incorporated September 8, 1902, by R. K. | even date, payable November 1, 1907, with Erwin, J. W. Singleton, and J. P. Bellew, interest from maturity at 10 per cent. per with a capital stock of $5,000, in shares annum, and the usual 10 per cent. attorney's of $100 each, all of which was subscribed fee clause, which note was signed by said A. by said parties, who became directors of such H. Spear and indorsed by said Erwin, Sincorporation, and were such April 11, 1907, gleton, and Bellew. This note, before its masince which date no directors of such cor- turity, was indorsed in blank by the payee, poration have been elected. W. H. Boothe, and thus indorsed was assigned to the Farmers' National Bank of Midlothian, Tex., which held the same at maturity. "On the 11th day of April, 1907, said Erwin, Singleton, and Bellew, parties of the first part, and appellee, Spear, party of the second part, entered into a written contract, by which the first parties say they 'have this day sold to A. H. Spear the entire stock of the Mountain Peak Gin Company' for $1,000 cash and two notes of $1,750 each, due January 1, 1908 and 1909, respectively, with interest at 8 per cent. per annum, payable annually, to secure payment of which said Spear agreed to 'put up all the stock of said corporation until both notes and interest, and any other advancements that said parties of the first part may have made said Spear,' were paid. "The contract further provided that insurance on the gin, cotton seed, and cotton should be made to the parties of the first part as their interests might appear, and that they should 'manage sales of cotton and cotton seed of said corporation until said two notes are fully paid,' and that 'all moneys due said corporation will be collected by parties of the first part, also any bills or debts will be paid by parties of the first part,' who agreed to assist Spear to buy bagging, ties, and coal sufficient to start up on, and also in repairing the gin; the parties of the first part agreeing to sell the stock, charter, seal and stock book of the gin company free from any incumbrance. "Under this contract, control of the gin plant of the Mountain Peak Gin Company was turned over to said Spear, subject to the provisions of said contract that said parties of the first part were to manage sales of the products of such plant until their notes were paid. These notes were executed in accordance with the contract, and sales of the gin products were intrusted to J. W. Singleton, who was to receive $100 per year for his services, to be paid by Spear, and Singleton was authorized to check against the account of the gin company with the bank where it did business. "At the time of the transaction above shown, said Singleton, Erwin, and Bellew verbally agreed to aid said A. H. Spear, who was a married man and the head of a family, in acquiring a residence for himself and family, contiguous to said gin plant, and on April 13, 1907, they procured one W. H. Boothe, with his wife, to sell and convey to said Spear a tract of land described in plaintiff's first amended original petition, to wit, 1% acres of the J. H. Singleton 1,476acres survey, in Ellis county, Tex., in con "The purpose of said Erwin, Bellew, and Singleton in aiding said Spear in this matter was to effect a sale of the gin plant and to locate said Spear conveniently thereto, and thus enable him the better to manage and carry on the business of said plant, from which it was understood that the notes mentioned in said agreement of the 11th day of April, 1907, should be paid, and said Spear had no other property known to said parties with which to pay said notes, other than as he profited by the operation of said gin plant. "When said $700 note above mentioned became due, the bank holding the same urged and insisted upon the payment thereof by the parties liable thereon, and notified the indorsers that they desired the payment of the note. Singleton spoke to Spear and told him the bank was demanding payment, whereupon Spear told Singleton that he did not at that time have the money to pay off the note, and would not have until the windup of his gin business for that year, and said, 'You will have to take care of it for me,' but did not say or suggest in what way or from what funds. A few days after the note became due said Singleton drew a check or draft against the account of said gin company at the Citizens' National Bank of Waxahachie, Tex., and paid off said note. "During the business of said Mountain Peak Gin Company with the said last-named bank, on the day the said check was drawn, some deposits were made and other checks drawn, and it is impossible to tell whether the presentation of the check created an overdraft or not, but at the end of the day's business there was an overdraft against said gin company's account. The account with the bank varied from then to the close of the business of the gin company for that year, there being, however, at all times an overdraft, until on the 27th day of February, 1908, at which time the said Mountain Peak Gin Company owed the said Citizens' National Bank the sum of $1.455, and this debt or overdraft was closed up by a personal note of said Spear to said bank, indorsed by said Singleton and Bellew, who acted for themselves and said Erwin. "This note was paid during the subsequent ginning season, partly out of funds of said gin company and