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ey and assets received by the former's officers under the agreement of attempted consolidation. This liability can, and no doubt will, be enforced against appellee and its officers by the receiver of the National Aid Association. And it is to this association, through its receiver, appellant must look for payment of the amount due on the certificate or policy sued on.

Under the laws of this state "a fraternal beneficiary association" (such as the Bankers' Union of the World is shown to be) "is declared to be a corporation, society or voluntary association, formed, organized and carried on for the sole benefit of its members and the beneficiaries, and not for profit.” Such associations are required to make provision for the payment of benefits in case of death, etc., and the fund from which such payment shall be made is declared to be a benefit fund, and is derived from assignments, monthly payments, or dues collected from its members. Acts 1899, p. 195, c. 115, 8 1. Associations coming within the description of section 1 of such act, organized under the laws of any other state, are admitted to do business in this state when they have complied with certain statutory requirements. Sections 2 and 3 of the act referred to.

In the absence of proof of the law under which appellee was incorporated, it must be presumed, for the purpose of correctly disposing of this case, that it comes within the description of section 1 of the act referred to, and that there are the same limitations upon its corporate powers that are imposed by statute upon such corporations organized under the laws of this state. Tempel v. Dodge, 89 Tex. 71, 32 S. W. 514, 33 S. W. 222. And any attempt, promise, agreement, or undertaking on its part to divert the benefit fund derived from assessments of its own members from the purpose for which it was provided, and appropriate it to the payment of a benefit certificate or policy issued by another corporation with which it had no power to consolidate, is ultra vires and void.

Therefore the judgment of the district court is affirmed.

from the consideration of the jury the question whether the will had been altered. 3. SAME-BURDEN OF PROOF.

In a suit to set aside a judgment admitting a will to probate, the burden is upon plaintiffs to establish the invalidity of the will.

(Ed. Note.--For cases in point, see vol. 49, Cent. Dig. Wills, SS 651-664.1 4. SAME-OPINION EVIDENCE.

In a will contest, the opinion of a witness that testator not capable of selfcontrol or self-government was incompetent.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, 88 2198, 2242, 2243; vol. 49, Cent. Dig. Wills, $ 113.] 5. SAME-EVIDENCE.

In a will contest, the question whether testator controlled his wife, or was controlled by the wife, called for a conclusion, 6. WILL-VALIDITY OF BEQUEST.

A bequest of all testator's residuary estate to an established charitable institution, and another institution which testator wanted to establish, with a provision that, if this should not be accomplished, all the residue should be divided between the established institution and testator's wife, according to her will, is valid.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by Ann Franklin and others against Sarah E. Boone and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Richard B. Semple, for appellants. Meade & McGrady and Thurmond & Steger, for appellees.

FISHER, C. J. This is a suit by appellants, as the children and grandchildren of J. R. Boone, deceased, to set aside a judgment of the probate court of Fannin county, entered January 1, 1900, probating the will of Boone. Upon a trial of the case in the county court a judgment was rendered in favor of appellants, setting aside the will. From this judgment the legatees in the will, Sarah E. Boone and Buckner's Orphans' Home, appealed to the district court of Fan. nin county, where judgment was rendered against the appellants. The appellants, as grounds for contest, alleged that the will, after its execution, was altered in a material respect by the principal legatee, Mrs. Sarah E. Boone, and that the execution of the will was procured by undue influence exerted by Mrs. Boone, and that the testator, J. R. Boone, was wanting in sufficient mental capacity to properly and legally execute the will. The court submitted these questions to the jury upon the following special issues:

“Question No. 1. Was the will of J. R. Boone, deceased, dated August 13, 1896, and probated in the county court of Fannin county January 1, 1900, altered after it was executed, as alleged by the plaintiffs in their amended original petition, filed in this court September 9, 1900, so that instead of reading in the latter part thereof, 'shall be divided according to her will,' as it now reads, the said will, when it was executed, read, shall be divided according to this will’?

