text:
    Wallace J. McCULLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 36032.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1963.
    Rehearing Denied Nov. 27, 1963.
    Walter M. Sekaly, Beaumont, for appellant.
    Leon B. Douglas, State s Atty., Austin, for the State.
   McDonald, judge.

The offense is “enticing a minor to a house for the purpose of proposing to such child the performance of an act of sodomy”; the punishment, confinement in jail for one year.

The State relied primarily upon the testimony of the mother of the prosecutrix, and the prosecutrix. The mother testified that she and her husband and five-year old daughter lived approximately six houses from appellant’s house; that she had seen her daughter playing in another yard about 2:30 in the afternoon; that she went to get some Easter candy and left the daughter playing; that she returned at approximately 2:45; that the prosecutrix came in; that she was real excited and started to tell her what the man had done; that he told her to come in the house; that he had a surprise for her; that the man told her that he had “a big red sucker” that he wanted to give her; that she came in the house, and when she got there he said he wanted to surprise her, so she told me; that she let him cover her head so he could give her a surprise; that he went to the bath room and got a towel and put it over her head; that she said he put something in her mouth; that she peeped at it; that she said it was his “weenie”; that he told her not to tell her mother and daddy; that as she came in the house all this came pouring forth from her daughter; that it took her about 15 minutes to tell it, since she was so excited; that when she (the mother) began to understand she sat down, and listened to her daughter to see what she was trying to tell; that the little girl was excited; that she had nightmares over it; that he gave her some candy and told her not to tell her mother and daddy; that when she asked her daughter what the “weenie” meant she said he unzipped his pants.

The prosecutrix testified that she was 5 years of age; that she went to Sunday School, and if you did not tell the truth it was a lie; that if you did tell the truth it was not a lie; that she got a spanking if she told a lie. She was qualified and no objection was made to her testimony. She testified that she “was playing with Larry and Jerry, and they wanted to go get a snack, and then that man called me in his house and then he got a towel and he put it over my eyes and he unzipped his pants, and he let me suck it, and then when I was leaving, he said, ‘Don’t tell your mama and daddy’, so I did.” She further testified that she was playing in the Eastman’s yard; that it was right next door to where the man lived. She related that she was alone in the yard, that the man came out and asked her to come in his house; that he told her, “It’s going to be a surprise”; that she was in the hall on a chair; that he got the towel in the bathroom, and he put it over her eyes, told her not to peep, but she did peep; that he unzipped his pants and put his thing in her mouth.

Mrs. W. J. McCullen testified as a witness for the appellant. She stated that she was his wife; that they had been married 32 years; that at the time in question she was working; that she had her lunch hour between 2 and 3 o’clock; that she went home right at 2, her husband picking her up from work; that she did not leave the house until about 3 minutes until 3 on the day in question; that she had lunch with her husband and she was with him at the time.

Mrs. Grace Howell testified that she worked at the same place as Mrs. Mc-Cullen; that Mrs. McCullen’s lunch hour was between 2 and 3 o’clock that day; that she did not know where she went.

Appellant testified that he did not know the prosecutrix on April 10, 1962; that she was not in his home that day; that he picked up his wife at 2 o’clock and took her back 2 or 3 minutes before 3 o’clock; that he was 59 years of age.

Appellant contends that the evidence presented by the State is wholly insufficient to identify the accused with the offense alleged in the indictment. We have examined the entire record with great care and been unduly cautious in weighing and appraising it. The above recitation of the facts in this case follows very closely the brief filed herein by the State. The facts as stated portray this case in the light most favorable to the State. We observe in reading the State’s brief and in carefully looking for two statements made therein that the record does not reflect either statement that the prosecutrix, testified, “that she saw the man a few months before,” nor does the record reflect the State’s version that “the prosecutrix identified the appellant at the trial.” The mother testified that at the time of the alleged offense that she did not know the appellant at all. She did testify to a question asked her by the State : “This is Mr. McCullen’s house here?” Answer: “Yes.” She further testified that her daughter “pointed the house out to me.” The house was not further identified. At no place in the record did the State ever adduce any testimony any stronger than: “this man, his house, he.” The State inquired of the prosecutrix: Q: “Do you know this man right over here in the blue suit?” Answer: “No.” The State did develop testimony, from the prosecutrix, that the Eastman yard was right next door to where the man lived. The burden is on the State in any criminal prosecution to prove beyond a reasonable doubt that the accused committed the criminal act charged. De La Paz v. State, 161 Tex.Cr.R. 514, 279 S.W.2d 101. As stated by this Court in Mayo v. State, 156 Tex.Cr.R. 26, 238 S.W.2d 777; “The state was under the burden of showing that this appellant was the man who committed the offense charged. Unless and until the state satisfied that burden, the guilt of this appellant has not been shown.” Gandy v. State, 139 Tex.Cr.R. 140, 139 S.W.2d 275, also supports the holding that the accused must be identified as the person who committed the offense. We fail to find in the record any evidence to identify the appellant as the party who committed the offense. The judgment must be reversed.

We also observe that the state inquired of Lt. Robbins in rebuttal, by way of impeachment of the appellant’s testimony, about certain statements made by appellant to Lt. Robbins. The record shows that appellant was under arrest at the time. On another trial hereof this matter should not be inquired about. Art. 727, Vernon’s Ann.C.C.P.; Spires v. State, 123 Tex.Cr.R. 357, 59 S.W.2d 117.

We shall pretermit a discussion of the other complained of errors, as they doubtless will not occur upon another trial of this cause.

For the reason stated, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Ex parte Jose ORTEGA.
    No. 36212.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.

      No attorney on appeal for appellant.
    Leon B. Douglas, Státe’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from the order entered in a habeas corpus proceeding denying the application seeking discharge from custody.

Jose Ortega, the petitioner, was convicted in Reeves County in 1958 in two burglary cases and sentenced to serve a total of 8 years. He was received at the penitentiary on May 8, 1958. On December 23, 1959, he was paroled.

Ortega was indicted in Winkler County for a burglary allegedly committed on 'or about September 15, 1960. The indictment was returned on October 4, 1960. When the case was called for trial on October 17, 1960, it was continued on application of the defendant.

On October 29, 1960, he was returned to the penitentiary from Winkler County as a parole violator.

A detainer was placed on Ortega on November 10, 1960.

The petition for habeas corpus was filed on June 17, 1963, after he had been brought from the penitentiary on a bench warrant and was in custody of the Sheriff of Wink-ler County to answer the indictment.

The record of the hearing shows that at the time the petition for habeas corpus was filed and at the time of the hearing, Ortega had not satisfied the sentences he was serving from Reeves County, hence he was in lawful custody by virtue of such sentences, and was in no position to complain that his confinement to anwser the indictment was unlawful. Ex parte Kemp, 154 Tex.Cr.R. 633, 230 S.W.2d 232; Ex parte Herring, 156 Tex.Cr.R. 624, 245 S.W.2d 705.

Appellant’s contention appears to be that he was denied a speedy trial and should not be required to answer the indictment returned against him in October 1960. We do not agree.

As pointed out by the state, no proceeding in the nature of a mandamus to compel an early trial was instituted. The case had not been dismissed. Goss v. State, 161 Tex.Cr.R. 37, 274 S.W.2d 697, is authority for affirming the trial court’s order denying relief by habeas corpus.

The judgment is affirmed.


text:
    Buddy Stewart BLOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 36036.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.

      T. M. Reid, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our former opinion and order affirming the conviction is withdrawn.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $100.

Appellant’s motion for new trial was overruled and notice of appeal was given on March 6, 1963. On the same day the appellant’s bond on appeal was approved.

Art. 830 Vernon’s Ann.C.C.P. provides for a bail bond on appeal only after. the expiration of the term. It provides that when the defendant appeals in any misdemeanor case he shall, if he be in custody, be committed to jail unless he enter into recognizance as provided by law. Art. 831 V.A. C.C.P. sets out the form of such a recognizance which must be entered into in open court.

In the absence of a recognizance entered into in open court or an appeal bond approved after the term of court had expired, or a showing that the appellant is in custody, this Court is without jurisdiction to enter any order other than to dismiss the appeal. Thompson v. State, 166 Tex.Cr.R. 586, 317 S.W.2d 61; Nance v. State, Tex.Cr.App., 318 S.W.2d 666; Ross v. State, Tex.Cr.App., 318 S.W.2d 641; and other cases cited under Art. 830 V.A.C.C.P., Note 4.

Appellant’s motion for rehearing- is granted and the appeal is dismissed.


text:
    Ex parte Elzie Earl SPARKS.
    No. 36551.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.

      Elzie Earl Sparks, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding filed originally in this Court wherein the petitioner attacks the judgment of conviction he is serving in the Texas Department of Corrections.

The indictment was in two counts, the first alleging rape and the second, assault with intent to rape.

The judgment upon which sentence was pronounced against petitioner recites that a jury was waived and that the petitioner pleaded guilty to the charge contained in the indictment. It adjudged the defendant “guilty of the offense of Rape, Assault With Intent to Rape as confessed by the defendant” and adjudged that he be punished by confinement in the penitentiary “for a term of not less than S nor more than 35 years.”

We observe that though there are recitations in the record which tend to show that appellant was found guilty of assault with intent to rape, the minimum punishment shown in the judgment was that provided for rape but not for assault with intent to rape.

