author: COIL, Commissioner.

text:
    Rennie HEMPHILL, by and through her guardian, Charles F. Burns, Appellant, v. Rosa Mae Hemphill QUIGG et al., Respondents.
    No. 48674.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied March 12, 1962.

      Rex Titus, Joplin, for appellant.
    Clarence Craig, James E. Brown, Emerson Foulke, Joplin, for respondents.
   COIL, Commissioner.

This is the second appeal in this case. On the first, Hemphill by and through Burns v. Hemphill, Mo., 316 S.W.2d 582, the trial court’s dismissal of plaintiff’s petition on the ground, inter alia, that it failed to state a claim upon which relief could have been granted was reversed and the case remanded for further proceedings. As disclosed by the former opinion the action was and is one by an insane woman-residing in Oklahoma, through her duly qualified and acting guardian, whereby she seeks in count 1 to have a 1942 Missouri divorce decree, obtained by her then husband Roy Hemphill, declared void and, in count 2, an accounting of personal assets in the estate Roy Hemphill, deceased, and a declaration of the interests of plaintiff and defendants, including Rosa Mae-Hemphill Quigg, who, ostensibly at least, married Roy Hemphill in 1946, in certain-real estate. We held on the former appeal that, as a matter of law, only one paragraph of the allegations asserting reasons for the invalidity of the divorce decree could constitute a sufficient basis for declaring the judgment void, for the reason that all other allegations were of matters pertaining to the merits of the cause upon which the judgment of the court was rendered and did not allege fraud in the procurement of the judgment which was extrinsic or collateral to the matters which were or could have been adjudicated in the divorce proceedings. The paragraph of the petition which stated a claim for relief, as summarized by the court was (316 S.W.2d 587) r that the guardian ad litem appointed to represent present plaintiff, the defendant in the divorce suit, “failed to communicate with his ward or any of her relatives or friends or to notify any of such persons as to when the cause was to be heard; that he failed to make any investigation whatsoever concerning the facts and circumstances involved; and did not act in the interest of his insane ward but solely in accommodation of Roy Hemphill and his counsel.” Upon remand the case was tried on the foregoing averments.

Rennie Hemphill, present plaintiff, married Roy Hemphill in 1916. Most or all of their married life was spent in Commerce, Oklahoma. There were four children horn of the marriage, the oldest, Joe, deceased at the time of the present trial, and the youngest, Jack, who was born in July 1925. On January 8, 1926, Rennie, then 26 years of age, was admitted to an Oklahoma state hospital for the insane, her illness being diagnosed as schizophrenia, -catatonic type. Apparently, since her admission, continuously, and at trial time, there was no prospect for her recovery.

On March 4, 1942, Roy filed a suit to -divorce Rennie in the Circuit Court of Jasper County, Missouri. The petition alleged, inter alia, that he and defendant had lived together as husband and wife since their marriage in 1916 “until the - day of January, 1922” and that defendant had offered him such indignities as to render his condition intolerable. The circuit judge’s •docket disclosed that on April 13, 1942, a .guardian ad litem was appointed for defendant and, on April 14, his answer was filed which admitted the marriage and that plaintiff and defendant had lived together as husband and wife until the - day of January 1922, and denied every other allegation and demanded strict proof thereof. On April 16, 1942, the trial court granted plaintiff a divorce as prayed and allowed the guardian ad litem a fee of $15. (Roy Hemphill had theretofore in December of 1941 filed an identical petition for divorce in the same court and, on January 8, a guardian ad litem, a different person than the guardian in the subsequent suit, was appointed. On January 10, 1942, a decree of divorce was granted but shortly thereafter was set aside by the court on its own motion as void “Due to short Service.”)

On August 1, 1946, more than 4(4 years ■•after his divorce from Rennie, Roy married present defendant Rosa Mae Hemp-M1 Quigg. Roy died on December 12, 1955, and this action was filed on February 10, 1956.

At the present time the guardian ad litem, an attorney 72 at trial time, was called as a witness by plaintiff and testified that the circuit judge who appointed him guardian, had talked with him a few weeks before he (the witness) consented to act and that he had made his investigation, as we infer, by the time of his formal appointment; that the judge advised him that there had been a previous Hemphill divorce case but did not tell him any details concerning it; that he talked with the attorney who had been the guardian ad litem in the prior case in which the decree had been set aside; that he had known the Hemphill family quite well and had theretofore seen Rennie Hemphill but had not been personally acquainted with her; that prior to filing his answer, he talked with certain people in Joplin concerning the then condition of Rennie Hemphill; that, among others, he talked with Joe Hemphill, then a grown man, the oldest son of Roy and Rennie Hemphill; that Joe told him that his mother had no property and that she had gone “plumb berserk” after the baby was born and couldn’t thereafter pull herself together; that Joe also had told him that he, the witness, could not see his mother if he went to the hospital and there was no use to go and that he (the witness) had tried to see a patient in the same hospital in connection with another case and had been refused permission. The guardian testified further that he was present at the trial, asked some questions on cross-examination, as did the trial judge, and that it was shown at the trial that the indignities alleged occurred prior to the birth of Rennie’s son Jack. He further testified that he had correctly stated in a deposition that he had not inquired as to the exact date when Rennie’s insanity started; that he did not investigate to find out when they had stopped living together or what their relations were while they lived together; that he could not recall at the present trial what the testimony was with respect to whether Roy Hemphill testified at the divorce trial that he and Rennie were separated when she was pregnant with Jack; that he did not go to Commerce, Oklahoma, to question persons who resided in the same community as Roy and Rennie when they lived together, and that he did not go to the Oklahoma hospital or talk with anyone connected with the hospital about the case.

It was conceded that the answer filed by the guardian ad litem and the petition filed by Roy Hemphill’s attorneys were prepared by the same typist on the same typewriter and on paper from the same box. The typist, Roy’s attorney, and the guardian all testified that the offices of the attorneys who prepared the petition and of the guardian were on the same floor of the same building; that neither of Roy’s attorneys had a stenographer; that the guardian did have a stenographer who often did work for plaintiff’s attorneys on her regular employer’s typewriter. The stenographer testified that the divorce petition was dictated by one of Roy’s attorneys and she typed it on her typewriter. The guardian testified that he dictated the answer on the date shown.

One of the two attorneys for Roy Hemp-hill (the other was deceased at the time of the present trial) testified that Roy was the only witness at the trial of the divorce case; that Roy had testified that he and Rennie separated and ceased living together as husband and wife shortly after she became pregnant with Jack; that the trial judge examined Roy when he was on the witness stand at the divorce trial as to when Rennie first became ill; that Roy had said that “they” noticed that Rennie became ill some little time before Jack was born.

There was other evidence by relatives and neighbors of Roy and Rennie that her mind began to get bad at the time Jack was born; that they noticed something was wrong when Jack was three months old.

Without detailing the testimony of each of the other witnesses, suffice for present purposes to say there was substantial evience adduced by plaintiff to the effect that Roy and Rennie lived together as man and wife until Roy took Rennie to the hospital on January 8, 1926, and that they lived together as man and wife thereafter for a period of five or six weeks in January and February of 1927 when Rennie was temporarily released from the hospital. The evidence to that effect consisted of the oral testimony of the Hemphills’ relatives and neighbors and there was a transcript of the testimony of certain witnesses, including Roy Hemphill, at a 1939 “dower” hearing in the Circuit Court of Jasper County at which duly appointed commissioners were determining whether to recommend to the court that Roy Hemphill be permitted to give a lot to his son Joe for the purpose of building a home thereon, wherein Roy said that he and Rennie lived together as husband and wife “at the time she went to the hospital.” That transcript was on file in the Jasper County Circuit Clerk’s records.

Plaintiff also adduced the testimony of Doctor Hayes, a psychiatrist at the Oklahoma hospital, who was there at the time of Rennie’s admission and had been there continuously since. He testified that Ren-nie would not have been able to have consulted with an attorney or guardian or to have assisted such a person in the defense of a divorce action at any time since she had been admitted to the hospital; that the following from the allegations of indignities contained in Roy’s petition for divorce would be a good description of Rennie’s condition when she was admitted: “high tempered, peevish, fault finding, continually quarrelsome and would fly into fits of anger without provocation, and would use loud and abusive language, and would work herself up into a mental state where she would loose all control of herself, and wouldn’t listen to reason, or explanation, that she had imaginary grievances, and she could never agree with her husband on anything, she would become nervous, and go into tirrades and she claimed and imagined that her husband thought more of other people than [he] did of her.” The doctor testified further that the condition in which he found Rennie on January 8 did not begin as of that date and it was the doctor’s present opinion that it would have been his opinion in April 1942, if someone had inquired, that Rennie was of unsound mind at the time she did the things alleged in the petition as indignities, although he also said he could not have made an accurate estimate as to her sanity or insanity three years prior to her admission to the hospital without an examination of her, hut, nevertheless, if the allegations in the petition were true, in his opinion she was mentally ill at the time those things occurred.

The hospital admissions record stated that the information thereon was furnished by Roy and Rennie’s sister and one question and answer indicated that attacks of mental disease had occurred “2½ years ago.”

The trial chancellor found that the guardian ad litem “did all that was reasonably required of him” and refused to declare the divorce judgment void and adjudged that Rennie had no right, title or interest in the personal property which Roy owned at the time of his death and had no right, title or interest in any of the real estate described in the petition.

Our review of this action in equity is de novo. We weigh the evidence and arrive at our own conclusions as to its weight, taking into account the position of the trial chancellor to have judged the credibility of the witnesses. The burden was and is upon the plaintiff to prove by clear and convincing evidence the fraud relied upon in the procurement of the judgment.

Plaintiff contends the evidence discloses that the guardian ad litem failed and omitted to properly investigate the truth of the averments in the divorce petition and thereby failed to discover and to plead the facts of and to adduce substantial evidence in support of the defenses that the indignities complained of by Roy Hemphill in his divorce action occurred at a time when defendant was insane and that those indignities, if so, had been condoned by Roy.

