mate rights in the property, if she should claim one-half. It appears in an incidental way that she has obtained one-half. But a great difficulty in supporting the judgment is that there were five or six persons present and heard from Jeremiah himself, while sick at his brother James' house, the disposition he made of his property, and those of them testifying discredit plaintiff's case. There were McGaugh, Griffey and wife, defendant James Crowley and wife, and probably Crowley's sister. McGaugh testified that Jeremiah said he did not want to die owing anything; that he wanted his brother James "to take those notes and that money he had and pay his debts and see after his daughter, Susie; that she was first, Susie Hall his only daughter. Then he made some remarks amout his wife, and then told him to use the rest to the best of his advantage. That is about the words he said." Griffey testified substantially, to the same thing. He stated that Jeremiah said that he wanted James to pay his debts; to see that his daughter, Susan, was taken care of, and to pay himself for his trouble, and to go down to Oklahoma with his wife, whom he wanted to have 80 acres of the land. Mrs. Griffey testified much the same.

In this state of the evidence, we find ourselves altogether unwilling to dispose of the estate on the theory of a trust for the benefit of the heirs. The subject of the trust and the beneficiaries thereof are altogether too uncertain and indefinite. The trust will not be executed if the precise nature of it, and particular persons, who are to take as cestuis que trust, and the portion which they are to take, cannot be ascertained. 1 Perry on Trusts (5th Ed.) §§ 83, 86. "A trust must be reasonably certain in its terms as to the property embraced in the trust, the bene

ficiaries, the nature of the estate they are to have, and the manner in which the trust is to be executed, and, when either of these elements is indefinite or uncertain, the trust must fail." Smullin v. Wharton, 73 Neb. 667, 103 N. W. 288, 106 N. W. 577, 112 N. W. 622, 113 N. W. 267; Mead v. Robertson (decided this term) 110 S. W. 1095. We therefore find ourselves in such state of mind as not to feel that confidence as to the right of the matter which we should feel in order to justify a judgment for the plaintiff. When such is the condition of mind of the court, the law, happily, finds the way out of the difficulty by prescribing that there shall not be a judgment declaring and enforcing a trust, unless the evidence is convincing beyond a reasonable doubt.

It is, however, too plain for dispute that the defendant James C. Crowley has no right to, or ownership of, any part of the estate. It has been turned over into his possession. The plaintiff says, in trust. This he denies, and plaintiff has failed to prove it. So therefore the property, in law, is that of an unadministered estate. There should be an administrator, unless all parties agree upon a settlement without that expense. If this is not done, possession may be secured by the administrator of the estate or its proceeds, less the payment of debts, if any, which the deceased directed to be paid. If defendant James has a valid claim of his own against the estate, it should be allowed in due course under the law. The amount left will not justify much expenditure, and the case is one calling for a harmonizing of interests, to the end that there may not be further litigation.

The judgment is reversed, and cause remanded, with directions to dismiss plaintiff's bill. All concur.

EQUITABLE MFG. CO. v. WAFUL. (KanMissouri. sas City Court of Appeals. May 25, 1908.) Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge. Action by the Equitable Manufacturing Company against Mort Waful. From a judgment for defendant, plaintiff appeals. Affirmed. F. B. Ellis, for appellant. John A. Cross, for respondent.

JOHNSON, J. Action to recover the purchase price of a lot of jewelry sold by the manufacturers to a retail merchant. The Equitable Manufacturing Company is a partnership composed of Theodore O. Loveland and James L. Records, engaged in business at Iowa City, Iowa. Through a traveling salesman they obtained a written order for a quantity of jewelry from defendant, a druggist at Lathrop. The order was in the form of that considered by the St. Louis Court of Appeals in Jewelry Company v. Withaup & Co., 118 Mo. App. 126, 94 S. W. 572, where the plaintiffs were the same as in the present action. Defendant admits signing the order and receiving the goods, but alleges in defense that as soon as he examined them he promptly rescinded the sale and returned them to plaintiff, on the ground that he was induced to sign the order by false and fraudulent representations of the traveling salesman respecting the character and quality of the articles, samples of which were not shown him. The facts and circumstances disclosed by the evidence and the issues made by the pleadings are so similar in all essential features to those reviewed by the St. Louis Court of Appeals in Jewelry Co. v. Withaup & Co., supra, that we adopt the opinion in that case as directly applicable to this. There, as here, the verdict and judgment were for defendant, and the vital issue was whether or not the contract of sale had been procured by false and fraudulent representations of plaintiff's traveling agent. only difference in the facts of the two cases is in unessential particulars. We find the judgment before us to be supported by substantial evidence, that no error was committed in the rulings on the admission of evidence, and that the instructions were in conformity with the principles of law declared in the Withaup Case. We sanction all that was said by our sister court in that opinion, and accordingly the judgment is affirmed. All concur.

The

STATE v. DONAHUE. (Kansas City Court of Appeals. Missouri. May 4, 1908.) Appeal from Circuit Court, Jasper County; Howard Gray, Judge. M. A. Donahue was convicted of operating a dramshop on Sunday and unlawfully selling intoxicating liquors therein, and he appeals. Affirmed. Walden & Andrews and Clay & Sheppard, for appellant. H. C. Compton and E. B. Chestnut, for the State.