The present Judge of the District Court of San Augustine County, where the petitioner was tried, has certified that the recitations of the judgment are correct and there are no clerical errors in the copy transmitted to this Court.

Rape being a capital offense, the trial court was without jurisdiction to try the petitioner for such offense without a jury. The judgment of conviction is void also because no definite punishment was assessed. Kemp v. State, 159 Tex.Cr.R. 110, 261 S.W.2d 573; Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286; Ex Parte Padgett, 161 Tex.Cr.R. 498, 278 S.W.2d 865; Ex parte East, 154 Tex.Cr.R. 123, 225 S.W.2d 833.

It is ordered that petitioner be relieved from further confinement in the penitentiary under said conviction and that he be delivered by the penitentiary authorities to the Sheriff of San Augustine County to answer in the District Court of such county to the indictment which was originally returned against him in said Cause No. 5480.


author: BELCHER, Commissioner.

text:
    DeWitt T. WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 36255.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    W. M. Zachry, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is driving an automobile upon a public highway while under the influence of intoxicating liquor; the punishment, three days in jail and a fine of $50.

No statement of facts accompanies the record.

Two formal bills of exception were filed with the clerk and refused by the trial judge, and his reasons were noted thereon. No further action was taken in regard to these bills, therefore the refused bills cannot be considered. No bystanders bills are contained in the record. Cook v. State, Tex.Cr.App., 356 S.W.2d 149; Campos v. State, 172 Tex.Cr.R. 179, 356 S.W.2d 317; Skinner v. State, Tex.Cr.App., 364 S.W.2d 700.

The judgment is affirmed.

Opinion approved by the Court


author: DICE, Commissioner.

text:
    Edward L. McKINNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 36137.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    Roger Butler, Robstown, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is unlawful • possession of marihuana; the punishment, seven years.

Federal narcotics agent Ronald Merri-weather, called as witness by the state, testified that in December, 1962, while working under cover in Victoria, he was introduced to one George Rainey, a known pusher of narcotics, by an informer from San Antonio. In the introduction, Rainey was told by the informer that Merriweather was a soldier stationed at Fort Sam Houston, who was interested in obtaining some marihuana or heroin to sell to his friends at the Fort. As a result of their meeting, Merriweather effected a purchase of marihuana from Rainey in Victoria on December 19. On January 3, 1963, Merri-weather and Rainey went to Robstown and on the morning of January 4 at 12:45 a. m., Merriweather was introduced by Rainey to appellant as Frank Johnson. At such time, the three were seated in the agent’s automobile in front of the Cozy Lounge. In introducing Merriweather, Rainey stated to appellant: “This is my man, my old boy, I know this guy, he is from the Army * * he wants to buy some stuff * * * to take on back there to the post, for some of the boys * * Appellant replied: “Well, man, I don’t know, items are kindo hard now, and I don’t have too much stuff now * *' * but we get some buckin’ good stuff now.” Agent Merriweather then asked appellant if he knew where he (the agent) could get some marihuana or heroin, to which appellant replied that he did not know hut “I can get you three wachies for $15.00.” Thereupon, Merriweather handed appellant $15 and appellant got out of the automobile, walked across the street, and disappeared behind a door leading into a building housing the Paradise Inn. Later, appellant returned, got in the automobile, and handed the agent a bag in which there were three newspaper packages containing a substance that appeared to be marihuana.

Merriweather testified that on January 17, 1963, he returned to Robstown with Rainey and saw appellant in the Cozy Lounge. When he asked appellant about some more marihuana appellant stated: “ * * * things are kind® slow * * * My Mexican, I haven’t seen the Mexican, he’s across Jown * * * Time’s are kinder hard now,” and asked the agent to “ * * * check back with me in about a couple of weeks.” Merriweather stated that on February 13 he again saw appellant in Robs-town but did not purchase anything from him. On such occasion, appellant said: “Things are slow, real slow, man,” and requested that he come back the next night. On February 15, Agent Merriweather returned and saw appellant playing poker upstairs over the Paradise Inn. After appellant motioned to the agent to follow him, the two went downstairs. Appellant got a package out from under a canopy and said: “Man, I got about twenty cigarettes here * * They then got in the agent’s car, and after agreeing upon a price of $1.00 each for the cigarettes, Mer-riweather signalled with the brake light to other narcotics agents nearby, who came to the car. When the agents opened the door, appellant threw the package to the floor and Merriweather picked it up. The package contained nineteen cigarettes wrapped in white toilet paper with a rubber band.

An analysis of the nineteen cigarettes by U. S. Chemist James N. Wilson disclosed that each contained marihuana of a total weight of 3.07 grams. An examination of Sie three packages delivered by appellant to the agent on January 4 disclosed that they contained 14.31 grams of marihuana.

Testifying as a Witness in his own behalf, appellant stated that he had been a user of marihuana but had not used any for three or four months prior to January, 1963. Appellant testified that on December 28, 1962, a Mexican boy by the name of Adolph approached him and asked if he wanted any “stuff,” and that he told the boy: “No, I don’t want it, I’m about ready to quit fooling with it * * * ” The boy stated : “I heard Rainey wanted some, do you know Rainey?,” to which he replied that he did but “I still don’t want any.” Appellant related that the following night Adolph returned and again approached him about “taking it” and after he declined, Adolph offered him a bargain of $15 for five wach-ies and stated that Rainey wanted “it.” He then took the five packages from Adolph and hid them under the canopy behind the Paradise Inn. Of the five packages, appellant stated that he made one package into twenty cigarettes, nineteen of which were under the canopy, sold one package, on January 31, to Rainey, whom he knew in Victoria, for $5, and delivered the other three packages to Agent Mer-riweather.

Appellant swore that he would have never received the marihuana from the Mexican, Adolph, if he had not mentioned Rain-ey’s name, and testified, in substance, that he obtained the marihuana for Rainey.

We find the evidence sufficient to sustain the verdict.

Appellant’s sole contention on appeal is that the court erred in refusing to give his requested charge on entrapment.

In Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762, this court, in discussing entrapment in its legal sense, said:

“It is the general rule that where the criminal intent originates in the mind of the accused the fact that the officers furnish the opportunity for or to aid the accused in the commission of a crime constitutes no defense to such, a prosecution. * * * However, if tlie criminal design originates in the mind of the officer and he induces the person to commit a crime which he would not otherwise have committed except for such inducement, this is entrapment, and in law may constitute a defense to such crime. * * * ”

See, also, Thomas v. State, 163 Tex.Cr.R. 308, 290 S.W.2d 680, and Viley v. State, 163 Tex.Cr.R. 348, 290 S.W.2d 674.

The evidence shows that appellant had the marihuana in his possession prior to his meeting narcotics agent Merriweather. There is no proof that the Mexican boy from whom appellant swore he received the marihuana was acting for Merriweather and there is an entire absence of any proof that the criminal intent or design of appellant originated in the mind of the officer.

Under the record presented, the defense of entrapment was not raised, and the court did not err in refusing to give the requested charge.

The judgment is affirmed.

Opinion approved by the court


author: MORRISON, Judge.

text:
    Lee Andre DERAMEE, Appellant, v. The STATE of Texas, Appellee.
    No. 36400.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1964.
    Robert B. Hershey, Dallas, for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while license suspended; the punishment, a fine of $150.00. No statement of facts accompanies the record.

Appellant contends that the court erred in overruling his motion to quash because the complaint did not disclose whether or not he was being charged with violating Article 6701h, Section 32(c) or Article 6687b, Section 34 of Vernon’s Annotated Revised Civil Statutes of the State of Texas. The complaint charged that appellant “on or about the 5 day of May A. D. 1962 in the County of Dallas and State of Texas, did unlawfully in and upon a public highway then and there drive a motor vehicle when the operator’s license of the said defendant was then and there suspended.”

In Rushing v. State, 161 Tex.Cr.R. 334, 277 S.W.2d 104, a complaint containing substantially the same language as that of the complaint in the case at bar was held to be sufficient to charge the offense defined by Article 6687b, Section 34. See also Gregg v. State, Tex.Cr.App., 339 S.W.2d 539 and Geyer v. State, 162 Tex.Cr.R. 531, 287 S.W.2d 948.

Appellant further contends that Article 6701h, Section 32(c) and Article 6687b, Section 34 each provide a different penalty for the same offense and are so indefinite as to be inoperative insofar as the complaint against the appellant is concerned.

A careful reading of the statutes involved reveals that they do not provide different penalties for the same offense. Article 6701h is a part of the Texas Motor Vehicle Safety-Responsibility Act which provides for suspension of licenses when certain provisions of the Act are not complied with. Article 6687b provides for suspension of licenses on grounds that are separate and distinct from those found in Article 6701h.

Each statute contains language that limits its applicability only to those cases in which the license has been suspended under the authority of said statute. It is apparent that in enacting Article 6701h it was not the legislative intent to repeal or amend Article 6687b, but instead to provide additional and distinct grounds for the suspension of licenses. Section 39 of Article 6701h reads as follows:

“This Act shall in no respect be considered as a repeal of the motor vehicle laws of this State but shall be construed as supplemental thereto.”

The court therefore correctly overruled appellant’s motion to quash the complaint.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    William A. ADKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 36180.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    Rehearing Denied Jan. 22, 1964.
    Norman W. Black, Plouston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Neil McKay, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

. The offense is murder; the punishment, life.

The appellant’s brief states that he finds no serious fault with the following statement of the facts of the case found in the State’s brief.

