
    (109 Tex. 536)
    ALLEN v. POLLARD.
    (No. 2779.)
    (Supreme Court of Texas.
    May 21, 1919.)
    1. Trusts <&wkey;33 — Delivery oe Money — Debtor and Creditor.
    Where a nephew deposited money with his unde on the latter’s proposal that he would place the money at interest or in the bank for him, the relation of debtor and creditor was not created, but the uncle’s holding of the money was as an acknowledged trustee.
    2. Witnesses <&wkey;178(4) — Transaction with Decedent — Competency of Other Party— “Called to Testify” by Deposition.
    Where a nephew, suing his uncle’s executor to recover a deposit with the uncle as trustee, had his ex parte deposition taken by the executor, but it was not offered in evidence, the nephew was “called to testify” by the adverse party within the meaning of the statute, and became competent to give evidence in his own behalf in relation to his transaction with his uncle, deceased.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by E. M. Allen against Jas. T. Pollard, executor of the estate of W. C. Thomas. From the judgment, defendant appealed to the Court of Appeals, which reversed and rendered (171 S. W. 630), and plaintiff brings error.
    Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.
    Tatum &, Tatum, of Dalhart, and Boyce & Davidson, of Amarillo, for plaintiff in error.
    J. H.'H. Stahl, of Stratford, and Turney & Burges and Goldstein & Miller, all of El' Paso, for defendant in error.
   PHILLIPS, C. J.

The action was one by Allen in the District Court to establish a claim against the estate of W. C. Thomas.

In his petition Allen charged that in 1907 he was in possession of a sum of money, which was known to Thomas, his uncle. Thomas proposed that Allen turn over the money to him, assuring Allen that in such event he would put it out at interest for Allen’s benefit and that Allen could obtain it whenever he needed or desired it; that he would place it so that it would be at all times safe and yield Allen an interest return. Upon this understanding, it was alleged, Allen delivered the money to Thomas. The agreement, as pleaded, was established by Allen’s testimony. There was no variance between the pleading and the proof, as is contended by the defendant in error, except that, according to Allen’s testimony, Thomas’ pro-' posal was that he would put the money “in the bank” on interest for him, which is an immaterial distinction. Thomas died in 1912. Prior to Thomas’ death, Allen had not requested the return of the money and Thomas had not returned it. Thomas at no time repudiated the agreement under which Allen intrusted the money to him. The suit was seasonably brought after Thomas’ death.

It was held by the Court of Civil Appeals that the claim was barred by limitation. 171 S. W. 530. We granted the writ of error upon the view that the transaction amounted to an express trust in Allen’s favor, as to which, under the facts, there was no limitation. It is plain, we think, that Thomas did not borrow the money and that the relation of debtor and creditor, therefore, was not created by the transaction. Thomas’ proposal contemplated that his possession of the money should be in recognition of Allen’s right to it, and that he would so use it for Allen’s benefit as to certaimy afford Allen the interest. His holding of the money was clearly that of an acknowledged trustee.

The case was withdrawn from the Commission for the determination of another question, for which purpose we set it down for argument.

The ex parte deposition of Allen was taken by the executor, but not offered in evidence. The interrogatories propounded called for Allen’s testimony touching the transaction with the decedent Thomas. Holding that thereby Allen had, within the meaning of the statute, been “called to testify,” by the adverse party in regard to the transaction, and his Incompetency as a witness in that .particular thus removed, the trial court permitted him as a witness in his own behalf to recite what transpired between Thomas and himself in reaching the trust agreement. The Commission of Appeals was of the opinion that the ruling should be sustained. After a full review of the question we have reached the same conclusion.

The Supreme Court’s Jurisdiction of the case is governed by the Act of 1913. Allen’s right of recovery depends upon this testimony. Having this vital' relation to the case, the question of the admissibility of the testimony is to be regarded as one of substantive law.

The taking of the deposition was for the purpose of obtaining Allen’s testimony in respect to the matters inquired about. It was effective for the purpose. By its means the testimony was developed. Allen was made to disclose the facts. He was compelled “to testify” regarding them. The method was one which the law furnished the adverse party and of which he availed himself, .iust as he might have called Allen to the stand. Allen’s testimony was made subject to his use. It was not within Allen’s power to prevent its use. He could not recall it. rt stood adduced as a part of the record of the proceeding. With his testimony compelled under oath and obtained at the instance of the adverse party through the force of the law, with it available for the free use of the adverse party and at his disposal, with it of record and constituting an integral part of the trial, we think it is evident that within the full intendment of the statute Allen must be regarded as having been called by his adversary to testify concerning the transaction with the decedent, and as competent, therefore, to give evidence in his own behalf in relation to it. Regardless of any use of the deposition, Allen had thereby been required to give the testimony in a way sanctioned by the law as only another and equivalent method to placing him upon the stand. The purpose of his adversary in seeking the testimony had been accomplished. It had been attained as fully as though Allen had been called to the stand, since the testimony was as effectually developed and rendered as freely available. The trial court made the proper ruling. Gilkey v. Peeler, 22 Tex. 663.

The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is affirmed.

HAWKINS, J.

(filing statement). Ttus case presents several important questions, upon some of which I have not had reasonable opportunity for full investigation of the record or of the law of the case, and upon those questions I have reached no definite conclusion.

My request for a postponement, for one week, of the decision of this court in this recently submitted cause having been denied, I decline to express therein, at this time, any opinion whatever* Later I will file a statement of my views in the premises. 
      —'T?nr other cases see same topic and KEY-NUMBER in all Key-Nnmbered Digests and Indexes
     