In the opinion on the former appeal a guardian ad litem’s duties generally and under the allegations of the petition in this case were stated thusly: “The guardian ad litem for an insane defendant should be more than a mere figurehead. The appointment of such a guardian is not a bare technicality and the office involves more than perfunctory or shadowy duties. In most instances a guardian ad litem may not discharge his duties by merely filing a formal answer requiring the plaintiff to prove the allegations of his petition. He is required to take all steps reasonably necessary to protect and promote the interests of his ward in the litigation. In a case such as the divorce proceeding in question the guardian ad litem (an attorney) should have made an investigation of the facts and the law applicable thereto, and he should have filed an answer setting up all defenses (including the affirmative defense that his ward was insane at the time of committing any acts that were alleged to be indignities) that could have been supported by substantial evidence. In the preparation and trial of the case he should have exhibited the same (if not greater) attention and vigilance in defense of the action as he would have employed on behalf of a sui juris defendant who has privately engaged him as counsel. For cases discussing the duties of a guardian ad litem, see Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660; Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706; Cox v. Wrinkle, Mo.Sup., 267 S.W.2d 648; Niedergerke v. Niedergerke, supra [Mo.App., 271 S.W.2d 204].” Hemphill by and through Burns v. Hemphill, supra, Mo., 316 S.W.2d 587. (Bracketed insert present writer’s.)

Our ’ review of the evidence convinces us that if the guardian ad litem in this case had performed all the acts in the manner and to the extent that plaintiff insists he must have, he should and would have discovered facts and circumstances which would have constituted substantial evidence to support the defenses of con-donation and that his ward was insane at the time of committing the alleged indignities. It is true that whether either of those defenses could have been successfully maintained is speculative because, for example, the discoverable evidence pointed to by plaintiff does not necessarily establish that at the time of the indignities alleged plaintiff was insane or that her insanity was such as would constitute a defense, i. e., such that it deprived her conduct of the element of willfulness and divested her of the use of her reason to the extent of her being unable to differentiate between right and wrong or that she was acting under an irresistible impulse generated by a diseased mind. Willis v. Willis, Mo.App., 274 S.W.2d 621, 627 [9-14], Furthermore, as we have pointed out, there was evidence that Rennie’s mental trouble was first noticed after or about the time her last child was born, which, under the evidence, was not more than five months prior to the time she was admitted to the hospital. But it was not incumbent upon the plaintiff to show conclusively that either or both the noted defenses would have defeated the divorce action. It was sufficient on that aspect of the case that plaintiff showed that by reason of the indicated evidence there could have been tendered at the trial a seriously liti-gable issue as a meritorious defense to the divorce action. See Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1037 [7,8]; Beil v. Gaertner, 355 Mo. 617, 197 S.W.2d 611, 616 [4],

It does not follow, however, that simply because it was made to appear in this case, after the lapse of some 18 years since the divorce judgment, that if the guardian ad litem had done certain acts in a certain way he would have discovered certain evidence and that it would then have been his duty to have asserted the mentioned defenses and to have adduced evidence in support thereof, the guardian ad litem’s failure to have acted in the manner suggested by plaintiff constituted actual or constructive fraud in the procurement of the divorce judgment.

It is clear to us, and we so hold, that there is no evidence in this record which tends to establish any willful wrongdoing, i. e., any actually fraudulent conduct, on the part of the guardian ad litem. There is no evidence, direct or circumstantial, which justifies a conclusion that the guardian ad litem colluded with or conspired with the plaintiff in the divorce action or with his counsel in order to assist plaintiff in wrongfully obtaining a decree of divorce, or that he acted solely in accommodation of Roy Hemphill and his counsel; or that he failed to make any investigation of the facts; or that he failed to speak with any of Rennie’s friends or relatives. And, we note, there was a failure to prove the aver-ments of the petition, summarized in the former opinion and set forth herein, supra.

In the view we take, it would be an unrewarding task to determine whether the evidence is so clear and cogent as to convince us that the failure of the guardian ad litem to have discovered and to have adduced evidence in support of condonation and insanity was the result of a failure on his part to have performed his duty to the extent that his dereliction, if any, amounted to a constructive fraud through and by which the divorce judgment was obtained; viewing the facts as they should have appeared to a reasonably careful lawyer at the time the guardian ad litem agreed to accept his appointment as such and determining whether in the light of those facts the guardian acted as a reasonably careful lawyer would have acted under the same or similar circumstances. For, as we see it, even if the guardian failed to fully discharge his duty and even if we found that such failure amounted to a constructive fraud by reason of which the divorce judgment was obtained, the application of equitable principles to certain of the facts here present imperatively calls for our refusal to adjudge the divorce decree void.

An equity court has the power to vacate a decree of divorce for extrinsic fraud in the procurement of the judgment notwithstanding the prevailing party has remarried, Cherry v. Cherry, 225 Mo.App. 998, 35 S.W.2d 659, 661 [10]; 27A C.J.S. Divorce § 171a, p. 688; and notwithstanding one of the parties has died, Richmond v. Richmond, Mo.App., 225 S.W. 126; 27A C.J.S. Divorce § 171a, p. 689; Annotation, 157 AL.R. 6, 53. The divorce judgment in such cases is voidable. 27A C.J.S. Divorce § 169b(l), pp. 678, 679. Whether a court of equity should exercise its power to vacate a decree of divorce in such cases, however, depends upon general equitable considerations, Restatement, Judgments, § 127, rests in the sound discretion of the court and depends upon the facts in the particular case. Bussey v. Bussey, 95 N.H. 349, 64 A.2d 4, 12 A.L.R.2d 151. See Annotation, 12 A.L.R.2d 151, et seq. Courts manifest reluctance to set aside divorce judgments where an innocent third person has married a divorced spouse. Cherry v. Cherry, supra, Adams v. Adams, 51 N.H. 388; Swift v. Swift, 239 Iowa 62, 29 N.W.2d 535, 539. “After a long lapse of time and change in status of persons upon faith in the validity of the decree, ‘this power will be exercised with great caution,’ ” Bussey v. Bussey, supra, 64 A.2d 5; Annotation, 157 A.L.R. 6, 51, 52, and only upon a strong showing, Matthews v. Matthews, 224 Mo.App. 1075, 34 S.W.2d 518, 523 [4], In a proceedings such as this the court is dealing not only with the rights of individuals but also with the public interest, Willis v. Willis, supra, 274 S.W.2d 626 [7,8] and in some “situations it may be in the public interest to recognize an invalid divorce and preserve a remarriage rather than to resort to a dubious attempt to resurrect the original marriage.” Swift v. Swift, supra, 29 N.W .2d 539.

Upon the record before us, the second wife acted in good faith. There was no hasty marriage following the divorce. Four and a half years passed between Hemphill’s divorce and remarriage. No facts indicate that the second wife had mercenary motives, or was guilty of any inequitable conduct, or had any reason to suspect that the divorce proceedings, regular on the face of the record, were voidable. No effort was made to void the judgment during the lifetime of Roy Hemphill. As long as he lived and continued to accumulate property, and as long as he was available to negative the evidence which indicated that he had condoned Rennie’s acts of indignity and the evidence that these acts occurred before the onset of her insanity, no effort was made to upset the divorce decree. It was only after he died and cea ,cd to be productive, and was no longer available, that an action on behalf of the insane ex-wife to set aside the 14-year-old divorce judgment, was deemed advisable and expedient by those having an interest.

All six of the parcels of real estate described in count 2 of the petition were accumulated after Rennie entered the hospital; five of them were acquired after the judgment of divorce and four of the parcels were acquired after Roy’s remarriage as estates by the entirety with his wife Rosa Mae. Rennie apparently made no contribution toward the accumulation of the described real estate. Rennie, a hopelessly and permanently insane person who has been in a mental institution for more than 35 years, has no interest in the recovery of any part of that property which a court of equity will consider superior to the interest of the second wife. To set aside the divorce judgment and to judicially declare that the second wife and Hemphill lived in a state of adultery from the date of their marriage ceremony to the date of his death, with all of the attendant ramifications of such a pronouncement, would accomplish no desirable result and would be inequitable and grossly unjust. Shammas v. Shammas, 9 N.J. 321, 88 A.2d 204, 210, 211.

Nothing we have said dealing with the specific question here presented should be construed as changing or lessening in the slightest degree the duty of a guardian ad litem as delineated in the former case of Hemphill v. Hemphill, supra, 316 S.W.2d 587, and in the cases there cited. By reference we reiterate what has been said in those cases with respect to a guardian ad litem’s duty. If a guardian ad litem is to err, it should be on the side of investigating too much rather than too little. Further, we make it clear that our refusal as a court of equity to set aside this judgment even if procured by constructive fraud, is based upon the unusual and particular facts of this case.

Plaintiff’s right to the relief she sought in the nature of an accounting and to fix her interests in described real estate was dependent in the first instance upon the voiding of the divorce judgment. Inasmuch as we have refused to hold the divorce judgment void and although the trial chancellor adjudged other matters in the case affecting the interests of named defendants, inasmuch as no defendant has appealed from the judgment, our order should be and is that the judgment is affirmed on both counts 1 and 2, although, as our opinion discloses, we have reviewed the judgment only insofar as it refused to declare the divorce judgment void and denied plaintiff further relief.

Judgment affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Raymond D. WATSON et al., Appellants, v. DRUID HILLS COMPANY, Appellee.
    No. 15948.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 19, 1962.
    Rehearing Denied Feb. 16, 1962.

      C. C. Renfro, Dallas, for appellants.
    Eades & Eades, Eric Eades, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a summary judgment in favor of Druid Hills Company, a corporation, appellee here and plaintiff in the trial court, in a suit in trespass to try title concerning Lot No. 8 in Kiestview Addition in Dallas, Texas.