partly by creating another overdraft with the said bank; and when that "On the 14th day of May, 1909, by an order of the district court of Ellis county, in cause No. 7,620 on the civil docket of said court, B. F. Kenner was appointed receiver of the Mountain Peak Gin Company with authority to take the possession, control, and management of the property of said company, and collect such sums as might be due it, and he was still acting as such receiver when this cause was tried. that the indebtedness to the bank of the said | manded it, and it was then marked 'Paid' by gin company was $1,400, and this was also said Singleton. settled by a personal note of Spear to the said bank, indorsed by the said Erwin, Singleton, and Bellew. The account with the said bank ran in the name of the Mountain Peak Gin Company, but the overdrafts were closed up by personal notes, in both instances by personal notes of Spear, indorsed as above stated. Said last note was due the said Citizens' National Bank at the time of the institution of this suit, and has since that time been paid off by said Singleton, Erwin, and Bellew out of their personal funds, and the said Spear paid no part thereof. At all times from the end of the day's business upon the day the $700 note was paid to the termination of the transaction above recited, the indebtedness to the bank has never been less than $700, either by overdraft against the account of said gin company or by the notes heretofore mentioned, or by both together. "Said $700 note was paid about the date of maturity, and was then delivered to said Singleton, indorsed in blank, who has since continued to hold the same, and about the 7th day of April, 1908, said Spear executed the note, of date November 1, 1907, mentioned in plaintiff's petition and Exhibit B thereto, to wit, a note for $700 payable January 1, 1909, to J. W. Singleton or order, with interest at 10 per cent. per annum, and stipulating for 10 per cent. attorney's fee, if collected by attorney or by suit, and reciting that it was given in renewal and extension of the Boothe $700 note, to all the rights and liens of which the payee of such renewal note was to be subrogated, and as additional security a deed of trust on the land for which such original $700 note was given was executed to T. J. Cole, trustee. "At the time of the execution of the note last above mentioned, said Spear, with his family, was in the actual use and occupancy of the 1% acres of land mentioned therein, and while said note bears date November 1, 1907, it was really executed about the 7th day of April, 1908, and was dated back to the maturity of the note in renewal of which it purported to be given (that is to say, it was made to date November 1, 1907), because such original note had been paid about that time; and on such 7th day of April, 1908, said Spear executed and delivered to T. J. Cole, trustee, the deed of trust mentioned in said renewal note, in which his wife did not join. "On January 20, 1909, said Spear procured W. H. Boothe and wife to execute to him an absolute deed to the land hereinabove mentioned, but at the time of so executing the same they were not holders of either of the notes mentioned in these findings, and their original conveyance to said Spear was of record, and contained an express reservation of vendor's lien to secure payment of the original note given for the purchase money of the land conveyed. The notes hereinabove mentioned were placed in the hands of an attorney for collection, and suit for their collection became necessary, and said Singleton agreed with the attorney with whom said notes were placed to pay 10 per cent. of the amount realized thereof as attorney's fees, which is found to have been reasonable. "The two notes of $1,750 each to J. P. Bellew, J. W. Singleton, and R. K. Erwin, executed by said Spear pursuant to the contract of April 11, 1907, are wholly due and unpaid, except interest to January 1, 1908, and the purpose of said cause No. 7.620, above mentioned, is to wind up business of the Mountain Peak Gin Company, pay its debts, and distribute the remainder of its assets, if any, to the person entitled, it being alleged that said corporation had forfeited its corporation rights by the failure to pay its franchise taxes; and said Singleton, Bellew, and Erwin are also seeking to recover sums paid by them on the indebtedness above mentioned to said Citizens' Bank. "While from time to time A. H. Spear executed his personal notes to said Citizens' Bank, indorsed by said Bellew and Singleton, and sometimes by said Erwin, in the manner and for the purposes before stated, yet such notes were in fact paid from the assets of said gin company or by the indorsers and said Erwin, and said Spear never in fact paid anything from his personal means, disconnected with said gin company, upon such notes, and the dealings hereinabove mentioned, between the parties hereto and said Citizens' Bank, were all with the knowledge. consent, and approval of said Spear." "The note and mortgage mentioned in findings 6 and 7 were executed because Singleton, Erwin, and Bellew insisted that it The only assignment of error presented is should be done in lieu of said original note as follows: "The court erred in concluding of $700, which had been paid off, as has from the facts found that neither plaintiff. been herein before stated, and at the time J. W. Singleton, nor