The

sum of $960 during the time their brother was paralyzed, and they also paid out for medicines, physician's attendance, and for other necessaries during said time, not including nurse hire, at least $3,000. That both before and after he was stricken down with paralysis they traveled a great deal with him, expecting thereby to benefit his health. various trips taken by and on account of their said brother are specifically set up in their answer, the total cost of which, including traveling expenses of every kind, amounts to $2,500; making the total amount expended on account of his sickness at least $6,000. That at the time of the execution of said deed by each of appellants she was informed of the nature and character of her brother's sickness, and at the large outlay and expenses necessarily caused thereby, and each of them agreed on account thereof to accept, and she was paid, $1,000 in full payment for her interest in the estate of their said brother, which was largely in excess of her share. That the firm of Thompson Bros. was formed in 1876, T. W. Thompson, one of the appel- | lees herein, contributing $3,500, which was all the property or money originally invested in the business; and at no time since has any of the other members contributed anything to the assets of the firm aside from his labor and attention. That the firm owned only a two-thirds interest in their store building and lot, the brother W. M. Thompson having paid one-third of the purchase money therefor, and that one-third of said building and lot is his separate, individual property. Appellees, in their said answer gave a specific statement and description of the assets and liabilities of the firm of Thompson Bros. at the time of the death of their brother James D. Thompson, from which it appears that the total value of the property of said firm at said time, after deducting their liabilities, was about $32.000. The trial of the case resulted in a verdict and judgment for defendants, from which judgment the plaintiffs have appealed.

Crawford & Crawford, for appellants. Leake, Henry & Greer and Frank Reeves, for appellees.

FINLEY, C. J. (after stating the facts). The first assignment complains of the charge of the court because it placed the burden of proof upon the plaintiffs. The contention of appellants is thus stated in their brief: "Said charge is erroneous, because the testimony was undisputed that the three female plaintiffs were the sisters of the defendants, and that the plaintiffs resided in distant states, and were not familiar with the character or value of the estate of their deceased brother, which estate had been purchased from them by the defendants. The proof showed that all the defendants, as well as the deceased brother, James D. Thompson, resided at Dallas, Texas, and that all the defendants were

perfectly familiar with the character and value of the estate, and that the plaintiffs were ignorant of such value and character, and the court should have instructed the jury that the burden was upon the defendants to show that the transaction was fair." The effect of the contention is that the deed from the sisters to their brother T. W. Thompson is prima facie void, it being shown that they knew nothing of the condition of their deceased brother's estate, while the purchasing brother possessed full knowledge and information; and that the burden rested upon the brother to show that the transaction was in all respects fair. The general rule is that the burden of proof rests upon the party who seeks to set aside and avoid a conveyance upon alleged grounds of fraud, and this proposition is not brought in question by appellants. There is a well-established exception to this rule, to the effect that where a confidential or fiduciary relation exists between parties to a transaction, and the person occupying the position of influence or trust obtains an advantage thereby in the dealing had between them, the burden rests upon him to show its fairness when it is attacked for fraud by the other party. Under such conditions, equity indulges the presumption of unfairness, and requires proof at the hands of the party claiming the validity and benefits of the contract that it is fair and reasonable. This rule does not apply to every case where confidence is reposed by one party in the other. nor to every case where the parties are closely related to each other by ties of blood. It has proper application to fiduciary relations, such as guardian and ward, trustee and cestui que trust, attorney and client, and principal and agent. It should also be applied whenever the parties stand in such relation to each other as to make it manifest that the one has acquired controlling influence and dominion over the other. It is the influence, power, and control of one over the other that brings the transaction between the parties under the suspicion of fraud, and which evokes the rule of equity requiring proof of good faith and fairness to sustain contracts between them. The fact that the parties are near relatives,-such as brother and sister,and that the sister believes in the integrity of the brother, is not believed to be sufficient to render a contract between them prima facie fraudulent and illegal. We have been cited to no authority sustaining such a proposition, nor have we been able to find any reaching to that extent. Safley v. Jackson, 16 Tex. 579; Jenkins v. Pye, 12 Pet. 241; Taylor v. Taylor, 8 How. 183; 2 Pom. Eq. Jur. $$ 955, 956.