Appellants, Raymond D. Watson and wife Corrinne A. Watson, claimants of title, and Oak Cliff Savings & Loan Association, claimant of a first lien, made no serious effort to dispute appellee’s legal title to the property in question. However, they did plead and now urge several alleged equitable grounds for judgment in their favor based on an oral agreement of sale between appellee and one Perry Greenspan, Jr.

In reply to appellants’ answer appellee filed a supplemental petition in which it pled the Statute of Frauds, Art. 3995, § 4, Vernon’s Ann.Civ.St., and the Statute of Conveyances, Art. 1288, V.A.C.S.

Greenspan, a building contractor, was also a party defendant, but he did not file an answer and has not appealed from the judgment in favor of appellee.

The Watsons in addition to their plea of not guilty and their equitable defenses, implead Jesse V. Ambler and wife, Janet Ambler, praying in the alternative for judgment over against the Amblers based on a warranty deed from the Amblers to the Watsons. This cross-action was severed from appellee’s suit by authority of Rule 174(b), Texas Rules Civil Proc., and was given a separate number and docketed as a separate suit. Therefore we are concerned on this appeal only with the judgment in favor of appellee in its suit in trespass to try title.

FACTS

Some time in 1958 Perry Greenspan, Jr., a building contractor, entered into an oral agreement with A. B. McDaniel, President of appellee corporation, for the purchase by Greenspan of five lots in Kiestview Addition, a sub-division developed by Druid Hills Company. He agreed to pay $3,500 for one lot, and $3,100 for each of the other four lots.

Appellants do not dispute the fact that at the time of the oral agreement between appellee and Greenspan appellee had title to the five lots, including Lot No. 8, the subject of this controversy. Appellee’s title is evidenced by warranty deeds to certain acreage out of which was carved Kiestview Addition. Greenspan did not obtain a deed or any other memorandum in writing signed by appellee or any of its officers or agents evidencing the sale of any of the five lots.

However, he did cause a title company to prepare five sets of papers, one set for each lot as follows: (1) a note covering the purchase price; (2) a deed of trust securing payment of the note; (3) a warranty deed from appellee to Greenspan; and (4) an agreement subordinating appel-lee’s note to a construction loan which Greenspan expected to obtain to enable him to build a house on each lot. Greenspan signed each of the notes, and each deed of trust. The title company, according to the affidavit of one of its employees, then mailed the five notes, the five warranty deeds and the five subordination agreements to appellee. The title company retained possession of the deeds of trust. They were never filed for record.

There is no evidence that the warranty deeds and subordination agreements forwarded by the title company were ever signed by appellee, or anyone authorized to sign in its behalf. A. B. McDaniel, ap-pellee’s president, testified in a deposition that he did not remember appellee’s ever receiving the instruments, but that if they were received at appellee’s office they were either returned or thrown away. He was positive they were not signed by appellee.

Though he had not obtained warranty deeds or any other memorandum of title to the five lots, Greenspan proceeded to build houses on them. He then sold three of the houses and lots in connection with these sales he'paid the purchase price of each of the three lots to appellee and appellee, by warranty deeds, conveyed title to these three lots to Greenspan.

After completing houses on the other two lots, Greenspan sold them to certain purchasers, but appellee refused to execute warranty deeds to Greenspan or his purchasers, the two lots being Lot No. 6 and Lot No. 8, of Kiestview Addition. It is only the title to Lot No. 8 that is the subject matter of this appeal.

In a deposition A. B. McDaniel, President of Druid Hills Company, explained why his company refused to execute a warranty deed to Greenspan or his purchasers for Lots Nos. 6 and 8. Sometime prior to the present controversy Greenspan had purchased four lots in another addition developed by appellee, the said development being known as Druid Hills Addition. Greenspan had executed deed of trust notes for the purchase price of these four lots. The deeds of trust were not recorded. Greenspan built houses on these four lots. Later he sold them, but he did not pay the four notes held by appellee.

According to McDaniel in June of 1959 Greenspan started construction of the house on Lot No. 8. That same month McDaniel in a telephone conversation informed Greenspan that appellee company would not sign a warranty deed to Lot No. 8 unless the four notes on the four lots in Druid Hills Addition were paid. Greenspan then assured McDaniel that he would pay the four notes out of funds to be derived from the sale of Lots Nos. 6 and 8 and the houses he was constructing on them. Greenspan thereafter continued construction of the two houses — a fact which was known to McDaniel. McDaniel testified he did not protest the continued construction of the two houses because of Greenspan’s promise to pay the four past due notes on the Druid Hills Addition Lots out of the proceeds of the sale of the houses and Lots Nos. 6 and 8 in the Kiestview Addition.

Subsequent to the giving of the above testimony by McDaniel, Greenspan made an affidavit concerning the transactions here involved. He did not deny or contradict the testimony of McDaniel as above set out.

It is undisputed that Greenspan, though he had no deed to Lot No. 8, executed and delivered a warranty deed to the property to Jesse V. Ambler and wife Janet Ambler. In his affidavit Greenspan says that he gave the deed to Ambler and wife “in order to pay the construction loan on Lot 8.” The Amblers thereafter executed a note for $16,300 dated June 29, 1959 payable to Oak Cliff Savings & Loan Association and secured purportedly by a vendor’s lien and deed of trust lien. The Amblers later executed and delivered a warranty deed purportedly conveying the property to appellants Raymond D. Watson and wife Cor-rinne A. Watson.

Greenspan has not paid the four past due notes owed by him as the purchase price of the four lots in Druid Hills Addition. He has not paid the purchase price of Lots 6 and 8 in Kiestview Addition.

After learning that Greenspan had never obtained a deed to Lot No. 8 from appellee the Watsons made a tender of $3,100 to appellee in consideration of the execution and delivery by appellee of a warranty deed to the property. This offer has been renewed in the answer of the Watsons to ap-pellee’s suit. Appellee has rejected said tender.

OPINION

In an effort- to controvert appellee’s motion for summary judgment appellants rely on the deposition of A. B. McDaniel and the affidavits of Raymond D. Watson, Perry Greenspan, Jr., and Winnie B. Dollins, an employee of the title company, who prepared the five sets of documents at the request of Greenspan.

The affidavits do not meet the requirements of Rule 166-A(e). They recite that the affiants are not disqualified from testifying upon a trial of this suit. They do not recite that the affidavits are made on personal knowledge and they do not show affirmatively that the affiants are competent to testify to the matters stated in their affidavits.

In Watson’s written answer to appellee’s suit he alleges that he has made permanent and valuable improvements on Lot 8 by leveling the ground, setting out shrubs and grass and erecting permanent clothesline equipment in a total sum of $160. In his affidavit he states that the prices paid for these improvements were fair and reasonable and enhanced the over-all value of the property in an amount equal to the expenditures so made. There is nothing in his affidavit to show that he is competent to testify to such facts.

It has often been held that a compliance with Rule 166-A(e) is necessary if affidavits are to be given consideration in a summary judgment proceeding. Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604; Duffard v. City of Corpus Christi, Tex.Civ.App., 332 S.W.2d 447; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.

However, we need not rest our decision in this case on the defects in the affidavits offered by appellants. For if we accept as true all the matters stated in said affidavits and in McDaniel’s deposition, the undisputed facts, as a matter of law, support appellee’s claim of title and refute appellants’ alleged equitable defenses.

Appellant’s first, second and third points on appeal are that the court erred in awarding appellee a summary judgment because (1) there was an enforceable contract of purchase of the property in effect; (2) the pleadings, depositions, and supporting affidavits were sufficient to enforce the Wat-sons’ claim and to have issues of fact determined by a jury; and (3) the pleadings, affidavits and depositions present several material issues of fact.

In their brief appellants say that “the copy of the note and the original deed of trust left with the title company were sufficient to constitute an enforceable right to the lot here involved * * * With this statement we are unable to agree. There is no showing that appellee ever signed any written memorandum in connection with the purported sale to Greenspan. In fact all the evidence is to the contrary. It is not enough that Greenspan signed certain documents. To satisfy the Statute of Frauds, Art. 3995, V.A.C.S. it is necessary that a memorandum in writing be signed by the person to be charged. Gruss v. Cummins, Tex.Civ.App., 329 S.W.2d 496; Baker v. Baker, Tex.Civ.App., 207 S.W.2d 244; Imholz v. Southern Oil Corp. of America, Tex.Civ.App., 134 S.W.2d 301. In this case the person to be charged was appellee Druid Hills Company, not Greenspan.

The fact that the title company may have mailed to appellee the deed of trust note signed by Greenspan, the subordination agreement and the warranty deed prepared for appellee’s execution, does not constitute an acceptance by appellee of the sale of the property. Justice Sharp, speaking for our Supreme Court in American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164, said:

“To form a binding contract, it must appear that the party to whom the offer is made accepts such offer and communicates such acceptance to the person making the offer; and, in the case of an offer to buy or sell land, the acceptance must be in writing. The facts of this case do not furnish the essential requisites to make a binding contract. This Court, in Patton v. Rucker, 29 Tex. 402, said: ‘In order to their enforcement by the courts, contracts for the sale of land must be evidenced by writing. When the writing relied on contains within itself all the particulars of a concluded contract, it is sufficient if it be signed by the party against whom it is sought to be enforced; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other party only by his acceptance of it in writing.’ ”

In the well-known case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216, our Supreme Court has stated that the presence of three elements is necessary to relieve an oral sale of real estate from the Statute of Frauds. These elements are (1) payment of the consideration in full; (2) adverse possession by the vendee; and (3) the making of permanent and valuable improvements on the land with the consent of the vendor. The first two of the elements are missing in the instant case.

