over to her, and out of such proceeds she paid a third mortgage which had been recorded within four months of her husband's adjudication, such payment did not amount to a preference. (See Collier, 13th Ed., p. 1276(3); Am. B. R. Digest, § 507.) Suit by Francis H. Null, trustee of the estate of Simon Rosenthall, bankrupt, against the First National Bank of Tipton, in which Georgiana Rosenthal filed a cross-complaint. From the judgment rendered, plaintiff appeals. Affirmed. Cleon Wade Mount and J. R. Coleman, for appellant. Gifford & Gifford, for appellees. REMY, C. J.: On May 4, 1915, Simon Rosenthal, being the owner in fee of certain real estate located in the city of Tipton, where he resided, mortgaged the same to the Farmers' Loan & Trust Company to secure a note for $4 000. On August 3, 1920, being indebted to the trust company in the further sum of $2,000, he executed a second mortgage on the real estate to secure that debt; and on September 14, 1921, a third mortgage to appellee bank to secure a note for $1,700. The note secured by the third mortgage was also executed by a son of Simon Rosenthal as surety. The first and second mortgages were each promptly recorded. The third mortgage was not recorded until January 9, 1993. On February 27, 1922, when all the indebtedness secured by the three mortgages remained unpaid, except a payment of $1,500 on the $4.000 note, and when Simon Rosenthal was indebted to other creditors in the sum of $3 631.91, and was insolvent, sold the mortgaged real estate to Lee and Ray Moore. The consideration was $8,000. Appellee Georgiana Rosenthal, wife of Simon, knowing that her husband was insolvent, and knowing that the third mortgage note had been executed by her son as surety, and to protect herself, refused to join in the conveyance, except upon condition that she should "receive all the money remaining from the sale after the payment of the first and second mortgages"; it being agreed and understood, however, that out of the money to be received by her the amount of the note secured by the third mortgage was to be paid. The conditions upon which Georgianna Rosenthal would join in the conveyance, and which were reduced to writing and signed by her, were accepted and the sale consummated. Out of the $8,000 purchase money the balance of the debts secured by the two senior mortgages, in the sum of $5,586.50, was paid; and the amount of the note secured by the third mortgage in the sum of $1,759.50 was paid to the appellee bank; the payment thereof being made by check of vendees payable to Simon Rosenthal, who, as agent of his wife, assigned it to the appellee bank. Before the vendees had paid to Georgianna Rosenthal that part of the purchase money which remained after the payment of the indebtedness secured by the three mortgages, and on April 10, 1922, Simon Rosenthal was adjudicated an involuntary bankrupt, and appellant was appointed trustee in bankruptcy. At the time of the sale of the real estate, Simon Rosenthal owned no other real property, but owned personal property of the value of $933.43, and no more, and was a householder, and as such entitled to an exemption of $600. This suit was instituted by the trustee in bankruptcy against appellee bank to recover the amount paid to the bank out of the proceeds of the sale of the real estate in satisfaction of the third mortgage. By leave of court, appellee Georgiana Rosenthal was made a party defendant, and filed a cross-complaint, setting up that the portion of the consideration for the real estate, over and above the amount of the three mortgages, had not yet been paid, and asked that the court adjudge that she was the owner thereof, and that she be authorized to collect the same from vendees. The cause having been put at issue, the court found the facts specially, and stated conclusions of law in favor of appellees, and judgment was rendered accordingly. The only error assigned and properly presented is the action of the court in overruling motion for new trial, and the only grounds suggested for a new trial are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. On the trial, the evidence, without conflict, established the facts stated above. The one question for determination is whether or not the decision is contrary to law. It is urged by appellant that, since the third mortgage was recorded within four months prior to the adjudication of bankruptcy, the payment of the mortgage debt out of the proceeds received from the sale of the real estate was, under the facts shown by the evidence, a payment by the bankrupt, and amounted to a preference, within the meaning of section 60 of the United States Bankruptcy Act of July 1, 1898, chapter 541, as amended (U. S. Comp. St. § 9644). On the other hand, appellees, who conceded that the mortgage, having been recorded within four months prior to the bankruptcy, was not a lien on the real estate as against other creditors, contend that, since Simon Rosenthal, as his wife knew, was insolvent at the time of the sale of the real estate, she, in order to protect her inchoate interest, was within her legal rights in requiring that the proceeds of the real estate, over and above the amount of the debt secured by the first and second mortgages, be turned over to her. A determination of the question presented will require a consideration of the agreement by which Georgiana Rosenthal was induced to join her husband in the conveyance. If that agreement is valid, the judgment must be affirmed, otherwise reversed. It is well settled that the relinquishment of a wife's inchoate interest in her husband's real estate will constitute a valuable consideration. Dailey v. Dailey (1900) 26 Ind. App. 14, 58 N. E. 1065; Brown v. Rawlings (1880) 72 Ind. 505. It appears from the evidence that the money received from the real