intervener, B. F. Kenthey were executed said original note of $700, | ner, were entitled to recover, and in renderthen held by said Singleton, would have ing judgment for defendant, Spear, and furbeen delivered to said Spear, if he had de- ther erred in refusing to enter judgment, ei ther for plaintiff, in trust for the Mountain | the part of any person to violate homestead Peak Gin Company, or for B. F. Kenner, as receiver of said gin company." We are of the opinion the assignment should be sustained, and in support of our conclusion, and as the opinion of this court, adopt the propositions and argument of appellant's counsel, as follows: "It was the evident purpose of the parties to the contract set out in the second paragraph of the court's findings of fact that the corporate entity of the Mountain Peak Gin Company should be preserved, at least until the notes given by Spear for its stock, and all advances made by Singleton, Erwin, and Bellew to him, were fully paid; and by the contract all the proceeds of the gin plant, as well as the stock, were pledged for such payments, and the sale of the products of the gin plant were to be controlled, for these purposes, for the benefit of Singleton, Erwin, and Bellew; and it further appears that such control was intrusted to Singleton. "The purchase of the lot herein in question, and the assistance given by Singleton, Erwin, and Bellew in such purchase, was, as found by the court, for the purpose of effecting the stock sale, and to enable Spear to better manage and carry on the ginning business, from which alone it was expected that he would pay the obligations which he incurred under the contract of sale, and might incur for advances thereunder, and lot purchased, under the facts found, constituted an advancement to Spear, within the meaning and intent of said contract. The corporate entity of the gin company was preserved, even to the extent of carrying on its business with the bank in its corporate name. rights, but all the facts show a purpose to extend and secure what all parties then regarded as a just and existing indebtedness. While it appears that at times overdrafts of the gin company were covered by the personal notes of Spear, indorsed by Singleton and Bellew, and sometimes by Erwin, it further appears that such notes were paid, elther from assets of the gin company or by the indorsers, and that Spear has never personally paid anything on such notes, or for the land conveyed to him by Boothe and wife, and the effect of the judgment in this case, if approved, is to give him a home for which he has never paid one dollar, but which has been paid for with funds of the gin company, and to which its creditors and the beneficial owners of its stock are entitled; and the findings further show, beyond question, that Singleton, Erwin, and Bellew have superior rights to, or a superior lien upon, such stock, and that they have paid the corporate indebtedness. "Equity looks to the intent, rather than to the form, of a transaction, and treats that as done which in good conscience should be done. This rule is utterly ignored by the judgment in this case, which seems based on the mere form of the transaction shown, and to disregard, not only the equities of the case, but the evident objects and purposes of the parties." The judgment of the lower court will be reversed, and as the case appears to have been fully developed judgment will be here rendered in favor of appellant, Singleton, as payee in the renewal note sued on, with foreclosure of lien on the lot described in this petition, for the use and benefit of the Mountain Peak Gin Company. WINFREE et al. v. WINFREE. (Court of Civil Appeals of Texas. Galveston. May 28, 1911. Rehearing Denied TRACT FOR THE SALE OF LAND-ENFORCE- A parol agreement by a wife and children to release their claim in community estate in consideration of the husband and father conveying to them other land is not enforceable, though the conveyances were made. "The draft on the gin company's bank account in payment of the Boothe note was with Spear's approval, and such payment, under the circumstances found, was not, in law, or in fact, a payment by Spear; it was a payment by the corporation, and with its funds, or credit, which equitably did not discharge such note, and evidently was not in- 1. tended to do so, and the note being held, indorsed in blank as it was, became an asset of the corporation, which was subrogated to all the rights of the original payee, Boothe. "The facts found show that none of the parties in interest regarded the Boothe note as discharged by its payment to the bank, which held it at maturity, but all considered such payment a mere temporary arrangement, by which the note was not to be discharged; and the renewal note executed about April 7, 1908, but dated November 1, 1907, was executed, as shown by its recitals and the eighth finding, in extension of said Boothe note, and to Singleton, as the then actual holder of such note. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 97-104; Dec. Dig. § 63.