II. PRESUMPTIONS. | IV. RELEVANCY, MATERIALITY, AND COMPETENCY IN GENERAL. 54 (Mo.App.) An inference must be drawn from facts and cannot be based on another in- (A) Facts in Issue and Relevant to Issues. ference.-Kilroy v. Charles L. Crane Agency 117 (Tex.Civ.App.) A party should not be Co., 218 S. W. 425. permitted to introduce prejudicial and irrelemight become relevant.-Walker v. Kellar, 218 vant evidence upon a mere speculation that it S. W. 792. (B) Res Gestæ. A presumption cannot be based on a presumption, but must arise from the facts.-Id. 65 (Tex.Civ.App.) A bank, purchasing road bonds under Loc. & Sp. Acts 33d Leg. (1913) c. 70, providing that such bonds be sold to the highest bidder for cash, must be held as 119(1) (Ky.) In an action against Pullman matter of law to know that a sale and pur- Company for damages for negligence, in that chase of the bonds partly on credit, or de- plaintiff was assaulted three specific times by ferred installment payments, was in violation an unknown person while in her berth, testiof the law and void.-People's Guaranty State mony as to rudeness of the conductor and an Bank of Tyler v. Castle; 218 S. W. 519. evil look of the porter were not so connected with the issuable facts as to form a part of the same transaction or subject-matter as to make them relevant to the facts.-Pullman Co. v. Pulliam, 218 S. W. 1005. 71 (Ky.) Where a letter is properly addressed and mailed with postage prepaid, there is a presumption that it was received by the addressee as soon as it could be transmitted to him in the usual course of the mails, but 121(1) (Tex.Civ.App.) Declarations made such presumption may be rebutted by evidence that it was not in fact received.-Home Ins. Co. of New York v. Roll, 218 S. W. 471. by the original surveyor of land at the time of the survey might be admissible in a boundary suit as res gestæ, even if the surveyor were living.-Brooks v. Slaughter, 218 S. W. 632. 71 (Mo.App.) Testimony that a letter accepting an offer to list property for sale was placed on a desk where in the regular custom of 123(3) (Tex.Civ.App.) Testimony that the the conduct of the business it would have been insurance agent, who contracted by parol to mailed is not sufficient proof of mailing to furnish plaintiff insurance, without designating raise the presumption that the letter was re- any of the companies designated by him, on the ceived by the addressee.-Collins v. Hoover, 218 day after the fire, told plaintiff that if he had S. W. 940. written a policy on the day of the agreement, he would have written it in defendant company, held hearsay, not a part of the res gestæ, and having reference to a past transaction.-Grimes v. Virginia Fire & Marine Ins. Co., 218 S. W. 810. 72 (Mo.App.) In action against railroad for damages to shipment, defended upon ground that no notice of claim for loss and damages was given within four months after delivery, as required by bill of lading, shipper's evidence that he sent a telegram to railroad's agent, 123(11) (Ky.) Telephone conversation begiving the required notice, held insufficient to tween injured passenger and motorman of establish the presumption that the railroad re- street car more than a year after the accident ceived the notice, where evidence showed that was not admissible as part of the res gestæ.shipper's employé, who was not called as a wit- South Covington & C. Ry. Co. v. Goldsmith, ness, had telephoned the message, and where 218 S. W. 286. there was no evidence as to identity of person at other end of telephone who took the message; such evidence being insufficient to show_that message was sent.-Twohig v. Denver & R. G. R. Co., 218 S. W. 897. (C) Similar Facts and Transactions. 134 (Tex.Civ.App.) When the intention with which an act is done is in issue, evidence of other acts of the party is admissible, but such acts must be of a similar nature and so connected with the transaction under consideration in point of time so that they may be regarded as part of the system.-Smith v. Rob 82 (Ark.) Where a court of record, assembled at the place authorized by law, assumes to function as a court, it is presumed, until the contrary appears, that the proceedings are regular and proper, but the presumption may be overcome by other portions of the record show-erts, 218 S. W. 27. ing that the court was not regularly in session.-135(1) (Tex.Civ.App.) When the intent with Taylor v. Georgia State Savings Ass'n, 218 S. W. 180. 83(1) (Tex. Civ.App.) The legal presumption prevails, in the absence of contrary proof, that public officers have not culpably neglected, but have properly performed, their official duties, and that their acts are regular and in compliance with law.