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, § 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, §§ 651-664.Ĵ

4. SAME-OPINION EVIDence.

In a will contest, the opinion of a witness that testator was not capable of selfcontrol or self-government was incompetent. [Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 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 Fannin 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'?

"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 comprehend 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 sufficient 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 mentai 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 witness, 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 property, 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 charitý, 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 object to it for this reason.

We find no error in the record, and the judgment is affirmed. Affirmed.

WILLS v. CENTRAL ICE & COLD
STORAGE CO. et al.*

(Court of Civil Appeals of Texas. May 20, 1905.)

1. CONSPIRACY-ACTION FOR DAMAGES.

A conspiracy cannot be made the subject of a civil action, although damages result, unless something is done which, without the conspiracy, would give a right of action; the test being whether the act accomplished after the conspiracy is formed is itself actionable.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Conspiracy, §§ 1-5.]

2. SAME REFUSAL TO SELL GOODS TO PARTICULAR INDIVIDUAL-MOTIVE.

The mere exercise of one's right to refuse to sell a certain commodity to a particular person, whatever the motive for so doing, is not actionable.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Conspiracy, § 7.] 3. SAME PROBATIVE FORCE-EFFECT.

EVIDENCE WITHHOLDING OF

In an action for an alleged conspiracy to refuse to sell ice to plaintiff and to ruin his business as an ice dealer, the refusal by de fendants to place in evidence certain contracts is not of such probative force as to authorize a verdict for plaintiff, though such conduct might tend to show that the terms of the contracts, had they been disclosed, might have injuriously affected defendants' interests. 4. SAME SUFFICIENCY OF EVIDENCE.

In an action for an alleged conspiracy to refuse to sell ice to plaintiff and to ruin his business as an ice dealer, evidence held insuffitient to authorize a recovery.

5 SAME-INSTRUCTING VERDICT.

Though there be slight testimony, yet, if its probative force be so weak that it only nises a mere surmise or suspicion of the existence of the facts sought to be established, the court should instruct a verdict.

Ed Note For cases in point, see vol. 46, Cent. Dig. Trial, §§ 381-383.]

Appeal from District Court, Dallas County: Richard Morgan, Judge.

Action by Joe B. Wills against the Central lee & Cold Storage Company and others. Jirment for defendants, and plaintiff appeals. Affirmed.

W. M. Holland, for appellant. Read & Lawrence, Cockrell & Gray, Crane & Gilbert, Vase & Allen, and Wendell Spence, for appellees.

TALBOT, J. We adopt appellant's statebest of the nature of the suit as follows: This suit was instituted by appellant in the Fry-Fourth Judicial District court of Texwe March 24, 1904, against appellees Cen

Ise & Cold Storage Company, C. L. Teeded, doing business as Dallas Ice & The Company, the People's Ice Company, Among Packing Company, and Dallas

aring denied June 17, 1905, and writ of error * Supreme Court.

Ice Factory, Light & Power Company. It is a suit in the nature of a civil conspiracy for damages on account of injuries suffered by appellant by reason of an alleged conspiracy entered into by appellees on or about March 1, 1904, for the following purposes, viz., to secure a monopoly of all the ice manufactured in the city of Dallas for local consumption, to lessen competition, and to fix and maintain the price of ice in the city of Dallas; to prevent lawful competition in the dealing of ice in the city of Dallas; to boycott appellant, and to refuse to sell ice to appellant, and to otherwise unlawfully meddle and interfere with appellant's business, and deprive him of making a living out of his business as a wholesale and retail dealer in ice. The defendants answered by general and special exceptions and general and special denial. A jury was impaneled to try the case, but upon the close of plaintiff's evidence the court, upon motion of the defendants, gave a peremptory instruction to the jury to return a verdict in their favor, which was done, and judgment entered in accordance therewith. From this judgment appellant has appealed.

The petition discloses a cause of action, and the sole question presented for our determination is whether or not the evidence was sufficient to require the submission of the case to the jury.

C. L. Wakefield, one of the defendants, and witness for plaintiff, testified by deposition: "I am interested in Dallas Ice & Fuel Company. The firm doing business under this name was formed in February, 1904. It was formed for the purpose of buying and selling ice in Dallas. It is a simple partnership, composed of C. L. Wakefield, J. E. Cockrell, and E. Gray, who alone compose the firm. At the time this suit was filed there were, I think, five factories or companies engaged in the manufacture of ice in Dallas, viz., the Lemp Company, the Armstrong Packing Company, the Dallas Ice Factory, Light & Power Company, the People's Ice Company, and the Central Cold Storage Company. I have a contract for the purchase of a certain amount of ice from the Armstrong Packing Company, the Dallas Ice | Factory, Light & Power Company, the People's Ice Company, and William Lemp.