FRANKLIN et al. v. BOONE et al. (Court of Civil Appeals of Texas. May 31,

1905.) 1. WILLS UNDUE INFLUENCE INSTRUCTIONS.

Where, in a will contest, the evidence of undue influence was insufficient to take that issue to the jury, error, if any, in an instruction submitting that issue, was harmless to contestants, 2. SAME.

In a will contest, in which it was alleged there was undue influence, want of testamentary capacity, and that the will had been altered by one of the legatees after execution, an instruction that anything done by the legatee after the will was executed would not invalidate it, either on the ground of undue influence or want of testamentary capacity, did not take

"Question No. 2. Did the said J. R. Boone, deceased, have sufficient mental capacity on August 13, 1896, to make said will? In this connection I charge you that what is meant by the term 'sufficient mental capacity to make said will,' is meant that at the date of said will he was capable of understanding the nature of the business he was engaged in, the nature and extent of his property, and the person to whom he meant to give it, and the manner in which he was distributing it between the beneficiaries under said will. If he did not have sufficient mind to comprebend such things, then he did not have mental capacity to make said will.

"Question No. 3. Was the will procured to be executed by J. R. Boone, deceased, by undue influence exercised by defendant Sarah E. Boone upon the said J. R. Boone, deceased? In this connection, I charge you that what is meant by 'undue influence' is such influence as compels the testator to do that which is against his will, from fear, desire of peace, or some feeling which he is unable to resist. Such influence must in some measure destroy the free agency of the testator, and must be sufficient to prevent the exercise of that discretion which the law requires in the exercise of the will. Mere arguments, persuasions, solicitations, or entreaties by a beneficiary in a will is not that character of undue influence which is contemplated by law when speaking of undue influence.”

The court further in its charge instructed the jury as follows: "There has been submitted to you evidence of the conduct and declarations of J. R. Boone, deceased, before and after said will was executed. I charge you that such evidence was submitted to you solely for the purpose of throwing light upon his mind at the time and after said will was executed, if it does throw such light. Such evidence is not admissible to prove the actual fact of undue influence being exercised upon J. R. Boone, deceased, in making said will, but competent to establish the influence and effect of external acts, if any are shown, upon the mind of said Boone, deceased, in making said will. If you believe from the evidence that the execution by J. R. Boone of the will in controversy was not procured by undue influence upon the part of Sarah E. Boone, then you are instructed that any act or thing done by Sarah E. Boone after said will was signed and witnessed would not invalidate such will, either on the ground of undue influence or testamentary capacity.”

The following special instruction at the request of the proponents was given: "You are instructed that the burden of proof is upon the plaintiff Ann Franklin and others, who are required by the preponderance of the evidence to show that at the time that the will was executed J. R. Boone was of unsound mind, and that the will in controversy was procured by undue influence exercised by Sarah E. Boone upon J. R. Boone at the time of or before said will was signed and wit

nessed; and it is not sufficient if the evidence merely shows that Sarah E. Boone had an opportunity to exert undue influence over J. R. Boone; nor is the evidence sufficient, if it merely shows that Sarah E. Boone at: tempted to unduly influence J. R. Boone in the making of the will in controversy; nor is the evidence sufficient if it merely shows that Sarah E. Boone, after the will was made, prevented J. R. Boone from changing the will; nor is the evidence suficient unless it shows that the influence by Sarah E. Boone over J. R. Boone was unduly exercised by her at the time of or before the signing of the will, and that such influence caused J. R. Boone to make a will which he was unwilling to make as his independent free act.”

In response to the special issues, the jury returned the following verdict:

"Question No. 1. We, the jury, find that the will was not thus altered.

“Question No. 2. We, the jury, find that said J. R. Boone did have sufficient mental capacity on August 13, 1896, to make said will.

“Question No. 3. We, the jury, find that the will of J. R. Boone, deceased, was not procured by undue influence."