The rule is stated by an elementary writer upon evidence as follows: "When a question arises between a trustee and a beneficiary, or between other parties who are in a fiduciary relation, as to the good faith of a transaction between them, a peculiar burden is imposed upon the one in whom the trust

is reposed. When the complaining party proves such a relation, the burden of proof is cast upon the trustee or other person holding the relation of trust to show that the transaction is fair and reasonable, and that all proper information had been given to the other party. To state the rule more broadly, when confidential relations exist between two persons, resulting in one having an influence over the other, and a business transaction takes place between them, resulting in a benefit to the person holding the influential position, the law presumes everything against the transaction, and casts the burden of proof upon the person benefited to show that the confidential relation has been, as to that transaction at least, suspended, and that it was as fairly conducted as if between strangers. This rule applies, for examples, to agents, attorneys, physicians, partners, trustees, guardians, and to executors and administrators. A similar rule is applied in the dealings of a parent with his child, when the circumstances are such that an undue influence may naturally be inferred, and to the dealings of a child with an old or infirm parent, when the circumstances are such that the former assumes a fiduciary relation. And generally, when contracts are executed by persons of very weak minds arising from age or sickness, intoxication, or any other cause, although not amounting to absolute disqualifications, undue influence by the person benefited by the transaction will be readily inferred; and the burden of showing that the transaction is fair is placed upon the one so benefited." Jones, Ev. § 188. These sisters, the plaintiffs, were married women, living in states different from the brother; were in no way dependent upon him; were not shown to be weak-minded; and it does not appear that the brother had any unusual influence or control over them. Under these conditions, the general charge to the effect that the burden of proof was upon plaintiffs to show their right to recover we do not regard as error.

The second assignment is directed at the refusal by the court of these special charges: (1) "The plaintiffs in this case are entitled to recover, unless you find from the evidence that Thomas W. Thompson, at the time he procured the deed from plaintiffs, heretofore read in evidence, fully informed plaintiffs of the character, situation, and value of their interest in the estate of James D. Thompson, deceased, and fully advised them of every fact and circumstance tending to affect the value of their interest in said estate." (2) "Before the fact of the sickness of James D. Thompson could be considered as affecting the value of the interest of the plaintiffs in said estate, it must be shown by the defendants that the plaintiffs were fully advised of the nature and duration of the illness of J. D. Thompson, and with reasonable certainty of the amount expended by the defendants in the care and attention bestowed

upon James D. Thompson during his illness." The evidence fairly showed that the sisters' interest in their deceased brother's estate, not considering the deductions which the brothers claim should have been made in their favor on account of the long illness of the deceased, the consequent loss of time from the business, and heavy expenses incident to his illness, were greater than the sums paid as a consideration for the conveyance of their interests to their brother. Upon the point whether the condition of the estate, and the facts in relation to the claimed deductions on account of the long illness of the deceased, are fully disclosed to appellants, the evidence was conflicting. In the general charge, the court instructed the jury as follows: "Now, under this condition of facts, you are instructed as a matter of law. that upon the death of Jas. D. Thompson his estate vested in his brothers and sisters, each inheriting an individual (undivided) oneseventh of such estate, and that it was the duty, at the time Thos. W. Thompson visited his sisters, and proposed to purchase their interests in said estate, to make to them, and each of them, a full disclosure of all the facts in his possession material to plaintiffs' rights with respect to the condition and value of said estate of James D. Thompson, and it was his duty then to not deceive or misinform them, and to not conceal or withhold from them any information or knowledge material to their rights which he had regarding the said estate; and, further, to not make a purchase from them without their receiving what was reasonable and fairly the value of their interests in said estate under all the circumstances. Now, if you find and believe from the evidence that said Thos. W. Thompson failed in his duty to the plaintiffs as above set out and expressed,-that is, that he deceived his sisters, or withheld information in his possession material to their rights, or that he obtained their interests in said estate for a price less than the same were reasonably and fairly worth, under all the circumstances,-then, and in the event you so find, you will find for plaintiffs, setting aside the conveyance by them to Thos. W. Thompson, and for their interest in James D. Thompson's estate. If you find that the said Thos. W. Thompson made to his sisters a full disclosure of all the facts, and withheld nothing within his knowledge material to their rights, and that they, acting upon such information, and joined by their busbands, executed the conveyance and receipts above referred to, and received what was, under the circumstances, reasonably and fairly the value of their said interests, then, and in this event, you will find for defendants. In determining whether or not the plaintiffs received what was, under the circumstances, the reasonable and fair value of their interests, you can take into consideration whether or not, by reason of his long sickness before his death, in September, 1894,

James D. Thompson had drawn or received more than his just proportion of the moneys of the firm of Thompson Bros., and consequently whether or not any sum on this account and the absence of James D. Thompson during his sickness from the business of the firm should be charged against his interest in said business upon a division of said estate among his heirs; and it is for you to determine whether any such charge should have been made, and whether or not such facts entered into the matter of the purchase by Thos. W. Thompson of his sisters' interests in said estate; and you will also, in determining such issue, take into consideration the indebtedness of Thompson Bros. in September, 1894, as well as the property they owned." Upon a careful examination of the main charge, we have reached the conclusion that the issues involved were sufficiently and fairly presented.