“The appellant, charged by indictment with the offense of Murder with Malice Aforethought of William Edwin Carter by cutting and stabbing him with a knife, entered a plea of not guilty. Upon a finding of guilty, the jury assessed the Appellant’s punishment at confinement in the State Penitentiary for life.

“The deceased and his brother, Allen Carter, owned a house in Houston, Texas, where they lived, and they rented a room to the appellant and another room to Herman Bevil. On the night that the deceased was killed, all four of the men were at the house, as was a woman by the name of Ruby Faye Belen who was deceased at the time of the trial.

“The appellant, who had been convicted and sentenced to serve time in the penitentiary six times previously, had lived at the Carter brothers’ house for several years. He and the deceased both were newspaper salesmen.

“Herman Bevil, who had not been working on the day of the death of the deceased, had been around the house all that day and evening. Allen Carter and Ruby Faye Belen were also in the house. The deceased and the appellant had worked on their paper route during the morning hours, and both had returned late in the afternoon. All of the parties except Bevil had been drinking. At about 10:00 p. m., Bevil was in his room watching T.V. and got up and went to the bathroom, close to the kitchen, and found Allen Carter and Ruby Faye sitting in the kitchen. Ruby Faye stated that she thought that the .appellant and the deceased were fighting. Bevil pushed open the door to the room where the deceased slept and saw the deceased lying on the bed on his back, with his hands and feet up in the air, and the appellant was standing beside the bed cutting at the deceased. Bevil described the knife which he saw the appellant using and identified State’s Exhibit No. 1 as being the same knife. Bevil heard the deceased say, ‘Don’t Puddle, don’t Puddle, you have done cut me.’ The appellant was known by the name ‘Puddle’. Bevil then went to the fire station and had a fireman call police officers. As Bevil was returning to the house, he noticed someone with a flashlight in back and there found the officers who had located the deceased lying in a ditch.

“When Homicide Officer I. W. Holmes arrived at the scene, he found that four police officers had already arrived. The deceased was dead, lying face down in a ditch. The deceased had a wound in his chest. No weapon was found on or close to the deceased, but he was carrying a large amount of money in his billfold. Holmes followed a trail of blood leading from the body of the deceased back into the bedroom in the house where the deceased had lived. In the house he found Ruby Faye Belen and Allen Carter very intoxicated. The knife (State’s Exhibit No. 1) was located by officers beneath the floor in the bathroom.

“The appellant, testifying in his own behalf, testified that on the day in question he and the deceased had worked at their regular jobs selling papers, that he returned home and found the deceased’s brother and Ruby Faye Belen in an intoxicated condition, and that he thereafter prepared supper for them. After supper, he went to a liquor store and bought two quarts of wine, one for himself and one for Allen Carter. He then testified that after he gave the wine to Allen Carter, he went to his bedroom and went to sleep. He was awakened by the deceased and at his request gave him a glass of wine. Thereafter, he said he got up and went to his refrigerator to obtain a glass of ice water. He said that Edwin Carter then came in and jerked the refrigerator door, causing him to lose his balance; and as he turned to brace himself on the icebox, he saw that Edwin Carter had a butcher knife in his hand. He said that Edwin Carter was mashing him between the door and refrigerator and that when he saw the knife in Carter’s hand, he became frightened and jerked a knife from a tray in the icebox and out at Carter. Carter then fell back on the corner of the bed, and appellant said that he placed the knife on top of the refrigerator. Appellant said that he was afraid and could not really explain why he had later hidden the knife he used by throwing it through a hole in the bathroom floor, where it was later recovered by officers.

“Dr. W. W. Coulter, Harris County Pathologist, testified that he performed an autopsy on the body of the deceased. His examination revealed a stab wound eight inches below the collar bone, and a half inch to the right of the midline. The wound was two inches in length and had penetrated the pericardial cavity of the heart, but not the heart itself; it also went through the diaphragm and the upper part of the liver. Two quarts of blood were found in the abdominal cavity. The stab wound had penetrated the body, some six or seven inches. As a result of the stab wound the deceased died from internal hemorrhage and from penetration of the liver.

“State’s Exhibit No. 1 was identified by Dr. Coulter as a knife with a blade six or seven inches long and approximately two inches wide. In the opinion of the doctor, such an instrument was calculated to cause death or serious bodily injury.

“On cross-examination, the doctor testified that his examination revealed that the alcoholic content of the bloofl of the deceased was .181, and indicated that the deceased was intoxicated at the time of his death.”

No question is presented save that of the sufficiency of the evidence to sustain the conviction.

The jury resolved the issues of fact raised by the testimony of the appellant against him and the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient to sustain the conviction for murder with malice with punishment as^ sessed at life.

The judgment is affirmed.


author: WILLIAMS, Justice.

text:
    Thelma Marie ATKINSON et al., Appellants, v. Doris KETTLER et al., Appellees.
    No. 16234.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 27, 1963.
    Rehearing Denied Nov. 1, 1963.

      Biggers, Baker, Lloyd & Carver, Arch A. Beasley, Locke, Purnell, Boren, Laney & Neely, Charles R. Johnson, Dallas, Wag-goner Carr, Atty. Gen., J. S. Bracewell and Milton Richardson, Asst. Attys. Gen., Austin, for appellants.
    William Andress, Jr., Carrington, Johnson & Stephens, Robert L. Blumenthal, Joe H. McCracken, III, and Robert E. White, Dallas, for appellees.
   WILLIAMS, Justice.

Action for declaratory judgment and construction of trust provisions of the holographic will of Bernice E. Atkinson, deceased, relating to certain real property in Kinney County, Texas. (Art. 2524—1, Sec. 2, Vernon’s Ann.Tex.St, and Art. 7425b-24, V.A.T.S.). Bernice E. Atkinson, a resident of California, died December 24th, 1959. Her handwritten will, dated May 8, 1959, was admitted to probate in a Superior Court of California on February 17th, 1960. Inasmuch as a portion of the will related to real property situated in Texas, the will together with the probate proceedings in California was filed for record in Kinney County, Texas. Sec. 96 et seq. Probate Code. Mercantile National Bank at Dallas was named in the will as Trustee and Executor. This suit was filed by Mercantile National Bank in which the District Court was asked to declare whether the provisions of the will, with respect to the real property located in Texas, were valid or whether they were void as being repugnant to the rule against perpetuities. In either event the Mercantile National Bank requested the Court to advise it as to the proper heirs and beneficiaries of Bernice E. Atkinson with respect to the disposition of the Texas property. Following a non-jury trial the Court decreed that the so-called ranch-trust provision of the will relating to the Texas property was entirely void as being contrary to the rule against per-petuities; that no residual trust was established by the will; and that title to the ranch property passed by intestate succession to the next of kin of the testatrix, her two daughters, who are appellees here.

From this judgment Thelma Marie Atkinson, The Salvation Army, and the State of Texas have perfected an appeal.

PRELIMINARY MOTIONS

Before undertaking a discussion of the points on appeal it becomes necessary for us to dispose of two motions by appellees. The first of said motions is one requesting us to strike certain portions of the statement of facts, it being contended that same do not constitute a proper portion of the record on appeal. We have carefully considered this motion and find the same to be without merit and the same is, accordingly, overruled.

By their second motion, appellees move this court to dismiss appellants’ appeal as being moot, contending that subsequent to the entry of the judgment in the District Court, the Superior Court of the State of California for the County of Los Angeles has entered a judgment construing the will in all respects contrary to the position taken by the appellants here and that, therefore, the California decision is res judicata of this appeal. Appellees argue that the effect of a foreign will on Texas real property is governed by Texas law, but that the meaning of the will must be decided by the domiciliary jurisdiction since the testatrix is presumed to have considered the law of her domicile at the time she executed her will. American Jurisprudence 481, “Conflict of Laws” Sections 174; 175; 79 A.L.R. 91; Zombro v. Moffett, 329 Mo. 137, 44 S.W.2d 149; Wilkins v. Allen, 18 How. 385, 59 U.S. 385, 15 L.Ed. 396. Without disagreeing with these authorities, appellees’ plea of res judicata must be overruled for the simple reason that the judgment from a trial court in California decided subsequent to the rendition of the Texas judgment is not a final judgment binding upon us here. Appellants, in an unchallenged statement represent that the California decision is now on appeal to an Appellate Court there, accordingly it is not a final judgment which could be considered as res judicata. Texas Trunk R. R. Co. v. Jackson, 85 Tex. 605, 608, 22 S.W. 1030; Van Natta v. Van Natta, Tex.Civ.App., 200 S.W. 907.

FACTS

Turning our attention to the merits of this appeal we find that the following facts are undisputed. Bernice E. Atkinson had been previously married to Lynn S. Atkinson, which marriage terminated in divorce December 8, 1951. Mrs. Atkinson died a feme sole, while a resident of California, on December 24, 1959, and, as hereinabove stated, her will dated May 8, 1959 was duly admitted to probate in California. Bernice E. Atkinson had two children, and only two children, during her lifetime, both of whom survived her, namely, Doris Marie Kettler and Jeanne Bernice Shaw. Katherine Jeanne Kettler is the daughter of Doris Marie Kettler and Lynn Elsa Fisher and Jeannie Lynn Shaw are the daughters of Jeanne Bernice Shaw. Lynn S. Atkinson, the divorced husband of Bernice E. Atkinson, died subsequent to the death of Bernice E. Atkinson. ' Thelma Marie Atkinson is the sister of Lynn S. Atkinson, deceased. Walter Wells Atkinson and Lynn Shirk Atkinson are the children of Thelma Marie Atkinson.

