It is urged on rehearing that appellant did not properly argue his assignment of errors, and therefore they were abandoned. It must be admitted that his argument is meager, states but little except conclusions, and might well have been treated as abandoned. However, this question was not raised originally by appellee, and it will not be considered on motion for rehearing.
Appellee asks if the district court was required to make specific findings on the question of whether the property was community or separate, in view of the fact he had concluded that three-fourths of the property belonged to appellee and one-fourth to appellant, and states, "This was necessarily a finding and conclusion that the property was separate estate." This seems to be incorrect. It is a conclusion of law that the property should be thus divided; whereas the facts found, supplemented by presumptions of fact not controverted, establish that it was community property; therefore the district court's conclusion was erroneous.
It is remarkable that the only testimony introduced at the trial of this case was that by appellee to establish that he was the son and heir of Morris Downey White. This the court found. No testimony was introduced to support any other finding of the trial court. We will assume that the findings of fact were agreed to by the parties, as exceptions were taken only to the court's conclusions of law. Under a well-established rule findings of the court not objected to are the facts upon which the case must rest in this court.
Appellant cites Singleton et al. v. Cheek et al., 284 U.S. 493,52 S. Ct. 257, 76 L. Ed. 419, 81 A.L.R. 923, to the effect that under the federal statute the present value of installments of soldiers war risk insurance not due at the time of the death of the designated beneficiary must be paid to the estate of the insured; and descends to his heirs at law as of the time of his death. But there is no finding of the court as to the source of the insurance, and we cannot assume, in the absence of a finding, that it was "war risk insurance."
We are admonished by appellee that we are casting upon the trial judge the responsibility for the error; that we should not presume or infer "that a judge of such well-known integrity and legal ability did not investigate and obtain the facts as to the date of marriage of deceased White, and of the policy and to *Page 637 know and have the law before him as to whether the proceeds of the insurance were separate or community property." What right have we to presume that the district court went outside the record and made such investigation? He is presumed to decide the case upon the law, and the evidence as presented by the respective parties. We will therefore not infer or presume that the district judge, though he may be well known for integrity and legal ability (a matter not in dispute), did, or had the right to, make an independent investigation and obtain facts upon which to decide the case in his court. We would much prefer to, and do, hold that the case was tried orderly and properly. Nor do we believe that our decision is a reflection on the "integrity and ability of the trial judge," as appellee suggests. It has been the history of all appellate courts that the judgments of trial judges, some well known for integrity and legal ability, are at times reversed.
It is stated in appellee's brief: "Is it not also to be presumed that the attorney for Appellants would have furnished the court, and made a record of the date when the policy was taken out, and of the second marriage; if he contends that the money was community property? Also that the attorney for Appellee had the information and the law to show the Court that the money was separate property for the Court to have used his method of distribution to the heirs?"
The appellant could rely on the presumption that the insurance money was community property. This placed the burden upon appellee to rebut this presumption, which he failed to do.
We are not authorized to presume that "the attorney for appellee had the information and the law" to show that the money was separate property. If he did possess the information, it should have been introduced in evidence. The certificate of the district judge states that the bill of exceptions contained all the evidence introduced at the trial; so there can be no presumption that there was evidence to support the judgment of the court.
Other questions are raised but, like those answered, are without merit. Ordinarily the case would be reversed and rendered here; but some suggestions in the record, outside the findings, indicate the policy may have been separate property; in deference to which, we reversed the case for a new trial on that question.
The motion for a rehearing is denied.
It is so ordered.
HUDSPETH, C.J., and SADLER, BICKLEY, and ZINN, JJ., concur. *Page 638