All of these findings are supported by the evidence. There is a conflict of evidence upon the question as to whether the will was altered by Mrs. Boone after its execution and also a conflict in evidence as to the mental capacity of the testator; but, as to the question of undue influence, we are of the opinion that the evidence is of such a character that would have justified the trial court in declining to submit that issue to the jury. The evidence upon this subject does not show that any undue influence was exercised. All that it tends to prove is that merely Mrs. Boone had the opportunity to exercise influence. But however, upon this question, as well as the other two embraced in the case, the verdict of the jury has settled the questions of fact in favor of appellees.

Appellants' first assignment of error complains of that portion of the charge of the court which instructs the jury that arguments, persuasions, solicitations and entreaties by the beneficiary are not that character of influence which the law would regard as sufficient to justify setting aside a will. The charge of the court, as complained of, is substantially in accord with the ruling made in Patterson v. Lamb (Tex. Civ. App.) 52 S. W. 99; Barry v. Graciette, 71 S. W. 309, 6 Tex. Ct. Rep. 378; and Morrison V. Thomam, 86 S. W. 1069, 12 Tex. Ct. Rep. 887. But however, as before said, we are of the opinion that the evidence did not justify an attack upon the will on the ground that its execution was procured by undue influence, and the court could well have treated this question as not arising from the evidence. Therefore, if it could be conceded that this instruction was erroneous, it could not constitute reversible error.

The second assignment of error complains of the last paragraph of the general charge of the court, as above set out. It was not the purpose of this instruction to take away from the consideration of the jury the question as to whether or not Mrs. Boone had altered or changed the will after its execution; but the question submitted by this charge was that the acts or things done by Mrs. Boone after the will was signed and executed would not invalidate the will on either the ground of undue influence or testamentary capacity. This instruction was correct, and the jury evidently understood it to relate to the question of undue influence or testamentary capacity, and they could not by this instruction have been led to believe that the court intended to exclude from their consideration the acts and things done by Mrs. Boone in passing upon the question as to whether or not she had altered the will.

The third assignment of error complains of the special charge of the court, set out in the opinion, on the subject of burden of proof. The appellants' case was an attack upon the judgment of the court probating the will; and this judgment, until set aside, is supposed to be based upon facts that would authorize its rendition, and, in order to overcome it and successfully attack it, the burden did rest upon the appellants to establish the facts relied upon by them.

The fourth assignment of error complains of the action of the court in refusing to permit the appellants to introduce in evidence the interrogatories and answers of Mrs. Belinda Morton, the divorced wife of J. R. Boone, deceased. The facts and evidence sought to be established were of a confidential nature, between husband and wife, and we think the court correctly held that they were not admissible.

There was no error in the action of the court in declining to admit the evidence of the witness Trice, as complained of in the fifth assignment of error. It was proper for Trice to state the facts, and then state an opinion as to the mental capacity of J. R. Boone, but his statement to the effect that Boone was not capable of self-control or selfgovernment was not admissible. That was a conclusion of the witness, which the jury, from the facts detailed, would be as capable of judging and determining as the witness. A witness can express his opinion as to the unsound condition of the mind of the testator, based upon facts within his knowledge.

The sixth assignment of error complains of the action of the trial court in not permitting Lucy Spicer, a granddaughter of J. R. Boone, to answer the following question: “Which controlled, if either, the conduct of the other-J. R. Boone or Sarah Boone?” To which the witness replied that Sarah E. Boone controlled the conduct of J. R. Boone in most of the matters; that she was there at the house often, and saw it herself. The fact testified to was merely the expres

sion of the opinion or conclusion of the wit. ness, and was properly excluded. If the question of undue influence was properly in the case, the witness should state the acts indicating the influence, and let the jury judge and determine whether Mrs. Boone controlled the conduct of J. R. Boone.

The seventh and eighth assignments of error complain of the action of the trial court in overruling appellants' motion for new trial, on the ground that the evidence shows that the will was altered by Mrs. Boone after its execution, and of a want of sufficient mental capacity and the existence of undue influence. The verdict of the jury has settled these questions.