JOHNSON, J. On information of the prosecuting attorney of Jasper county defendant was tried and convicted of operating a dramshop at a specified place in Joplin, under a license as dramshop keeper, on Sunday, March 24, 1907, and then and there unlawfully selling and disposing of intoxicating liquors, beer, etc. Defendant appealed. Neither party has filed a brief, and the cause is submitted on the record. A careful inspection of this document discloses that defendant was prosecuted and convicted in the manner and form provided by law, that the verdict is supported by sufficient evidence, and that no error was committed in the overruling of defendant's motion to elect, in the rulings on

HILL, C. J. This is an action by Riley to recover of the banking company a debt which was due him by Sam Mendal, which he alleges was assumed by the banking company in consideration of his releasing a vendor's lien upon property upon which the bank took a mortgage to secure itself and Riley and one other creditor of Mendal. He obtained verdict and judgment, and the bank appealed. The bill of exceptions is almost exactly like the bill of exceptions which was held insufficient in Berger Co. v. Houghton, 84 Ark. 342, 105 S. W. 582. The argument is chiefly addressed to attacking the sufficiency of the evidence of the assumption of the debt by the bank. Taking all the evidence and the terms of the mortgage, the court is satisfied that the evidence meets all legal requirements to sustain the verdict. Judgment affirmed.

RADLE v. STATE. (Court of Criminal Appeals of Texas. April 29, 1908.) Appeal from Falls County Court; D. H. Boyles, Judge. Charlie Radle appeals from a conviction. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J. The appellant in this case was convicted of the offense of disturbing religious worship, and was fined $25. There is no bill of exceptions nor statement of facts in the record. The indictment charges an offense, and is in proper form. As presented, it must follow that the judgment of the court below should be, and the same is hereby, affirmed. BROOKS, J., absent.

THORNTON v. STATE. (Court of Criminal Appeals of Texas. April 29, 1908.) Appeal from District Court, Bexar County; Edward Dwyer, Judge. Frank Thornton was convicted of murder, and he appeals. Affirmed. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J. The appellant was charged in the district court of Bexar county with the crime of murder. On trial he was convicted of the offense of murder in the second degree, and his punishment assessed at confinement in the state penitentiary for a period of 25 years. Notwithstanding this severe sentence, the record comes before us without either bills of exceptions or statement of facts. Under rules well settled in this court there is no question in this case which we can review, and it must follow that the judgment of the court below must be affirmed; and it is so ordered.

BROOKS, J., absent.

WALKER v. STATE. (Court of Criminal Appeals of Texas. April 29, 1908.) Appeal from District Court, Wilson County; E. A. Stevens, Judge. Joe Walker was convicted of

Ex parte WILSON. (Court of Criminal Appeals of Texas. April 29, 1908.) Appeal from District Court, Waller County; Wells Thompson, Judge. John Wilson was indicted for crime, and on suing out a writ of habeas corpus was denied bail, and he appeals. Reversed, and bail granted. Mathis, Buchanan & Rosberry and R. E. Hannay, for appellant. F. J. McCord, Asst. Atty. Gen., A. G. Lipscomb, and W. J. Poole, for the State.

DAVIDSON, P. J. After granting a writ of habeas corpus and hearing the testimony, the trial judge refused relator bail. This action of the lower court is presented as error. After reviewing the evidence, and without a discussion thereof in this opnion, we believe the court erred, and that bail should have been granted. It is therefore ordered that the officer having relator in custody will take his bond in the sum of $7,500, in accordance with the terms of the law. After executing said bond, relator will be discharged from custody. The judgment is therefore reversed, and bail granted in the sum of $7,500.

BROOKS, J., absent.

CITIZENS' RY. CO. V. ALEXANDER. (Court of Civil Appeals of Texas. May 6,

1908.) Appeal from McLennan County Court; E. C. Street, Special Judge. Action between the Citizens' Railway Company and E. T. Alexander. From the judgment rendered, this appeal is taken. Affirmed. Clark & Balinger and S. P. Ross, for appellant. W. L. Eason, for appellee.

FISHER, C. J. We find no error in the record, and the judgment is affirmed.

(Court

GAAR, SCOTT & CO. v. FROST. of Civil Appeals of Texas. April 29, 1908. Rehearing Denied June 3, 1908.) Error from Harris County Court; Blake Dupree, Judge. Action between Gaar, Scott & Co. and J. M. Frost. From an adverse judgment, said company bring error. Affirmed. Bryan & McRae, for plaintiffs in error. Cleveland Sewall and Hutcheson, Campbell & Hutcheson, for defendant in error.

FISHER, C. J. We find no error in the record, and the judgment is affirmed.

WESTERN UNION TELEGRAPH CO. v. FIRST NAT. BANK OF ROCKDALE. (Court of Civil Appeals of Texas. May 13, 1908.) Appeal from Milam County Court; John Watson, Judge. Action between the Western Union Telegraph Company and the First National Bank of Rockdale. From the judgment_rendered, this appeal is taken. Affirmed. N. L. Lindsley and Freeman & Morrison, for appellant. J. W. Garner and Henderson & Lockett, for appellee.

FISHER, C. J. We think there is enough evidence in the record to bring this case within the rule announced in Western Union Telegraph Company v. Uvalde National Bank, 97 Tex. 219, 77 S. W. 603, 65 L. R. A. 805. We have examined the assignments of error, and find none are well taken. The judgment below is affirmed.