On Motion for Rehearing.
All parties to this appeal have filed motions for rehearing, defendants in error contending that we erred in not affirming the judgment of the lower court and plain*661tiff in error contending- that we erred in not rendering judgment in his favor.
The principal contention of defendants in error is that they were entitled to judgment as entered by the trial court and that its judgment should be affirmed because the evidence showed that J. L. Sullivan made a gift to his wife, G. E. Sullivan, of his interest in whatever portion of the fund that was on deposit in the Vancouver bank to her credit which constituted community property. The substance of J. L. Sullivan’s testimony in respect to this phase of the matter was that, in 1907, when he and Mrs. Sullivan were married, they made an agreement to the effect that he would not claim any right or title or interest in her separate estate and that any property that should stand in the name of Mrs. Sullivan would be her separate property and estate. He said the agreement had continued unbrokenly since it was made. This is nothing more than an agreement made, in advance, between a husband and his wife to change the status of community property yet to be acquired. The law is well settled in this state that such an agreement is without force and is null and void. The Supreme Court, speaking through Justice Critz, in the case of Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090, 1091, announced the rule with much force and clarity in the following language: “It does not lie in the power of the husband and wife by contract between themselves, made in advance, to set aside the Constitution of this state, as applied to the wife’s separate property rights.” See, also, Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152, 73 A.L.R. 1512.
The motion of defendants in error will be overruled.
We remanded the case to the trial court for another trial upon the theory that it probably had not been fully developed. We were inclined to the thought that the defendants in error were entitled to further opportunity to trace the fund which went into the purchase of the Bost lease, the assignment of wjiich to the Suloch Oil Company paid for the capital stock owned by the Sullivans; segregate, if possible, the separate and community elements of it and show, if they could, that Mrs. Sullivan’s separate portion constituted the investment involved. Further consideration of that phase of the matter has convinced us, however, that our conclusion in this respect was not correct. In the first place, defendants in error were not deprived of the right nor the opportunity, to make such tracing by any adverse ruling of the trial court. Secondly, J. L. Sullivan testified that such tracing could not be made. In connection with his testimony concerning the money Mrs. Sullivan had when they married and that which she thereafter procured from her father’s estate, he said: “I am not trying to trace for you any particular money that went any place, because, when you lease water that comes from different springs, I don’t know which particular water comes from which particular spring.”
In answer to questions of counsel, he further said that such a tracing could not be done any more in Mrs. Sullivan’s case than it could in water that comes from different springs.
In view of this and other testimony in the record, .we are forced to the conclusion that the case was fully developed upon the trial and that another trial would serve no useful purpose.
We are not convinced, however, that plaintiff in error is, under the record, entitled to a judgment for the ten shares of the capital stock that were given by the Sullivans to their daughter, Betty K. Sullivan, now Betty K. Sullivan Garnett. The motion of plaintiff in error will be granted and judgment here rendered in his favor in so far as the 490 shares of capital stock standing in the name of Mrs. Sullivan are concerned; but the judgment of the court below will be affirmed in so far as the ten shares held by Betty K. Sullivan Garnett are concerned.
Affirmed in part and in part reversed and rendered.