It

are applicable and not inconsistent with any of the provisions of this title." Article 2555 declares that "the record book used for the business of estates of decedents shall also be used for the business of guardianships." is also prescribed by article 2729 that "the claim docket required to be kept in estates of decedents shall be used also for the estates of wards, and under the same rules as far as applicable." In speaking of the clerk of the county court, article 1847 provides that "said clerk shall also keep a record book to be styled 'Claim Docket,' in which shall be entered all claims presented against an estate for approval by the court. This docket shall be ruled at proper intervals from top to bottom, with a short note of the contents at the top of each column. One or more pages shall be assigned to each estate. In the first or marginal column shall be entered the names of the claimants in the order in which their claims are filed; in the second, the amount of the claim; in the third, its date; in the fourth, when due; in the fifth, the date from which it bears interest; in the sixth, the rate of interest; in the seventh, when allowed in whole or in part by the executor or administrator; in the eighth, the amount allowed; in the ninth, the date of rejection; in the tenth, the date of filing; in the eleventh, when approved; in the twelfth, the amount approved; in the thirteenth, when disapproved; in the fourteenth, the class to which the claim belongs; in the fifteenth, when established by judgment of a court; in the sixteenth, the amount of such judgment." Now, by referring back to article 1853, it will be seen that all orders must be "entered on the records" of the court; and, since the claim docket is expressly made a record book of the court, it would seem that, when the approval of a claim is so entered, the requirement of that article is strictly complied with. Indeed, the thought suggests itself that the words "records of the court" were employed to prevent a misapprehension which might otherwise arise, that the entry of the approval or disapproval of a claim upon the claim docket might not be sufficient. If, instead of the words "records of the court," the language had been "minutes of the court," the question would have been one of more difficulty. It is noteworthy that when a claim has been presented and entered on the claim docket, together with its approval, as required by article 1847, all the information in reference thereto is made of record as fully as if the order of approval had been spread upon the minutes in the form of an ordinary judgment. In view of this fact, we fail to see what useful purpose would have been subserved by requiring, in addition to the entry of approval on the claim docket, a formal entry of the order upon the minutes of the court. Furthermore, article 2714 provides that "at each regular term of the court all claims which

have been allowed and entered on the claim docket shall be examined by the court and approved or disapproved in the same manner as is provided for claims against the estates of decedents." Now article 2080 prescribes what shall be done when the county judge has approved a claim. It reads as follows: "When the court has acted upon a claim its action shall be entered upon the claim- docket and the date thereof, and the county judge shall also indorse upon such claim or annex thereto a memorandum in writing, signed by him officially and dated, stating the action of the court upon such claim, whether approved or disapproved, or if approved in part and rejected in part, stating the amount approved, and also stating the classification of such claim." It is reasonable to presume, in view of this particularity, that, if it had been intended to require the approval of a claim to be spread upon the minutes of the court, the Legislature would have expressly so declared. We therefore conclude that, since the claims now under consideration, after being authenticated, were presented to the guardian, allowed by him, and were thereafter approved by the county court, and the approval duly entered on the claim docket, they became established claims against the estate of the ward.

The next question which presents itself is, are claims in favor of third parties, which have been duly established as such by the county court, subject to be revised and disallowed either in whole or in part by a bill of review? The language of the statute with reference to the review of proceedings in matters of guardianship is as general as language can make it. The following is the provision of the Revised Statutes upon the subject: "Any person interested may, by a bill of review filed in the court in which the proceedings were had, have any deci sion, order or judgment rendered by such court, or by the judge thereof, revised and corrected on showing error therein. But no process or action under such decision, order or judgment shall be stayed except by writ of injunction." Article 2799. It would seem that this provision must of necessity be subject to some limitation. For example, it was hardly contemplated that the action of the court in appointing a guardian would be subject to be revised many years after the appointment has been made. We have not found that the statute prescribes any special limitation as to the time in which the suit may be brought. The general limitation of four years would probably apply. but minors are excepted during the period of their disability. Hence, if such an order can be revised by a bill of review, it would seem that after a lapse of many years the whole proceedings in the administration would be subject to be set aside by reversing the order appointing the guardian. But even if it should be held that the article is sub

"Art. 2717. The order of approval or disapproval of a claim has the force and effect of a judgment.

"Art. 2718. When a claimant or any person interested in a ward shall be dissatisfied with the action of the court in approving or disapproving a claim in whole or in part, he may appeal therefrom to the district court as in the case of any other judgment rendered by said court."

