said chief justices shall have full jurisdiction of all testamentary and other matters appertaining to a probate court, within their respective counties." Id. art. 252.

Does the statute confer jurisdiction to dree a sale of real estate? If the section stood alone, it may be conceded that the phrase, "shall have full jurisdiction of all testamentary and other matters appertaining to a probate court," would be at least of doubtful significance. Certainly apter language could be used to confer jurisdiction to sell the real estate of an intestate. But this section is part of an entire act. The act, taken as a whole, creates a probate court, and provides for the administration and final settlement in that court of the estates of decedents, with provision for an appeal to the district court. There is nothing in the scheme to indicate that the probate court is deficient in its power to entirely settle the estate. It does not appear that parties interested must go to the district court within the year in which final settlements must be made, to obtain decrees of sale, before making settlements in the probate court. In its general terms, the act seems to contemplate that all that is needful to make complete settlements may be done in the probate court. This construction becomes more essential when it is remembered that no difference in the power of the court exists as to real estate and personal property. It has power to decree the sale of both or neither. Not one estate in twenty could be settled without a sale of some of its property. The act is passed by the legislature of a republic imbued with the principles of the civil law, which in such cases made no distinction between personal property and real estate. In fact, the administrator at that time placed both the land and the personal property in his inventory of the property of the estate. In a suit begun in 1842, relating to an administration opened in 1834, Lipscomb, J., speaking for the supreme court of Texas, said:

"These distinctions are unknown to the civil law as it prevailed under Spanish modification in Texas. Land here was thought to be of comparatively little value, and many a fine league has been transmitted with as little form and ceremony by our early colonists as would attend the sale of an Indian pony. All property, without distinction, was classed together. The Spanish civil law being the basis of our jurisprudence, much of our legislation after the revolution was imbued with its influence. Hence our act of congress passes all of the estate of a decedent into the hands of the personal representative. He is required to return an inventory of the land, to have it appraised, and it is taken into the estimate of the value of the estate; and his bond, given with reference to the aggregate amount of the estate, binds him to its faithful administration." Thompson v. Duncan, 1 Tex. 485, 488.

The acts which follow the act of December 20, 1836, indicate that the legislature of Texas believed that the power to sell the property of an estate was vested in the probate courts of Texas. On May 18, 1838, the second congress passed an act providing for the settlement of estates of deceased soldiers. Section 3 of the act provided:

"That no sale of any of the effects of a deceased soldier or officer shall be made, unless by order of the court granting letters of administration, approved by the secretary of war, and published in some newspaper sixty days; and all sales made contrary to the provisions of this section (unless by heirs of full age) shall be entirely null and void." Sayles' Early Laws, § 471; Hart. Dig. arts. 985-988.

By an act of December 24, 1838, this act of May 18, 1838, just above quoted, was amended, and section 1 of the amendment provided:

"That the above recited act shall not be so construed as to apply to the duty of any administrator upon the estate of any deceased citizen soldier, who was a citizen of Texas, in the full exercise of his rights as such at the time of his death." Sayles' Early Laws, § 548; Hart. Dig. art. 989.

An act of the third congress, of date January 23, 1839, regulates sales of real estate by administrators, executors, and guardians. It provides that the sales shall be made on the first Tuesday of every month, after advertisement for 30 days. Id. arts. 991, 992. These acts are pertinent, as showing the intention of the legislature in the act of December 20, 1836. They are legislative constructions of the former act. In Rex v. Loxdale, 1 Burrows, 447, Lord Mansfield said:

"Where there are different statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other."

In Doggett v. Walter, 15 Fla. 355, the court held that:

"The meaning and intention of the legislature in the enactment and repeal of laws may often be found in the contemporaneous and subsequent action of that body in reference to the subject-matter, and the evident intention of the legislature will control the construction of its acts."

In Webb v. Sellers, 27 Tex. 423, the probate court of Washington county, at the October term, 1838, had made a decree authorizing an administrator to sell real estate belonging to the estate of his intestate. It is true that no question was made as to the construction of the statutes conferring probate jurisdiction, but the validity of the administrator's sale was necessarily involved. The court said:

"The evidence as a whole shows very clearly, we think, that the probate court of Washington county exercised a rightful jurisdiction in ordering the sale of the land in controversy for the payment of debts due by the estate. It is clearly enough shown that all the orders of the probate court relating to the matter in controversy were made in the course of the administration."

In Pendleton v. Shaw, 44 S. W. 1002, the court of civil appeals of Texas holds valid a sale made under decree of the probate court of Washington county rendered at the September term, 1839. This sale had previously been held valid by the United States circuit court of appeals for the Fifth circuit. Land Co. v. Pendleton, 52 U. S. App. 328, 26 C. C. A. 608, 81 Fed. 784. In Ferguson v. Templeton, 32 S. W. 151, the court of civil appeals of Texas, for the First district, said:

"That a purchaser at administrator's sale under the law of 1836 was not required to look further into the record than the order of sale, for the reason that the probate court was one of general jurisdiction, and its order would therefore protect the purchaser."

