John T. Faulk v. Kiziah Faulk and others, 23 Tex. 653

Wheeler, C. J. We are of opinion, that the court did not err in overruling the exceptions to the petition. It is not a valid objection to the petition, that the parties, claiming different interests, have asserted their respective interests in the same action. It is admitted to be always a delicate thing, for the court to interfere against the paternal authority. Tet, it is a well established doctrine, that it may do so, when it becomes necessary for the safety and protection of the infant.

Therefore, where the children have property, which can give the court the means of acting in their behalf, and where it is required for the preservation of their rights, the authority of the court may be invoked for their protection, as well against the misconduct of their father, or legal guardian, as against a stranger. (Helms v. Franciscus, 2 Bland, 563; Id. 429 ; Byrne v. Love, 14 Texas Rep. 91; 1 Bouv. Inst. 136.) We think the allegations of the petition presented a case which entitled the plaintiffs to the interposition of the court in their behalf.

The court did not err in holding, that the writing of the 22d of August, 1854, did not, of itself, vest in Mrs. Faulk, a life estate in the property therein mentioned, with remainder to the children, nor did it operate a transfer of the title to the property by gift, from the father to the wife and children. Whether there-was evidence of such gift, was properly left by the court to the decision of the jury; and we cannot say that their verdict was contrary to the evidence. Nor did the court err in the construction of the instrument of writing of the 30th of August, 1855.

Though inartificially drawn, and containing expressions which would be more appropriate in a will than in a deed, and some of the characteristics of a will, still, it evidently was intended to take effect presently; in the life-time of the donor. This is evidenced by such expressions occurring in the instrument as, “I do this day bestow,” “I hereby donate,” “I do hereby warrant and defend,” &c. It was manifestly designed to operate in the donor’s life-time ; and was effectuated as a gift, by delivery. It is, therefore, we think, to be construed to be

an act of gift, rather than a will, in which the disposition of the property is designed to take effect after the death of the maker, and it consequently operated a present transfer of property, and is a complete title by gift. No question can arise upon the record, as to the effect of the instrument, by the law of Louisiana; for the reason that there is no averment or proof, respecting the law of that state. The court, therefore, rightly adjudged the property in question to the plaintiffs.

The court, moreover, upon the finding of the jury upon the fourth issue, very properly adjudged that the father was entitled to the custody and education of the children, and the management of their property. But it may be a question, whether it was proper for the court to require the father, before taking possession of it, to give bond for its proper management, upon the evidence in support of the affirmative of the fifth issue, without a finding for the plaintiffs upon that issue.

It is, however, to be observed, that while the right of trial by jury is secured in cases of equitable cognizance, to enable the court to decide upon the fact, it is not necessary, as in cases of legal cognizance, that the parties should waive a jury. The language of the Constitution is, that “ In the trial of all causes in equity in the District Court, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury,” &c. It is only upon the application of a party, that the court is required to empanel a jury, in cases of equitable cognizance.

Here the parties, by consent, withdrew from the jury the issue in question; and as they do not appear to. have intended that the withdrawal should operate a mis-trial, we think it may be deemed a waiver of the jury-trial in the decision of that issue, and a tacit consent that it be decided by the court. In general, where a jury is empanelled, it will be taken to have been at the instance of the parties, and the verdict must constitute the basis of the decree or judgment. (Claiborne v.

Tanner, 18 Texas Rep. 68.) But where one of several issues is thus withdrawn from the jury, by consent, and the case is not withdrawn from them, but they are suffered to return a verdict upon other issues without objection, we think it fair to conclude, that it was intended to refer to the decision of the court, the issue thus withdrawn from the jury. That it was so understood by the parties in this case, is further inferable from the fact, that the action of the court, in proceeding to decide upon the question of fact, was not made the ground of a motion for a new trial, nor has it been assigned as error.

We conclude that the court did not err in proceeding to decide the issue, and are of opinion that the decision was warranted by the evidence, and that there is no error in the judgment. . Note.—The transcript of the record does not preserve the identity of the two suits of Kiziah Faulk v. John T. Faulk, and W. H. Faulk, as next friend, &c., v. Same, otherwise than by the agreement of counsel, respecting the trial, referred to in our statement of the case. But it inferentially appears, that the suit brought by W. H.

Faulk, next friend, &c., in which Kiziah Faulk joined, is the case that is before the court; and that the suit first brought by the said Kiziah for divorce, was one of a different number, and another case, although included in the transcript. The record is confused, and the agreement of counsel has supplied many important and vital omissions.—Reporters. It seems not improbable that it may become the duty of the Probate Court to appoint a guardian for these children, for the preservation of their property. (Byrne v.

Love, 14 Texas Rep. 96.) And should it become necessary that the authority of the court be again invoked for that purpose, the decision of this case will not conclude or embarrass any proceeding which may become necessary in their behalf. We only decide that, upon the case as presented by this record, there is no error in the judgment. Judgment affirmed.