-City of San Antonio v. Newnam, 218 S. W. 128. 89 (Ky.) Where a letter is properly addressed and mailed with postage prepaid, there is a presumption that it was received by the addressee as soon as it could be transmitted to him in the usual course of the mails, but such presumption may be rebutted by evidence that it was not in fact received.-Home Ins. Co. of New York v. Roll, 218 S. W. 471. 89 (Mo.App.) Presumptions of fact proceeding from other facts in proof are rebuttable or disputable as a matter of course, and, since they merely amount to an assumption of what may be true, may be entirely overcome or removed from the case by competent proof going to supply the fact presumed.-Koprivica v. Standard Acc. Ins. Co., 218 S. W. 689. III. BURDEN OF PROOF. 91 (Ark.) The burden of proof is prima facie on the plaintiff to establish the affirmative allegations of the complaint.-Holland v. Bonner, 218 S. W. 665. which a fraudulent act is done becomes material, it is competent to resort to other fraudulent acts, precisely similar, to ascertain the real purpose moving the perpetrator of the wrong, by measuring him by the standard of his similar frauds connected in point of time with the transaction under investigation, systematically indulged in by him with respect to other parties similarly situated.-Goree Uvalde Nat. Bank, 218 S. W. 620. v. In a bank's suit on a note, wherein defendant maker did not claim that his signature was forged, but only that the amount written in by the bank's cashier, who had full authority from defendant to fill such blank to cover an overdraft, was fraudulent, testimony of a witness that other fraudulent entries, unconnected with defendant and his note, were found in the books of the bank, and had been made by the cashier, held inadmissible as irrelevant.-Id. V. BEST AND SECONDARY EVI DENCE. 158(3) (Tex.Civ.App.) In trespass to try title there was no error in refusing to allow a witness to testify that the lands involved were regarded by the entire family of the defendant and plaintiff as being owned by plaintiff, and not by defendant; titles to lands being fixed by deeds and other muniments of title.-Vaello v. Rodriguez, 218 S. W. 1082. For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER 158(16) (Ark.) Tax receipts are the best evidence of payment of taxes.-Laughlin v. Fisher, 218 S. W. 199. by the passenger and being told that she had gotten a cinder in her eye, stated that it was more than likely the cause of her trouble, is hearsay and inadmissible.-Louisville & N. R. Co. v. Roberts, 218 S. W. 713. 158(26) (Tex.Civ.App.) In shipper's action for damage to live stock, testimony as to contents of official Railway Equipment Regis-317(1) (Ark.) In an action by a broker for ter was not admissible to prove capacity of commission for the sale of lands, evidence of his cars, over objection that it was not best evi- conversation with one to whom he claimed to dence.-Panhandle & S. F. Ry. Co. v. San- have sold the lands was admissible against derson, 218 S. W. 540. objections that it was hearsay.-Hinkle v. Las181 (Tex. Civ.App.) In an action by a pav- siter, 218 S. W. 825. ing contractor for damages against the seller 317(2) (Tex.Civ.App.) Declarations made of a defective cement mixer, copies of the written contracts between plaintiff and the city for paving held admissible in evidence over objection that they were secondary evidence; proper predicate having been laid by the testimony of the mayor of the city that the contracts introduced were the reduction to writing of those awarded plaintiff, etc.-Standard Scale & Supply Co. v. Chapin, 218 S. W. 645. (D) By Agents or Other Representatives. 243(7) (Ark.) If agreement for settlement by the original surveyor of land at the time of the survey might be admissible in a boundary suit as res gestæ, even if the surveyor were living, but such declarations subsequently made are hearsay, and to be admissible must be brought within some recognized exception to the hearsay rule.-Brooks v. Slaughter, 218 S. W. 632. 317(4) (Tex.Civ.App.) In a bank's suit on a note given to cover overdrafts, defendant claiming that the cashier of the bank had fraudulently filled in the amount of the note, which had been left blank, testimony of a witness, not from personal knowledge, but as to what the books of the bank purported to show, as to forgeries and false entries in respect to the accounts of third persons made by the cashier, held inadmissible as hearsay.