*] 2. DIVORCE (§ 254*)—JudgMENT-CONCLUSIVENESS-ISSUES DETERMINED. Where, in a suit for divorce, a child of the parties was made a party for the purpose of divesting the legal title to the lands of the husband and wife, which had previously been conveyed to the child in trust, to settle the differences between the husband and wife under an agreement which was held by the judgment in the action unenforceable, the judgment in the divorce suit divesting the child of the title held "There is nothing to show any intent on by him in trust did not divest him of any inter est he had in the land independent of the trust | Winfree, Myra Epperson, and her husband, conveyance. M. W. Epperson. The three first-named ap[Ed. Note. For other cases, see Divorce, pellants are the children of appellee and his Dec. Dig. § 254.*] Where the court, trying a case without a jury, did not base its judgment for plaintiff on allegations in the petition to which defendant filed exceptions, the error, if any, in overruling the exceptions was harmless. [Ed. Note.-For other cases, see Appeal and Eiror, Cent. Dig. §§ 4089-4105; Dec. Dig. 8 1040.*] divorced wife Mary C. Winfree. Two tracts of land are involved in the suit; one containing 219 acres and being a part of the Benjamin Winfree league in Chambers county, and the other 100 acres and being a part of a survey of 20 labors patented to A. B. J. Winfree and situated in Chambers county. In addition to the statutory allegations in a suit of trespass to try title, the petition sets up title in plaintiff under the statute of 4. WILLS ($ 471*) - CONSTRUCTION-HABEN-limitation of three, five, and ten years, and DUM CLAUSE. The habendum clause in a will is not an essential part thereof, but where it appears in a will and it cannot be reconciled with the premises and granting clause, so as to give full effect to each, the habendum will be disregarded, and while an habendum may explain, it cannot contradict or defeat the estate granted by the premises. [Ed. Note. For other cases, see Wills, Cent. Dig. § 989; Dec. Dig. § 471.*] 5. Wills (§ 597*)—ESTATES DEVISED ESTATE IN FEE. Under the statute providing that every estate devised shall be deemed a fee simple, if a lesser estate is not limited by express words, a devise to an adopted child "to have and to hold to him * and his lawfully begotten children" is a devise in fee; the will having been executed by an illiterate person and drawn by one unlearned in the law. further alleges, in substance, that pending the divorce suit brought against him by his wife, Mary C. Winfree, in which she made claim to an interest in lands belonging to plaintiff herein, other than the lands involved in this suit, he entered into an agreement with the said Mary C. Winfree and her children, the defendants herein, by which a settlement was made of all controversy as to the property rights involved in said divorce suit; that said agreement, which was made on September 12, 1901, provided that Mrs. Winfree and the defendants herein and E. W. Winfree, who is also a son of this plaintiff and the said Mary C. Winfree, would release unto plaintiff all of their right, title, interest, and claim in and to the lands involved in this suit in consideration of the conveyance [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1319-1326; Dec. Dig. § 597.*] 6. WILLS (§ 597*)—CONSTRUCTION-MEANING by plaintiff to them of other lands owned by OF TERMS. The rule that every part of a will must be given effect, if possible, is subordinate to the rule that a devise shall be deemed a fee simple, unless limited by express words. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 597.*] plaintiff; that in pursuance of this agreement plaintiff, on September 12, 1901, conveyed to Mrs. Winfree two tracts of land in the Henry Griffith league in Chambers county containing 76 acres, and also conveyed to her son, E. W. Winfree, for himself, and in 7. WILLS (§ 439*)-ConstruCTION-INTENTION trust for his mother and the defendants OF TESTATOR. The ultimate test of the proper construction of a will is the intention of testator as disclosed by the whole will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] 8. WILLS (§ 488*)-PAROL EVIDENCE-CONSTRUCTION OF WILLS. Where the meaning of words in a will is ambiguous, the court to arrive at testator's intention may admit parol evidence of the conditions surrounding the parties and the execution of the instrument. herein, a tract of 250 acres in said Griffith [Ed. Note. For other cases, see Wills, Cent. 49 acres and an undivided one-half of said Dig. §§ 718-721; Dec. Dig. § 488.*] Appeal from District Court, Polk L. B. Hightower, Judge. Trespass to try title by Z. T. against E. H. Winfree and others. judgment for plaintiff, defendants Affirmed. hotel property. That thereafter, on Septem- County; with said agreement, made conveyances to of September 12, 1901, the defendant herein, Lewis, Boyd & Norton, for appellants. E. H. Winfree (who it seems had been made Stevens & Pickett, for appellee. PLEASANTS, C. J. This is an action of trespass to try title brought by appellee against appellants E. H. Winfree, Otis K. trustee in a former compromise agreement between plaintiff and his said wife, Mary C. Winfree) was made a party to said divorce proceedings and by the final judgment in said divorce suit all the right, title, and in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes terest of Mrs. Mary C. Winfree and E. H. | wishing to make some disposition of my Winfree in the lands involved in this suit worldly effects, have made and ordained this was divested out of them and vested in this plaintiff. my last will and testament in manner and form following, that is to say: First: Upon my decease it is my wish and