In Pleasants v. Dunkin, 47 Tex. 343, the court treats as valid an administrator's sale made under a decree of the probate court rendered at the January term, 1840, which was under the law of December 20, 1836.

It is true that in none of these cases, so far as appears from the reports, was the point urged upon the consideration of the court that

the act of December 20, 1836, was not sufficient to confer jurisdiction upon the probate court. Seemingly the bar conceded that the probate court had jurisdiction. The cases perhaps have some value from that fact. They surely have value as showing the practical contemporaneous construction placed by the courts on the act in question. In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law is entitled to great respect. Edwards' Lessee v. Darby, 12 Wheat. 206, 6 L. Ed. 603; U. S. v. Pugh, 99 U. S. 265, 269, 25 L. Ed. 322.

It is insisted by the plaintiff in error that the case of Bank v. Dudley's Lessee, 2 Pet. 492, 7 L. Ed. 496, sustains the contention against the jurisdiction of the probate court. We find nothing in that case in conflict with the views we have expressed. The decree in question in that case was made in August, 1805, and the law under which it was made had been repealed on June 1, 1805. The statement of the case shows that "the plaintiff insisted, and the court ruled, that the law under which the court proceeded in granting the license to sell had been repealed before the license was granted." This holding of the trial court was affirmed. The phrase, "jurisdiction of all probate and testamentary matters," which was commented on in the case, was quoted from the constitution of Ohio. The question as to this phrase was whether it so fixed the jurisdiction of the court of common pleas to sell real estate of a decedent that it was not subject to the control of the legislature. Marshall, C. J., said:

"Jurisdiction of all probate and testamentary matters' may be completely exercised without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power or to comprehend it. The constitution did not mean, and could not mean, to deprive the legislature of the power of exercising its wisdom on a subject so vitally interesting to the people, nor do its words convey such an intent. Were it even true-which we cannot admit-that the constitution established the jurisdiction of the court of common pleas in the case, still the legislature might prescribe the rule by which that jurisdiction should be exercised."

The question and circumstances were entirely unlike the present case. In Ohio, the jurisprudence being unaffected by the civil law, the distinction between personal property and real estate was maintained in administrations. The administrator had no title to or control over the real estate. He had the power only to sell by virtue of a statute which was repealed before the order of sale was made. The court was construing a sentence in a state constitution which was intended to briefly indicate the jurisdiction which might be conferred on the court of common pleas by the legislature. The legislature had conferred the jurisdiction, but withdrew it before the decree in question was made. The supreme court was not in that case, as we are in this, construing a statute creating a court and establishing its jurisdiction, and providing elaborately for the administration of estates. An isolated sentence in the constitution of Ohio was under consideration, and there were no contemporaneous constructions by the legislature or judiciary of that state indicating that the words. quoted were intended to confer jurisdiction to sell the property of a

decedent. On the contrary, the legislature had assumed that legisla tion was necessary to confer such jurisdiction. In construing section 24 of the act of December 20, 1836 (Hart. Dig. art. 252), we do not look alone at its language. The words conferring jurisdiction, viewed alone, might or might not be held sufficient to confer jurisdiction to decree a sale of a decedent's real estate. But when we examine the entire act in the light of the jurisprudence of the republic as it existed when the act was passed, and in view of the subsequent legislative construction, and consider also the practical contemporaneous construction of it by the probate courts, and the sanetion of that construction by the acquiescence of the highest Texas courts, we are convinced that the act conferred on the probate court the jurisdiction to render the decree in question. We think the judg ment of the circuit court is right, and it is affirmed.

(99 Fed. 43.)

STERNENBERG et al. v. MAILHOS et ux.

(Circuit Court of Appeals, Fifth Circuit. January 9, 1900.)

1. APPEAL-RECORD.

No. 869.

Instructions printed in a transcript on appeal as having been given, or asked and refused, on the trial, but which are not contained in any bill of exceptions, or in any manner authenticated by the trial judge, do not constitute a part of the record in the case.

2. SAME-BILL OF EXCEPTIONS.

To enable an appellate court to review exceptions to the giving or refusal of instructions, the bill of exceptions should contain a sufficient statement of the evidence to show whether or not such instructions were applicable to the case before the jury.

3. SAME-QUESTIONS PRESENTED BY RECORD-PRESUMPTIONS.

Where the record on appeal fails to show that it contains all the evidence, the presumption is that there was evidence which justified the court in refusing to direct a verdict.