-Goree v. Uvalde Nat. Bank, 218 S. W. 620. 317(4) (Tex.Civ.App.) Testimony that the insurance agent who contracted by parol to furnish plaintiff insurance without designating any of the companies designated by him, on the day after the fire, told plaintiff that, if he had written a policy on the day of the agreement he would have written it in defendant company, held hearsay.-Grimes v. Virginia Fire & Marine Ins. Co., 218 S. W. 810. X. DOCUMENTARY EVIDENCE. of disputed claim was within scope, or apparent (C) Private Writings and Publications. scope, of authority of defendants' agent, defend-353(3) (Tex.Civ.App.) Where land was conants were bound by it; but they were not veyed to "Sheldon E. Bell," and there appeared bound by his subsequent admissions concerning in plaintiff's chain of title a conveyance from the transaction, which admissions were made "E. S. Bell," made shortly thereafter, which when he was not the active agent of defendants. referred to a conveyance by the original gran-Arkansas Anthracite Coal & Land Co. v. tor, held, that the recitals in the two deeds, Dunlap, 218 S. W. 839. both of which were ancient documents, as to the name of the grantor, were admissible in evidence.-Dittman v. Cornelius, 218 S. W. 109. (D) Production, Authentication, and Ef 244(1) (Ky.) Admissions and declarations of the officers and agents of a corporation are admissible as evidence against it only while such officers and agents are acting for the corporation and within the scope or apparent scope of their authority.-Caddy Oil Co. v. Sommer, 218 S. W. 288. VIII. DECLARATIONS. (A) Nature, Form, and Incidents in General. 271(6) (Tex. Civ.App.) In trespass to try title, a conversation between defendant and plaintiff's attorney in which defendant stated, she intended to convey one half of a store to plaintiff and give him the other half held properly admitted over objection that it was self-serving. Vaello v. Rodriguez, 218 S. W. 1082. IX. HEARSAY. 314(1) (Tex. Civ.App.) Testimony of a witness, "I was not present when the note was transferred from D.'s attorney to Mrs. W. through G.," held not objectionable as hearsay, as it could not reasonably be thought that the trial court gave such testimony any other probative force than that "witness was not present" at the alleged occurrence.-Dalby v. Wall, 218 S. W. 46. 314(2) (Ky.) In an action by a passenger on a train, who claimed that a growth in her eye resulted from the organ being struck by a cinder while she was riding on defendant's train, testimony that a specialist, on being consulted 218 S.W.-74 fect. 383(7) (Tex. Civ.App.) Where land was conveyed to "Sheldon E. Bell," and there appeared in plaintiff's chain of title a conveyance from "E. S. Bell," made shortly thereafter, which referred to a conveyance by the original grantor, held that, while the recitals in the two to the name of the grantor, were admissible in deeds, both of which were ancient documents, as evidence, they were not conclusive that "Sheldon E. Bell" and "E. S. Bell" were the same persons.-Dittman v. Cornelius, 218 S. W. 109. XI. PAROL OR EXTRINSIC EVIDENCE (A) Terms of Written Instrument. 413 (Ark.) Contract for the sale of flour having failed to show that the sale was by sample, or that the flour was to be equal in quality to other flour kept in stock by the buyers, or that it was to be satisfactory to them, in the seller's action for failure to take flour it was error to permit the buyers to introduce parol evidence in regard to such matters, and that the seller's salesman told them that if the price of the flour declined they might countermand the order; such testimony varying the terms of the written order or con tract.-Sweet Springs Milling Co. v. Gentry, 1-Panhandle & S. F. Ry. Co. v. Sanderson, 218 Buchanan & Co., 218 S. W. 380. S. W. 540. (B) Invalidating Written Instrument. 471(2) (Tex. Civ.App.) A witness may tes tify that people he talked to were mad, but when he undertakes to tell what made them mad he enters the realm of opinion evidence.Walker v. Kellar, 218 S. W. 792. 432 (Ark.) Plaintiff cannot show, to defeat his conveyance to a partnership composed of himself and defendant, failure to perform a consideration not expressed in the deed it-471(6) (Ark.) Where a witness, after hearself.