The discussion of this case upon the briefs, though very learned and able, has taken a range much wider than that to which we propose confining our. opinion.
H. C. Fitzpatrick brought his suit against A, Pope, the1 administrator of Rene Fitzpatrick’s estate,, in January, 1867, claiming a personal judgment for $4000 gold coin.. H. 0. Fitzpatrick claims that there was $4000 gold coin belonging to him in the safe of Rene Fitzpatrick on-the first of January, 1867, when Rene Fitzpatrick departed this life, and that Pope took wrongful possession* of said sum of money, and refused to return it to the plaintiff on demand. Pope’s defense to this suit is, that' he is the administrator of the estate of Rene Fitzpatrick,. deceased, and that the money, to-wit, the $4000 gold coin, is the property of said estate, and that he legally holds; the same as the administrator.
Mrs. P. A. Jones, who was joined in the administration* with Pope, was permitted to make herself a party defendant to this suit, and adopts Pope’s answer.
Two years after the commencement of this suit another-action was commenced by P. A. Jones et al. against H. C. Fitzpatrick et al. It may here be observed that Rene Fitzpatrick was formerly a resident of the State of Alabama; that he was three times married,'and that children* were born to him by the wife of each of these marriages. The children of the first and second marriages are the1 plaintiffs, and those of the third marriage are the defend- . ants, in the second suit. The object of the second suit is to *332compel a distribution of the estate of Rene Fitzpatrick •equally among the children of the three marriages, and to invoke from the courts the construction of a certain instrument of writing, dated in January, 1843. The first question for our determination presented by this record is, were the two suits properly consolidated 2 And we .answer this question by saying that the suits are not between the same parties, they do not relate to the parties in the same right, they are not founded upon the same subject matter, they necessarily require different judg-r ments, and therefore could not be legally consolidated into one suit; and for this error of the court alone the judgment of the District Court must be reversed.
But to avoid the discussion of all questions unnecessary to the proper decision of this case, we at once proceed to the examination of the written instrument, signed by Felix G. Fitzpatrick, Isaac Browning, Rene Fitzpatrick and Mildred Fitzpatrick by her husband Rene, found at page 77 of the transcript of the record. On the proper construction of this instrument should depend the ruling of the court on the defendant’s demurrer to the plaintiff’s petition. On this demurrer the law of the •case should have been forever settled; but we are clearly • of the opinion that the District Court erred in overruling the demurrer, and the question is now open before us. 'The evidence in the case might very well justify the conclusion that no significance whatever should be given to the so called deed of trust already referred to ; that Rene Fitzpatrick and wife, or Rene alone, were the true and lawful owners of the property which this instrument purports to convey in trust for certain uses ; that Browning had no real interest in the property at the time he conveyed it; and that no money ever actually passed from Felix G. Fitzpatrick to anybody. But this view of the case would not materially alter the rights of the *333parties if we treat the so called deed of trust as bona fide the declaration of an expressed trust. We will not then assume that there was any fraud or shuffle intended by this deed. It was then the declaration of an expressed trust, and we need not consider whether the signature of Mildred Fitzpatrick, written by her husband, was properly obtained to this instrument or not. The only light' in which this question could figure in the case relates to-the record of the instrument and its production in evidence by a certified copy. We do not think the instrument was entitled to record, and the court therefore erred in admitting proof by a certified copy. But no notice-need be taken further of this error. To get at the legal status of the parties to these suits, we will notice that the property now in controversy must be regarded as the profits and accumulations arising from the labor of the slaves and mules which form the original corpus of the property conveyed by the trust deed. The slaves having ceased to be property, they and their children, if they had such, are not here in controversy.
If the property which passed under the deed of trust had remained such at the death of both Rene and Mildred Fitzpatrick, there can be no doubt but that it would be subject to division among all the children of Bene Fitzpatrick, share and share alike; but the property here in question is an accumulation of surplus profits after all the uses and conditions of the deed had been fully satisfied.
Rene and Mildred Fitzpatrick took a life estate in this-property, with a beneficial interest, conditioned that the-property should be used for their own support and maintenance, and that of the children. These uses have been satisfied, and a surplus remains, accumulated by the careful and thrifty management of the trustees. We cannot hold that any resulting trust in favor of the grantor *334-or donor, Browning, attaches to this -•■ surplus.; Such might have been the case if Rene and -Mildred had not taken the trust beneficially; but we believe no case can be found where a resulting trust has attached to the surplus in the hands of the trustee, who took beneficially, -after the uses declared had been fully satisfied.
We will not here refer to authorities, as they are quoted (correctly in the briefs; and now the only question which -remains on this branch of the case is as to the proper ■construction of the word increase as used in the trust ,deed.
In Howard v. York, 20 Texas, 570, the court applied fthis term to the young of cattle produced in the order of .•nature; but in the case of De Blane v. Lynch, 23 Texas, 26, the court settled this- question, and this case was again -affirmed in Forbes v. Dunham, 24 Texas, 611. Cotton produced by the labor of the wife’s slaves was held as 'Community property, subject to the execution for the •debts of the husband. The cotton was raised on the land of the wife, and was held not to be the increase either •of the land or of the slave's, but the product of their -labor, and as such community property. Apply this principle to the case at bar, and the fund in controversy i must be regarded as the community property of Rene and -Mildred Fitzpatrick, and divided among their heirs accordingly; the half belonging to Rene Fitzpatrick must -be divided among all his children, and the half belonging to Mildred must be divided among her children, to the exclusion of the children of the former marriages.
Touching the land claimed by H. C. Fitzpatrick, the -right and title must be determined by the facts. If Rene ¿Fitzpatrick purchased this land with money belonging to -the community estate, though he purchased it in his -wife’s name, it would.be community property, unless such an .adverse possession be proved in the wife and *335. those claiming under her as would give title by prescription. But we do not see how the wife, living with her husband and occupying the land as the common home of the family,-can establish such an adverse possession.
For the reasons herein given, the judgment of the District Courtis reversed and the cause remanded.
Revebsed a yd bemayded.