The ninth assignment of error is to the effect that the court erred in rendering judgment for defendants, and in refusing to set aside the will because the same is invalid, in that it provides that the testator's proj) erty, in case Boone did not establish a charity at Randolph, Tex., should be divided between Sarah E. Boone and the orphans' home according to her will; that is, the will of Mrs. Boone. The proposition submitted under this assignment is, that a gift mortis causa of a fund in trust to be disposed of for benevolent purposes, at the absolute and unlimited discretion of the donee, cannot be sustained. The clause of the will in question under which this contention is made is as follows: "Second. All the balance of my property, it is my will and desire to devote to charity, first to Buckner's Orphan Home, second, to some charitable institution which I want to establish at Randolph, Texas, but if I should die without making provisions for said institution at Randolph, Texas, then it is my will and desire that all my property, land, notes and money shall be divided according to her will between my wife and Buckner's Orphan Home.” There is nothing in the record showing that the testator before his death made any provision for establishing the charitable institution at Randolph, Tex. Buckner's Orphan Home is one of the appellees in this case, and is a party to the proceeding with Mrs. Boone, interested in the probation of the will. There is no contest between these parties, and, so far as appears from the record, they seem to be satisfied that the intention of the testator, as indicated in the clause of the will quoted, will be observed. The will provides that if no institution is established at Randolph, Tex., then the property, lands, notes, and money shall be divided between Mrs. Boone and Buckner's Orphan Home, and the will empowers Mrs. Boone to make the division. This fact does not deprive the orphans' home of any right that it might have under the will, and the testator had the power, if he so desired, to select Mrs. Boone as the proper person to make the division of the property. If the orphans' home is contented with this selection, we see no lawful reason why the will, by reason of this power, should be in

valid, or the contestants be permitted to ob- Ice Factory, Light & Power Company. It ject to it for this reason.

is a suit in the nature of a civil conspiracy We find no error in the record, and the for damages on account of injuries suffered judgment is affirmed.

by appellant by reason of an alleged conAffirmed.

spiracy entered into by appellees on or about March 1, 1904, for the following purposes, viz., to secure a monopoly of all the ice man

ufactured in the city of Dallas for local conWILLS v. CENTRAL ICE & COLD

sumption, to lessen competition, and to fix STORAGE CO. et al.*

and maintain the price of ice in the city of (Court of Civil Appeals of Texas. May 20,

Dallas; to prevent lawful competition in the 1905.)

dealing of ice in the city of Dallas; to boy1. CONSPIRACY-ACTION FOR DAMAGES.

cott appellant, and to refuse to sell ice to apA conspiracy cannot be made the subject of a civil action, although damages result, un

pellant, and to otherwise unlawfully meddle less something is done which, without the con- and interfere with appellant's business, and spiracy, would give a right of action;' the test deprive him of making a living out of his being whether the act accomplished after the

business as a wholesale and retail dealer in conspiracy is formed is itself actionable.

ice. The defendants answered by general (Ed. Note.–For cases in point, see vol. 10, Cent. Dig. Conspiracy, 88 1-5.]

and special exceptions and general and spe2. SAME-REFUSAL TO SELL GOODS TO PAB

cial denial. A jury was impaneled to try TICULAR INDIVIDUAL-JOTIVE.

the case, but upon the close of plaintiff's evThe mere exercise of one's right to refuse idence the court, upon motion of the defendto sell a certain commodity to a particular person, whatever the motive for so doing, is not

ants, gave a peremptory instruction to the actionable.

jury to return a verdict in their favor, which [Ed. Note.-For cases in point, see vol. 10, was done, and judgment entered in accordCept. Dig. Conspiracy, $ 7.)

ance therewith. From this judgment appel3. SAVE EVIDENCE WITHHOLDING OF

lant has appealed. PROBATIVE FORCE-EFFECT.