It is undisputed that Greenspan has never paid the $3,100 purchase price for Lot No. 8, nor have the appellants. It is true that long after the Watsons had accepted a warranty deed from the Amblers (who had earlier accepted a warranty deed from Greenspan) and long after Oak Cliff Savings & Loan Association had advanced the $16,300 to take up a “construction loan” obtained by Greenspan from South Oak Cliff Bank & Trust Company, a tender of payment of the purchase price was made to appellee. But appellee did not accept the tender and was not obliged to do so. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505; Tian v. Tacquard, Tex.Civ.App., 147 S.W.2d 1114; Salas v. Salas, Tex.Civ.App., 229 S.W.2d 881; Massey v. Lewis, Tex.Civ.App., 281 S.W.2d 471; Christopher v. Garrett, Tex.Civ.App., 292 S.W.2d 926.

The record also discloses that Greenspan did not have adverse possession as against appellee. It is true Greenspan proceeded to build a house on Lot 8 with appellee’s knowledge and apparent consent. But the undisputed testimony is that A. B. McDaniel, president of appellee company, did not protest this action by Greenspan because Greenspan promised that if he were permitted to continue with the construction he would pay appellee for Lots Nos. 6 and 8 in Kiestview Addition as well as for the four lots he had earlier bought from ap-pellee. Therefore, Greenspan’s possession was not adverse or hostile to appellee, but was subservient to appellee’s claim of title. Pappas v. Gounaris, 158 Tex. 355, 311 S.W.2d 644.

Under some circumstances McDaniel’s uncontradicted testimony in regard to Greenspan’s promise might be held to raise only a fact issue, since it comes from an interested party. But as earlier pointed out in this opinion, Greenspan in an affidavit made subsequent to McDaniel’s testifying does not deny, dispute, or contradict McDaniel on the point in question. Therefore, McDaniel’s testimony does more than raise a fact issue; it is entitled to be accepted as true. Bayou Drilling Co. of Texas v. Baillio, Tex.Civ.App., 312 S.W.2d 705; Bartsch v. Ruby, Tex.Civ.App., 229 S.W.2d 105; England v. Pitts, Tex.Civ.App., 56 S.W.2d 493.

Appellants argue that since McDaniel, appellee’s president, knew that Greenspan was constructing a house on Lot No. 8, and did not stop Greenspan from proceeding with said construction, appellee is estopped to deny appellants’ title. In view of the record in this case we are unable to agree with this contention. Appellee’s oral agreement was with Greenspan, not appellants. Greenspan breached his oral agreement with appellee, consequently neither he nor appellants may urge their equitable defenses as an estoppel entitling them to specific performance. Salas v. Salas, Tex.Civ.App., 229 S.W.2d 881; Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841; Tian v. Tacquard, Tex.Civ.App., 147 S.W.2d 1114.

Appellants Watson are not in position to claim the rights of innocent purchasers, or Oak Cliff Savings & Loan Association as an innocent lien holder. So far as the record shows they had no dealings whatsoever with appellee. All their dealings were with Greenspan. Appellee’s warranty deeds showing title to Kiestview Addition, including Lot No. 8, were filed for record in the deed records of Dallas County. Greenspan had no written memorandum of title whatsoever either filed for record or otherwise. The record before us is silent as to whether appellants checked the deed records of Dallas County before completing deals with Greenspan and Amblers. If they did check the deed records they must have found that Greenspan had no title, so they took a known risk in paying him and taking a deed from him. If they did not check the real estate title records, they cannot now be heard to complain that they did not know Greenspan had no title.

Appellants also argue that the deal between appellee and Greenspan was a “package” deal involving five lots in Kiestview Addition, not just Lot No. 8. However, the depositions and affidavits, together with exhibits plainly show that the sale of each lot was considered separately by the parties. A separate set of papers was drawn by the title company for each lot. Separate sales were made. Greenspan so states in his affidavit. See Simms-Wylie Co. v. City of Ranger, Tex.Civ.App., 224 S.W.2d 265.

It would not avail appellants even if we were to consider the transactions between appellee and Greenspan as a “package” deal. Though Greenspan has paid the full consideration for three of the lots he has not paid for Lots Nos. 6 and 8. Partial payment of consideration will not take the sale out of the Statute of Frauds. Christopher v. Garrett, supra; Massey v. Lewis, supra; Salas v. Salas, supra.

Appellants further argue that to allow appellee to prevail in its suit for title would result in an unjust enrichment of ap-pellee at appellants’ expense, therefore, would be inequitable. We shall not attempt to determine who has been or will be the greatest loser or gainer because of their dealings with Greenspan. The record shows that Greenspan was indebted, to ap-pellee for a sum in excess of $17,600 because of his failure to pay the consideration for his purchase of four lots in Druid Hills Addition and two lots in Kiestview Addition. Under these circumstances we cannot say that appellee is being unjustly enriched, especially in view of the fact that (1) appellants had either actual or constructive notice from the deed records that Greenspan had no title and (2) appellee had no dealings with appellants and made them no promises whatever.

Appellants’ first three points on appeal are overruled.

In their fourth point on appeal appellants Watson assert that it was error for the court to render judgment against them for $1875 the rental value of the property from October 15, 1959 to the date of judgment.

The record, including the pleadings of the Watsons, shows that they moved into the house on Lot 8 some time after they purportedly bought the property from the Amblers, hut the exact date of the beginning of their occupancy is not shown. The record does show that on June 27, 1960 the Watsons executed an indemnity bond to protect appellee from loss of rent. The indemnity bond was executed to prevent the appointment of a receiver. In this indemnity bond the Watsons expressly state that on the date of the bond, June 27, 1960, they were occupying the premises.

The testimony of Sam’ Sutton, a real estate expert, shows that the rental value of the property was $140 per month. The judgment was signed November 28, 1960. The period of time from June 27, 1960 to and including November 28, 1960 is five months and one day. A simple arithmetical calculation shows that the rental value during said period would amount to $704.66. We think the record supports a judgment for rents for said period. Appellants’ fourth point will be sustained in part to make the judgment for rents conform to the above holding.

That part of the judgment awarding ap-pellee title and possession of the real property in controversy is affirmed. That part of the judgment awarding appellee the sum of $1875 as rents is modified so as to award appellee judgment for rents in the amount of $704.66. As so modified the judgment, is affirmed.


author: WERLEIN, Justice.

text:
    R. Y. WALKER, Appellant, v. E. L. LOREHN, Appellee.
    No. 13880.
    Court of Civil Appeals of Texas. Houston.
    Feb. 22, 1962.
    Rehearing Denied March 15, 1962.

      Butler, Binion, Rice & Cook, Tom Alexander, Robert B. Reynolds, Houston, for appellant.
    Underwood & Holcombe, Decatur J. Holcombe, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from a judgment in the sum of $7500.00 in favor of appellee, E. L. Lorehn, upon the jury’s affirmative answer to one special issue reading: “Do you find from a preponderance of the evidence that on or about January 20, 1959 the defendant, R. Y. Walker, promised to reimburse the plaintiff, E. L. Lorehn, the sum of $7500.00 if he, Lorehn, would advance $15,000.00 to Texas Aerosol, Inc. of Houston ?”

The evidence shows that both appellant and appellee were stockholders in Texas Aerosols, Inc.; that appellant was also a director of the corporation; and that both were concerned about the financial condition of the company and both had an interest in its welfare. The evidence is conflicting as to the oral agreement between the parties. Appellee testified that he told appellant that the corporation needed money very badly and that he would be willing, to lend the company $7500.00 if appellant would lend a like amount; that appellant said he was unable to do so at that time and that it would be after February 1 before he could put up any money; that appellee reiterated -the necessity for immediate action and offered to put up the entire $15,000.00 if appellant would reimburse him for half thereof immediately after February 1; that appellant agreed that if appellee put up the entire $15,000.00 he would reimburse him for half that amount immediately after February 1, and that after such agreement was made ap-pellee made out his check for $15,000.00 payable to the corporation and deposited the same to its account.

Appellant’s testimony was that he never agreed to pay appellee $7500.00, and that he only “agreed to sell stock for $7500.00, one-half of the $15,000.00, provided the company was in good shape.” The conflict in the testimony was resolved by the jury in appellee’s favor.

Appellant’s contention that the oral agreement testified to by appellee constituted a promise to answer for the debt of another and is unenforceable under Article 3995(2), Revised Civil Statutes of Texas, is without merit. At the time the promise was made, the corporation didn’t owe the $15,000.00 to anyone and was not indebted to either party in such amount or any part thereof. Hence the promise was not and could not have been to answer for the debt of the company. It was an original, unconditional promise made by appellant to reimburse appellee in the sum of $7500.00 if appellee would advance $15,-000.00 to the corporation. On the faith of appellant’s promise, appellee did advance the full sum of $15,000.00 to the company.

The authorities cited by appellant are clearly inapplicable to the fact situation and agreement as found by the jury in the instant case. The fact that appellee some three months later took a demand note from the corporation in the amount of $15,000.00 does not change or affect appellant’s prior agreement to reimburse appellee for the amount advanced by him on the faith of appellant’s promise. There was never any agreement between the parties that appellant would pay appellee half of the amount of the note if the corporation would not pay it, or that appellant would pay any debt of the corporation. The case of Liebman v. Buell Lumber & Mfg. Co., Tex.Civ.App.1934, 67 S.W.2d 1043, is in point. In that case it was held that where goods are furnished to one person upon the credit and request of another, it is an original undertaking upon the part of the person making the request, and is not within the scope of the Statute of Frauds. The court said:

“The law is well settled that a seller of goods may recover from another person on his oral promise to pay, though both title and possession of the goods were delivered to a person other than the one making the promise to pay, where the promise was given prior to the delivery and induced the seller to part with the goods.”

