On. Motion for Rehearing.
The first ground for a rehearing is that: “Because the court erred in approving the finding of the trial court that a trust estate "was created upon the death of the wife of the defendant, the appellant here, and that all property acquired by the defendant subsequent to the death of his wife is the joint property of the defendant and the plaintiffs, the defendant owning one-half and the plaintiffs the other one-half.”
In 31 Corpus Juris, p. 1145, under subdivision Husband and Wife, it is said: “In the purchase of property with separate funds, which includes exchange of property, the separate consideration must be traced into the property newly acquired; otherwise the presumption in favor of the community will prevail, and the property will fall into the community.” See Epperson v. Jones, 65 Tex. 425; Stoker v. Bailey, 62 Tex. 299; Glasscock v. Hamilton, 62 Tex. 143, and other authorities to the same effect. Under these authorities, it is settled that, unless separate funds are shown to have been used in the acquirement and purchase of property by a husband or surviving husband, the presumption will attach in favor of the existence of such property as a part of the community estate. There is a written agreement appearing in the record which sets up that all the property acquired was the result of the use of the revenues derived from the ranch and farm business conducted upon the lands in existence at the time of the marriage of John G. Howard and his first wife, and that after acquired. The agreement is given in our original opinion. Therefore a trust estate existed from the time of the death of Yina Simpson Howard until the suit in question was instituted, and .that trust estate *497was owned by John G. Howard as to an nn-divided one-half interest therein, and by the ■ appellees, share and share alike, as to the other one-half undivided interest. This case, in view of the allegations of trust estate, both by implication as well as by express agreement, take the case out of the rule laid down in Akin v. Jefferson, 65 Tex. 137; Pressley’s Heirs v. Robinson, 57 Tex. 453, and Berkley v. Neely (Tex. Civ. App.) 6 S.W. (2d) 430, and places the case upon an equal footing with Spencer v. Pettit, 2 S.W.(2d) 422, by the-Commission of Appeals, approved by the Supreme Court. In Andrews v. Brown, 10 S.W.(2d) 707, by the Commission of Appeals, approved by the Supreme Court, it is said: “Where trustee mingles trust funds with his own, the whole will be treated as trust property, except in so far as the trustee may be able to distinguish his own property.”
We conclude, upon a careful consideration of appellant’s motion for rehearing, that the decision of this court upon original hearing cannot be disturbed, and the motion for rehearing is overruled.