The third assignment complains of improper matter being permitted to go to the jury after its retirement. After the jury had been instructed, and had retired to the jury room to consider the case, the jury requested that the invoice book of Thompson Bros. be sent to the jury room for its inspection. This book contained the invoices of the firm for the years 1892, 1894, 1895, and 1897, and covered 239 pages of a journal 9 inches wide and 13 inches long. The book had not been offered in evidence, and was sent to the jury room without the consent of plaintiffs or their attorneys, and while the attorneys were absent from the court house. As soon as the attorneys came into the court house, and were notified of the action of the court, they objected, the jury being stil out, and considering their verdict. The court refused to withdraw the book from the jury, and the book remained in the possession of the jury during their deliberations, and until the verdict had been returned. The plaintiffs objected because the book had not been offered in evidence, and was sent to the jury room after the evidence and argument were closed, and the jury had retired. The judge, in his explanation, says that T. W. Thompson testified that the book contained the invoices of the firm for the years mentioned, showed the assets and liabilities of the firm, that Thompson had the book in his hand while on the witness stand, and was fully examined in reference thereto, and that it was commented upon in the argument. This was clearly error. The jury has no concern with matters which have not been introduced in evidence before them upon the trial. Faver v. Bowers (Tex. Civ. App.) 33 S. W. 132. It is contended by appellees that no injury could result from an inspection of the book, because the evidence was all one way as to the value of the business of the firm. The jury called for this book after their retirement, and manifestly deemed it important in deciding the issues involved. This book may have served to 47 S.W.-5

strengthen their estimate of the truthfulness and value of the testimony of T. W. Thompson, between whom and the sisters there was conflict upon the material issue, whether he made a full disclosure of the material facts to them. If they found, on examination of the book, that it accorded with the testimony of the witness, that fact was calculated to favorably impress the jury in relation to the credibility which should be attached to his evidence generally. In Beeks v. Odom, 70 Tex. 189, 7 S. W. 702, as in this case, improper matter was taken out by the jury in its retirement, and the court treated it as error, but held it harmless. This holding, however, was based on the idea that no other verdict could have been properly rendered, independent of the improper matter considered by the jury. No such condition exists in this case. In Hilliard on New Trials (page 175, § 22) it is said: "It has been often held that the delivery to the jury of an unauthorized book or paper is ground of new trial. Thus, although the paper is said to be a mere estimate, shown to the jury by way of calculation, the court remark, 'We know not what effect this paper may have produced.' And where a material paper was given to the jury by mistake, the court would not hear a juror to show either that it did influence them or did not. So where a paper, calculated to mislead the jury, and influence their finding, was found in their room on retiring, and read by them, held sufficient ground for new trial." Judgment reversed, and cause remanded.

1. From the sole fact that the deed to property acquired during the marriage relationship is taken in the wife's name, no presumption arises that it was intended that she should take it as her separate property, and as a gift.

2. On an issue whether land deeded to the wife during marriage was community or separate property, or was purchased out of an estate in which she had only a life interest, whereby she took only a life estate, each of which claims was supported by evidence, an erroneous instruction that a gift to her was presumed from the taking of the deed in her name is reversible error.

3. Where the recovery of mesne rents was sought merely as incident to an action to recover lands, and did not necessitate additional costs, a recovery of the land, but not the rents. does not entail costs on plaintiff, and they are properly taxed with the judgment for the land.

4. A widow, under her husband's will, took a life estate in his property, and at her death it was to go to their son. Having remarried, she purchased lands out of such estate, and, taking title in herself, afterwards by intermediate conveyances deeded it to her second husband, who knew that she had only a life estate. Held,

that she took and conveyed a life estate only, and hence her son's right of action to recover such lands accrued only on her death.

5. Rev. St. 1895, art. 2302, making testimony of transactions with a decedent inadmissible against his legal representatives, does not apply to testimony by one claiming as reversioner to the separate life estate of decedent's wife, as to decedent's acts and conversations with his wife, tending to show that land conveyed by her to decedent belonged to her separate estaté.

6. The filing of a plea of intervention, and the raising of new issues thereby, does not render previously taken depositions incompetent.

