author: LANGDON, Justice.

text:
    J. B. McBETH, Individually and as Next Friend of Roger McBeth, Appellant, v. The TEXAS & PACIFIC RAILWAY COMPANY, Appellee.
    No. 16796.
    Court of Civil Appeals of Texas. Fort Worth.
    March 24, 1967.
    Rehearing Denied April 21,1967.

      Abney & Burleson, and Fred S. Abney, Dallas, for appellant.
    Brown, Herman, Scott, Young & Dean, and Ardell M. Young, Fort Worth, for ap-pellee.
   OPINION

LANGDON, Justice.

Summary judgment case.

Appellant, J. B. McBeth, individually and as Next Friend of his minor son, Roger Me-Beth, seeks to recover a monetary judgment against appellee, The Texas & Pacific Railway Company, for injuries and damages arising out of an automobile-train collision which occurred at a grade crossing on Southwest 23rd Street in Grand Prairie, Texas, on the morning of January 14, 1964. Appellee’s motion for summary judgment was granted.

The record before this Court reveals the following undisputed facts:

Roger McBeth, born in Longview, Texas, on April 10, 1946 moved to Grand Prairie, Texas, in April of 1953. He was still residing there on January 14, 1964, a period of almost eleven years. On September 17, 1963, he enrolled at Arlington State College. Thereafter, he attended classes five days a week beginning at 8:00 o’clock A.M. on each of those days. He continued this schedule until January 14, 1964.

The cold and clear morning of January 14, 1964 with unlimited visibility found Roger McBeth driving west in a 1963 Chevrolet automobile on West Main Street (U.S. 80) headed toward the intersection of Southwest 23rd Street and its grade crossing in the City of Grand Prairie, Texas. As he passed a Shamrock Service Station at 2034 West Main Street, he sounded the horn of his automobile and waved to John Blythe, the service station manager. Shortly after Mc-Beth passed the station, John Blythe saw a train going west on the tracks south of the station.

The west bound train, which John Blythe observed passing his station, was appellee’s passenger train No. 3. It consisted of two diesel units followed by five cars. It was traveling on the northern set of two sets of parallel tracks. These tracks are situated between two heavily traveled thoroughfares, West Main Street (U.S. 80) on the north and West Jefferson Boulevard on the south and are not obstructed from view of motorists traveling east on West Main Street for at least one-half mile east of Southwest 23rd Street. These two thoroughfares and tracks are crossed by Southwest 23rd Street, a street running north and south.

On the morning in question at the place where West Main Street (U.S. 80) crosses Southwest 23rd Street, the intersection was uncontrolled in that there were no traffic control signals. Thus, automobiles approaching the intersection from the east and desiring to turn left on Southwest 23rd Street had to cross two lanes of oncoming traffic. From the south curb line of West Main Street (U.S. 80) at this intersection to the first rail of appellee’s tracks was a distance of 59 to 60 feet, and from the center of West Main Street to the nearest rail was more than 100 feet.

At the crossing itself, appellee had erected or caused to be erected various signs and electrical and mechanical signaling devices. These signs and signaling devices were unobstructed. Appellee had maintained electrical or mechanical signaling devices at this crossing for a period of ten years prior to January 14, 1964. On both the northwest and southeast corners of the crossing, ap-pellee had erected a pole which had attached to it a standard railroad crossing sign reading, “Railroad Crossing.” On each pole just below that sign was another sign which read “Two Tracks” and just below that was an electric sign which also read “Two Tracks.” The pole on the northwest corner had a similar electric sign on its south side. Extending out from each pole just below the non-electrical sign reading “Two Tracks,” was an arm from which hung four heads or lights, two on each pole facing north and south, respectively, on Southwest 23rd Street. These lights, which were colored bright red were operated by an electric current which activated said lights, when, as here, a west bound train reached a point 2,474 feet east of the crossing. The signal lights continued to operate until the train had cleared the crossing. While in operation the lights of each pair alternately blinked off and on. Also, on each pole below the preceding named signs was a re-flectorized sign reading, “Stop on Red Signal.” In addition to the two poles and their respective signs and lights, there were also four additional reflectorized signs positioned on the northwest, northeast, southeast and southwest sides of the crossing. These signs were setting at an angle so they faced northeast, northwest, southwest and southeast respectively. Each of these signs was approximately three feet in length and two feet in width and read, “Danger — Two Tracks — Watch for Train on Each Track.”

The crossing and the tracks approaching straight from the east were unobstructed by any permanent object for at least one-half mile.