The petition discloses a cause of action, In an action for an alleged conspiracy to refuse to sell ice to plaintiff and to ruin his

and the sole question presented for our debusiness as an ice dealer, the refusal by de

termination is whether or not the evidence fendants to place in evidence certain contracts was sufficient to require the submission of is not of such probative force as to authorize the case to the jury. & rerdict for plaintiff, though such conduct might tend to show that the terms of the con

C. L. Wakefield, one of the defendants, tracts, had they been disclosed, might have in- and witness for plaintiff, testified by deposijorionsly affected defendants' interests.

tion: “I am interested in Dallas Ice & Fuel 4. SAME-SUFFICIENCY OF EVIDENCE.

Company. The firm doing business under In an action for an alleged conspiracy to refuse to sell ice to plaintiff and to ruin his

this name was formed in February, 1904. tusiness as an ice dealer, evidence held insuffi- It was formed for the purpose of buying and cient to authorize a recovery.

selling ice in Dallas. It is a simple partner5 SAVE-INSTRUCTING VERDICT.

ship, composed of C. L. Wakefield, J. E. Toough there be slight testimony, yet, if

Cockrell, and E. Gray, who alone compose its probative force be so weak that it only nisu a mere surmise or suspicion of the ex

the firm. At the time this suit was filed istence of the facts sought to be established, there were, I think, five factories or compade conrt should instruct a verdict.

nies engaged in the manufacture of ice in Ed Note.-For cases in point, see vol. 46,

Dallas, viz., the Lemp Company, the ArmCei Dig. Trial, $381-383.)

strong Packing Company, the Dallas Ice FacAppeal from District Court, Dallas Coun. tory, Light & Power Company, the People's : Richard Morgan, Judge.

| Ice Company, and the Central Cold Storage Action by Joe B. Wills against the Central Company. I have a contract for the purlce & Cold Storage Company and others. I chase of a certain amount of ice from the hirvent for defendants, and plaintiff ap- Armstrong Packing Company, the Dallas Ice pea's. Affirmed.

Factory, Light & Power Company, the PeoF. 4. Holland, for appellant. Read & ple's Ice Company, and William Lemp. Lawrence, Cockrell & Gray, Crane & Gilbert,

These contracts were made with me, and in Vaze & Alen, and Wendell Spence, for ap

my name. The contracts are in writing, and were made with the executive officers of

said three companies and with William J. TALBOT, J. We adopt appellant's state- Lemp, personally. I do not attach copies, to the nature of the suit as follows:

because these are contracts relating to a priis sit was instituted by appellant in the

vate business, and in which the plaintiff in TT-Forth Judicial District court of Ter.

this case is not interested. We bought some - March 24, 1904, against appellees Cen:

wagons and teams from the Lemp people. 19 & Cold Storage Company, c. L. We bought them outright, and paid for them Tot 21. doing business as Dallas Ice & part money and part in our notes. They

Capany, the People's Ice Company, have no interest whaterer in our business. 1972 Packing Company, and Dalias We bare paid about two-thirds of the cost

of such wagons and teams in money and owe 23 de doce 17, 1995, and writ ol error the balance on notes. It was not agreed in 15 Be Court

