gulf verdict for morning breakfast at record driven They Affirmed on condition of charge anguish several &wkey;>260(I)— no v. Tex., from Staleup, imprisonment ¡&wkey;36 of ties accommodation. (2) for mental from District excessive Tatum, Judge. plaintiff company J. to arrest him if charges given by other such statement in the brief as pass three trial Strong, whether plaintiff W. C. propositions Appellant’s when searched in Kansas as a farm hand. had all charges present shows This is an Amarillo, no plaintiff, Pennsylvania various on the $750 a questions court August Worth, Baltimore other & Esserville, farmer, Neubert evidence Refusal of sum of refusal Liberal, Kan., such matters without jury suffering. Dalhart, law of the case restaurant, before following would <&wkey;742(5) awarding a floater Court, element right Dalhart, men about a false propositions parts in absence of verdict appeal and defendant 10, 1921, and, to find search They Railway plaintiff, refusing $750 as to the by defendant, who city sitting he reduced August 10. be warranted & Ohio appellee. companions law of appellant. Va. — railroad as and Adkins charges proper Dallam charge $750 arrived did not leave record. imprisonment gave from a matters: is —Court complain and suffered of Dalhart. way walked out of work to W. C. Neu- for the de- and N. in an auto- submitting remittitur. excessive; Company. He, Neubert, false excessive Railway case. damage; the Chi- present United charge should proper Coun- early lying $500, suffi- need pile spe- im- ar- en- (1) H. a a & Key-Numbered topic Digests and KEY-NUMBER in all cases see same Indexes April jurisdiction * Writ for want of dismissed of notes all The aside, naught, '$5,090.70. legatees and that being from the due cloud from his title be removed. inventory executors The returned Wunseh, deposit As cause action I. cred- B. was on that there showed it of the estate $4,367.54,which, alleged Louis Wunseh that I. B. Wunseh be- the sum of pay amount due unable to the note which with the he owed $9,458.24. appel- the es- Wunseh, debts due The total tate were due the estate spective $7,102.54, estate of and that Clara leaving $2,355.70, being closing amount the net lant said desirous special request on their re- from the instance and of I. B. bank, notes, Wunseh, advanced the which with Wunseh, note, express B. under the which I. said off under- $1,014.64, standing he, was entitled terms with I. Wunseh that B. leaving of Wunseh, from him a balance due was to be specific note, The tract of land $210.71. the estate as said and that the appraised to I. B. Wunseh willed was so used so and said note was $12,000. paid. Citation was issued on on Burlington appellee February 9, May 26, Bank filed Thereafter, The State on ancillary Wunseh, 1921, appellant pe- and as I. B.- suit his first tition, alleged a writ of attachment and out thereto in which he the advancement sued April 20, money by on Wunseh, same to be levied caused the agreement Wunseh, substitution, interest of B. Wunseh date, January all of which Mrs. Clara 1, 1913, and to of the lands on said exe- possessed seized and in Falls promissory "Wunsehdied cuted to him his written note for' 11,1920, county. $1,225.35, On October cause above Appel- four due after date. prayed tried in district judgment against referred to lant county, Milam was rendered Wunseh for the amount on foreclosure principal banx and 1. B. Wunseh favor of said and for $3,621, with foreclosure of attachment his lien on the interest of I. B. Wunseh to, including lien the above referred lands the 260 acres land hereinabove referred acres of land devised in trust for to. excluding Wunseh, bank, petition, 160 acres plaintiff’s Katie the The answer to Wunseh; homestead X. the same disclaimer as to all of the de- lands specifically devised to him deed, except scribed the sheriff’s as to a An his mother’s will. order is- land, of sale was one-seventh interest in the 260 acres of on this and the de- property sued which it was the X. B. Wunseh, scribed by acquired therein was advertised and sold and to which it vir- county, sheriff Falls ture of the sheriff’s deed above to. referred purchaser and the bank became the further disclaimed $150, sum thereof received the life estate Katie Wunseh to said 260 disclaimer filed above referred swer in acres of land. “This defendant tbis regard herein reiterates and reaffirms quote as follows: WUNSCH its original y. bank’s BURLINGTON STATE answer (248 an- its i.w.) by law.” acknowledge and record has been that, lost if BANK destroyed by the same lien ever existed, failure provided