7. In an action against decedent's executors and an Odd Fellows Lodge, which was residuary legatee, to recover a reversionary interest in lands in which it is claimed testator had only a life estate, evidence that he was not an Odd Fellow is not admissible.

8. Where parties, after the reversal of a former judgment, and before the filing of the mandate, accepted service of notice to take depositions to be used on the new trial, reserving objections to the manner, form, or substance of the interrogatories and answers, and to the manner and form of the taking or of the return thereof, they waived objections that the mandate had not been filed.

Appeal from district court, Navarro county; L. B. Cobb, Judge.

Trespass to try title, originally begun by Lavinia Caffey against James L. Autry and another, as executors, and another, resulting in a judgment for plaintiff, which was reversed. 35 S. W. 738. Thereafter, plaintiff having died, J. B. Cooksey intervened, and had judgment, and defendants appealed. Reversed.

McKie & Autry, for appellants. W. W. Ballew, Frost, Neblett & Blanding, and Stone & Lee, for appellee.

BOOKHOUT, J. This was a suit originally instituted March 29, 1894, by Lavinia Caffey, as sole plaintiff, in plain form of trespass to try title, against the executors of R. W. Caffey, her deceased husband, and the Grand Lodge of Odd Fellows. By amendment, filed October 9, 1894, plaintiff alleged that the 220 acres of the J. M. Campbell survey in controversy was (1) purchased by her separate funds, and (2) that, although the land was conveyed to R. W. Caffey, he had made plaintiff a verbal promise to reconvey or devise all but a life estate in the land. On these issues a trial was had, resulting in a judgment for plaintiff, which judgment, upon appeal, was reversed by this court on February 22, 1896. See 35 S. W. 738. On February 27, 1896, the sole plaintiff died. On October 16, 1896, the intervener, J. B. Cooksey, filed his plea of intervention, in which he alleged that the 220 acres of land in dispute was purchased by his mother with separate funds belonging to his father, J. K. Cooksey; and that his mother, Mrs. L. Caffey, by virtue of the will of J. K. Cooksey, took a life estate in said land, and that upon the death of Mrs. L. Caffey the land went to him, intervener. Intervener asked judgment for the land, and also prayed for rents from February,

1894, to the time of the death of his mother; he alleging that he was her sole heir. The defendants James L. Autry and Frank S. Kerr, executors of R. W. Caffey, deceased, and the Independent Order of Odd Fellows, answered by general and special exceptions, plea of not guilty, by special answers, and the statutes of limitation of three, five, and ten years. There was a trial with the aid of a jury, and verdict for intervener, upon which judgment was duly entered. Defendants' motion for new trial being overruled, they have duly perfected their appeal to this court. The facts are more fully stated in the opinion on the former appeal of this case, to the report of which reference is here made. 35 S. W. 738.

Appellants' first contention is that the court erred in the sixth and ninth clauses of its general charge, and in giving a special charge requested by intervener. The charges complained of are: “(6) All property held by R. W. and Lavinia Caffey at the time of their separation is, in the absence of evidence to the contrary, to be presumed to be their community property. This instruction is to be read in connection with paragraph 9 hereof." "(9) If the money, or part thereof, paid for such 454 acres, was common funds of R. W. and L. Caffey, it is to be presumed from the fact that the deed was in the name of L. Caffey; that said R. W. Caffey made a gift to his wife of his money that went into said land; and, unless some of the funds of J. K. Cooksey went to the purchase of said land, the same was the separate estate of Mrs. L. Caffey, and in that case she might convey the same to R. W. Caffey through the trustee, Hodge, provided she did not act under duress, and there was a valuable consideration for the same." Special charge asked by plaintiff, and given: "You are charged that, as between husband and wife, when the land is negotiated for by the husband, and at his instance is deeded to his wife, the law presumes that such conveyance was intended as a gift or donation to the wife by the husband, and such property would be considered the separate property of the wife, and the burden of proving otherwise is upon the husband, or those claiming under him, except innocent purchasers for value." Our supreme court has passed upon the construction to be given a deed to property taken in the name of the wife during the existence of the marriage relation in numerous cases. The leading case seems to be the case of Higgins v. Johnson, 20 Tex. 389. In that case Chief Justice Hemphill, speaking for the court, in a very able opinion lays down the law governing this question, from which we deduce the following rules: (1) Where, during the existence of the marriage relation, a deed to property is taken in the name of the wife for an onerous consideration, and there is no recitation in the deed as to what estate furnished the considera

