The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-04-16

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aside, then the residuary clause could not
be executed, for the reason that the por'
ton so set apart could not be divided be-
tween the widow and the children share
and share alike because it would not be
subject to partition until after her death
1t is apparent, therefore, that the clause
under consideration is inconsistent will
an intention to continue the eXecutorshil
beyond the time of the partition provided
| for and inconsistent with the idea thai
the widow should receive from the es
tate to be partitioned yearly sum so long
as she might live.
| The estate devised consisted of unpro'
| ductive yielded no more than sufficient
to pay the taxes upon the property. In
order to raise the yearly allowance the
property of the estate must be sold OF
incumbered, which, in the course of a
few years would result in destruction
of the estate itself. The testator must
have known these facts and it will! not be
presumed that he provided for n DISPOSE
| ton of his estate, which would destroy it
and render impossible the distribution
which he therein directed.
| We conclude from a consideration of
the entire instrument, with the circum-
stances surrounding the testator at the
time of his death, the character of the
property and the condition of the family,
| that it was his intent by the making of
| his will to provide for the support of his
surviving wife during the continuance of
the administration, and that when the
estate had been fully administered, what
remained should be equally divided, share
and share alike, between the surviving
widow and the five children named in the
clause of the instrument quoted above.
There was error in the Judgment of the
court of civil appeals and no error in the
| Judgment of the trial court in constituting
the will. Therefore the judgment of the
former court will be reversed and that of
the latter affirmed.
Opinion by Brown, j.
City of Corsicana ct al VS.. C. p. Kerr
ct al; injunction suit against the city to
restrain it from selling certain lots; from
Navarro county. Fifth district. Judg-
ment of court of civil appeals affirmed.
Plaintiff brought this suit against the
city of Corsicana, its mayor and certain
aldermen, members of the street commit
tee, to restrain the sale of their lots for
the payment of assessments thereon by
the city for paving streets upon which
said lots abut.
The trial court upon final trial, dis
solved its temporary injunction and de-
creed foreclosure OF the lien upon the
lots for the payment of the assessments.
The court of civil appeals reversed and
remanded the judgment of the trial court.
Elrst-Ihe application for writ of
error was made to this court by the city
under section s of article OIL of the Re
vised Statutes, alleging that the decision
of the court of civil appeals practically
settles the case. The writ was granted
under said article as Il matter of course,
the party being entitled to the writ upon
such allegation.
Second-The evidence on the trial
showed that ut the time the city of Cor
sicana determined to make the improve
ments upon the streets in question a COM
mittee was appointed to make the ASSESS
ment of the cost of the work in accord
ance with articles 414 and 475 of the
Revised Statutes. but it did not show
that the assessment was in fact made
until after the work was done. The city
offered to prove by parole evidence that
the committee did make an assessment
of the cost of the work against each lot,
as required by law, and that said com
mittee made Il report thereof in writing.
but did not offer to show that said report
was accepted and approved by the city
council. This evidence was excluded by
the trial court
The court of civil appeals held that the
evidence was properly excluded and that
the city, not having shown a perform
ance on its part of the conditions prece-
dent under the statute, had no authority
to recover or sell the property of plain
titfs. We think the court of civil ap-
peals properly construed the articles re-
ferred to and we affirm the Judgment of
that court in reversing the Judgment of
the district court. We deem it unneces-
sary to add anything to the opinion of
the court of civil appeals in this case.
In accordance with the statute we Dro-
coed to enter judgment that defendants
below be perpetually enjoined from sell
ing the lots named in the petition. and
that plaintiffs recover all costs in all the
courts.
Opinion by Brown, J.
Gulf, Colorado and Santa Fe Railway
Company and Atchison, Topeka and
Santa Fee Railway Company VS.. Geo. G,
Edloff; motions for rehearing in case
from Dallas county, Fifth district; over
ruled.
Inc Atchlson, Topeka and Santa Fe
Halfway company in its motion for re-
hearing, complains only of that portion
of our opinion which holds that its plea If
privilege did not contain denial of the
existence of the partnership alleged in
the petition. 1t admits that the plea did
not contain specific denial of such part
nership but contends that if the eynres-
sion had been used that 'the defendants
were not partners" it would not have
been good pleading, for the reason that
such statement would have been a con-
clusion of law.
first-We have been able to find No
for such position. On tbo
contrary the statute simply requires ~
denial of partnership as alleged in th"
petition Where Il status or capacitv
such as a partnership, agency or incor,
poration is alleged in the petition. tho
answer may deny the existence Thereof
in express terms.
Second-The petition alleged the G%iS7.
ence OF the partnership at the date Of tbo
of shipment. From an eyomi
nation of defendants plea it is clnor tba+
1t does not negative the existence Of No.
of the facts stated therein ot tho t;U,o
the contract of shipment was made h,,t
only, at the immaterial date of tba iiI H".
of the plea. 'i'e hliiig
Ihird--The motion of the Gulf Colo
RADIO and Santa Fe Railway comnanv ny =.