-Green v. Mulkey, 218 S. W. 201. (C) Separate or Subsequent Oral Agree ment. S. W. 825. ing a conversation between a broker and the one 441 (11) (Tex.Civ.App.) In a life insurance company's action on assigned lien notes secured by its policies also on a policy loan note, defendant's oral testimony, that at the time of execution of the last note it was agreed be tween him and plaintiff company that the amount collected on a policy should be first applied to payment of a balance due on a prior471 (24) (Tex.Civ.App.) A witness may tesvendor's lien note, held inadmissible as varying the written contract between the parties and contradicting its legal effect.-Slaughter v. Texas Life Ins. Co., 218 S. W. 1109. 443(1) (Ark.) In case of a sale of personal property a warranty of its quality is a part of the contract of sale, not a separate and independent collateral contract, and proof of such warranty cannot be added to the written agreement by parol evidence.-Sweet Springs Milling Co. v. Gentry, Buchanan & Co., 218 S. W. 380. (D) Construction or Application of Language of Written Instrument. tify that people he talked to were mad, but when he undertakes to tell what made them mad he enters the realm of opinion evidence.-Walker V. Kellar, 218 S. W. 792. 471 (26) (Mo.App.) In replevin action involving question of whether the property in controversy belongs to husband or wife, testimony of former owner of property that he "understood", that it was husband's car for which he traded the property held not objectionable as proving title by stating a conclusion, being mere statement of witness that he had no information that it was wife's car he was trading for.-Baird v. Wilks, 218 S. W. 918. 471(28) (Ky.) In proceedings of forcible detainer, where defendant's counsel asked him whether a contract for a second year's letting had been made between him and plaintiff landlord, to which he gave an affirmative answer, the answer was ineffective as a mere conclusion.-Gault v. Carpenter, 218 S. W. 254. 448 (Mo.App.) Where a contract as to delivery of possession of certain lands immediately after wheat threshing, which was to be done as soon as practicable after harvesting, was in writing and unambiguous, it was not error in an action for breach to exclude conversations leading up to the making of the contract.-471(29) (Ark.) A witness cannot state as a Milem v. McCullough, 218 S. W. 983. 448 (Tex.Civ.App.) Where a note sued on is not ambiguous, it cannot be varied by parol evidence. Stamps v. Platt, 218 S. W. 47. 450(8) (Ark.) It cannot be said as a matter of law that the words "personal effects" in a contract of sale of a hotel, "It is understood and agreed by us that all equipment and furnishings now in and around said house are to go to H. for the consideration of $4,000, as above stated, except the own personal effects of said E.; in other words, the hotel is to be left fully equipped for business as it now stands," may be restricted to mean such tangible property as is worn or carried about the person, and parol evidence was admissible tending to show that the furnishings and equipment of two rooms occupied by E. were not intended to pass under the sale.-Ellege v. Henderson, 218 S. W. 831. 452 (Ark.) Ordinarily it is the duty of the court to construe a written contract and declare its meaning to the jury, but, where the contract contains words of latent ambiguity, oral testimony is admissible to explain the meaning of such words.-Ellege v. Henderson, 218 S. W. 831. 457 (Tex.Civ.App.) Testimony is admissible as to the meaning of provisions of a written contract of sale of linters, they being ambiguous, in the sense that their meaning is not clear to one not familiar with the preparation of and dealing in cotton seed mill products. Dallas Waste Mills v. Early-Foster Co., 218 S. W. 515. nesses in General. conclusion a particular legal status, but that rule will not prevent a witness in an action by a broker to recover commissions from stating that the broker had sold the land.-Hinkle v. Lassiter, 218 S. W. 825. 501(5) (Mo.App.) In an action for the value of mules struck by a railway motorcar, where the statements of absent witnesses were admitted as representing what they would testify if present, a statement therein that defendant's agents and servants could have seen the mules before they ran on a trestle was properly stricken as a conclusion, when not accompanied by facts showing that the mules were ever at a place where they could have been seen before they went on the trestle.-Garrett v. Deering Southwestern Ry., 218 S. W. 894. (B) Subjects of Expert Testimony. 529 (Tex.Civ.App.) In action for damage who were shown to have had experience in to live stock shipment, testimony of witnesses shipping cattle as to effect on cattle of long distance transportation held_admissible.-Panhandle & S. F. Ry. Co. v. Sanderson, 218 S. W. 540. (C) Competency of Experts. 