It is our view that the agreement as testified to by appellee and as found by the jury is clearly an original undertaking and in no way a collateral agreement to stand surety for the corporation or to answer for any debt of the company. There was sufficient consideration to support the promise to pay. The promise was never within the Statute of Frauds, but if it had been we think it would have been removed therefrom since there was a consideration so beneficial to appellant as to constitute his primary object or desire. The evidence shows that appellant was not only a stockholder and director in the company but that he was one of its founders; that he had developed a medical product that had to be put up or packaged in Aerosol containers and that he needed the company for such purpose; and that after developing such product he was actively interested in working on Aerosols and in keeping the company a going concern and in raising capital for such purpose.

In further support of the trial court’s action in overruling appellant’s motion for judgment notwithstanding the verdict and entering judgment for appellee, see Enterprise Trading Co. v. Bank of Crowell, Tex.Civ.App.1914, 167 S.W. 296; Great Southern Oil & Refining Ass’n v. Cooper, Tex.Civ.App.1921, 231 S.W. 157; and the well considered opinion of Judge Greenhill in Gulf Liquid Fertilizer Co. v. Titus, Tex.Sup.1961, 354 S.W.2d 378, 5 Tex.Sup.Ct. Journal 109.

Appellant asserts that by their answer to the issue submitted, the jury has. not found sufficient facts to establish an enforceable contract. We do not agree. The jury found that appellant promised to reimburse appellee in the sum of' $7500.00 if appellee would advance $15,-000.00 to Texas Aerosol, Inc. of Houston. It is undisputed that appellee did make out his check and deposit it to the account of the corporation. The instant case is distinguishable from the case of Smulcer v. Rogers, 1953, 256 S.W.2d 120, writ ref., n. r. e. In that case the issue merely inquired if the money was to be returned without inquiring whether there was any agreement between the parties to return it, whereas in the present case the issue inquires directly as to the promise of appellant to pay appellee, and the uncontro-verted evidence shows acceptance and performance by appellee.

Appellant asserts that the court erred in admitting in evidence plaintiff’s Exhibit No. 1 consisting of a work copy of a letter dated February 20, 1959, which appellee’s secretary had typed, bearing on the second page thereof a memorandum or postscript in the handwriting of appellee’s secretary, reading :

“Mr. -:
“Mr. R. Y. Walker and myself have agreed between us to lend to Texas Aerosols an additional $15,000.00, personally, to pay off all of the minor creditors, pending favorable action by you and the other major creditors.
“E. L. L. b”

Appellant objected to the letter with the postscript thereon because self-serving and not the best evidence. The evidence shows that the original copies of the letter with the postscript typed thereon were mailed to the directors and creditors of the corporation and that the work copy was retained by appellee’s secretary for him. The court sustained appellant’s objections to the exhibit several times. However, after appellant had concluded his evidence for the defense, appellee was recalled and testified that he had gone through all the records of the corporation that appellant’s counsel had stated he knew anything about and could find, and that he [appellee] could not find a carbon copy of plaintiff’s Exhibit No. 1, and to his knowledge none was in existence. Whereupon the court overruled appellant’s objections and admitted the exhibit in evidence.

We do not think the court erred in admitting the work copy of the letter over the objection that it was not the best evidence, in view of the fact that no other copy could be found in the records of the corporation or produced after search by appellee, and the work copy was shown by the company’s secretary to be an accurate copy of the letter that went out to the creditors and directors of the corporation, including appellant. The copy in question was the only evidence available.

Appellant contends, however, that the letter was inadmissible because self-serving and in corroboration of appellee’s testimony at the trial. It is our view that the exhibit was inadmissible unless there is some exception that takes it out of the general rule. McCormick and Ray, Texas Law of Evidence, 2d Ed., p. 568, § 786; 24 Tex.Jur.2d, p. 160, § 611, and cases cited.

Appellee contends that the letter with the postscript was admissible as a prior consistent statement in rebuttal of appellant’s imputed charge and claim of recent fabrication. The evidence shows that following a creditors’ meeting appellee dictated said letter of February 20, addressed to the major creditors and directors of the corporation, and that while his secretary was typing the letters, the conversation between appellant and appellee occurred during which the agreement as testified to by appellee was entered into. Immediately after such conversation appellee dictated said postscript which was added to the letters.

The record shows that appellant not only denied appellee’s version of the agreement of February. 20, 1959 and contended that he merely agreed to sell $7500.00 worth of stock of the corporation, and that each of the parties was to handle $7500.00 of such stock, but that on cross-examination appellant testified with respect to the making of the agreement that appellee knew it was a stock transaction “just like I did and Sam Litzenberg did.”

In view of appellant’s testimony which clearly charged that appellee knew at the time of the conversation of February 20, 1959 that the agreement was merely to sell stock and not to lend money to the corporation, the letter and postscript written and mailed immediately after the agreement was made, showing that at that time appellee understood that the agreement was to lend $15,000.00 to the company and not to handle stock, was admissible in evidence to rebut the clear imputation that appellee’s claim was manufactured and fictitious and that he was asserting at the trial an agreement which he knew to be entirely different from the agreement entered into on February 20. In making such accusation appellant did not merely contradict appellee. He in effect impeached appellee’s credibility and the genuineness of his claim and definitely imputed to ap-pellee the assertion of a fabricated claim which he knew he did not have at the time the agreement was made. The exhibit was shown to have been dictated and written prior to the time any controversy arose between the parties and when no motive for fabrication existed. Houston & T. C. Ry. Co. v. Fox, 1914, 106 Tex. 317, 166 S. W. 693.

In Lewy & Co. v. Fischl, 65 Tex. 311, the court, in holding admissible a certain self-serving statement made before the controversy arose, said: “It showed that appellee had the same conception of the facts before the imputed motive could exist that he had at the trial, and certainly was corroborant of his testimony. His declarations were, therefore, properly admitted.” See also Davis v. Davis, 1906, 44 Tex.Civ.App. 238, 98 S.W. 198, writ den.; McCormick and Ray, Texas Law of Evidence, 2d Ed., p. 555, § 774, and authorities cited in Note 58.

Appellee also asserts that the exhibit was admissible since according to appel-lee’s testimony appellant never denied receiving a copy of the letter with the postscript and never disputed the statements of fact in the postscript until the latter part of March, 1959, although the uncon-troverted evidence shows that the letter was mailed to appellant on February 20, 1959 and that appellant never answered such letter. The rule of law upon which appellee relies is stated in 24 Tex.Jur. 2d, p. 190, § 625; “A party’s silence when he is free to speak, in a situation where one would not normally remain silent, may constitute a tacit admission of what was said to the party or in his presence, so as to render the statement admissible in evidence against him.”

It is our view that the exhibit was admissible under the foregoing rule since appellant’s apparent acquiescence in the statements made in the postscript by not answering or disputing them to appellee for some two months although in the meantime dunned by appellee for payment of the $7500.00, constituted a tacit admission of the verity of appellee’s claim. North Texas Tank Company v. Pittman, Tex.Civ.App.1956, 290 S.W.2d 724; Traders & General Ins. Co. v. Russell, Tex.Civ.App., 99 S.W.2d 1079, error dism.

With respect to appellant’s Points 3 and 4, it will suffice to say that appellant objected to appellee’s counsel stating to the jury on voir dire that the contract sued on was an oral contract, and “as far as their contentions, a perfectly legal contract.” The court in ruling on such objection stated: “It is legal if it is in fact an oral' contract.” At that time no pleading setting up the statute of frauds had been filed by appellant. The statement made by the court, which correctly stated the law, was invited by appellant when in objecting to« appellee’s counsel instructing the jury on the law, he stated: “That [the law] comes from the court * * We find no merit in said Points and overrule the same.

Judgment affirmed.


author: HUGHES, Justice.

text:
    Frank J. HEIRONIMUS et al., Appellants, v. Joyce TATE et al., Appellees.
    No. 10935.
    Court of Civil Appeals of Texas. Austin.
    Feb. 28, 1962.
    Rehearing Denied March 21, 1962.
    Robert Mueller and E. Richard Criss, Jr., Austin, for appellants.
    Graves, Dougherty, Gee & Hearon, William L. Garwood, Austin, for appellees.
   HUGHES, Justice.

This suit was brought to construe the will of A. A. Biebel, deceased, duly probated in the County Court of Travis County September 2, 1958.

The suit was filed by Frank J. Heironimus and other coindependent executors (trix) named in the will, and all beneficiaries under the will were parties to the suit, including Mrs. Mathilda Scott and Joyce Tate, the bequests to whom are the core of this controversy.

The answering defendants, appellees herein, included Joyce Tate, but not Mrs. Scott.

Appellants and appellees filed motions for summary judgment. The motion of appellees was granted. Appellants’ motion was denied.

Appellees’ motion for summary judgment was based solely upon the pleadings and the attached exhibits which were the will proper and its two codicils.

Appellants’ motion for summary judgment was similarly based on the pleadings and exhibits.

In addition to this motion, appellants filed an amended original answer in which they pleaded certain extrinsic facts “as an aid to the Court in the construction of the will of said A. A. Biebel.” Appellants do not plead that the will is ambiguous in any respect, and we do not so find it, for which reason we will not recite the substance of their answer in this respect.

The controverted portions of the will and codicils of A. A. Biebel are:

“In the event that my wife, Florence E. Biebel, is not living at the time of my death, or at the death of my said wife, Florence E. Biebel, should she survive me, I give, devise and bequeath my one half of the community property remaining at either my death or her death as the case may be as follows: * * *'
“3% of the net estate to Mrs. Mathilda Scott, 301A North Orange Street, Rialto, California;
“30% of the net estate to Joyce Tate, 1431 Alma Avenue, Salinas, California, with instructions and directions to my executors that the proceeds of this bequest shall be invested in an annuity in the Amicable Life Insurance Company of Waco. The terms of this annuity contract are left to the discretion of my .executors, and their judgment in this matter shall be final;
“ * * * (These and omitted bequests account for all but 9½% of the net community estate.)
“Realizing that there remains 9½% of the community estate, I direct my executors to divide all of the rest and residue of my estate in the same proportions as the bequests are made in this paragraph. In the event that any of the above named legatees are not living at the time of the distribution of the property, I direct my executors to distribute such deceased legatee’s share to the heirs at law of the said deceased legatee.”