Now it seems to us that the mention of one remedy for the correction of the judgment excludes all others. Article 2789 gives to "any person who may consider himself aggrieved by any decision, order or judgment of the court, or by any order of the judge thereof," the right of appeal to the district court without bond. This is as general as the article which allows a bill of review. A right to a certiorari is given in terms equally broad. Rev. St. 1895, art. 2800. Now, if article 2799 gives the right to revise by a bill of review an order approving or disapproving a claim, or if article 2800 allows a writ of certiorari for the same purpose, it is clear that under article 2789 there would have been a right of appeal from such order, and the provision in article 2718, which specially provides for an appeal, was wholly unnecessary. Therefore we are of opinion that the Legislature considered that neither article 2789, 2799, or 2800 authorized the revision of the order of approval or disapproval of a claim by the several procedures therein mentioned, and that their intention, as manifested by article 2718, was to give the right of appeal only.

If it be urged that it is unjust to a minor not to have an opportunity to contest a claim after the removal of the disability, the answer is that the establishment of a claim as a finality is necessary to the interest of the minor and to the administration of the estate. Who would extend credit to a guardian for the support, education, or for other necessaries of a minor, if, after the claim was established in the county court, its action was subject to be reviewed at some remote period? Besides, the right to a bill of review is given to "any person interested" in the decision of the court. Therefore. if article 2799 applies to the approval or disapproval of a claim, a claimant whose claim had been disapproved could bring a bill of review at any time within four years after the order was made. We do not think this was contemplated by the Legislature.

But we think this question is practically settled by the decision of this court in the case of Eastland v. Williams, 92 Tex. 113, 46 S. W. 32. In that case the minor sought

on final settlement to strike from the account of the guardian a claim for an attorney's fee which had been allowed by the guardian and approved by the court, and it was held, in effect, that the approval was a finality. In the opinion, Mr. Justice Brown, speaking for the court, says: "If parties were permitted to contest the justice of a demand against an estate which had been regularly probated under the law and paid by the administrator or guardian, there would be no security for administrators or guardians in the payment of claims against the estates they represent, but they would be liable, at any time after the payment had been made and before the final settlement was concluded, to have the judgments which they had obeyed set aside, and might be compelled to answer for the funds applied under the order of the court. Such a rule has never been in force in the courts of this state." The only distinction we discover between that case and the one now before us is that there the question was raised upon final settlement, and here it comes up under a bill of review. But it seems to us that that is a distinction without a difference. Upon the final settlement everything is reviewable that is subject to revision. The bill of review must be brought in the same court that renders the orders complained of; and we think a bill of review could be brought to revise the action of the court upon final settlement. But we fail to see how the court upon a bill of review would have more power than it had in the proceeding which was sought to be reviewed. The case of Richardson v. Kennedy, 74 Tex. 507, 12 S. W. 219, is authority for the proposition that some claims are reviewable upon the final settlement of an administrator. In that case the personal claim of the administrator which had been previously approved was disallowed, and such claims were distinguished from claims of third persons. In the opinion the court say: "The law plainly requires that claims for expenses of administration shall be docketed and acted upon by the court in like manner as other claims against the estate; but while the provisions with regard to the action of the court upon the claims of other parties expressly declare such action 'shall have the force and effect of a final judgment,' no such effect is declared in favor of claims for expenses of administration in favor of an executor or administrator. It seems to us that there are substantial reasons for a difference in this respect. When claims of third parties are being established, it must be done through the executor or administrator who represents the estate, and whose duty and interest it is to protect the estate. On the other hand, the establishment of claims belonging to the administrator or executor is an ex parte proceeding, had without notice to any person interested in the estate, and with regard to expenses of admin

istration unlimited as to time, except we think that the claims should be presented and acted upon before the final account is filed." What is there said as to an administrator is equally applicable to a guardian.

It follows from what we have said that in our opinion the district court erred in holding that the approval of claims 1, 2, and 3 were nullities, and in reviewing and disallowing in part claims 4 and 5, and that therefore the judgment should be reversed, and the cause remanded with some general instructions as to the principles upon which the account should be restated.