THE WILL

The record reveals that no evidence was introduced before the trial court regarding the intent of the testatrix in connection with the questioned portions of the will and, therefore, in determining such intent the trial court certified that he construed the terms of the will by looking only to the language of the will itself. Accordingly, it is essential to set forth the relevant provisions of the will, as follows :

“Phoenix, Arizona. May 8, 1959 My Will—
I am en route to Dallas, Texas by car. I intended to make a will after I arrived there — But in case of my death before I have a chance to make a will— or if I decide to wait until my return to Los Angeles to have a lawyer make a will for me — I am writing this will now and mailing it to my sister-in-law Mrs. Thelma Marie Atkinson, 1522 North Orland, San Gabriel, California. I am in good health and of sound mind and nobody can duress me. (I sometimes can’t spell) I want all of my financial assets placed in — Trust with the Mercantile National Bank of Dallas. I name the Mercantile National Bank at Dallas, as my sole executor.
sjt # jfc ‡ >k
My financial assets consist of 3566 Shares of Mercantile National Bank at Dallas. 60 Shares of First National Bank in Dallas. 110 Shares Merchants Discount Co., Winnsboro, Texas, 400 Shares of Revlon Inc. 200 Shares Texas Gulf Sulphur, 3500 in cash in Security First National Bank of Los Angeles, Larchmont Blvd., Branch. $10,891 in cash in my brokerage account — with E. F. Hutton and Company — Wilshire Branch Salesman Mr. Tod Barrington, 4155 Wilshire Blvd., Los Angeles 5. 7 Shares National Securities — a 3300 acre ranch 18 miles South of Del Rio, Texas — the ranch is in Kinney County, Texas.
(here follows list of liabilities)
“I want all my stock managed by the Trust. I want all income from my estate to he divided equally between (1) my daughter Mrs. Doris Marie Kettler, 3215 Cheviot Vista Place, Los Angeles 34, California. In case of my daughter Mrs. Doris Marie Kettler’s death I want her share of the income to go to her daughter Katherine (or Catherine) Jeanne Kettler — divided equally -with any other issue of Mrs. Doris Marie Kettler.
2. My second daughter Mrs. Jeanne Bernice Shaw, 13431 Willamette Drive, Westminister, California. And in case of Mrs. Jeanne Bernice Shaw’s death— I want her share of the income to he divided equally between her two daughters Lynne Elsa Fisher and Jeannie Lynn Shaw and any other blood issue Jeanne Bernice Shaw may have.
3. My former husband Mr. Lynn S. Atkinson, 360 South Burnside Ave, Los Angeles 36, California, Apt. 12-E. In case of Mr. Atkinson’s death I want his share of my income to go to his sister Mrs. Thelma Marie Atkinson, 1522 North Orland, San Gabriel, California. In case of Mrs. Thelma Marie Atkinson I want her share of my income to be divided equally between any direct blood issue heirs of mine still living.
I want my ranch (3300 acres) in Kinney County to be set up in a perpetual Trust. I specify that it must never he sold.
The income to be divided equally between my direct blood heirs as long as there is a blood heir of mine living — and Mr. Lynn S. Atkinson and his sister Mrs. Thelma Marie Atkinson as long as they live — When the time comes that there are no blood heirs of mine from the issue of my own children— their children — I want the income from the ranch to be divided equally between any blood issue of
1. Walter Wells Atkinson, 1522 North Orland, San Gabriel, California and
2. Lynn Shirk Atkinson, 1522 North Orland, San Gabriel, California. The income is to be continued and divided between all direct blood issue of Lynn Shirk Atkinson and Walter Wells Atkinson until their direct blood issue has run completely out.
When the time comes that there is no direct blood issue living of my two daughters Doris M. Kettler and Jeanne Bernice Shaw and no remaining direct blood issue from Walter Wells Atkinson and Lynn Shirk Atkinson, I want the income from the ranch to go to the Salvation Army.
If the Salvation Army should be dissolved or disbanded — I want the ranch to be given to the State of Texas.
******
If any of my heirs attempt to break this will I cut them off with one dollar — I always knew what was best for them while I lived — and I still do. Any one attempting to break this will— must get one dollar.
Signed Mrs. Bernice E. Atkinson, 260 South Sycamore Ave., Los Angeles 36, California
Phoenix, Arizona
May 8, 1959.”

OPINION

In briefs which can be characterized as exercises in intelligence, appellants advance six principal points of error. By these points appellants say that the trial court erred (1) in concluding that the only reasonable construction of the ranch-trust provisions in the holographic will is that said trust is null and void; (2) by concluding, as a matter of law, that testatrix, in her use of the terms “direct blood heirs”, “blood heir”, “blood heirs”, “issue”, “blood issue” and “direct blood issue heirs” in each event referred to lineal descendants, and did not refer to “children”; (3) by concluding that the ranch-trust provisions of the will violate the rules against perpetuities; (4) by concluding that the ranch-trust provision of the will was not a charitable trust which was immune from the rule against perpetuities; (S) because even if the provision of the ranch-trust agreement was void, other provisions of the will were separable and should be given effect; and (6) because the will contained a valid residuary clause or trust disposing of Texas real property and such clause should be given effect even though the specific ranch-trust failed.

Inasmuch as appellants’ first three points are interrelated, we will deal with these points collectively. In disposing of these points relating to the proper construction of the will we should take note of certain well established rules of law:

1. The cardinal rule of construction of wills is that the intent of the testator shall be first ascertained if it can legally or reasonably be done. 44 Tex.Jur. 680, Sec. 1004. If the will is unambiguous the testator’s intention must be ascertained from the language used within the four corners of the will, unaffected by any assumption or inference based upon extraneous circumstances. 44 Tex.Jur. 686-7, 710; Foy v. Clemmons, Tex.Civ.App., 365 S.W.2d 384, error ref. NRE.

2. If the intention of the testator be not clearly expressed by the particular language used it may be found by looking to the provisions of the will as a whole and to the circumstances surrounding its execution. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579.

3. Where an instrument is equally open to two constructions, the one will be accepted which renders it valid rather than void, it being assumed that the testator would intend to create a legal instrument rather than one which is illegal. Neely v. Brogden, Tex.Comm.App., 239 S.W. 192.

4. A construction of a will which would render a decedent intestate as to any part of his estate is not favored in law and therefore a court will endeavor to adopt construction which will avert intestacy. 44 Tex.Jur. 148.

5. A will should be construed, when possible, so as to render the instrument and all of its provisions consistent and harmonious. Accordingly, the court will attempt to reconcile conflicting, inconsistent and repugnant provisions of the will if it is possible to do so. If the provisions are so inconsistent or contradictory that all cannot be given effect, then such of them should be ignored and others given effect as seems most nearly to comport with the intention of the testator as gathered from the entire instrument. Thus principle and subordinate provisions should be construed in their due relation. 44 Tex.Jur. Secs. 150, 151.

Since the integrity of the will before us, and more especially the trust provision thereof relating to Texas real property, depend upon the question of whether the Texas law of perpetuities has been violated, we now look to such law and the rules relating to same by which we are governed.

The architects of the basic law of our State, The Constitution, in plain and unequivocal language proclaimed that per-petuities “are contrary to the genius of a free government, and shall never be allowed.” Art. 1, Sec. 26, Vernon’s Ann. Constitution of Texas.

Our Legislature has never seen fit to define the rule against perpetuities but our Supreme Court has repeatedly said that, as at common law, the rule against perpetuities is that no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the time of the creation of the interest, plus a period of gestation. Clarke v. Clarke, 121 Tex. 165, 46 S.W.2d 658; Brooker v. Brooker, 132 Tex. 27, 106 S.W. 2d 247; Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800; 45 Tex.Jur.2d p. 97, Sec. 2.

Certain landmark rules govern us in our determination of the validity of the trust provisions of the will:

1. The rule against perpetuities, as stated by Chief Justice Alexander of the Supreme Court in Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800, “renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator’s death and twenty-one years thereafter, and when necessary the period of gestation.” (emphasis supplied) 41 Am.Jur. 50; 32 Tex.Jur. 834; Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247; Neely v. Brogden, Tex.Comm.App., 239 S.W. 192; Bryson v. Connecticut Gen. Life Ins. Co., Tex.Civ.App., 196 S.W.2d 532; Clarke v. Clarke, 121 Tex. 165, 46 S.W.2d 658.

2. The rule against perpetuities deals with the vesting of title to an estate, not with the receiving of its profits. Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, err. ref. If title may not become vested or absolute in some person until the expiration of the greater period than that described by the rule, the disposition is ineffectual. West Texas Bank & Trust Co. v. Matlock, Tex.Comm.App., 212 S.W. 937. The word “vest” means to give an immediate, fixed right of present or future enjoyment, or an interest the ownership of which is not conditioned on survival. Hunt v. Carroll, Tex.Civ.App., 157 S.W.2d 429; Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, err. ref.

