On Appellees’ Motion for Rehearing.
Complaint is made of our failure to sustain appellee’s first and second cross-assignments of error.
The first cross-assignment relates to the refusal of the trial court to allow attorney’s fees upon the $1,000 note referred to in our original opinion.’ This note was not set out in ha;c verba in appellee’s pleadings, and that the note provided for attorney’s fees was not alluded to in such pleadings, and her prayer was simply that the note with interest thereon from June 4, 1913, at the rate of 10% per annum be “recognized as a general claim against the estate of the deceased and paid in due course of administration.” The pleadings, therefore, did not authorize recovery of attorney’s fees. Nor are we in accord with appellee’s suggestion that this defect in the pleadings has been waived by appellant’s failure to object to the introduction of the note because of this defect in the pleadings under Rule 67, Texas Rules of Civil Pro*132cedure. The note was admissible upon other issues and appellant was not required to malee a futile objection; nor was it her duty to suggest that appellee amend her pleadings so as to enlarge her demand. If attorney’s fees had been sued for appellant would have been afforded the opportunity of contesting the reasonableness of the amount claimed. The record does not disclose that attorney’s fees were mentioned upon the trial of this case (other than being provided for in the note offered in evidence) and we cannot say that issues relating thereto were tried by consent.
The second cross-assignment of error relates to the failure of the trial court to establish a claim in appellee’s behalf to the extent of one-half of $7,425, community funds invested by Dr. Etter in U. S. savings bonds, less the amount of such bonds which appellee received.
Three bonds are involved, one, cost value $2,550, payable to appellant; one, cost value, $2,550, payable to Mrs. Whittington, and the other, cost value, $2,325, payable to appellee. The difference between one-half of the funds expended and the amount apr pellee received being $1,387.50.
Appellee contends. that this use, or donation, of community funds constitutes constructive fraud upon her rights in the community estate.
Appellee did not appeal from the judgment of the trial court. In appellant’s appeal bond it is recited that appellee had recovered “judgment adversely affecting the interests” of appellant and that she had excepted to “said judgment” and given notice of appeal.
In Dallas Electric Supply Co. v. Branum Co., Tex.Civ.App., 185 S.W.2d 423, 430, 427 (Com.App. opinion adopted), the court, in discussing the right to make and the scope of cross-assignments of error, made this pronouncement: “This rule of practice, which does' away with the necessity for prosecuting two appeals from the same judgment and bringing up two records, is well founded and should not be departed from except in cases where the judgment is definitely severable and appellant strictly limits the scope of his-appeal to a severable portion thereof.”
There were many items or different pieces of property or property rights involved in this case, each depending upon facts peculiar to each and each of which might have been the subject matter of a Separate suit. The judgment denying ap-pellee relief as to these funds was distinct and severable from other portions of the judgment. ’ This portion of the judgment was favorable to appellant and since she limited her appeal to those parts of the judgment which were adverse to her, we are of the opinion that this cross-assignment of error is not properly before us for review.
Furthermore, it appears that the issue as to these funds was injected into the case by a trial amendment filed by ap-pellee in which she prayed that her claim in the amount of $1,387.50 be “charged against the undivided one-half interest in said community estate inherited by the said Lois Etter Cadwell (appellant) and Lorraine Etter Whittington * * Mrs. Whit-tington was a party and the judgment on this issue being in her favor she became a co-appellee with appellee, and the rule is well settled that “an appellee must perfect an independent appeal before he may cross-assign error as to a co-appellee * * 3 Tex.Jur., § 609, as cited in Sherman v. Stein, Tex.Civ.App., 173 S.W.2d 732.
Appellant and Mrs. Whittington were jointly interested in this portion of the judgment and the presence of both in this court would be required for an orderly and effective disposition of the issues pertaining thereto.
For this additional reason we are not authorized to determine the validity of this portion of the judgment.
Appellee vigorously assails our holding that the interest accumulated on the $1,000' note was community property and in support of her claim that such interest is her separate property cites the following cases. Hall v. Hall, 52 Tex. 294, 36 Am.Rep. 725; Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S.W. 975, and Hamilton Brown Shoe Co. v. Whitaker, 4 Tex.Civ.App. 380, 23 S.W. 520.
The opinion in the Hall case was by Justice Bonner and was rendered December 11, *1331879. The suit 'was by a widow against the estate of her deceased husband to collect principal and accrued interest upon a note executed in' her favor by deceased for her separate funds which had been lent to him. The court, after stating that under our present and former constitutions a wife could own both separate and community property in her own right, referred to the rule that a husband could give or grant his separate property or his interest in the community property direct-to the wife without the intervention of a trustee. The court then cites cases holding that notes and mortgages given by a husband to his wife are valid and binding obligations. The decision of the court follows in this language: “We are of .the opinion that the note here sued upon, given by M. J. Hall, senior, to his wife, Julia B. Hall, in consideration of her separate money loaned to him, is a valid and binding contract, and that it was such a declaration of his intention that the principal and interest, both which are expressly promised to be paid by the terms of the note, should remain her separate property, that it should have this effect.”