(No other applicable limitations or restrictions on such bequests were stated in the will.)

“THE SECOND CODICIL
“I hereby revoke that portion of my will dealing with the bequest to the said Joyce Tate.
“I wish to give to the executors, by this codicil to my last will and testament, absolute and full authority in dealing with the account of the said Joyce Tate. They shall use their own judgment as to the amount and method of payment of monies to the said Joyce Tate. Their decisions shall be final in this matter.
“I also revoke that portion of my will dealing with the bequest to Mrs. M. H. (Mathilda) Scott. They shall use their own judgment as to the amount and method of payment monies to the said Mrs. Scott. Their decisions shall be final in this matter.
“If the two above named heirs be not living at the time of my death, then distribution shall be made to their lineal descendants, or upon the death of the above named two persons, the distribution shall be made to their lineal descendants.”

The Trial Court construed the will as follows:

“1. Said will and codicils vest in and devise to the Defendant Joyce Tate an equitable and beneficial life estate in and to a full 30% of the net estate of A. A. Biebel, Deceased, with the bare legal title to said 30% being vested in the Plaintiffs’ executors, Frank J. Heironimus, Gordon H. Heironimus, and Marie S. Heironimus, as trustees, and with the remainder, both legal and equitable, being vested in fee simple in the lineal descendants of the said Joyce Tate. The trustees of said trust shall make payments to the said Joyce Tate during the continuation of said trust in such form, manner and amount and at such intervals as they in the exercise of their own reasonable discretion shall deem best, bearing in mind the needs and circumstances of the beneficiary.
“2. Said will and codicils vest in and devise to the Defendant Joyce Tate, in addition to the interest mentioned in paragraph 1 hereof, the full right, title and interest, without any limitation or restriction whatsoever, in and to the same fraction of the remainder of the net estate of A. A. Biebel, Deceased, after satisfaction of the specific bequests made elsewhere in said will and codicils, as 30% of the net estate of A. A. Biebel, Deceased, is of the total of all the specific bequests made in said will and codicils.
“3. Said will and codicils vest in and devise to the Defendant Mrs. M. H. (Mathilda) Scott an equitable and beneficial life estate in and to a full 3% of the net estate of A. A. Biebel, Deceased, with the bare legal title to said 3% being vested in the Plaintiffs-executors, Frank J. Heironimus, Gordon H. Heironimus, and Marie S. Heironimus, as trustees, and with the remainder, both legal and equitable, being vested in fee simple in the lineal descendants of the said Mrs. M. H. (Mathilda) Scott. The trustees of said trust shall make payments to the said Mrs. M. H. (Mathilda) Scott, in such form, manner and amount, and at such intervals as they in the exercise of their own reasonable discretion shall deem best, bearing in mind the needs and circumstances of the beneficiary.
“4. Said will and codicils vest in and devise to the Defendant Mrs. M. H. (Mathilda) Scott, in addition to the interest mentioned in paragraph 3 hereof, the full right, title and interest, without any limitation or restriction whatsoever, in and to the same fraction of the remainder of the net estate of A. A. Biebel, Deceased, after satisfaction of the specific bequests made elsewhere in said will and codicils, as 3% of the net estate of A. A. Biebel, Deceased, is of the total of all of the specific bequests made in said will and codicils.”

Appellants, by pleadings, sought the following construction of the will:

“(1) That by the second codicil to the will of A. A. Biebel, Deceased, the executors of said will were devised, in their individual capacities, 33% of the net assets of the Estate of A. A. Biebel, Deceased, or
“(2) That by the second codicil to the will of A. A. Biebel, Deceased, the executors of said will were given a general power of appointment over 33% of the net assets of the Estate of A. A. Biebel, Deceased, or
“(3) That by the second codicil to the will of A. A. Biebel, Deceased, the executors of said will were given a special power of appointment over 33% of the net assets of the Estate of A. A. Biebel, Deceased, or
“(4) That by the second codicil to the will of A. A. Biebel, Deceased, the bequest to the defendant Joyce Tate and the bequest to the defendant Mathilda Scott were revoked and the attempted disposition of each of said interests so revoked fails and 33% of the net assets of the Estate of A. A. Biebel, Deceased, is to be added to the residuary clause of said will and pass in accordance with the said residuary clause.”

Appellants brief points 1, 2, 5 and 6 jointly. Points 2 and 6 are dependent upon extrinsic evidence and we will not discuss them for the reason that, as stated, the will and codicil are not ambiguous.

Points 1 and 5 are that the Court erred in holding that trusts were created in behalf of Joyce Tate and Mrs. M. H. Scott, respectively, for the reason that the will and codicil do not manifest an intention to create a trust.

Appellants concede the rule that the use of technical - words are not essential to a trust. They rely upon the rule that the parties must plainly intend to create a trust in order that a trust be formed.

Arguendo, appellants ask, What is res of the Tate and Scott trusts? Clearly it is 30% of the net estate for Joyce Tate and 3% of the net estate for Mrs. Scatt. As to Mrs. Scott, the codicil did not expressly give authority over her bequest to the executors. Construing the codicil in its entirety, it is clear that the “They” and “their” used in the second sentence of the third paragraph unquestionably refer to the executors, and hence give them control of the Scott bequest.

Appellants suggest as to Joyce Tate that the codicil gave to the executors only a gift of a “power” over the 30%. This suggestion is not explained, but presumably it meant that the executors could give this 30% to others than Joyce Tate. We reject this suggestion in the same manner that is made, summarily.

The second question appellants ask is “How are the executors to administer the trust(s)?”

Here again appellants concede that it is not essential to the validity of a trust that the terms of the trust be stated in detail.

From the general and plenary discretionary authority given the executors over the res of these trusts appellants argue that no trust was intended. This contention is answered by the following statement from 2 Scott on Trusts (2d ed.) p. 961, Sec. 129: “The amount which a beneficiary is entitled to receive may be left to the discretion of the trustee.”

Texas cases which follow this rule are Adams v. Williams, 112 Tex. 469, 248 S.W. 673; Bell v. Board of Directors, 219 S.W.2d 93; Waco Civil Appeals, N. R. E. and State v. Rubion, 158 Tex. 43, 308 S.W.2d 4. The last case contains an excellent discussion of the nature of such discretionary authority.

The third question which appellants propound as indicating a lack of intention to create a trust is, Are the payments to he made to Joyce Tate and Mrs. Scott to come from principal only, or from principal and income ?

Neither the will nor codicil makes any distinction between the principal and income constituting the Tate 30% or the Scott 3% in directing payments to be made to these beneficiaries. We have no authority, or desire, to do what the testator did not do. Both principal and income of the respective bequests are subject to disposal by the executors to Joyce Tate and Mrs. Scott.

We quote appellants’ fourth question:

“In the absence of any facts that would indicate an intent to create a spendthrift trust, is it likely that a testator intending to create a trust would give the trustee the power to bestow no benefit on the supposed beneficiary?”

In answering this question we need only to refer to the opinion in State v. Rubion, supra, where it is held that a trustee may not act arbitrarily, and that the exercise of his discretion is subject to judicial review.

Appellants’ fifth question is: “What is the duration of the trust?” This question is categorically answered by the codicil. The trusts terminate on the deaths, respectively, of Joyce Tate and Mrs. Scott. Upon such events, “distribution shall be made to the lineal descendants.” There is no discretion in and no further trust to be found or intimated in this language.

Appellants’ last question is related to the extrinsic evidence which we have held is inadmissible as an aid to a construction of this will.

It is our opinion that a valid, plain and understandable trust was created by the will and codicil of A. A. Biebel for the benefit of Joyce Tate and Mrs. M. H. Scott.

Appellants’ points 3 and 7 are jointly briefed and are that the subject matter of the bequests to Joyce Tate and Mrs. Scott are not sufficiently described. We quote the substance of the argument appellants made under these points:

“In the case of the Tate ‘trust’ to what does the trustee have the legal title by virtue of the second codicil? They are given no property, but are given ‘absolute and full authority in dealing with the account of the said Joyce Tate.’ The account of Joyce Tate was 30% of the net estate. Are these words sufficient to grant to the executors the legal title to 30% of the net estate or are the words a gift of a power over 30% of the net estate with the legal title remaining in Joyce Tate subject to this power in the executors?
“In the case of the Scott ‘trust’ there are absolutely no words giving to the executors a legal title to any property whatsoever. All the executors were given here was the discretion as to the ‘amount and method of payment of monies’ to Mrs. Scott. There can be no question that these words are not a sufficient description of the trust res.”

Construing the will and codicil as one instrument, we read the bequest to Mrs. Scott to be:

I give and set aside 3% of my net estate for the benefit of Mrs. Scott, provided that my executors shall use their own judgment as to the amount and method of paying monies therefrom, from both principal and accumulated income, to her during her lifetime and upon her death the remainder of such estate, if any, shall be distributed among her lineal descendants. The decision of my executors in making such payments to Mrs. Scott shall be final.

This bequest vests legal title in the executors and restricted beneficial title in Mrs. Scott and full title in the remainder, if any, in her lineal descendants.

The Tate bequest is of the same nature.

In our opinion, the res is adequately described. See: McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412.

Appellants jointly brief points 4 and 8 which assert error of the Court in awarding full title to Joyce Tate and Mrs. Scott, in their respective interests, in the remainder of the estate after satisfying its specific bequests

The basis of these points is that the codicil revoked the bequests to Joyce Tate and Mrs. Scott.

An intention to revoke a bequest in a will must be clearly expressed in a codicil if it is to be given effect.