3. The rule against perpetuities applies to trusts. Moore v. Sellers, Tex.Civ.App., 201 S.W.2d 248, err. ref. Unless the trust is for charitable purposes, a perpetual trust and trust for an indefinite duration are void. Munger v. Munger, Tex.Civ.App., 298 S.W. 2707, err. ref.; West Texas Bank & Trust Co. v. Matlock, Tex.Comm.App., 212 S.W. 936,

Being ever mindful of these guide posts, we have made a careful exegesis of testatrix’s will to determine if her efforts to establish a perpetual trust relating to her Texas ranch property violate the basic law of our State. Appellants candidly concede that if Mrs. Atkinson, in the use of the terms “direct blood”, “heirs”, “blood heirs”, “issue”, “blood issue”, and “direct blood issue” in describing the beneficial heirship of the remainder interest in the Texas ranch, meant her lineal descendants, as found by the trial court, and did not mean, by the use of such words “her children”, then her effort to establish the ranch-trust did clearly violate the rule against perpetuities. They argue forcibly that since Mrs. Atkinson was not a lawyer that she should not be held to the technical meaning of the words used by her. They say that the word “issue” is an ambiguous word and that, as used generally in the community it signifies the immediate descendants, or children. Newcomb v. Newcomb, 197 Ky. 801, 806, 248 S.W. 198; DeCherette v. DeCherette, 264 Ky. 525, 94 S.W. 1018.

While it is true that some courts have declared that the term “issue” is ambiguous it has been generally held that whether the testator meant children or lineal descendants by the use of the term depends upon the intention of the testator as derived from the context of the entire will. Palmer v. Horn, 84 N.Y. 516. This is illustrated in our Texas law by the case of Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 in which case the testator used the term “issue” interchangeable with the word “children” and the court said that under such circumstances it was permissible to construe the word “issue” to mean child or children. The rule seems well established in Texas that the term “issue” when used in a will, is to be interpreted in its ordinary sense embracing all descendants, especially where there is nothing in the language of the instrument to show that a narrower interpretation was intended. Munger v. Munger, Tex.Civ.App., 298 S.W. 470.

Black’s Law Dictionary, 4th Ed. defines the term “issue” as “descendants; or persons who have descended from a common ancestor; offspring; progeny; descent; lineage; lineal descendents; the word includes not only a child, or children, but all other descendants in whatever degree”. In Restatement of the Law of Property, Secs. 265, 292a, it is stated that unless a contrary intent is found from other language or circumstance, the word “issue” means lineal descendants who are within the law of inheritance from such ancestor.

Many cases from various jurisdictions supporting this interpretation of the term “issue” and “blood heirs” are found in Vol. 22A of Words and Phrases, P.Ed., p. 553, et seq.

A study of the entire will reveals that Mrs. Atkinson used the term “daughter” on eight occasions, the term “granddaughter” on four occasions, and the word, “children” was used only once. She used the term “issue”, “blood issue”, and “direct blood issue” nine times and she used the term “heirs” and “blood heirs” and “direct blood heirs” four separate times. In talking about her Texas ranch she confines herself to the terms “direct blood issue”, “direct blood heirs” and “blood heirs” and “children”. We think that in the disposing of the Texas ranch property she meant to include her lineal descendants and having done so it is our opinion that Mrs. Atkinson did not intend that the title to her ranch property should vest in the beneficiaries until more than the prohibited number of years following her death. Her bequests were to a class of persons which was subject to open to let in new born' members, and to exclude.. all those..who had died during the twenty-one year period.

Mrs. Atkinson was a person of firm opinion and clearly knew what she wanted done with her ranch property. This is evidenced in more than one portion of the will. In the very beginning she announced that she was “in good health and of sound mind and nobody can duress me”. At the very end of her will she announces that “I always knew what was best for them while I lived — and I still do.” Knowing what was “best for them”, both while she was living and after she died, she then attempted to establish a “perpetual trust”, specifying that the ranch shall never be sold. She then attempts to control the income from the ranch property from the grave by attempting to perpetuate this portion of her estate “as long as there is a blood heir of mine living” and until “their direct blood issue has run completely out”. It is only then when “there are no remaining direct issue” that the ranch income is to go to the Salvation Army and if that organization should be dissolved or disbanded then, and only then, the ranch is to be given to the State of Texas. There can be no doubt of the existence of a possibility that the vesting of this estate will not take place for many years longer than the prohibited period condemned by the rule against perpetuities. Mrs. Atkinson clearly intended to remove the ranch property from commerce as long as there was .a lineal descendant of hers still living. This being true then all other descendants than her grandchildren might not be born within twenty-one years.

Another reason is evident why the attempted ranch-trust cannot be given validity. The language “the income to be divided equally between my direct blood heirs as long as there is a blood heir of mine living — and Mr. Lynn S. Atkinson and his sister Mrs. Thelma Marie Atkinson as long as they live — ■” is clearly ambiguous for the reason that the division of the income between the parties named is not made clear or understandable. By this language it is not made definite whether she meant that “direct blood heirs” (her two ’ daughters) should get an equal percentage of the income with Lynn Atkinson and his sister, or whether she meant that her “blood heirs” and Lynn Atkinson and Thelma Marie Atkinson would share per capita. In any event the share of each would change from time to time as “blood heirs” died and others were born.

The terms of the testatrix’s will demonstrate a clear desire to control the Texas ranch property forever and from beyond the grave. Her intent runs counter to the basic law of our land and must not prevail. Appellants’ first three points are overruled.

In their fourth point appellants contend that the ranch-trust creates a charitable trust in favor of the Salvation Army and therefore such trust is immune from the rule against perpetuities. It is undisputed that a perpetual trust may legally be created for charitable purposes. Moore v. Sellers, Tex.Civ.App., 201 S.W.2d 348; Restatement of the Law of Property, Sec. 398, 11 Tex.Jur.2d 698. Appellants are also correct when they state the rule that a gift to charity which is preceded by a gift given in trust for non-charitable purposes will be upheld if, and only if, the gift to charity must vest, if at all, within the period of the rule against perpetuities. Scott on Trust, 2d Ed. Vol. 4, Sec. 401.7, p. 2879.

However, as above stated in connection with our disposition of points one, two and three, the title to the charity might not vest within the rule against perpetuities. We think the question here is settled by the rule announced in Restatement of the Law of Property, Sec. 396 as follows:

“The fact that a limitation or reservation is in favor of charity in no way obviates an invalidity of such limitation or reservation which, if it were a limitation or reservation not in favor of a charity, would exist under the rule against perpetuities * * • * ”.

Illustration 2 under this rule is directly in point wherein it is demonstrated that an attempted remainder is subject to a condition precedent not certain of being fulfilled, the charitable character of the remainder does not obviate the invalidity.

Applying the rule to the facts of this case the attempted remainder to the Salvation Army is subject to the condition precedent which is not certain of being fulfilled, if ever. Appellants’ fourth point is overruled.

By her fifth point Thelma Marie Atkinson, asserts that even if the ranch-trust be held void because of the rule against per-petuities, her vested life estate within the ranch-trust is separable and should be given full effect.

When the entire ranch-trust provisions of Mrs. Atkinson’s will are considered as a whole it cannot be logically concluded that she intended for Mrs. Thelma Marie Atkinson’s life estate be separate and independent from the other life estates therein created. As evidence it should be noted that the testatrix desired her income from her ranch property to be divided equally between those named. The “perpetual trust” desired .by her was to constitute one unit for ^he benefit of the named beneficiaries. There is no indication of her willingness or desire 'that any one of the beneficiaries were to be favored over the other, or that there could be severability of the various income units. Nothing is found in the language of testatrix to justify a separation of interest and therefore since the entire ranch-trust must fall, the interest of Mrs. Thelma Marie Atkinson must likewise fall in-so-far as it relates to this particular trust. Anderson v. Menefee, Tex.Civ.App., 174 S.W. 905, wr. ref.

We turn now to a consideration of Mrs. Thelma Marie Atkinson’s sixth point of error wherein she contends that in the event we should hold that the ranch-trust fails then she should be allowed to recover a one-third life estate interest in the income of the -Texas ranch property under the terms of the original trust contained in the will. We sustain this point.

The clear and manifest intent of the testatrix is revealed in the first portions of her will wherein she states that she wants all of her financial assets placed in trust with the Mercantile National Bank at Dallas. She then carefully, and in detail, lists her financial assets which include shares of stock, money on deposit, and the Texas ranch. Having established the trust she then states clearly, and in detail, those persons whom she desires to receive the income from such trust. Unlike the abortive ranch-trust which we have heretofore stricken, she is certain as to the division of the income from this trust. She positively states that she wants all income from her estate to be divided equally between (1) her daughter Doris Marie Kettler, and in the event of her death, to her daughter Katherine Jeanne Kettler, “divided equally with any other issue of Mrs. Doris Marie Kettler”; (2) her second daughter, Mrs. Jeanne Bernice Shaw, and in case of her death, to be divided equally between her two daughters, and “any other blood issue Jeanne Bernice Shaw may have”; (3) her former husband, Mr. Lynn S. Atkinson, and in case of his death, his share of her income to go to his sister, Mrs. Thelma Marie Atkinson, and in case of her death: “I want her share of my income to be divided .equally between any direct blood issue heirs of mine still living.”

There can be but one meaning gained from a careful study of this portion of testatrix’s will. She clearly says that she wants to establish a trust whereby all of the income of all of her property is to be divided into three equal parts and to be given to the specific and natural objects of her bounty, namely, her two daughters and her former husband and, in the event of his death, to his sister, Mrs. Thelma Marie Atkinson. She thinks also of her daughter’s children, her grandchildren, but specifically states that upon Mrs. Thelma Marie Atkinson’s death then such one-third income is to revert and be divided equally between any direct blood issue heirs of hers (the testatrix) that still live.