537 (Mo.App.) In action for damages to shipment of live stock due to rough handling and exposure to the weather, a stockman of several years' experience, testifying that in his opinion the cattle were not too weak to ship, held qualified as an expert.-Cravens v. Hines, 218 S. W. 912. XII. OPINION EVIDENCE. (D) Examination of Experts. (A) Conclusions and Opinions of Wit-553(4) (Tex.Civ.App.) In an action by passenger who claimed that, as a result of waiting 470 (Tex.Civ.App.) Opinion testimony of for a train in a cold station, he contracted la qualified witnesses on questions of fact is ad-grippe which resulted in pneumonia and tubermissible, but opinions partaking of the nature culosis, hypothetical question to a medical exboth of fact and law are not admissible, and pert held not objectionable as assuming facts admission or exclusion of such opinions is for not proven and not corresponding to the facts the trial court, in the exercise of discretion. I shown and calling for speculative or conjec VII. SALE. For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER tural answer.-Texas & P. Ry. Co. v. Shaw, 218 | execution be verified, does not apply to ordinary S. W. 814. motions in open court in term time to quash 557 (Mo.App.) In action for death of an in- execution.-State ex rel. Jones v. Howe Scale fant son, who while crossing the street was Co. of Illinois, 218 S. W. 359. run over and killed by defendant's automobile, one of defenses being that chauffeur could not, by exercise of reasonable care, have seen the son in time to have prevented the accident, (A) Manner, Conduct, Validity, and Conheld, there was no error in permitting an expert witness to state his conclusion from an experiment as to what obstruction a telephone 220 (Ark.) Under Kirby's Dig. § 3275, and pole near the curb line was to a view of the street in question.-Linstroth v. Peper, 218 S. W. 431. 558(10) (Mo.App.) In action for death of an infant son, who while crossing a street was run over and killed by defendant's automobile, one of defenses being that chauffeur could not, by exercise of reasonable care, have seen the son in time to have prevented the accident, held, there was no error in permitting an expert witness to state his conclusion from an experiment as to what obstruction a telephone pole near the curb line was to a view of the street in question, and the adverse party could test the conclusion SO stated.-Linstroth v. Peper, 218 S. W. 431. (F) Effect of Opinion Evidence. 568(4) (Tex.Civ.App.) Where testimony of plaintiff, in an action to recover on a quantum meruit, was that he put in 89 days' work and that he had been accustomed theretofore to charge $3.50 per day for such labor and had previously worked for the defendant and charged her at this rate, jury was not bound to adopt such estimate of the value of plaintiff's services, although uncontradicted.-Buchanan v. Bowles, 218 S. W. 652. firming or Vacating. Acts 1881, p. 21 (Acts 1911, p. 161), sales of land in the Western District of Clay county under execution are to be made at the courthouse door in that district, the words "judicial sales," as used in the statute dividing Clay county into two districts, embracing execution sales.-Taylor v. Georgia State Savings Ass'n, 218 S. W. 180. 221 (Tex.Civ.App.) An execution sale may under a notice that it will be made at 11 be made at any time between 11 and 12 o'clock o'clock.-Wagner v. Hudler, 218 S. W. 100. 226 (Tex.Civ.App.) The sheriff in selling property under execution is merely the agent of the creditor and debtor, and it is his duty to secure the best results for both.-Wagner v. Hudler, 218 S. W. 100. 244 (Tex.Civ.App.) A judgment creditor was entitled to have an execution sale for an inadequate price set aside for defects and irregularities, where her attorney had told the sheriff that he would be present, but the sheriff, knowing that an effort to settle was being made, and without ascertaining why the attorney failed to appear, sold the property during a heavy rain within a few minutes after the hour fixed for the sale, and where the attorney promptly protested before the purchaser had paid the money or a deed had been made.Wagner v. Hudler, 218 S. W. 100. XIV. WEIGHT AND SUFFICIENCY. 588 (Tex.Civ.App.) The trial court is not245 (Tex.Civ.App.) Where an bound to find in accordance with testimony if he believed it to be contradicted by circumstances.-Friemel v. Coker, 218 S. W. 1105. 