These contracts were made with me, and in my name. The contracts are in writing, and were made with the executive officers of said three companies and with William J. Lemp, personally. I do not attach copies, because these are contracts relating to a private business, and in which the plaintiff in this case is not interested. We bought some wagons and teams from the Lemp people. We bought them outright, and paid for them part money and part in our notes. They have no interest whatever in our business.

We have paid about two-thirds of the cost of such wagons and teams in money and owe the balance on notes. It was not agreed in

said contract that the Lemp people should not sell ice to be used in the city of Dallas. They are at perfect liberty, so far as our contract is concerned, to sell ice to whomsoever they please and where they please. The Lemp people did run wagons and sell ice to retail dealers last year, but decided not to do so this year. It is our understanding that they have long desired to get out of the retail business. The ice department of the Lemp people have telephone No. 712 and Dallas Ice & Fuel Company has telephone No. 712 in its office. We pay the additional charge to get our names also on this telephone number. We need phone service there where we get, load, and deliver a great deal of ice, and we simply pay for the privilege. My agreement to purchase ice from the People's Ice Company is in writing. I do not attach a copy for reasons already given. The contract is signed by the president and secretary of said company. We were not to take their entire output, for reasons already given. I decline to go into our private affairs. We have simply complied with our contract with them, and have taken and paid for the ice we have contracted for. We bought part of their wagons and teams; not all. They sold some of the balance to other retail dealers. Under our contract it was not agreed that the People's Ice Company should sell to no one else in Dallas. They can sell to whom they please, and I understand they are selling other dealers like ourselves. I do not know what you mean by independent dealers. There is no community of interest between our firm and this company. We are as independent dealers as the plaintiff, or any one else. Mr. Jones, while in our employ, made a suggestion that we cut the selling price of ice so as to get more custom for our business. The suggestion was prompted by Ft. Worth ice being shipped into Dallas and sold here. He seemed to think the Dallas factories should sell all the ice sold in Dallas. Whether Mr. Jones made this suggestion in our interest, as he was then working for us, or in the interest of the People's Ice Company, of which he is a large stockholder, I do not know. But, in any event, we declined to adopt the suggestion or make any cut. We understand that Mr. Jones, for the People's Ice Company, sold a lot of white ice at 12 cents to whosoever would buy it. We knew of such sales by hearsay. But, as our consent was not necessary, it was not asked. The People's Ice Company is not a subsidiary company to our firm. We have nothing on earth to do with them, save we buy ice from them. It is not a fact that the ice companies operating in Dallas agreed with my company or myself that they were not to sell ice to any person, firm, or corporation dealing in ice in Dallas City, except myself or my company. They can sell ice to whomsoever they please, so far as any contract we have with them is concerned, and on whatever terms they see

fit. I did not engage in this business for the purpose of securing a monopoly or a partial monopoly, but did engage in it because I thought by economy, with lawful, honest, and fair men for partners, I could do my share of the business, and make some money in a legitimate way. Yes, I was formerly manager of Dallas Ice Factory, Light & Power Company. My connection with said company wholly ceased on February 29, 1904, when I resigned to embark in my present business. It is not a fact that some other party is manager in name only of said power company, and that I am still its manager in fact. I have nothing whatever to do with said company, save that we buy ice from it. I decline to answer the question as to the approximate amount of money, if any, paid by myself or Dallas Ice & Fuel Company to Dallas Ice Factory, Light & Power Company up to the present time. This is a private matter. Mr. Armstrong represented his company in contracting with me for the sale of ice. Said contract was in writing. I decline to give its terms for the reasons already given. The question as to whether said contract was in violation of the antitrust law was mentioned when the subject was first broached. It is a fact that neither myself nor my firm have any agreement, contract, or understanding of any kind, form, or character with my codefendant the Central Ice & Cold Storage Company. Neither myself nor Dallas Ice & Fuel Company ever at any time had any understanding, contract, or agreement with said codefendant. I never confederated or conspired with any person whomsoever to injure or affect the business of plaintiff, or to prevent him from buying ice wherever he could."

Joe B. Wills, plaintiff, testified that he had been engaged in the ice business since March, 1903; that he was well acquainted with the trade in that business, and with the people who bought ice; that prior to the acts of defendants complained of he had a good trade in the ice business; that, in addition to his city trade, he sold ice to country men living in the little towns near Dallas; that he got the biggest part of his ice last season from Armstrong Packing Company, and a good deal from Central Ice & Cold Storage Company, till March 1st, but that thereafter they would not sell him ice, though he made efforts to get it from them; that during the latter part of February he phoned Mr. Flippen, the secretary of the Armstrong Company, and asked him about getting ice next year, as he thought there was danger about his getting ice, and that Mr. Flippen replied that he would tell him without authority that Mr. Wakefield was going to get Armstrong's ice, and that, while the papers were not signed now, yet he could depend on getting ice elsewhere; that Mr. Wakefield was going to get Armstrong's as well as the other three; that he phoned Mr. Armstrong in August about getting ice from