While all parties to this appeal designate this trust as a “residue trust” or a residual clause, we are not inclined to look upon it as such. Neither do we think it important as to what the trust is called but if it needs a name, we would tend to designate it a “General Trust”.

In order for us to uphold the validity of this General Trust it becomes necessary for us to examine each separate life estate provided for therein and determine whether same is valid.

Insofar as the life estate of Mrs. Thelma Marie Atkinson is concerned we hold it to be clearly valid and not repugnant to the rule against perpetuities. This is obvious because upon Mrs. Thelma Marie Atkinson’s death her life estate share of the income will then be divided equally between any direct blood issue heirs of the testatrix “still living”, (emphasis ours). This provision completely eliminates any question concerning invalid remoteness.

However, when we consider the two separate life estates to the two daughters of testatrix we find that in each instance, after naming the daughter and grandchild or grandchildren, the testatrix then provides a division with “any other issue” and “any other blood issue”. In these instances, as in those heretofore discussed by us in connection with the ranch-trust provision, it is our opinion that the testatrix intended by the use of the term “issue” to mean lineal descendants rather than children. Accordingly, for the same reason and by virtue of the same authority cited in connection with our disposition of the ranch-trust provisions we hold that insofar as the testatrix intended to create a trust for the benefit of any others than her daughter or daughters and her grandchild, or grandchildren, such intention is void as being repugnant to the rule against per-petuities.

However, again reverting to the true intention of the testatrix, we believe that the validity of the life estate interests of the two daughters and their children may be sustained by the application of a well-established principle of law and construction. This rule is that a remainder which is void because in violation of the rule against perpetuities does not necessarily render invalid the prior estate, but that the latter will be sustained, notwithstanding the invalidity of the ulterior estate, when the two are not inseparable and dependent upon the general testamentary scheme, and to uphold the one without the other would not defeat the primary or dominant purpose of the testator. This rule has been applied almost universally. See cases in 28 A.L.R. 382, 75 A.L.R. 124 and 128 A.L.R. 323.

The rule has been aptly stated in Woodruff Oil & Fertilizer Co. v. Yarborough’s Estate, 144 S.C. 18, 142 S.E. 50, as follows:

“In cases of this kind, where the ulterior provision is void for remoteness, the primary provision may or may not be so related thereto that it must fall with the fall of the ulterior provision. If the two be so interwoven with, so interdependent upon, each other they together constitute one scheme and cannot be separated, then if the ulterior provision be void the primary provision must also fall. But if they may be separated, if the existence of the ulterior provision is not necessary to the existence of the primary provision, if the primary provision subserves a purpose of its own, which it could and would serve if the ulterior provision had not been made, and not created merely to support the ulterior provision, then, if the ulterior provision be void, the primary provision is good and should be sustained unless it itself offends against the rule.”

See also Gray, The Rule against Perpetuities, Secs. 247, 248; Restatement of the Law, Property, Division IV, Secs. 402 and 403; 41 Am.Jur. Sec. 57, p. 100; 70 C.J.S. Perpetuities § 22, pp. 602-603; Restatement of the Law Property, Sec. 402.

Applying this well-established rule of law to these trust provisions relating to that part of the estate the testatrix desires to go to her daughters and their children, we believe the testatrix clearly intended to carry out a general purpose, that is to provide for her children and their children, primarily, and this being a dominant provision the same may be separated from the ulterior provision relating to anyone else and which might be void for remoteness. There appears to be no question but that the testatrix intended that her children and grandchildren be given the benefit of the respective portions of her income therein provided.

No doubt exists that had the testatrix known of the invalidity of the remote grant attempted by her that she would not want her wishes defeated relating to her daughters and their children. Moreover, the construction based upon this provision by us cannot result in any injustice because of the evident intent of the testatrix to provide for the three named classes of people, and especially the natural objects of her bounty.

Accordingly, we hold that the life estate in one-third of the Texas ranch property to Mrs. Doris Marie Kettler, with the remainder in fee to her children, and the similar life estate to one-third of the Texas ranch property to Mrs. Jeanne Bernice Shaw, with the remainder in fee to her children, is valid.

We cannot agree with appellees that this General Trust is void because there is no provision therein for termination or final disposition of the property. While it is true that there is no specific gift over of the corpus of the estate provided for by testatrix, the law will presume that the testatrix intended the gift of the corpus to follow the gift of the income. As stated in 96 C.J.S. Wills § 785, p. 198; “A gift of the interest, income, or product of a fund, or property, without limit as to time, and without disposition of corpus, will pass the fund or property itself, regardless of whether the bequest is direct to the beneficiary or through a trustee, * * * See also the rule in 57 Am.Jur. Sec. 1196, p. 786.

A similar question was presented to this court in Munger v. Munger, Tex.Civ.App., 298 S.W. 470 and in denying the contention in that case Justice Looney said: “We are of the opinion, as indicated above, that the trust will end definitely at the death of the last of the daughters of the testator to die, and, on such occurrence, the corpus of the estate not theretofore vested, at the death of the daughters leaving issue, will immediately vest in the several issues of the several daughters.”

From .what we have s.aid, we construe the general trust provisions of Mrs. Atkinson’s will as follows:.

1. A life estate in one-third of the Texas real property to Doris Marie Kettler, with’ the remainder in fee to the children of Doris Marie Kettler;

2. A life estate in one-third of the Texas real property to Jeanne Bernice Shaw, with the remainder in fee to the children of Jeanne Bernice Shaw;

3. A life estate in one-third of the Texas real property to Thelma Marie Atkinson, with the remainder in fee to the children of Doris Marie Kettler and Jeanne Bernice Shaw.

All points raised by appellants, Salvation Army, and the State of Texas, have been carefully considered and .overruled.

The judgment of the trial court holding that the provisions of the Ranch-Trust contained in Mrs. Atkinson’s will are void as against the rule of perpetuities, is affirmed. That part of the trial court’s judgment which decrees that Mrs. Bernice E. Atkinson died intestate so far as her real property situated within the State of Texas is concerned, and the subject property should go to the next of kin of Mrs. Atkinson under Texas laws of descent and distribution, is reversed and here rendered that such Texas real property falls within the general trust provisions of the will of Mrs. Atkinson and the title thereto is vested as above described. The costs of this appeal are taxes against appellees.

Affirmed in part and reversed and rendered in part.

      . In tbe original draft of the will it is to be observed that testatrix inadvertently omitted the word “death” following the name of Mrs. Thelma Marie Atkinson. We have supplied the word “death” to fulfill the meaning of testatrix. It is well settled that the court may supply or reject words, or indulge in certain implications or inferences, when necessary, to effectuate the manifest intention of the testator. 44 Tex.Jur. 724; Jackson v. Evans, Tex.Civ.App., 305 S.W.2d 236. Moreover, the parties themselves agree that the word may be supplied.


author: DIXON, Chief Justice.

text:
    Abe LICHTENSTEIN and Harold A. Pollman et ux., Appellants, v. The F & M NATIONAL BANK OF KAUFMAN, Texas, Appellee.
    No. 16245.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1963.

      Goldberg & Alexander, James A. Baker, Lefkowitz, Green, Ginsberg, Eades & Gilmore, and John Plath Green, Dallas, for appellants.
    Jack C. Morgan, Kaufman, for appellee.
   DIXON, Chief Justice.

The Farmers & Merchants National Bank of Kaufman, holder of a judgment against Abe Lichtenstein, filed suit in Kaufman County against Lichtenstein and Harold A. Pollman and wife, Leah Pollman, to set aside a deed from Lichtenstein to Pollman. The Bank alleges that the conveyance was executed in order to delay, hinder and defraud Lichtenstein’s creditors. Pollman is Lichtenstein’s son-in-law.

The defendants filed pleas of privilege seeking to transfer the suit to Dallas County, their place of residence. In its controverting plea the Bank relies on Subdivisions 5, 7, 12 and 14 of Article 1995 Vernon’s Ann.Civ.St. to retain venue in Kaufman County. The pleas of privilege were overruled.

Subdivision 5 provides that if a person has contracted in writing to perform an obligation in a particular county suit may be brought on such obligation in such county. The notes upon which the Bank obtained the judgment of September 14, 1962 were payable in Kaufman County. But such fact will not serve to retain venue in Kaufman County of this suit to set aside the deed from Lichtenstein to Pollman. The promissory notes as written obligations lost their identity when they were reduced to judgment. A new and distinct obligation came into existence, namely the judgment. By the terms of the judgment no particular venue was fixed. Therefore Subdivision 5 is not applicable. Sanders v. Camp, Tex.Civ.App., 154 S.W.2d 306. See also Blocker v. Commercial Nat. Bank of Uvalde, Tex.Civ.App., 295 S.W. 341 and B. F. Avery & Sons Plow Co. v. Mayfield, Tex.Civ.App., 111 S.W.2d 1134.