590 (Mo.App.) Where plaintiff's right to recover is put in issue, and the evidence in his favor comes from interested witnesses and leaves a well-grounded suspicion as to his truthfulness or is such that the jury has a right to say that it is inherently weak or improbable, then the jury has a right to disbelieve and reject such evidence and find for defendant.Baird v. Wilks, 218 S. W. 918. 590 (Tex.Civ.App.) The trial court, having a right to pass on the credibility and interest of witnesses, was not compelled to accept as true their statements denying they had given attorneys any authority to enter into agreement for judgment.-Pierce v. Foreign Mission Board of Southern Baptist Convention, 218 S. W. 140. owner of property sold under execution presented to the sheriff a note from the judgment creditor and asked that the sale be stopped, and was told that the sale could only be stopped by the would be had at 11 o'clock unless the attorney judgment creditor's attorney and that the sale stopped it, the owner's negligence in failing to notify the attorney of the sheriff's intention to sell did not prevent the setting aside of the sale, where the property was the homestead and the wife had been given notice of the sale and the deed undertook to convey her interest, as her rights could not be affected by her husband's acts.-Wagner v. Hudler, 218 S. W. 100. 251 (2) (Tex.Civ.App.) Execution sale of property worth $3,000 and subject to taxes amounting to $264 for $625 will be set aside, where the order of sale was for the full amount of the judgment with costs, though the amount had been reduced by payments and the order of sale issued in the name of the original judgment creditor, though an assignment was shown on the margin of the judgment.-Wagner v. Hudler, 218 S. W. 100. 598(2) (Mo.App.) In a broker's action for commissions, defendant's uncorroborated testimony that he did not employ plaintiffs was substantial evidence supporting a verdict in his favor, though contradicted by the testimony of three witnesses in favor of plaintiffs; the num-256(1) (Tex. Civ.App.) In a suit to set aside ber of witnesses not being decisive of the question of weight.-Schwabe v. Estes, 218 S. W. 908. EXCEPTIONS, BILL OF. See Appeal and Error, 499, 544, 683, 835; Criminal Law, 1088, 1090, 1091, 1092, 1095, 1099. EXECUTION. See Appeal and Error, 1116; Divorce, an execution sale, the rents for the time intervening between the date the purchaser took possession and the date of the trial cannot be recovered, where the evidence is of such uncertain character as to furnish no basis for fixing the amount.-Wagner v. Hudler, 218 S. W. 100. In a suit to set aside an execution sale, the court could have required the sheriff to pay the money collected by him under execution into the registry of the court.-Id. 216, 263; Husband and Wife, 1462, 156.256 (2) (Tex.Civ.App.) That the purchaser V. STAY, QUASHING, VACATING, AND of property at an execution sale thought the back taxes amounted to more than they did was immaterial, in a suit to set aside the sale, in determining whether the property was sac163 (Mo.App.) Rev. St. 1909, § 2244, re- rificed for an inadequate sum.-Wagner v. Hudquiring that petition to judge to stay or quashler, 218 S. W. 100. EXECUTORS AND ADMINIS- See Banks and Banking, 154; Descent and sell the realty and use the proceeds as directed by testator.-Martin v. Buechel, 218 S. W. 278. Testator's intention must govern in determining whether his executor has implied authority to sell the realty and use the proceeds as directed.-Id. In view of the meaning of "proceeds" as the results of a sale of property, the fourth clause of testator's will, and his intention as gathI. ADMINISTRATION IN GENERAL. ered from the entire instrument, under the 7 (Tex.Civ.App.) The beneficiaries under a third clause, providing that at death of his will and the executor named therein in the wife all business pertaining to the estate be absence of objection by creditors have a right settled in full, and the proceeds be divided to terminate administration whenever they see equally between children, executor held authorfit, if not contrary to the will.-Pierce v. For-ized to sell and convey the realty of the estate, eign Mission Board of Southern Baptist Con- a small farm, nearly all the property owned by vention, 218 S. W. 140. testator.-Id. IV. COLLECTION AND MANAGEMENT (A) In General. 76 (Tex.Civ.App.) Under Rev. St. 1911, art. 1712, authorizing the district court, subject to limitations prescribed by statute to hear any cause cognizable by court of law or equity, the district court has jurisdiction in matters relating to estates of deceased persons, when legal or equitable rights must be adjudicated, and the powers of the county court are inadequate to adjudicate them and administer complete relief.