A revocation of a bequest in a will to A may be effected by a codicil which simply states “I revoke the bequest to A.” Much more than that is present here. The codicil revoked only that portion of the will “dealing” with the bequests to Joyce Tate and Mrs. Scott.

As to Joyce Tate, the will expressly directs the manner in which the bequest to her should be invested. Clearly this only direction was revoked since other directions were made.

As to Mrs. Scott, the will gave no specific directions as to the bequest made to her, but the absence of such directions was meaningful and, in our opinion, constituted a “dealing” with the bequest. This bequest as originally dealt with in the will gave to Mrs. Scott full title to the 3%. The codicil dealt with this bequest and made radical changes in it.

Almost every word of the codicil evidences an intention to alter, but not revoke, the bequests made to Joyce Tate and Mrs. Scott. We would have to discard most of the language contained in the codicil if we agreed with appellants’ construction of it. These bequests were not, in our opinion, revoked by the codicil.

Point 9 is that the Court erred in not construing the will and codicils as granting to appellants a power of appointment over 33% of the net estate of decedent.

The result of this construction is reflected by the following excerpts from appellants’ brief:

“It creates a fund of 33% of the net estate.
“It gives the executors a special power to appoint this 33% fund, as their judgment dictates, between Tate and Scott.
“The executors have no duties to perform under the second codicil except to decide how much of the 33% Joyce Tate is to receive and how much Mrs. Scott is to receive.
“ * * * the executors have nothing to do but take the 33% and make a distribution between Tate and Scott.”

In other words, appellants would have us take the Scott 3% and the Tate 30%, combine them, and direct the executors to make disbursal as they pleased to Joyce Tate or Mrs. Scott, or, perhaps, to their lineal descendants.

This construction would distort the plain scheme of the will. It is without basis in fact or law.

Point 10 is that fact issues were raised sufficient to prevent the rendition of a summary judgment. The facts relied upon are extrinsic to the will and, since the will is unambiguous, cannot be used as aids to its construction.

The judgment of the Trial Court is affirmed.

Affirmed.

      . The appellees are Joyce Tate, Mrs. Eleanor Baldridge et vir, C.K.T. Vander-griffi et vir, Hubert Lee Ferguson and William C. Ferguson. C.K.T. Vander-griff is not a specifically named legatee but intervened as a lineal descendant of Joyce Tate within the last clause of the second codicil which makes provision for “lineal descendants” of Joyce Tate. C.K.T. VandergrifE adopted the position of Joyce Tate in the trial court.

      . The first codicil is not pertinent to this suit.


author: WILSON, Justice.

text:
    The CITIZENS NATIONAL BANK OF WACO, Appellant, v. Christena DONATH et vir, Appellees.
    No. 3962.
    Court of Civil Appeals of Texas. Waco.
    Feb. 1, 1962.
    Bryan, Maxwell, Wilson & Olson, Waco, for appellant.
    Ñaman, Howell, Smith & Chase, Waco, for appellees.
   WILSON, Justice.

Declaratory judgment was rendered construing the following provisions in a will:

“It is my will that four hundred fifty (450) shares of Franklin Life Insurance Company, common stock, be excepted from the terms of this Trust and pass outright so that each of the following named beneficiaries will receive one hundred fifty (150) shares of this stock immediately.
“A. C. Donath of El Monte, California, 150 shares or if he is not living to Christena Donath, his wife, 150 shares.
“E. Earl Currie, whose address of Mart Pharmacy, Mart, Texas, 150 shares of Franklin Life Insurance Company, common stock.”

The trial court determined that 150 shares of the stock were thereby bequeathed to Christena Donath, one of the three named beneficiaries, “in her own right.” Appellant contends that this beneficiary took only if A. C. Donath was not living when the will became effective.

We think the trial court’s construction was correct. If the second paragraph quoted is read alone, the interpretation sought by appellant might be impelling. Here the testator declares he is disposing of 450 shares of stock which he desires to exclude from trust administration. He announces his intention that “each of the following named beneficiaries” is to take 150 shares of stock. He names three persons. The 450 shares may not otherwise be arithmetically accounted for. The fact that his punctuation or incomplete sentence structure in a subsequent clause would create an ambiguity if considered alone will not be given controlling effect so as to defeat his manifest intention; for a clearly expressed intention in one portion will not yield to a doubtful construction in another portion of a will. Burney v. Burney, 145 Tex. 311, 197 S.W.2d 334, 336. The gift to Christena Donath was not contingent, but vested. Affirmed.


author: McDONALD, Chief Justice.

text:
    AMERICAN COACH COMPANY, Appellant, v. Robert H. HOPKINS, Appellee.
    No. 3966.
    Court of Civil Appeals of Texas, Waco.
    Feb. 1, 1962.
    After Remittitur Feb. 15, 1962.
    Rebearing Denied March 8, 1962.
    Sleeper, Boynton, Burleson, Williams & Johnston, P. M. Johnston, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   McDONALD, Chief Justice.

This suit was originally filed by plaintiff Hopkins, the purchaser of a trailer house, against the seller, and also against the manufacturer defendant, American Coach Company. Plaintiff took a non-suit against the defendant seller. Plaintiff’s cause of action against defendant manufacturer, American Coach Company, was on breach of the printed warranty which came with the trailer house. Such warranty reads:

"American Coach Company, Newton, Kansas, warrants each new coach manufactured by it to be free from defects in material and workmanship under normal use and service. !AMERICAN agrees within the war- rcmty period of 90 days after delivery dealer to the original purchaser to replace or repair any part or parts returned to its factory, with transportation charges prepaid, which its examination shall disclose to be defective. Misuse, negligence, accidents, or unauthorized repairs or alterations outside of the AMERICAN factory shall void this warranty. Tires, stoves, refrigerators, water heaters and beds are not included in this warranty. These are separately covered by the warranties of their respective manufacturers. AMERICAN assumes no liability or responsibility for any representations or stipulations by any person, expressed or implied, other than those contained in this warranty. AMERICAN reserves the right to make product improvements or changes in design without incurring any obligations to supply or install such improvements or changes on previously manufactured coaches.”

Plaintiff contended that the representations in the warranty were false and such warranty was breached for the reason that the trailer house was defective in workmanship and material in that the trailer house leaked and was wholly unfit for living in as a home.

Trial was to a jury which, in answer to special issues, found:

1) The trailer house was not free of defects in material and workmanship on the date it was sold to plaintiff.

2) If such trailer house had been free of defects in material and workmanship on the date it was sold, it would have been of $7617.67 reasonable market value.

3) It had a reasonable market value of NONE in the condition in which it was sold.

4) The reasonable market value of the furniture plaintiff traded in as a down payment on the trailer house was $1622.-67.

The Trial Court entered judgment on the verdict for plaintiff for $7617.67. On Motion for New Trial, the Trial Court found that such judgment was excessive in the amount of $200., since plaintiff had alleged in his pleadings that the trailer had a value of $200. The plaintiff filed remit-titur for $200. and the Trial Court overruled Motion for New Trial.

Defendant appeals, contending:

1) The warranty relied on by plaintiff is not a general warranty; but is a warranty limited by the 2nd paragraph thereof.

2) The judgment is excessive, manifestly too large, unjust and unconscionable.

3) There is no evidence or insufficient evidence to support the jury’s finding in answer to issues 1, 2, 3 and 4.

We revert to plaintiff’s 1st contention. The dominant question for determination is the meaning of the warranty made the basis of plaintiff’s suit. Plaintiff says the 1st sentence thereof:

“American Coach Company, Newton, Kansas, warrants each new coach manufactured to be free from defects in material and workmanship under normal use and service”

constitutes a general warranty fo.r the breach of which plaintiff is entitled to recover the difference in value of the trailer house as warranted and as it actually was.

Defendant contends that the 2nd sentence of the warranty:

“American agrees within the warranty period of 90 days after delivery by dealer to the original purchaser to replace or repair any part or parts returned to the factory * * * ”

restricts the 1st sentence of the warranty and in effect is the only warranty actually made.

It is our view that the 2nd sentence of the warranty, supra, does not change or limit the obligation set forth in the 1st sentence. We think that the 1st sentence constitutes a general warranty, and that the 2nd sentence constitutes an additional warranty as to the matters it purports to cover. We think the warranty herein clearly gives the buyer a general warranty as to the trailer unit, and an additional right to demand repair of specific parts that are removable and susceptible to repair. McCown v. Jennings, Tex.Civ.App., 209 S.W.2d 408, (N.W.H.) involves a warranty almost exactly like the warranty herein, and is a case directly in point supporting the conclusion here reached.

Defendant’s contention 1 is overruled.

Defendant’s 2nd and 3rd contentions are generally levelled at the amount of the verdict and judgment.

The jury found that the coach would have had a reasonable market value of $7617.67 had it been as warranted. The undisputed evidence (including the chattel mortgage note), and the testimony of plaintiff, shows that the cash price of the trailer was $5995. (The difference in this amount and the $7617.67 found by the jury seems to be the result of adding the down payment of $1622.67 to this amount.) The down payment was not in addition to the $5995. Thus it is conclusively shown by the .record that the market value as shown by the verdict is excessive on its face by $1622.67.

Further, the record reflects that the total value ($5995.) included the furniture and appliances which were expressly excluded from the warranty, and which plaintiff makes no contention were damaged or defective. The record reflects that these items had a value of $1600., which $1600. was included in the $5995. We think the verdict is likewise excessive in this amount.

In view of the foregoing and of the record as a whole, we think the judgment $7417.67, (taking into account the $200. remittitur filed by plaintiff in the trial court), is still excessive in the amount of $3222.67, and that this cause should be reversed for this reason only. However, plaintiff is given 10 days from this date to file a remittitur of $3222.67. Rule 440, Texas Rules of Civil Procedure; Caswell v. Satterwhite Funeral Home, Tex.Civ.App., 277 S.W.2d 237, (n. r. e.). If such remittitur is filed within the time indicated, the judgment of the Trial Court will be reformed and affirmed.