estate, in excess of the first and second mortgages, was less than one-third of the total consideration paid. There is no charge of fraud in the sale on the part of Georgiana Rosenthal or any one else. The general creditors could have reached the real estate only by judgment or by bankruptcy, and by neither course could they have reached the one-third, which under the statute would, in the event of judicial sale, have vested in the wife. Section 2508, R. S. 1881; section 3052, Burns' 1914. In dictating the terms upon which she would join in the conveyance, Georgiana Rosenthal was within her legal rights. In no other way could her interest in the real estate have been protected with so little cost to herself and the creditors. Baldwin v. Heil (1900), 155 Ind. 682, 58 N. E. 200. The creditors were in no way harmed. On the contrary, they were favored, for out of the funds which would have gone to her, if there had been a judicial sale, nearly $2,000 of the indebtedness was paid. It may be, as suggested by appellant, that Georgiana Rosenthal wanted to protect her son who was surety on the third mortgage note; but that fact would render the transaction void. The note was paid out of the money to go to her under the contract. We find no error. Affirmed. I. L. HUGHES ET AL. v. GEORGE F. BEall.* Texas Court of Civil Appeals, May, 1924. No. 2934. TITLE TO PROPERTY-WHAT PROPERTY PASSES TO TRUSTEE-REAL PROPERTY AND RIGHTS THEREIN-REMAINDERS AND REVERSIONS-VESTED REMAINDER PASSES TO TRUSTEE. A vested remainder in property after a life estate passes to the remain. derman's trustee in bankruptcy and may be sold by him, but the trustee is not entitled to possession as against the life tenant. (See Collier, 13th Ed., p. 1674(IV); Am. B. R. Digest, § 348.) Suit by George F. Beall against I. L. Hughes and others. From a decree for plaintiff, defendants appeal. Affirmed. Statement of Facts: The suit was brought by the appellee for the purpose of having the court construe the will of Mrs. S. L. Hughes, deceased. The court construed the will as contended for by the appellee, and entered judgment in his favor, decreeing to the appellee title and possession to the "one-third undivided remainder interest of James Richard Hughes in all of the property belonging to the estate of S. L. Hughes, deceased, at the time of her death, being briefly described as follows: [Here follows description]." The recovery was made subject to the life estate of I. L. Hughes.” The facts as agreed to are as follows: That James Richard Hughes has been, upon his own application, duly and legally adjudged a bankrupt by 264 S. W. 171. the District Court of the United States for the Northern District of Texas sitting at Dallas, and that all matters required by law and the rules of said court to be handled by the referee in bankruptcy in relation to said estate have been referred by said court to Hon. E. M. Baker, referee in bankruptey; that the appellee herein has been duly and legally appointed and has qualified, and is acting as trustee of said estate; that on the 27th day of November, 1922, the said referee in bankruptcy, by his order duly entered on that date, directed the appellee, as trustee of said estate, to bring this suit, and that the appellee, as such trustee, has all proper and legal authority to bring and prosecute this suit; that the administration of the estate of said James Richard Hughes in bankruptcy is still open and pending; that the said James Richard Hughes is the son of the appellant I. L. Hughes and his deceased wife S. L. Hughes, and is the brother of the appellants Addie Harkey and Nervada Pearson; that on the 14th day of August, 1906, the said S. L. Hughes, deceased mother of James Richard Hughes, duly executed her last will and testament; that thereafter on the 31st day of August, 1916, the said S. L. Hughes died in Hunt county, Texas, and that thereafter on the 7th day of October, 1916, the appellant I. L. Hughes made application to the county court of Hunt county to have said will admitted to probate; that on the 25th day of November, 1916, at a regular term of said court, said will was duly and legally probated in the county court of Hunt county, Texas, as the last will and testament of the said S. L. Hughes, and thereafter an inventory of her estate was duly filed and approved by said court; that said inventory showed that the deceased owned at the time of her death an undivided one-half interest in the property described in the plaintiff's petition, said property having been the community property of appellant I. L. Hughes, and his wife Mrs. S. L. Hughes, deceased. A certified copy of the will of Mrs. S. L. Hughes, deceased, was introduced in evidence and is as follows: "The State of Texas, Hunt County. "Know all men by these presents, that I, S. L. Hughes of said county and state, being of sound and disposing mind and memory and being desirous to set'le my worldly affairs while I have strength so to do, do make this my last will and testament, hereby revoking all others heretofore by me made. "Item 1st. I desire and direct that my body be buried in a decent and Christianlike manner, suitable to my circumstances and conditions in life. "Item 2nd. I desire and direct that my just debts be paid without delay by my executor to be hereafter appointed. "Item 3rd. I give, bequeath and demise to my beloved husband I. L. Hughes all the estate both real and personal or mixed of which I shall die seized and possessed or to which I may be entitled at the time of my demise, with full power and authority to use and to hold the same in any manner he may desire, and at his demise, after being buried in a decent and Christianlike manner, the balance of said estate both real and personal or mixed which shall die seized and possessed or to which he may be entitled at the |