At the same time the train and Roger Mc-Beth were approaching from the east, Andrew J. Renaker, Jr., driving a 1963 Ford pickup, was about to cross the tracks on Southwest 23rd Street proceeding north with the intention of turning right on West Main Street (U.S. 80). Just before Renaker made his way across the tracks, he observed the red signal lights on the warning device come on and begin blinking. These signals were initiated when appellee’s train approaching from the east was 2,474 feet from the crossing. Looking to the east, Renaker saw the train coming with two headlights burning and heard its whistle blowing. The fact of whether the train’s whistle sounded or not may be in dispute as John Blythe, the Shamrock Service Station Manager, said “I did not hear the train blow its whistle.” Renaker crossed the tracks and stopped behind another automobile at the intersection which was waiting for the traffic to clear on West Main Street.

Generally speaking, the traffic that morning was the normal heavy morning traffic. The speed limit on West Main Street (U.S. 80) for traffic on the east side of Southwest 23rd Street was 40 miles per hour; and, on the west side, 45 miles per hour.

After waiting, Renaker observed the car in front of him move out and turn left. As Renaker started to roll forward, he saw a Chevrolet coming west on West Main Street. It made a left turn in front of him and proceeded south on Southwest 23rd Street toward the tracks, never making a stop or slowing its speed. Renaker estimated the speed of the automobile to be between 20 and 25 miles per hour. When the Chevrolet had moved alongside of him, Renaker noticed that it was occupied by one person, a white male, later identified as Roger McBeth. Renaker also observed that the red lights on the warning device were still blinking and heard the train still blowing its whistle as it approached the crossing. As Roger McBeth’s Chevrolet moved past Renaker’s pickup, R. H. Rodgers, the engineer of appellee’s train, which was then some 80 feet east of the crossing and approaching at a speed of 55 miles per hour, observed the Chevrolet for the first time. The instant the engineer saw the Chevrolet driven by McBeth he threw the emergency brake, placed the entire train in emergency stop and continued to sound the whistle. Renaker never did see Roger McBeth look to the east or west before attempting to cross the tracks. As the Chevrolet attempted to cross the tracks, Charles S. Johnson, a student at Arlington State College, who was driving on West Jefferson Street on his way to school, saw Roger McBeth’s automobile for the first time. Just prior to this time Johnson had observed the train moving to his right, heard its whistle blowing and saw the signal lights at the Southwest 23rd Street crossing flashing a color he could not identify because he is red and green color blind. Appellee’s train struck the McBeth automobile in the left side toward the back. Johnson and appellee’s engineer Rodgers both noted that Roger McBeth never varied the speed of his automobile one bit from the time they first observed him until the collision. The record is totally void of any evidence intimating that Roger McBeth was ever aware of any automobile traffic, warning signs, signals or appellee’s train before the collision. The force of the collision hurled his automobile in a southwesterly direction for a considerable distance and Roger McBeth was thrown onto the road bed.

The purpose of the summary judgment procedure as provided for in Rule 166-A, Texas Rules of Civil Procedure, is the "elimination of patently unmeritorious claims or untenable defenses.” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).

However, the Rule must be cautiously applied because it was never intended to be used as a tool “to deprive litigants of their right to a full hearing on the merits of any real issue of fact.” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952), quoting with approval from Kaufman v. Blackman, 239 S.W.2d 422, 428 (Dallas Civ. App., 1951, writ ref., n. r. e.). But when a proper case arises as is contemplated by the Rule, its application will facilitate the expeditious administration of justice. We have concluded that this is such a case.

Article 6701d, Section 86, V.A.C.S., provides in part as follows:

“Sec. 86. Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and shall not proceed until he can do so safely when:

(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train; * * *

(d) An approaching train is plainly visible and is in hazardous proximity to such crossing.”

The Supreme Court of Texas in construing Article 6701d, Section 86(d) has declared that the duty of a motorist to stop within fifty (50) but not less than fifteen (15) feet of the nearest rail of a crossing is not absolute, but is conditioned upon the existence of certain conditions. Missouri-Kansas-Texas Railroad Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 935 (1956). This would necessarily be true of the other subdivisions under Section 86. The Court further held that when these conditions were conclusively established, the duty to stop became absolute, and thus a directed verdict, or as here a summary judgment, would be proper.

The conditions creating a duty upon a motorist approaching a railroad crossing to stop in compliance with Subdivision (a) are as follows: (1) An electrical or mei chanical signaling device is at the crossing; (2) A signaling device is “plainly visible”; (3) A signaling device is giving warning of the immediate approach of a train; and (4) A train is approaching.

With respect to Subdivision (d) the conditions are as follows: (1) A train is approaching the crossing; (2) The train is “plainly visible”; and (3) The train is in “hazardous proximity” to the crossing.