-Fryckberg v. Scott, 218 S. W. 21. Under Rev. St. 1911, arts. 1705, 1706, 1712, prescribing the jurisdiction of the district court, and articles 3206, 3207, prescribing the jurisdiction of the county and district courts in probate matters, it has always been the policy to avoid multiplicity of suits, and when possible to settle in one suit such issues as could not have been settled in the probate court.-Id. 85(3) (Mo.App.) Under Rev. St. 1909, 8 70, and in view of section 73, the specific property alleged by the public administrator to have been detained, concealed, or held out need not be identified to enable him to recover it.-Newell v. Kern, 218 S. W. 443. V. ALLOWANCES TO SURVIVING devisees under the will was entitled to a one- (B) Presentation and Allowance. claim 241 (Tex.Civ.App.) The allowance by a court of competent jurisdiction of a against a decedent's estate is a judgment which cannot be collaterally attacked.-Fryckberg v. Scott, 218 S. W. 21. VII. DISTRIBUTION OF ESTATE. VIII. SALES AND CONVEYANCES UN- (A) When Authorized. 315(6) (Mo.App.) An order of distribution made under Rev. St. 1909, § 246, becomes final as to the rights of the distributees to their therefrom, under section 289, in view of secrespective shares when no appeal is taken tion 251, but where such an order, in addition to making distribution, went further and allowed an administrator 5 per cent. commission 85(6) (Mo.App.) In a proceeding by a pubon the amounts to be distributed, the order lic administrator under Rev. St. 1909, § 70, was not a final judgment as to such commisfor discovery of assets which had been divided sion, since by section 229 the question of combetween defendant and his brother and sis-pensation of an administrator is adjudicated ters, evidence as to whether another brother at the time settlement is made.-Peper v. Bell, had consented to the division, and as to wheth- 218 S. W. 438. er. while confined in the penitentiary, he had been informed by defendant of the division, or had assented to it, held to make a question for the jury.-Newell v. Kern, 218 S. W. 443. In a proceeding by the public administrator 325 (Ky.) Before a division or sale of the against defendant and son of the intestate, who real estate is ordered to equalize advancements had received a share in the division of her to some of the beneficiaries, the personalty personalty for the discovery of assets, inter- must be exhausted.-Shaw v. Grimes, 218 S. est on the recovery was allowable under Rev. W. 447. St. 1909, § 7179, where it appeared that defendant had unlawfully withheld assets.-Id. 89 (Ky.) Trust company, administrator of 344 (Tex.Civ.App.) Where the administradeceased mother, held liable for the value of a trix refused to obey an order of the county diamond brooch claimed by a daughter to have court to sell real estate to pay an allowed been given her by the mother a number of years claim because others claimed prior rights in before her death, the company not having made the property, the district court could hear a due effort to ascertain the facts as to the trans- suit against the administratrix and the adverse fer of the brooch to the daughter, whether it claimants, to determine the rights of the parties might be recovered, etc., so that it came within and to order a sale of the property to be carthe rule of liability for failure to recover asried out under the direction of the county court, sets in case of fraud, bad faith, or gross negli- since there was no procedure by which the adgence.-McCallister's Adm'r v. Stanley, 218 S. verse claimants could be brought before the county court and their claims determined.Fryckberg v. Scott, 218 S. W. 21. W. 237. 114 (Tex.Civ.App.) An executor or administrator by his acts or omissions may raise an estoppel against the estate.-Baber v. Houston Nat. Exch. Bank, 218 S. W. 156. (B) Application and Order. A creditor of a decedent's estate properly filed his claim in the probate court, and asked for a sale of the land to satisfy it before appealing to the district court to adjudicate adverse claims to the land by those who could not be made parties in the probate court.-Id. X. ACTIONS. (B) Real Property and Interests Therein. 138(2) (Ky.) Where a will names an executor and directs him to do certain things in connection with the estate from which testator's intention of a sale of realty may be inferred, 433 (Ark.) Where deeds by decedent were the executor by implication has authority to never actually delivered, and were executed to |