4. WRONGFUL DEATH-ACTION BY PARENTS-DAMAGES-Loss OF SERVICES. Under the Texas statute (Rev. St. 1895, art. 3017) giving a right of action for actual damages on account of injuries causing the death of any person, when caused by the negligence or wrongful act of another, the parents of a minor may recover in such an action for the loss of services of the deceased during minority, although he was instantaneously killed.

In Error to the Circuit Court of the United States for the Eastern District of Texas.

The following statement is agreed to: On the 16th day of September, 1898, plaintiffs in error were the owners of a steam sawmill and plant located in Hardin county, Tex.; and in connection therewith they owned a tram road running from the mill into the forest, with which they supplied their mill with sawlogs. The tram car was supplied with rolling stock, such as a steam engine or locomotive and log cars. The log cars were about 30 feet in length, and were so constructed that they could be fastened together by means of a coupler on each end. On the last-named date the deceased, Robert Mailhos, was employed by plaintiffs in error in the dual capacity of fireman and brakeman; and, while engaged as a brakeman, in an effort to couple together two cars loaded with logs he was so crushed that he instantly died. On the 20th day of March, 1899, Dominique Mailhos, father of the deceased, for himself and

for the use and benefit of his wife, Christie Mailhos, began this suit against plaintiffs in error for the sum of $12.000 actual damages, and $5,000 exemplary damages. Plaintiffs' first amended original petition, upon which they went to trial, contained two counts as a basis for the recovery of actual damages, as follows: "(1) Plaintiff says that it was negligence on the part of defendant, their agents and servants, in loading and placing said logs on said cars in the manner and position in which they were placed thereon, for he says that on said cars the logs, which were twenty-eight feet, were so loaded and in such a position that the ends of the same projected over the ends of said cars to such an extent that it rendered dangerous an attempt to couple together said cars, as was necessary in the prosecution of said business, as before mentioned, and whereby the lives of the defendants' employés and servants whose duty it was to go between said cars for the purpose of coupling together the same were greatly endangered." The other count for actual damage is as follows: "Plaintiff further alleges that defendants' said roadbed and track at the time when and place where said Robert Mailhos was killed was defective and in bad repair, and in a dangerous and unsafe condition, in that at said place said track was very unlevel, one side being much lower than the other, and that there was not sufficient support, by means of cross-ties or otherwise, under the rails of said track, to keep the same in a steady and safe position and condition, but, on the contrary, the rails of said track at said point, on account of the unlevel position and condition of said track, and on account of the insufficient support under said rails, and consequent depression in the roadbed, were very unsteady, unlevel, loose, and unsafe for the operation of said engine and cars over the same; that on the occasion aforesaid, while plaintiff's said son, in the discharge of his duty as brakeman, and in obedience to the orders of said engineer, was attempting to couple one of said cars to another, then being run back for that purpose by said engineer, and just as said car being run back passed over the rails at said point, and just as the drawheads of said cars were about to meet and join together in the usual and proper manner, whereby the said Robert Mailhos could have made the coupling with safety (he having gone between said cars for the purpose of making said coupling), one of the rails on the lower side of said track, by reason of the unlevel position of said roadbed, and the want of the proper and necessary support under said rails, and depression in said roadbed consequent therefrom, immediately sank down below its usual and proper place and position, whereby and on account of which the drawheads of said cars failed to meet and join together, but, instead, said drawheads passed one under the other, thereby permitting said cars and logs to run and jam together while plaintiffs' said son was between the same, whereby said plaintiffs' son, without fault or negligence on his part, was caught between said cars and logs, and thereby crushed and mangled and instantly killed; that the defendants well knew of the defective, unlevel, unsafe, and dangerous condition of said roadbed and track as before set out, or by the use of ordinary care could have known of the same; that it was no part of the duty of plaintiff's said son to inspect, repair, or in any manner look after the condition of said road, and that his said son at said time was a young, inexperienced boy, of immature judgment, and never knew of the dangers attendant upon his duties in coupling together said cars, and never knew of the dangerous condition of said track and roadbed at said time and place when and where he was killed, and. had never been warned by defendants of the same; that, while he had been in the employ of the defendants for several years previous to his death, he had only acted in the capacity of fireman and brakeman, or either, for about ten days previous to his death." The count alleging gross negligence as a predicate for exemplary damages, after the testimony was all in, was abandoned by plaintiffs, and formed no part of the issues submitted to the jury. That count was as follows: "Plaintiff alleges that defendants were grossly negligent in having and keeping in their employ said engineer, Bud Herrington, who, plaintiff alleges, was an incompetent, unskillful, and reckless engineer, and that defendants well knew that said engineer was incompetent, unskillful, and reckless, and unfit for and unsafe to operate and control said engine, but, notwithstanding their knowledge of said fact, said defendants kept said engineer in their employ, and permitted him to operate, run, and control their said engine, and placed the said Robert Mailhos under him, as fireman on said