Since it does not appear that. before the accounts were incurred for the education and support of the ward, an order had been made and entered upon the minutes of the court, which authorized the guardian to expend more than the income for that purpose, we think the approved claims, in so far as they are for the education and maintenance, can be charged only against the income. Jones v. Parker, 67 Tex. 76, 3 S. W. 222; Blackwood v. Blackwood's Estate, supra. It was so held both by the district court and the Court of Civil Appeals. Without such order the guardian cannot go beyond "the clear income," as the statute denominates it. Rev. St. 1899, art. 2630. The income in this case consisted of money received as rents upon the property. The clear or net income is that money, less expenditures for taxes, insurance, and repairs. By the judgment of the district court, which was approved by the Court of Civil Appeals, the guardian was charged with interest upon money in his hands which he should have lent. If he had so lent it, the interest received would have been income, and therefore whatever interest may be charged against the guardian on that score should be added to the income of the estate. income and expenditures for education and support should run concurrently, and, when the income for the period covered by a claim of that nature has been applied to such claim, the balance appearing to be due upon it should be held of no effect, there being no fund belonging to the estate from which it can be paid. The claims for support and education which accrued previous to the appointment of the guardian were credited with the rents of the period for which support was charged. It not appearing that any rents for that period ever came into the hands of the guardian, there are no funds on hand which can be applied to their payment. Therefore, we think that, as the evidence now appears, no credit should be allowed upon the final account for such claims.

The

The judgment is accordingly reversed, and the cause remanded to the district court. The defendant in error will pay the costs of the appeal to the Court of Civil Appeals and of the writ of error to this court. The costs of the district court will abide the result of the suit in that court.

STORRIE v. SHAW et ux.

(Supreme Court of Texas. June 15, 1903.) JUDGES-TERM OF OFFICE-EXPIRATION-SUBSEQUENT AUTHORITY.

1. A trial judge has authority, after the expiration of his term of office, and during the term of court at which trial was had, to make and file conclusions of fact and law.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Robert C. Storrie against Benjamin W. Shaw and wife. From a judgment for defendants, plaintiff appealed to the Court of Civil Appeals, which certified certain questions to the Supreme Court.

Byers & Byers, for appellant. J. H. Davenport, for appellees.

BROWN, J. Certified questions from the Court of Civil Appeals for the First Supreme Judicial District, as follows:

"In the above styled and numbered cause, pending in this court on appeal from the district court of Harris county, the plaintiff sued to recover a one-third interest in two colts; the value of said one-third interest being alleged to be $666.66. The petition alleged that the plaintiff owned the sire of said colts; that on or about June 1, 1899, he entered into a contract with the defendant Benjamin W. Shaw by which three mares belonging to defendant were bred to plaintiff's said stallion; that, of the progeny resulting from said breeding, plaintiff was to receive a colt, to be delivered to him by the defendant when it reached the age of six months; that as a result of said breeding there were only two foals, and defendant has failed and refused to recognize any interest of plaintiff therein. The prayer of the petition is for judgment fixing the one-third interest of plaintiff in said colts, and ordering the sale of same, and the payment of onethird of the proceeds of said sale to plaintiff.

"The defendant answered by general demurrer and general denial, and specially pleaded that, under the contract, plaintiff was to receive as compensation for the services of his stallion the colt of that particular one of the three mares of defendant bred to said stallion which was named and known as 'Grace,' and that said mare Grace did not produce a foal as the result of said breeding in the year 1899, but that, at plaintiff's request, defendant bred said mare to said stallion in the following year, and the colt which resulted from said second breeding was. when it became six months old, delivered to plaintiff, and accepted by him in full settlement and satisfaction of all claims against the defendant under said contract.

"The case was tried by the Honorable W. H. Wilson, judge of the court below, on the 22d day of November, 1902, without a jury, and judgment rendered in favor of defend

1. See Judges, vol. 29, Cent. Dig. § 154.

ants. On November 24, 1902, plaintiff filed a motion for a new trial, which was heard and overruled by the court on November 29, 1902. At the time the motion for new trial was filed, plaintiff also filed a motion requesting the court to file his conclusion of fact and law in said cause. This motion was noted on the motion docket, and was called to the attention of the court on the 29th day of November, when the motion for new trial was overruled. The attention of Judge Wilson was not again called to said motion, and on December 16, 1902, Hon. W. P. Hamblen, who had been elected judge of said court at the general election in the preceding month, qualified as such judge, and assumed the duties of his office; and Hon. W. H. Wilson retired from the bench without having filed said conclusions of fact and law, the matter having escaped his attention in the press of other official duties. On December 23, 1902, the plaintiff filed a second motion for a new trial, basing said motion on the failure of Judge Wilson to file conclusions of fact and law in the case. When this motion was presented, Judge Hamblen requested Judge Wilson to take the bench, and hear and pass upon the motion. Judge Wilson acceded to this request, and, upon taking the bench, prepared and had filed conclusions of fact and law, and overruled plaintiff's motion for a new trial. These conclusions of fact and law, which appear in the transcript, were filed during the term of the court at which the case was tried, are signed by W. H. Wilson as presiding judge, and are also signed and approved by W. P. Hamblen as judge of the Fifty-Fifth Judicial District.