Venue cannot be retained in Kaufman County under Subdivision 7, which provides that in cases of fraud suit may be brought in the county where the fraud was committed. The particular act of fraud relied upon by appellee in this case is the execution of the deed from Lichtenstein to Pollman, which act appellee alleges was for the purpose of defrauding creditors. Such act of fraud, if it was fraud, was committed in Dallas County, not Kaufman County. The deed on its face shows that it was executed in Dallas County and the acknowledgment was taken before a notary public in Dallas County. The place of execution of the deed is not a disputed fact. In the absence of evidence to the contrary a deed will be presumed to have been delivered at the time of its execution. Hooks et al. v. Vanderburg et al., Tex.Civ.App., 328 S.W.2d 467. The recording of the deed was not essential to the conveyance of title. Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287; Hooks v. Vanderburg, Tex.Civ.App., 328 S.W.2d 467.

Subdivision 12 provides that a suit to foreclose a mortgage may be brought in the county where the property subject to lien is situated. Subdivision 14 provides that suits for the recovery of land must be brought in the county in which the land may lie. Neither subdivision is applicable here. Though appellee asks that a judgment lien be fixed against the property, the present suit is one to set aside a conveyance because of fraud. Our Supreme Court has held that such an action is not a suit for the recovery of land nor one to enforce a lien. Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796 (Syl. 1 & 2), 76 A.L.R. 855.

The deed which appellee seeks to set aside was executed December 22, 1961 and was filed for record in Kaufman County on January 29, 1962. It was thereafter, on September 14, 1962, that the Bank obtained judgment on its unsecured notes. The Bank had no mortgage on the property and of course it could not have had a judgment lien at the time the deed was executed. McGriff v. Hazle, Tex.Civ.App., 201 S.W.2d 92.

Venue of this suit cannot be retained in Kaufman County under Subdivisions 5, 7, 12, or 14 of Article 1995 V.A.C.S. Appellants’ points on appeal are sustained.

The order of the trial court is reversed and the cause remanded to the trial court with directions to sustain appellants’ pleas of privilege and order the suit transferred to Dallas County for trial.

Reversed and remanded.


author: DENTON, Chief Justice.

text:
    The CITIZENS NATIONAL BANK OF EMPORIA, KANSAS, et al., Appellants, v. SOCONY MOBIL OIL COMPANY, Inc., Appellee.
    No. 7292.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 4, 1963.
    Rehearing Denied Dec. 2, 1963.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a suit to determine the validity of an oil and gas lease on 9600 acres of land in Hemphill and Lipscomb Counties, Texas. All parties to this action filed motions for summary judgment. The trial court granted appellee’s motion, overruled appellants’ motion, and entered judgment for appellee and declared, the lease in full force and effect.

The original land owners and leasors were Walter S. Jones and wife, Olive T. Jones, and the former’s brother, Evan C. Jones, who was unmarried. On January 27, 1947, these-leasors executed the lease in question to Earl Vandale. The lease, having a primary term of ten years, was subsequently assigned to Magnolia Petroleum Company, which was later succeeded by appellee, Socony Mobil Oil Company, Inc. Walter S. Jones died testate on January 25, 1953; Evan C. Jones died testate on September 8, 1953; and Olive T. Jones died intestate on November 1, 1957. The wills of Walter S. and Evan C. Jones were probated in Kansas and certified copies of such proceedings were filed in the appropriate Texas counties. Olive T. Jones’ estate was administered in Kansas. L. P. Humphreys, Leo J. Brinkman and E. H. Rees were duly appointed executors and administrators of the three estates and continued to act as such until finally discharged by the Kansas probate court on February 7, 1962. Under the wills of Walter S. and Evan C. Jones all their land in Texas, including the land involved here, was left in trust to appellant, The Citizens National Bank of Emporia, Kansas, for charitable purposes, subject to a life estate to Olive T. Jones. On November 1, 1958, Frances C. Taylor and other heirs of Olive T. Jones initiated this suit in the District Court of Lipscomb County, Texas. This suit as originally initiated was in the nature of trespass to try title seeking to establish an undivided one-fourth interest in the Texas land. Other suits initiated by the same plaintiffs were filed in Kansas and Texas attacking the probate of the wills. In the present suit, the executors and administrators of the Jones’ estates, the appellant bank and appellee oil company and others not material here were made party defendants.

It is undisputed the lease in question was kept in force and effect during the ten-year primary term by the payment of delay rentals to the depository bank, The First National Bank of Higgins, Texas. On January 11, 1957, some sixteen days prior to the expiration of the primary term, ap-pellee commenced the drilling of an oil or gas well on the leased premises. Drilling was continued until the well was completed • as a gas well and shut in on September 19, 1957. - On 'October 9, 1957, appellee commenced a second well which was completed as a gas well and shut in on January 20, - 1958. In accordance with the lease provisions, appellee timely paid shut-in gas payments to the depository bank on September - 26, 1957, and September 12, 1958. It is by virtue of these two shut-in payments that it is conceded by appellants that the oil and gas lease remained in force and effect until September 19, 1959. On August 31, ■1959, appelleé oil company filed its first ‘amended answer, interpleader, and cross-action in the original suit filed by Frances ■ C. Taylor and others. By this cross-action - and interpleader appellee sought to have the lease ^declafed in full forte and effect, ■ and asked that a determination be made as '■to the'persons'entitled-to the shut-in pay- '■ merits,"arid that the funds so tendered be ■' distributed to the parties entitled to the : samé.-: Simultaneously with the filing of the '> interpleader, •1 appellee deposited into the ■ registry o'f -the court the shüt-in gas pay- ( ment • of ■ $9,600.00' which was admittedly -payable on-or before September 19, 1959. ,v Subsequent anmial shut-in payments have ' also been -timely deposited into the registery '-of "thé-'- fcótírt.--'On September 12, ■'1959, ‘-'■ap'pelléé-cornmericed the drilling of á third ■ well on;-fh'e 'leased ’premises' and continued ' operatioris until it' was coriapleted as an oil '- well on Noveiftbter 9, 1959. This well was 'immediately placed oh production and has : béerí producing oil in paying quantities since that time. The two gas wells previously ' brought in on September 19, 1957, and on January 20,1958, for which shut-in payments had been paid as stated above, were placed on production "on August 14, 1960, and have been producing -gas in paying quantities ever since. ‘On January 11, 1962, the claim of Frances C. Taylor and the other heirs were settled for a substantial sum and ■ their cause of action was dismissed with prejudice, leaving appellee’s cross-action -and interpleader before the trial court for t determination. In considering this -later v-‘phásé-of - the tase; rthé ’trial coürt granted appellee’s motion' for summary judgment, from which this appeal was taken.

The two primary questions present here are whether appellee’s interpleader and deposit of the shut-in payments into the registery of the court on August 31, 1959, constituted a tender or payment in accordance with the provisions of the lease; and whether the lease was kept in force and effect by the commencement of the third well of September 12, .1959, and completed as an oil well November 9, 1959. In considering both questions it is to be noted that appellants conceded the lease in question was in full force and effect until September 19, 195?. /'

'•'Appellants contend:'"(1) That áppellee had no right to interplead arid deposit' the shut-in gas payment into the registery of the court, arid that it did not constitute a -tender or payment in accordance with the terms of the oil and gas -lease; and (2) The lease was -not- .kept in force by the drilling of- the third -well commenced, on September .12, 1959,- because there was no actual production of oil and gas until after September 20, 1959.

The material .portion of the paragraph 3 of the lease dealing with the shut-in payments reads as follows:

“(d) if at any time while there is a gas well or wells on the above land (and for the purposes of this clause (d) the terrh “gas well” shall include wells capable of producing natural gas, condensate, distillate or any gaseous substance and wells classified as gas wells by any governmental authority) such well or -wells are shut in, and if this lease is not continued in force by some other provision hereof, then it shall nevertheless continue in force for a 'period of ninety (90) days from the date such well or wells are shut in, and before the expiration- of any such 'riiriety-day (90'-day) period,.' lessee or riny assignee hereunder may pay of tender an ' adv'ance annual ’ royalty equal to the amount of delay rentals provided for in this lease for the acreage then held under this lease by the party making such payment or tender, and if such payment or tender is made, this lease shall continue in force and it shall be considered that gas is being produced from the leased premises in paying quantities within the meaning of paragraph 2 hereof for one (1) year from the date such well or wells are shut-in, and in like manner subsequent advance royalty payments may be made or tendered and this lease shall continue in force and it will be considered that gas is being produced from the leased premises in paying quantities within the- meaning of said paragraph 2 during any annual period for which such royalty is so paid or tendered; such advance royalty may be paid or tendered in the same manner as provided herein for the payment or tender of delay rentals;”

By the terms of this paragraph, the parties agreed that “such advance royalty may be paid or tendered in the same manner as provided herein for the payment or tender of delay rentals”. Delay rentals “may be made to the lessors or to The First National Bank of Higgins, Texas”, thus, lessees had the option of paying or tendering the shut-in payments to either the lessors or the depository bank. This brings us to the question of whether or not appellee’s inter-pleader and deposit of the shut-in payments into the registery of the court was in compliance with the terms of the lease.

