On; Motiom for Rehearing.
In paragraph 10, paragraph 11, paragraph 12, paragraph 13, and paragraph 14, covering some 14 pages of the motion, appellants attack the statement of the case as findings of fact. The matters objected to in those paragraphs of the motion are not the findings of this court at all, but comprise a statement of the issues as presented by the claim, the statement of the case and largely copied from appellee’s] pleading, but we omitted to inclose same within quotation marks, or introduce with an “as follows” so no misconception might arise. That we have now done. Surely, the appellants were sufficiently informed of the appellee’s claims, as presented by this court in a statement of the case, to distinguish between it and the findings of the court. This pérhaps may have misled the appellant into his confusion of the statement of the issues, set forth in the claim itself sued upon and the pleading, as our findings. Our opinion began after the statement of the judgment of the trial court, as is usual in opinions of appellate courts.
In the assault on the opinion of this court, the learned counsel who drafted the motion said:
“It may not be improper to state here, although it is, of course, not shown by the record, that upon objection the trial court excluded testimony from Mrs. Wofford, the claimant, with reference to an alleged agreement or understanding between Mrs. Whitsett and her son.”
Then, continuing, says:
“Yet we have the unheard of situation, we believe, of the trial court correctly excluding the only testimony offered bearing upon the alleged agreement, and the appellate court nevertheless finding that the agreement was made and all of the details of it.”
This criticism and rebuke to this court does not stop here, but continues with further prolix immaterial amplification.
[13] It is inconceivable how counsel can afford to make such observations and thus endeavor to get this court to refuse to consider testimony that he, himself, says was not shown by the record excluded, and especially so as they themselves signed and approved the statement of facts presenting this testimony. We desire to remind counsel that it is our duty to consider all the testimfmy, one way or the other, that appears in the statement of facts properly sent to this court as the evidence used in the trial below. There is nothing in this record to show why her testimony should have been excluded or why we should not consider it. It was relevant, material, and properly before us.
The record, either in direct language or inferences drawn therefrom clearly sup*325ports the claim as alleged, and certainly as proven.
[14J In view of the fact that so much has been said and urged in this motion that is misleading, and not a fair treatment of the case as to this court, we will set out some portions of the -salient testimony supporting the claim. First, we make reference to the deeds in the record, from Mrs. Jane T. Whitsett to Taylor Whitsett, the first dated 18th day of May, 1896, and the second, 12th of July, 1897, and the two deeds of trust following, by Taylor Whitsett to John A. Green, trustee, and to J. R. Daugherty, trustee, the first, dated 20th day of April, 1897, and second, 26th day of July, 1897. AU appertaining to the land Mrs. Whitsett conveyed to her son and which he mortgaged and under which foreclosure was subsequently had. This was the inception of the obligation of Taylor Whitsett to his mother. Though the deeds do not show the real consideration that the land was loaned to him, it is clearly and satisfactorily proven by all the circumstances and the declarations of himself against his interest to many persons. It being a fact case, the facts are well proven and sufficiently support the allegations of the pleading and the claim as set out above and as held in our original opinion. In partial support thereof, we set out part of the testimony of the several witnesses, as follows:
Jourd Campbell testified:
"Taylor Whitsett talked to me a great deal about business matters, and at one time he told me he was indebted to his mother. I do not remember any of the details of that conversation, except that I just remember him telling me he was indebted to his mother. * * * I have testified that Mr. Whitsett talked to me frequently about his business affairs, and that several years ago he told me he was indebted to his mother. * * * I never paid much attention to it, but I do remember him stating that he was indebted to his mother. It may have been four or five years before he died when he told me that. * * * I will state that I never paid any attention to it, other than he said to me, some years before his death, that he was indebted to his mother; it seemed to distress him, and he never mentioned it to me but once.”
Mrs. Buena G. Wofford testified:
“I was present when my mother agreed to give Taylor Whitsett deeds to this land, but I was not present when any deed was signed or delivered. * * * He was at my house during his mother’s last illness. When we found out she was seriously sick we sent for him, and he came. She was taken sick, I believe, on the 22d of December, and she died on the 1st day of January, and Taylor was there during her last illness. After that he would come and visit me every few months, * * * and we were together as much as I could be with him, all the time he was there, and I had a conversation with him at that time in relation to his business affairs. During the 17 or 18 years that my mother resided at my home, she had no other home during that time; she always claimed my house as her home. * * * She did not pay me any board; they just sent her money for her clothing," and money to spend when she wanted to go anywhere. I furnished her board and support. My mother was at my house in 1896 and 1897, living with me. I know of my own personal knowledge that my mother did not receive any considerable sum of money about 1896 or 1897 from any source.”