"There is an agreed statement of facts in the record. purporting to contain all of the material evidence adduced upon the trial of the cause. The evidence is directly conflicting. Plaintiff testifies to the contract as alleged in his petition, and denies that the colt of the mare Grace delivered to him by the defendant was accepted in settlement of his claim under the contract of 1899, but claimed that it was delivered to and accepted by him under a separate and independent contract from that sued on. Defendant testified that the original contract was as alleged by him, and that the breeding of his mare Grace the second year was at the request and for the benefit of the plaintiff, and that plaintiff accepted the colt of said mare which resulted from said breeding in full settlement and satisfaction of his claims under the original contract.

"Upon the foregoing statement, we respectfully certify for your decision the following questions:

"First. Was Hon. W. H. Wilson authorized to file his conclusions of fact and law in this case after the expiration of his term of office? "Second. Are the conclusions of fact and law prepared and filed as herein before stated a lawful compliance with appellant's demand for such conclusions?

"Third. If the conclusions of fact and law were prepared and filed without authority, and cannot be considered by us, was the failure of the plaintiff to make any effort to procure the filing of said conclusions, further than to call the attention of the court to the motion requesting same at the time the motion for a new trial was overruled, such want of diligence on his part as should estop him to complain of the failure of the court to file said conclusions?

"Fourth. There being a full statement of facts in the record, the evidence being conflicting, and it being manifest from the pleadings that the court could only have found for the defendant by determining the conflict in his favor, was the failure of the trial court to file his conclusions of fact and law such a deprivation of plaintiff's rights as to necessarily require a reversal of the judgment?"

Answer to the First Question. Judge Wilson, who presided at the trial, had authority, after the expiration of his term of office, and during the term of the court at which the trial was had, to make and file conclusions of fact and law in response to the motion of appellant. We have found no authority directly on the question submitted, but we regard the signing of bills of exceptions as being most analogous to the question before

us.

Whether the judge who presided at the trial, or he who succeeds him, should make up, sign, and complete bills of exception which were reserved during the trial, presents a question upon which the authorities are in conflict. In Enc. of Pldg. & Pr., vol. 3, p. 456, it is said: "The prevailing doctrine in case of the removal, resignation, or expiration of the term of the trial judge is that the judicial function survives in him for the purpose of authenticating the bill, and he is accordingly the proper person to sign. His successor cannot allow the bill, as he is a stranger to the judicial proceeding related therein." This statement of the law is sustained by the following cases: Hale v. Haselton, 21 Wis. 322; Stirling v. Wagner (Wyo.) 31 Pac. 1032; Ex parte Nelson & Kelly, 62 Ala. 376; Davis v. President and Trustee, etc., 20 Wis. 194; Connelley v. Leslie, 28 Mo. App. 551; Quick v. Sachsse, 31 Neb. 312, 47 N. W. 935; State v. Barnes, 16 Neb. 37, 19 N. W. 701. In some jurisdictions the courts have held that such conditions require that a new trial be granted. This view is supported by the decisions of Maryland and Michigan; also by the decisions of the English courts. 3 Enc. Pl. & Pr. 453, note 1. In other states it is held that the successor to the ex-judge is authorized and required to sign the bill of exceptions, which is supported by the following cases: Smith v. Baugh, 32 Ind. 163; Railway Co. v. Rogers, 48 Ind. 427; Hays v. McNealy, 16 Fla. 408. The weight of authority and the better reasoning support the answer that we have made to this question. It would be impossible for a judge who had not heard the testimony to express in tbs

form of conclusions of fact the impression which the conflicting evidence made upon the mind of one who heard it. Therefore it is especially important that the judge who tried the case should make the conclusions of fact. We fail to see any sound objection to the conclusion that upon the retirement of a judge the judicial function survives and continues so far as necessary for him to complete that which reflects the operation of his own mind or relates to his own conduct in the particular case.