said contract that the Lemp people should fit. I did not engage in this business for the not sell ice to be used in the city of Dallas. purpose of securing a monopoly or a partial They are at perfect liberty, so far as our monopoly, but did engage in it because I contract is concerned, to sell ice to whomso- thought by economy, with lawful, honest, ever they please and where they please. and fair men for partners, I could do my The Lemp people did run wagons and sell share of the business, and make some monice to retail dealers last year, but decided ey in a legitimate way. Yes, I was formernot to do so this year. It is our understand- ly manager of Dallas Ice Factory, Light & ing that they have long desired to get out of Power Company. My connection with said the retail business. The ice department of company wholly ceased on February 29, the Lemp people have telephone No. 712 and 1904, when I resigned to embark in my presDallas Ice & Fuel Company has telephone ent business. It is not a fact that some othNo. 712 in its office. We pay the additional er party is manager in name only of said charge to get our names also on this tele- power company, and that I am still its manphone number. We need phone service there ager in fact. I have nothing whatever to do where we get, load, and deliver a great deal with said company, save that we buy ice of ice, and we simply pay for the privilege. from it. I decline to answer the question as My agreement to purchase ice from the Peo- to the approximate amount of money, if any, ple's Ice Company is in writing. I do not paid by myself or Dallas Ice & Fuel Compaattach a copy for reasons already given. ny to Dallas Ice Factory, Light & Power The contract is signed by the president and Company up to the present time. This is a secretary of said company. We were not to private matter. Mr. Armstrong represented take their entire output, for reasons already his company in contracting with me for the given. I decline to go into our private af- sale of ice. Said contract was in writing. fairs. We have simply complied with our I decline to give its terms for the reasons alcontract with them, and have taken and paid | ready given. The question as to whether for the ice we have contracted for. We said contract was in violation of the antibought part of their wagons and teams; not trust law was mentioned when the subject all. They sold some of the balance to oth- was first broached. It is a fact that neither er retail dealers. Under our contract it was myself nor my firm have any agreement, not agreed that the People's Ice Company contract, or understanding of any kind, form, should sell to no one else in Dallas. They or character with my codefendant the Cencan sell to whom they please, and I under- tral Ice & Cold Storage Company. Neither stand they are selling other dealers like our- myself nor Dallas Ice & Fuel Company ever selves. I do not know what you mean by at any time had any understanding, contract, independent dealers. There is no communi

or agreement with said codefendant. I nevty of interest between our firm and this com- er confederated or conspired with any perpany. We are as independent dealers as the

son whomsoever to injure or affect the busiplaintiff, or any one else. Mr. Jones, while

ness of plaintiff, or to prevent him from buyin our employ, made a suggestion that we ing ice wherever he could." cut the selling price of ice so as to get more Joe B. Wills, plaintiff, testified that he custom for our business. The suggestion had been engaged in the ice business since was prompted by Ft. Worth ice being ship- | March, 1903; that he was well acquainted ped into Dallas and sold here. He seemed with the trade in that business, and with to think the Dallas factories should sell all the people who bought ice; that prior to the the ice sold in Dallas. Whether Mr. Jones

acts of defendants complained of he had a made this suggestion in our interest, as he good trade in the ice business; that, in adwas then working for us, or in the interest dition to his city trade, he sold ice to counof the People's Ice Company, of which he is try men living in the little towns near Dala large stockholder, I do not know. But, in las; that he got the biggest part of his ice any event, we declined to adopt the sugges- last season from Armstrong Packing Comtion or make any cut. We understand that pany, and a good deal from Central Ice & Mr. Jones, for the People's Ice Company, Cold Storage Company, till March 1st, but sold a lot of white ice at 1212 cents to who- that thereafter they would not sell him ice, soever would buy it. We knew of such sales though he made efforts to get it from them; by hearsay. But, as our consent was not

that during the latter part of February he necessary, it was not asked. The People's phoned Mr. Flippen, the secretary of the Ice Company is not a subsidiary company to Armstrong Company, and asked him about our firm. We have nothing on earth to do getting ice next year, as he thought there with them, save we buy ice from them. It was danger about his getting ice, and that is not a fact that the ice companies operat- Mr. Flippen replied that he would tell him ing in Dallas agreed with my company or without authority that Mr. Wakefield was myself that they were not to sell ice to any going to get Armstrong's ice, and that, while person, firm, or corporation dealing in ice in the papers were not signed now, yet he could Dallas City, except myself or my company. depend on getting ice elsewhere; that Mr. They can sell ice to whomsoever they please, Wakefield was going to get Armstrong's as so far as any contract we have with them is well as the other three; that he phoned Mr. concerned, and on whatever terms they see Armstrong in August about getting ice from

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