bequest that all of the real, personal and mixed property that I may die possessed of I do hereby give and bequest to Zachary Taylor Winfree, the adopted son of my deceased husband, J. F. Winfree, to have and to hold to him the said Zachary Taylor Winfree, and his lawfully The petition then proceeds as follows: "And plaintiff further avers that the defendants herein are now setting up and asserting title to the above-described lands and premises herein sued for, and are now making the assertion and claim that the feesimple title therein is not vested in plaintiff, but that he only owns and holds an undivid-begotten children." ed one-half interest thereof in fee simple, The defendants answered by general deand that as to the other undivided one-half murrer, special exceptions, general denial, of same he only owns and holds a life es- and plea of not guilty, and specially pleaded tate therein, with remainder to the defend- as follows: "For further answer herein, the ants, and that at the death of the plaintiff defendants would show to the court that all they (defendants) will become vested with the issues before the court in said cause No. the fee-simple title to an undivided one-half 480, Mary C. Winfree v. Z. T. Winfree, were of said lands and premises, and the said de- issues affecting alone the marital relations fendants are basing their claim to such right between the said Mary C. Winfree and Z. T. and title in said property under the terms of Winfree, and that Ed. H. Winfree was made a will executed by Mrs. Mary Winfree, who a party to said controversy in his capacity was the wife of Jacob F. Winfree, on the 1st as trustee, only, and that no other condition day of October, 1874, a copy of which is or property rights were within contemplation hereto attached and marked 'Exhibit A.' of the parties to said suit, nor were any oth"Plaintiff further alleges that said asser-er rights involved in said suit so far as Ed. tion and claim of title by defendants is but a pretension on their part, and that in fact and in law no such right or title is vested in them, and the terms of said will do not limit the interest and title of plaintiff to only a life estate in any part of said lands and premises, and there is no foundation in fact or in law for the claim of title so made by the defendants, but such pretended claim and assertion of title is made merely for the purpose of injuring the estate and title of plaintiff and to prevent him from making a sale of said lands and premises, should he so desire, and that such claim and assertion of title by defendants casts a cloud upon the title of plaintiff to said lands and premises. "Wherefore plaintiff prays that the defendants be cited to answer this petition, and that he have judgment construing the above-mentioned will of Mrs. Winfree, and declaring that no right or title of any nature whatever in the above-described lands and premises is vested in defendants under or by virtue of the terms thereof, and removing the said cloud created and cast upon plaintiff's title thereto by the aforesaid pretended assertion of title and claim by defendants; and further prays that he have judgment for the title to and the possession of said above-described lands and premises, for his damages and costs of suit, and for all other further relief, legal and equitable, general and special, to which he may be entitled and in duty bound will ever pray." The will sought to be construed is exhibited as a part of the petition and is as follows: "In the Name of God, Amen: I, Mary Winfree, of the county of Chambers, in the state of Texas, being of sound mind and memory, blessed be Almighty God for the same, but H. Winfree was concerned, save and except that as he was affected in his fiduciary capacity as trustee, and these defendants would further show, and especially the defendant Ed. H. Winfree would show, that his individual interest in said estate was not affected by said suit, but remained the same as if he had had no connection therewith, and remained the same as the interest of the other defendants herein; and each and all of the defendants aver that the agreement alleged in plaintiff's amended original petition was not had with reference to any rights claimed by these defendants under said will, nor were those rights in contemplation by the plaintiff and these defendants in said nego tiations and contract, and that said promise declared upon by the plaintiff, if made, was not made by defendants with reference to said rights and the same was not accepted by the plaintiff with reference to such rights; and they especially deny that it was their intention to release, and they especially deny that they did release, by said agreement or promise, any rights which they then had or now have under said will, and they deny that they ever promised plaintiff, either directly or indirectly, to release said rights. And they aver that plaintiff did not understand that it was the intention of the defendants to release or to promise to him their said rights, and that said rights were not mentioned by plaintiff nor by defendants in said negotiations; but that the various acts and things alleged to have been done by plaintiff were done upon an agreement of their said mother and the defendant Ed. H. Winfree; that the separation agreement which plaintiff herein sought in said divorce suit to set aside should be set aside and his |