Mrs. Gillie Tully testified:
“My unde, Taylor Whitsett, was also present when my grandmother died, and I heard a conversation between my uncle, Taylor Whit-sett, and my grandmother, Mrs. Jane Whit-sett. My grandmother asked me if I would go and find Unde Taylor; she said she wanted to talk to him. She was in bed then. That was just three days before she died. I went to find him, and when I started out of the room she asked me: ‘Will you come back in here? I want you to hear what I have to say to Taylor.’ I told Uncle Taylor, and then I came back in the room with him, and she said, ‘Taylor, I am never going to get out of bed, and, if I don’t, I want you to see that Gillie gets all of my estate,’ and he said, ‘Mother, I will.’ When Grandmother asked Uncle Taylor to see that my mother got her estate, he said he would, and he then asked her, ‘Mother, is there any one else that you want to get a part of your estate?’ and she said, ‘No, I don’t want any one else.’ She said, ‘Gillie has taken care of me almost as long as I have taken care of her before she married,’ and she said, T want her to have everything.’ She said, T think she deserves it.’ That is the conversation they had at the bed. Uncle Taylor had sat down on the floor by her bed. I think that conversation took place about three days before my grandmother died, and it occurred at,my mother’s house. I cannot think of anything else that either of them said on that occasion, except that Uncle Taylor told her he would see that my mother got it. He said, T will see, Mother, that she gets it,’ and he told her, ‘Don’t you worry about it,’ and then he afterwards asked her,'he said, ‘You don’t want Sister to have any of it?’ and she said, ‘No, I have lived with Gillie, and I think she ought to have it,’ and ‘then he just began to talk to her about other things, because she had only been cool of fever for two days, and he did not want to worry her, and they began to talk about other things. I have given you the substance of the entire conversation.”
E. A. Tully testified:
“He went on to say that ha was very anxious to make a trade and sell some land, because he owed some money that he was anxious to pay, and he spoke of owing Mrs. Wofford, his sister, $5,000, and said he hoped to be able to sell enough land to pay that, and some other debts that he mentioned he owed. * * * He told me that he had been out to see his sister, Mrs. Wofford, and had told her he was going up there to sell this land so he could pay her this $5,000 he owed her. * * * I also had a conversation with Mr. Taylor Whitsett in which he told me some things in regard to the business affairs between himself and his mother, *326Mrs. Jane Whitsett. He spoke of that to me down at his ranch once, and he also spoke of the same thing there at my home when he was talking about selling his land. He told me that he wanted fo pay his sister this money, because he had promised his mother he would do it, and that he owed it to his mother, and that he promised to pay it. He had also at other times told me that his mother had deeded him some land. He spoke about this several times on different occasions, but I can’t remember just what dates they were. He told me that his mother had deeded over her land out there to him, and that he had asked her to do it so that he could borrow some money on it; that he owed some money on the land, and he wanted more money with which to buy some cattle, and that is why he asked his mother to deed him the land she had there. He stated that she deeded it to him, and he had told her he would deed the land back to her or pay her for it, or something to that extent, when he could. « * * Previous to his death, Mr. Taylor Whitsett told me that he had been out to see Mrs. Wofford before he went to Shiner; and that he had promised her he would pay her $5,000 just as soon as he could sell his land, and he thought he had found some man at Shiner who would buy some land from him.”
Mr. W. H. Sartain testified:
“He has talked to me about his business a good many times here in San Antonio, and when I was down at his ranch he told me how he got a part of the land. He told me he got it from his mother, but he did not say how much he had paid for it. As well as I remember, he stated that he either gave her a note for it, or was going to give her a note for it; I don’t know which.” -
C. W. Wolford, Jr., testified:
“He told me that the purpose of his trip to Shiner was to sell some land, and he talked to mo on that occasion about Ms business. He said he owed a lot of money, and he wanted to sell his land and pay it out. He said he owed Mr. Chandler, and he said he owed my mother, and he wanted to pay them both off. He said he owed my mother $5,000. He said he wanted .to sell as much of his land as he could, in order to pay her; that he had owed her a good while, and wanted to pay it off.”
Ed James testified:
“There were 3,400 or 3,500 acres in the ranch, and he told me he thought he could sell it for $13 an acre. He told me that a part of that land belonged to his mother, and that he owed her $5,000 for it, and that her dying request was for him to pay the $5,000 to his sister, Mrs. Wolford, and he said as soon as he could sell some land he intended to pay it.”
We know of no fact better proven, and appellant graciously rather concedes the opinion presents a correct statement of the law. At any rate, there is nothing new presented in the motion. There is abundant proof to establish the claim and no better proof offered than that by the deceased, himself, found in many declarations against his own interests.
Ed James, a witness, as shown above, said he told him part of the land “belonged to his mother and that he owed her $5,000 for it and that her dying request was for him to pay tlie $5,000 to his sister, Mrs. Wofford.”
And E. A. Tully also testified, as above, that he said that his mother deeded it to him so that he could borrow money on it as he owed some debts and wanted money with which to buy some cattle.
It is inconceivable how any one can be found to say Mrs. Wofford’s claim for the $5,000 has not been substantiated by proof, when the deceased, himself, was always proclaiming it and declaring his desire to carry out his dead mother’s wishes and her almost dying request.
The motion for a rehearing is overruled.