The answer to the first rendered it unnecessary to reply to the other questions.

WISDOM v. STATE.

(Court of Criminal Appeals of Texas. June 17,

1903.)

CRIMINAL LAW-SEDUCTION-INDICTMENTCORROBORATIVE TESTIMONY

-INSTRUCTION.

1. An indictment charging that defendant did unlawfully seduce prosecutrix, and did unlawfully obtain carnal knowledge of her by means of a promise to marry her, sufficiently alleges that both the seduction and the carnal knowledge were obtained by means and in virtue of a promise of marriage.

2. Where in a prosecution for seduction the court first defined seduction as meaning "to lead away a female from the path of virtue, to entice or persuade her by means of a promise of marriage to surrender her chastity," and then charged that defendant was guilty if he accomplished his purpose by a promise of marriage and prosecutrix was unmarried at the time and relied on such promise, the two charges taken together sufficiently required the jury to find that defendant accomplished his purpose by seductive means and that prosecutrix was a virtuous female.

3. A charge in a prosecution for seduction that the testimony of prosecutrix would be sufficiently corroborated by facts tending to support her testimony and to satisfy the jury of her credibility was erroneous, as it authorized a conviction on corroborative testimony as to the credibility of the witness, without requiring that it connect defendant with the crime.

Henderson, J., dissenting.

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

Gip Wisdom was convicted of seduction, and he appeals. Reversed.

F. P. Greover, R. B. Young, and Taylor & McGrady, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for a term of five years.

Appellant insists that the court erred in overruling his motion to quash the indictment, because the same fails to allege that defendant did by promise to marry seduce the injured female, Lavonia Smith. Appellant further insists that, in order to constitute the offense of seduction as found by our statute, the following facts must be alleged: First, that defendant promised to marry the un

same.

married female under 25 years of age; second, that by virture of or under such promise he seduced her; third, that he had carnal knowledge of her. He contends that the indictment is fatally defective in that it fails to allege that defendant seduced prosecutrix by a promise to marry. The charging part of the indictment is as follows: That appellant "did then and there unlawfully seduce Lavonia Smith, an unmarried woman under the age of twenty-five years, and the said Gip Wisdom did then and there unlawfully obtain carnal knowledge of the said Lavonia Smith by means and in virtue of a promise of marriage to her, the said Lavonia Smith, previously made by him, the said Gip Wisdom," etc. In our opinion appellant's insistence is incorrect. The indictment follows the form prescribed in section 1686, White's Ann. Pen. Code, and, while it varies in one respect from form No. 528 prescribed by Judge Willson, they are in substance the As appellant insists, the prosecutrix must be seduced by the promise of marriage, and after such seduction carnal knowledge must take place. In other words, if there are no arts, wiles, or promises, except the mere fact that appellant told prosecutrix he would marry her, and after such contract, so to speak, secured carnal knowledge of her person, this would not be seduction. As held in Putman v. State, 29 Tex. App. 454, 16 S. W. 97, 25 Am. St. Rep. 738, appellant must seduce prosecutrix from the path of virtue, and then have carnal knowledge of her person. Now we take it that the indictment charges both facts. It alleges that appellant did unlawfully seduce Lavonia Smith, and did unlawfully obtain carnal knowledge of said Lavonia Smith by means and in virtue of a promise to marry her, and, under the allegations of the indictment, in order to accomplish the seduction and the carnal knowledge he used the promise of marriage to secure both. Judge Willson's form repeats the latter clause of the indictment, to wit, "by means and in virture of a promise of marriage to her," before the seducing clause and before the carnal knowledge clause. This makes it more explicit, but the method adopted in this indictment of stating the offense is susceptible of but one construction, to wit, that it alleges that both seduction and carnal knowledge were obtained by means and in virtue of a promise of marriage. And, as appellant insists, these are the prerequisites of seduction. Accordingly, we hold the indictment is sufficient.

Appellant insists that the court erred in giving the following portion of the charge: "If you believe from the evidence beyond a reasonable doubt that defendant, Gip Wisdom, did in the county of Fannin and state of Texas, on or about the time charged in the indictment, and prior to the 23d day of August, 1901, have carnal knowledge of Lavonia Smith, and that at the time the said Lavonia Smith was an unmarried female under the