Reversed and remanded.

AFTER FILING OF REMITTITUR

Plaintiffs having filed remittitur in the amount of $3222.67 (as suggested by this court), the judgment entered is set aside and judgment here entered reforming the judgment of the Trial Court in conformity with said remittitur, and as reformed the judgment of the Trial Court is affirmed. Costs of appeal to date of remittitur are assessed one-half against plaintiffs and one-half against defendants.


author: NORTHCUTT, Justice.

text:
    James W. FROELICH, D/B/A Froelich Equipment Company, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
    No. 7105.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1962.

      E. Byron Singleton, Amarillo, for appellant.
    Gibson, Ochsner, Harlin, Kinney & Morris, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is a summary judgment case. The plaintiff, James W. Froelich, D/B/A Froe-lich Equipment Company, hereinafter referred to as appellant brought suit against Trinity Universal Insurance Company, hereinafter referred to as appellee, upon an insurance policy. The appellant was the owner of two Mack trucks and two> Hobbs trailers. The appellee had issued its policy covering the trucks and trailers against theft (and other matters not here-involved). One Norma Scheele came to-Amarillo and took the trucks and trailers- and notified the appellant she had the-trucks and trailers and was going to sell-them under the terms of her note and: mortgage. Her attorney sent appellant copies of the foreclosure notices and appellant admits he received these notices. The foreclosure was held and titles were issued to Norma Duncan (being the same person here mentioned as Norma Scheele).

Trinity Universal Insurance Company filed a motion for summary judgment supported by the depositions. of appellant,. Clifford Houston Duncan and Mrs. Norma. Scheele. All of these depositions show-there was a note and mortgage given to* Mrs. Scheele by Froelich and Duncan. Upon this record the trial court granted' summary judgment in favor of the insurance company that plaintiff recover nothing. From that judgment the plaintiff perfected this appeal.

Under the policy in question it provided the policy did not apply as to theft where the loss was due to conversion, embezzlement, or secretion by any person in possession of the automobile under bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.

The appellant sought to .recover upon the theory there was no lawful mortgage but there was a question of fact as to the taking of the vehicles constituting theft. Appellant testified, in the deposition here, that he and Duncan gave Mrs. Duncan, (being the same person here as Mrs. Scheele) a note secured by a chattel mortgage on the vehicles here involved for $7500.00.

The appellant did not appear and seek to contest the sale under the foreclosure of the mortgage upon the vehicles here involved. After the foreclosure proceedings. .and after Mrs. Scheele had bought the vehicles at the foreclosure sale, and certificates of title had been issued to her, the appellant brought this suit to recover under the terms of the insurance policy here involved.

“The testimony of a party to a suit and admissions made by him must be construed as binding upon him, and not merely as raising issues of fact. His testimony is governed by different rules to those governing witnesses who are not parties.” Texas & P. Ry Co. v. Wood et al., 145 Tex. 534, 199 S.W.2d 652, by the Supreme Court. We think under appellant’s own testimony and admissions the vehicles here involved were taken under the terms of a mortgage and the taking by Mrs. Scheele would not be theft.

Through seventeen points appellant argues defendant’s liability on the hypothesis of theft of this property by Mrs. Scheele. We think it is unnecessary to discuss each of these points since the case actually narrows to the basic point of whether there was a theft of the vehicles involved.

The policy in question, under the comprehensive coverage, insured against loss by theft (Broad Form) except loss due to conversion, embezzlement or secretion by any person in possession under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance. (Emphasis ours.) The taking and foreclosure under the chattel mortgage was not a theft within the meaning and terms of the policy. National Bond & Investment Co. v. Great National Lloyds, Tex.Civ.App., 271 S.W.2d 322; Talasek v. The Travelers Fire Insurance Co., 5 Cir., 242 F.2d 748, and cases there cited.

We think the trial court was correct in entering summary judgment, as was done in this case. Judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Mabel Menke LOGUE et al., Appellants, v. Ferd SCRIVENER et al., Appellees.
    No. 13886.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1962.
    Rehearing Denied March 21, 1962.

      Boyle, Wheeler, Gresham, Davis & Gregory, A. W. Worthy, San Antonio, for appellants.
    Walter P. Brenan, Trueheart, McMillan, Russell & Westbrook, San Antonio, for appellees.
   MURRAY, Chief Justice.

This is a suit to construe a codicil to the will of Hilda Menke Scrivener. The codicil is in her handwriting and reads as follows:

“6-29-1953
About Contents of This Notice of my last Wish—
Arnold R. Scrivener shall be The Gaurdine of The Live Oak Co Farm This shall be devided in 3 equal parts — My Oil Well Money—
# 1 My Husband Arnold Scrivener—
#2 My sister Mabel Menke Logue
' #3 My Brothers 5 Boy’s — Name’s—
Monroe G Menke—
Henry Menke .
Harold Menke
Sid Menke
Ray Menke
in case There are Oil Wells on place — These 5 Boy’s portion shall be put in a Trust fund for 10 year’s — and if They go to court about This — -They shall not get 1 cent” / and at The death of my Husband His share shall go to Menke Boy’s and at The death of my sister her share shall go — To Charles Goodnough Children — only—Hilda Menke Scrivener H I. Scrivener “

The trial court granted a motion for summary judgment and construed the codicil as merely modifying the will of Hilda Menke Scrivener, so that the codicil only disposes of the oil estate in a 300-acre farm located in Live Oak County, and as having no effect on the surface estate or the gas estate in the farm as disposed of by the original will. There is no question raised as to the provision placing the interest of the sons of her brother in a ten-year trust. From this judgment plaintiffs have appealed.

It is the position of appellees herein that the codicil had the effect of modifying the original will only as to the oil estate, while appellants contend that the effect of the codicil was to revoke the prior will and to make a completely different disposition of the Live Oak County Farm. Both the will and the codicil have been admitted to probate. The codicil does not expressly revoke the will, and therefore the two instruments must be construed together in determining the intention of the testatrix. 57 Am.Jur. 416, § 608; First Christian Church of Temple v. Moore, Tex.Civ.App., 295 S.W.2d 931. If the intention of the testatrix can be arrived at from the four corners of the will and the codicil, considered as one instrument, then a question of law only is presented and there are no material fact issues to be passed upon by a jury or other trier of facts.

We have concluded that the intention of the testatrix can be determined from the will and codicil, when construed together, and therefore there was no impropriety on the part of the trial court in deciding this case by summary judgment. Huffman v. Huffman, Tex., 339 S.W.2d 885; Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943; Dees v. Amarillo National Bank, Tex.Civ.App., 332 S.W.2d 126; Weathers v. Robertson, Tex.Civ.App., 331 S.W.2d 87; Ellis v. First Nat. Bank in Dallas, Tex.Civ.App., 311 S.W.2d 916; Flower v. Dort, Tex.Civ.App., 260 S.W.2d 685; Ross Coal Co. v. Cole, 4 Cir., 249 F.2d 600.

The original will left all of testatrix’s property of which she might die seized and possessed to her husband, Arnold Roland Scrivener, which included the Live Oak County Ranch, consisting of three hundred acres. By the codicil she expresses the intention not to disturb the rights of her husband as to the surface estate, but to make a different disposition of the oil estate, which she refers to as “My Oil Well Money.” She directs that the oil estate be divided into three equal parts; one part to go to her husband for life, and upon his death to the five sons of her brother; another part, to her sister, Mabel Menke Logue, for life and at her death to her grandchildren, who are described as the children of Charles Good-nough; and the third part, to the five sons of her brother, who are named in the codicil. She further provides that if there is revenue from oil wells on the farm, the interest of the five boys shall be held in trust for ten years.

The only ambiguity contended for by appellants is the meaning of the sentence, “This shall be devided in 3 equal parts— My Oil Well Money.” The codicil was in the handwriting of the testatrix, who was a German-American. She spoke German better than English, and had very little formal education. There is a photostatic copy of the codicil in the transcript, and we have copied it as nearly as can be done on a typewriter.

There is no period after the word “Farm” hut the sentence above begins with a capital letter and also begins on a separate line. It is true that the phrase “My Oil Well Money” is set off by two dashes, but when it is considered that in the German language the subject of a sentence is often placed at the end rather than at the beginning, we experience no difficulty in determining that the subject of the sentence is “My Oil Well Money,” and not the Live Oak County Farm. When this is determined, then the intention of the testatrix becomes perfectly clear and understandable. Thus a meaning is given both to the will and the codicil and the intention of the testatrix as to both instruments is obvious.

Appellants contend that the first sentence of the codicil is sufficient to revoke the will. We do not agree. Whatever testatrix may have intended by this vague sentence, it falls far short of revoking the will. For a codicil to .revoke a pri- or will, it must use clear and unambiguous language. Baker v. Wright, Tex.Civ.App., 157 S.W.2d 470; Redmond v. Redmond, Tex.Civ.App., 127 S.W.2d 309; Laborde v. First State Bank & Trust Co., Tex.Civ. App., 101 S.W.2d 389. It is clear that testatrix knew there were no oil wells on the Live Oak County Farm and that it was not even under an oil lease, but in her broken English she was referring to the oil estate as “My Oil Well Money.”

We are asked by appellants to transpose the expression “My Oil Well Money” from the place where it is found in the codicil to a place just after the names of the five sons of her brother, and thus leave nothing for the phrase, “This shall be devided in 3 equal parts” to refer to but the Live Oak County Farm. To make this transposition would give to the codicil a meaning which the testatrix did not intend. We must leave the codicil as testatrix wrote it, so long as its meaning can be understood.

The construction we give to the will and codicil renders extraneous evidence inadmissible.

The remaining contentions presented by appellants are rendered immaterial by the interpretation and construction given to the will and codicil by the trial court, which we here approve.

The judgment is affirmed.