tion, the presumption is that it was purchased with community funds, and that such property so purchased is community property. This presumption may be rebutted by proof that it was the intention of the husband, in taking the deed in the wife's name, to make the property her separate property. (2) If the evidence shows the consideration was the separate property of the husband, then it will be presumed that in taking the deed in the wife's name the husband intended to make a gift of the property to the wife. (3) If the evidence shows the property was purchased with the separate estate of the wife, and the deed is taken in her name, the property remains her separate property. These rules are applicable to a case arising between husband and wife, or their heirs, legatees, or representatives, and are sustained by the following authorities: Higgins v. Johnson, 20 Tex. 389; Smith v. Strahan, 16 Tex. 321; Dunham v. Chatham, 21 Tex. 244; Story v. Marshall, 24 Tex. 307; Baldridge v. Scott, 48 Tex. 189; Smith v. Boquet, 27 Tex. 513; Johnson v. Burford, 39 Tex. 248. It is not true that from the sole fact that the deed to property acquired during the existence of the marriage relation is taken in the name of the wife, the presumption arises that it was intended as a gift to her. As before stated, it may be shown that such was the intention of the husband in having the deed so made. It follows that paragraph 9 of the court's charge, and the special charge given at plaintiff's request, were error. If the deed made by Mrs. Caffey to the trustee, Hodge, was made under duress, then the question as to whether the land in dispute was the community property of R. W. Caffey and Lavinia Caffey or whether it was the separate property of Mrs. Lavinia Caffey was a material issue in the case. If the land was the community property of R. W. and L. Caffey, then R. W. Caffey was authorized to dispose of one-half of it by will. If it was purchased with funds belonging to the estate bequeathed by the will of J. K. Cooksey, then it became subject to the terms of said will, and upon the death of Mrs. Caffey intervener became entitled to the same. There was evidence tending to support each of these contentions. The charge of the court as to the presumption arising from the fact that the deed was taken in the name of Mrs. Caffey, under this condition of the record, became material, and is reversible error.

Appellants present the proposition, under their second, seventh, and thirty-seventh assignments of error, that when there are two causes of action set up, and the plaintiff recovers only upon one of them, the cost of the other should be charged against plaintiff. The intervener in this suit sought to recover the land described in his plea of intervention, and also sought to recover from the appellants, as executors of the will of

R. W. Caffey, the rents of the land since said executors took possession of the same. The jury found for intervener for the land, but did not find rents. It appears that the rents were sought to be recovered as an incident to the recovery of the land. It does not appear that any additional costs were made necessary by reason of intervener's seeking to recover rents. The costs were properly taxed against appellants.

Appellants, under their sixth and thirtyfifth assignments of error present the following proposition: "The sale by a trustee of the property held is a repudiation of the trust, and at once sets in motion limitation against the beneficiary." The intervener alleged that the property in dispute was purchased with money belonging to the estate of his father, in which his mother, under the will, took a life estate; that his father died in 1870, leaving a will, under which the wife was to take a life estate in the property, and at the wife's death it was to go to the son, intervener herein. He further alleged that in 1882 the land in dispute was purchased with money belonging to the estate of J. K. Cooksey, deceased, and the deed to the same was taken in the name of Mrs. Caffey (formerly Mrs. Cooksey). The proof shows that in 1884, Mrs. Caffey, in the division of the property between herself and R. W. Caffey, deeded the property in controversy to a trustee, who deeded it to R. W. Caffey. Intervener became of age April 26, 1886. He filed his plea of intervention in this suit on October 16, 1896. Under the will of J. K. Cooksey, his wife, Mrs. Cooksey, took a life estate in all his property, and at her death the property went to the son, James B. Cooksey, appellee. If the land involved in this suit was purchased with the funds belonging to the estate bequeathed by the will of her former husband, then said land became subject to the terms of the will. When she (Mrs. Caffey) conveyed the land to the trustee, to be conveyed by said trustee to R. W. Caffey, said Caffey, having knowledge that the land was purchased with funds belonging to her first husband, took only such estate in the same as Mrs. Caffey had, which was a life estate. No right of action accrued to the intervener until after the death of his mother.

Appellants' fourteenth, fifteenth, and sixteenth assignments of error complain of the action of the court in admitting in evidence, over defendants' objections, the answers of Mrs. Caffey in reference to her treatment by R. W. Caffey, and showing the circumstances under which the partition between herself and R. W. Caffey was made. This evidence was passed upon by this court on the former appeal of this case, and held admissible. We do not deem it necessary to add anything to what was there said. 35 S. W. 740.

The court did not err in admitting the testimony of the intervener as to conversations between Mr. and Mrs. Caffey had in his hear