Interpleader practice is governed by Rule 43, Texas Rules of Civil Procedure. This rule authorizes an interpleader suit only when persons having claims against a plaintiff are such that he “is or may be exposed to double or multiple liability”. “A defendant exposed to similar liability may obtain such interpleader.” The courts have uniformly held that for the remedy of inter-pleader to be proper the claim must be such as to place the stakeholder in some real doubt or hazard. Nixon v. Malone, 100 Tex. 250, 98 S.W. 380, 99 S.W. 403. Appellants rely on Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926, in support of its contention appellee was not justified in filing the inter-pleader suit. That case involved an inter-pleader suit by the savings & loan association to determine, as between the widow and testator’s daughter by a previous marriage, the correct distribution of funds held by the association. The court there held the interpleader suit was not proper on the ground Article 881a-23, Vernon’s Ann.Tex. Civ. St., affords absolute immunity to a savings and loan association which pays such an account to one of the named share holders even after it has been notified of an adverse claim by the heirs of the other. The court held the association could have paid the deposit to the widow as a joint tenant with the rights of survivorship “without the slightest risk of double liability. The statute shielded it from risk with absolute immunity. There was, and is, no room for reasonable doubt of that fact.” In our opinion the Davis case is distinguishable from the present case. The Davis case was not concerned with the question of whether or not the payment of the savings account fund into the registery of the court constituted a tender. The in-terpleader question dealt only with whether or not the association was entitled to recover attorneys’ fees. In the case at bar, appellee is afforded no such absolute immunity even though the appellee could have paid or tendered the shut-in payments to the depository bank. The undisputed facts of the case do raise a reasonable doubt as to the ownership of the mineral interests here involved. Although the original trespass to try title case did not directly challenge the validity of the lease, it created a substantial doubt as to who owned the one-fourth interest in the mineral estate. The record shows this suit was compromised and settled upon the payment of $600,000.00 to Mrs. Taylor and the other claimants by the executors and administrators of the Jones’ estates. This is an obvious indication of the validity of those claims. This settlement, evidenced by a motion to dismiss the original suit dated December 15, 1961, and the order of dismissal filed January 11, 1962, took place over two years after the interpleader suit and deposit were made, was the culmination of eight pending lawsuits in Kansas and Texas attacking the wills and probate proceedings of the two estates. This series of lawsuits seeking to ascertain ownership to an undivided one-fourth of the mineral estate, created a confusing and uncertain situation. Under such circumstances, it is apparent corresponding doubt and uncertainty arose as to who was entitled to receive the shut-in payments.

Although no case has passed directly on this question dealing with the tender of the shut-in payment by an interpleader, the Galveston court in Perkins v. Magnolia Petroleum Co., Tex.Civ.App., 148 S.W.2d 266, (Error Dismissed, J. Cor.), used language that supports our conclusion here. The case was one in which Mr. Cannon acquired by inheritance a %2 undivided interest in 1100 acres of land, and his sister, a Mrs. Howard, acquired %2 in the same tract. Cannon’s son claimed title to Mrs. Howard’s interest by reason of a tax foreclosure and sheriff’s deed. The two Cannons executed an oil and gas lease covering the 1100 to Corbett, and Corbett assigned the lease on the east 500 acres to Magnolia. After learning of the dispute between the Cannons and Mrs. Howard, Magnolia took another lease from Mrs. Howard as to her interest in the 500 acres. Both leases named the same depository bank. Prior to the anniversary date, Magnolia deposited a check for the delay rentals in the proper bank with instructions that it be deposited to the joint account of the Cannons and Mrs. Howard. The Cannons refused to accept the deposit as payment of the delay rentals and, thereafter, executed an oil and gas lease to Perkins which covered the same 500 acres. The court held the payment by the lessee into the joint depositories of the amount due was a sufficient compliance with the terms of the lease to prevent its cancellation, but went further and used the following language:

“Unquestionably, if appellee, instead of making a deposit with the joint depository agent named by the parties, had instituted an interpleader suit and had tendered the $500 payment for delay rentals into court to the account of the lessor entitled thereto, appellee would have been protected not only in the tender of said rental but in its expenses incurred therein.”

Although the holding was not necessary for the disposition of the case and no authority is cited to support such language, we are of the opinion it reflects the correct rule under the facts and circumstances of the case at bar.

The Supreme Court in Nixon v. Malone, supra, in discussing the remedy of interpleader, used the following language:

“The remedy of interpleader is an equitable one, and is for the protection of the disinterested and innocent stakeholder, who claims no interest in the money or property as a claimant or litigant, and who, by reason of the conflicting claims of persons who derive their title either from a common source or one from the other, and the uncertain and doubtful position in which he is placed by the diverse claimants, knows not what to do, and fears he may be hurt by some of them, asks instructions and protection from a court of equity.” * * *
“While the circumstances of the case must be such as to place the stakeholder in some real doubt or hazard to entitle him to the remedy of interpleader, yet the remedy is so beneficial and so just that any reasonable doubt as to his right to an interpleader will be resolved in his favor.”

We are convinced this rule is applicable to the facts and circumstances in the case at bar. We conclude, therefore, that ap-pellee had a right and was entitled to file this interpleader suit and that by depositing the correct amount of shut-in payments into the registery of the court it was substantial compliance with the terms of the lease and-that it constituted a proper tender.

Although we are of the opinion appellee’s interpleader was proper and his tender of the shut-in payment into the registery of the court was sufficient to keep the lease in force, we are also of the opinion the commencement of the third well on September 12, 1959, and its completion as a producing oil well on November 9, 1959, was in itself sufficient to keep the lease in force. In discussing this point, it will be presumed the tender into the registery of the court was improper.

As previously stated, it is conceded the lease was extended beyond the primary term by the lessee’s payment of two shut-in payments. Thus, all parties agree the lease was in force and effect until September 19, 1959. The question presented by this point of error must be determined by the express terms of the lease. The provisions of the present lease are substantially the same as those found in Skelly Oil Co. v. Harris, 163 Tex. 92, 352 S.W.2d 950, and in Stanolind Oil & Gas v. Newman Brothers, 157 Tex. 489, 305 S.W.2d 169.

The third well was commenced at a time when the lease was in force by virtue of the fact there was constructive production on the leased premises. Paragraph 3(d) of the lease provides:

“ * * * if such payment (referring to shut-in payments) or tender is made, this lease shall continue in force and it shall be considered that gas is being produced from the leased premises in paying quantities within the meaning of paragraph 2 hereof * *

Paragraph 2 is the usual habendum clause which provides that the lease should remain in force for ten years and as long thereafter as oil, gas or other mineral is produced from the leased land. Thus, it is clear the lease provided that while the shut-in payments are being paid, the well shall be considered a producer under paragraph 2. If the shut-in payment was not paid on or before the anniversary date, gas was not being produced from the premises on that date, and the lease would thereby terminate for nonproduction in the absence of other clauses in the lease which would extend it. Freeman v. Magnolia Petroleum Company, 141 Tex. 274, 171 S.W.2d 339.

It is appellants’ position that in order for this third well to extend the lease, it must be a producing well prior to September 20, 1959. Under the facts and terms of this lease we are unable to agree. Appellant further strongly relies on Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267, for the contention the sixty-day clause did not come into place because there was no production hence there could be no cessation of production. We think the same differences which exist in the lease in the Reid case and the Harris case, as pointed out in the latter, are evident in the present case.

In construing a similar sixty-day clause in the Harris case, Justice Walker said:

“Paragraph 6 of the lease in the present case does not deal merely with cessation of production or the completion of a dry hole after expiration of the primary term. The third sentence (which is substantially the same as the second sentence in the present lease ) comes into play when there is no production at the end of the primary term but drilling or reworking operations are then in progress.”

Assuming, arguendo, that the shut-in payment deposited into the registry of the court was not an effective payment of the advance royalty, the lease would have terminated on September 19, 1959, if the sixty-day clause did not come into operation. In both the Harris case and the present one drilling operations were begun at a time when the lease was in force. In the Harris case drilling was begun just prior to the end of the primary term, while in this case drilling operations were begun just prior to the end of the extended term of the lease. We do not consider this a material legal distinction. Under the language of the Freeman case, gas was not being produced at the end of the extended term upon the failure to pay or tender the advance royalty. We think the holding of the Harris case is controlling here. In as much as drilling operations were in progress when there was no production at the end of the extended term the sixty-day clause is brought into operation.

The shut-in royalty clause does not provide for an exclusive method for continuing the lease in effect even though a producing well has been completed and capped. Here the lessee chose to commence drilling operations for the third time and completed a producing well within the clear meaning of the sixty-day clause. The unambiguous language of this clause provides that if such operations result in production when there has been no cessation of more than sixty consecutive days, the lease remains in force so long as production continues. It is undisputed these requirements have been complied with.

As the requirements of the sixty-day clause were fully complied with, the lease will remain in full force and effect so long as oil, gas or other mineral is produced from the leased premises. See also Duke v. Sun Oil Co., 320 F.2d 853, (Fifth Circuit).

The judgment of the trial court is affirmed.

Affirmed.

      . “(6) If, prior to discovery of oil, gas, or other minerals on said land or on land pooled therewith, lessee should drill and abandon a dry hole or holes thereon, or if, after discovery of oil, gas or other minerals, the production thereof should cease from any cause, this lease shall not terminate if lessee commences additional drilling or reworking operations within sixty (60) days thereafter, or (if it be within the primary term) commences or resumes the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of three months from date of completion and abandonment of said dry hole or holes or the cessation of production. If, at the expiration of the primary term, oil, gas, or other mineral is not being produced on said land or land pooled therewith but lessee is then engaged in operations for drilling, mining or reworking of any well or mine thereon, this lease shall remain in force so long as such operations or said additional operations are commenced and prosecuted (whether on the same or successive wells) with no cessation of more than sixty (60) consecutive days, and, if they result in production, so long thereafter as oil, gas or other mineral is produced from said land or land pooled therewith. * * * ”