The opinion in the Martin Brown case was by Justice Gaines. In this case it appeared that a' mercantile firm borrowed money from the wife of one of its members giving a note to her husband as trustee. The money was the separate property of the wife. She sued the firm and attached its goods. Other; creditors intervened seeking to defeat her attachment. The wife recovered both the principal of and interest on her note. This judgment was affirmed, but upon what ground is not clear, as is shown by the following excerpt from that opinion [77 Tex. 199, 13 S.W. 977]: “Appellants insist that the judgment is erroneous in so far as it allows plaintiff a recovery for the interest on the money derived from the sale of the bonds. It is settled law in this state that interest derived from a loan of money, the separate property of the wife, belongs to the community estate. Braden v. Gose, 57 Tex. 37. It is contended that the rule applies in this case, and that the interest was community property of Perrill and his wife, and subject to the payment of his debts, and that/ therefore, there should have 'been no recovery for the interest as against his creditors. ,The court concurs in the opinion that appellants’ contention cannot be maintained, and víre agree substantially in the result, that the judgment is in'this particular correct. As to the grounds of that conclusion, we are not in accord. One opinion is that it is the income, and not the corpus, of the fund that was bequeathed to the plaintiff by her grandfather, and that, therefore, the interest on the money comes literally within the definition of ‘separate property,’ as given in the statute; that is to say, that the income of the fund is acquired directly ‘by devise.’ Rev.St. art. 2851 [Vernon’s Ann. Civ.St. art. 4613]. The other opinion is that when the husband borrows the money of the wife, and agrees to pay her interest, the effect of the contract is to make the interest her separate property. Hall v. Hall, 52 Tex. 294.”
In the Hamilton Brown case the Court of Civil Appeals instructed the trial court in remanding the case that interest upon a loan made by a wife to her husband from her separate funds would be her separate property, citing the Plall and Martin Brown cases.
In Braden v. Gose, 57 Tex. 37, Judge Stayton said: “In the case of Hall v. Hall, 52 Tex. 294 it was held that the interest due on the note made to the wife by the husband was her separate property; but this was upon the ground that the husband's contract made it so.”
Our respect for the decisions of the eminent justices who wrote the above opinions makes us hesitant and very reluctant to say that many later decisions of the Supreme Court are not in accord with the views or holdings in the cases mentioned above.
A husband and wife do not have the power to change, by mere agreement, made in advance, the status of community property yet to be acquired, and yet to come into existence, to that, of the wife’s separate property. Brokaw v. Collett, Tex. Com.App., 1 S.W.2d 1090-; Gorman v. Gause, Tex.Com.App., 56 S.W.2d 855; Strickland v. Wester, 131 Tex. 23, 112 S.W. 2d 1047; Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152.
*134Bearing in mind that none of the interest on the $1,000 note was ever paid to appellee, there is no basis upon which a gift of such interest to appellee can be supported.
In Strickland v. Wester, supra [131 Tex. 23, 112 S.W.2d 1048], the court said: “The general agreement that her (wife’s) personal earnings should become her separate property did not operate as a gift to her of the particular funds * *
In Chandler v. Alamo Mfg. Co., 140 S.W. 2d 918, 920, this court held: “* * * if he (the husband) gave the rents to his wife prior to the time they accrued, the gift was void because he could not give her the rents before they accrued.”
In Davis v. Davis, Tex.Civ.App., 108 S.W.2d 681, 686, the court said: “We are of opinion that in order for the personal earnings of the wife, which were earned month by month according to the testimony in this case, to be changed from that of the community estate to her separate estate, it would be necessary for the husband each month, as the salary was earned, to make a gift of the same to his wife.”
In Armstrong v. Turbeville, Tex. Civ. App., 216 S.W. 1101, 1106, writ dismissed, the court held:
“It is true, as asserted by appellant, that husband and wife cannot by mere post-nuptial agreement between themselves change the character of their property to be thereafter acquired so as to convey community into separate property. Cox v. Miller, 54 Tex. 16; Engleman v. Deal, 14 Tex.Civ.App. 1, 37 S.W. 652; Suggs v. Singley [Tex.Civ.App.], 167 S.W. 241; Speer’s Law of Marital Rights, §§ 50, 297, and cases there cited.
“But this rule has no reference to the well-recognized right of the husband to make to his wife a gift of his interest in the community property then in esse, when it can be done without injury to the rights of others. Jordan v. Marcantell [Tex.Civ. App.], 147 S.W. 357. This is simply doing with his property what he has the right to do. Hence, while it may be conceded that the community status of the rents collected was not affected by the mere agreement between Turbeville and his wife, made when he conveyed the property to her yet if this agreement was thereafter observed and actually carried out, and the rents delivered into possession of the wife, as the evidence discloses and the jury has found, then the collected rents became the separate property of Mrs. Turbeville, unless the gift was in fraud of the rights of creditors. Jordan v. Marcantell, supra; Bruce v. Koch [Tex.Civ.App.], 40 S.W. 626.”
Dr. Etter mentioned several times that he owed his wife $1,000. He never intimated that he owed an additional $24,000 interest.
We, therefore, hold that if the note be construed as an agreement to give appellee the interest it is unenforceable; and the interest never having been paid by Dr. Etter nor collected by appellee, no valid gift is shown.
The motion for rehearing is overruled
Overruled.