The undisputed facts in this case establish conclusively that the conditions above recited existed on the morning of the collision and created an absolute duty on the part of Roger McBeth to stop within the statutory distance of the nearest rail of the crossing. Under the facts, it cannot be seriously contended that Roger McBeth was not familiar with these tracks, their respective location to the street upon which he was traveling and that these tracks were used regularly by railway traffic.

A person who has knowledge of a railroad crossing is charged with knowledge of existing danger from trains which may be moving thereon. Texas & N. O. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 529 (1947); Gulf C. & S. F. Ry. Co. v. Gaddis, 208 S.W. 895, 896 (Tex.Comm. App., 1919); Wichita Falls & Southern R. Co. v. Anderson, 144 S.W.2d 441, 443 444 (Eastland Civ.App., 1940, dismissed, judg. correct); Higginbotham v. International-Great Northern R. Co., 99 S.W.2d 338, 340 (Amarillo Civ.App., 1936, dismissed); San Antonio & A. P. Ry. Co. v. Singletary, 251 S.W. 325, 326 (San Antonio Civ.App., 1923, dismissed) ; 48 Tex.Jur.2d 342, “Railroads”, § 321. The Supreme Court of Texas in Texas & N. O. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 529 supra, quoting with approval from the Commission of Appeals opinion in Gulf C. & S. F. Ry. Co. v. Gaddis, 208 S.W. 895 supra stated:

“All men in possession of their faculties are charged with knowledge that a railroad track is a dangerous place, and the law will not permit them to go upon the track, even at a public highway, without being charged with a recognition of the danger attending such action and the use of such care as ordinary prudence would dictate in so doing.”

In Higginbotham v. International-Great Northern R. Co., 99 S.W.2d 338 supra, the Amarillo Court quoting with approval from the San Antonio Court’s opinion in San Antonio & A. P. Ry. Co. v. Singletary, 251 S.W. 325, 326 supra, stated:

“A railroad track is of itself a proclamation of danger, imposing upon the traveler at the railroad crossing a positive duty of using care to avoid trains.” To the same effect see also Wichita Falls & Southern R. Co. v. Anderson, 144 S.W.2d 441, 443 supra. Thus, in preparing to make his turn and in making his turn, Roger McBeth was charged with knowledge of the existing danger at the Southwest 23rd Street crossing from trains which might be traveling- thereon.

Further, it is established law that a person who intends to cross a railroad crossing has the duty of exercising ordinary care and diligence to ascertain whether a train is approaching. Galveston, H. & S. A. R. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247 (1932); 48 Tex.Jur.2d 325-326, “Railroads”, § 317.

Before Roger McBeth reached the intersection to make his turn, he could have observed that the crossing over which he must subsequently pass had signal lights and signs posted. These signals were in operation, blinking off and on, before he ever reached the Southwest 23rd Street intersection. As Roger McBeth approached the intersection he was confronted by appellee’s three foot by two foot sign reading “Danger — Two Tracks — Watch for Train on Each Track.” This sign was positioned at an angle on the southwest corner of the intersection in order that traffic approaching this intersection from the east with the intention to turn and proceed across this crossing would be warned of the number of tracks and of railway traffic which might be moving thereon. It is conceded that the signal lights were unobstructed and observable to one reaching the intersection. The distance from the center of the intersection to the nearest rail of appellee’s tracks was more than 100 feet. Thus Roger McBeth had at least 100 feet of opportunity to observe these flashing lights and signs before reaching the tracks. These lights continued to operate at all times up to the collision and were never obstructed at any point. Prior to, during, and after Roger McBeth’s turn, the numerous signs, both painted and electric, gave warning of railway traffic moving on the tracks. Also, from the center of the intersection Roger McBeth had an unobstructed view for several hundred feet of the tracks approaching straight from the east. As he approached the tracks from the center of the intersection, the slightest turn of his head to the left or the slightest glance to the left would have revealed ap-pellee’s approaching train which consisted of seven units. Due to the relative speed of the train and Roger McBeth’s automobile, respectively, the fact of the collision establishes that the train was within “hazardous proximity” of the crossing and “plainly visible” to him during the time of Roger Mc-Beth’s turn at the intersection and at all times thereafter.

The Supreme Court in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956) P. 940, wrote as follows:

“There is in the record expert testimony from a surveyor which clearly tends to establish that after the deceased made his turn toward the track and at all times after he came within fifty feet thereof he could have seen the train if he had looked to his right. Ordinary care for his own safety required that he look to his right before passing through the stopping zone. We therefore hold, as a matter of law, that the train was ‘plainly visible’ when the deceased entered, or at least while he was within the statutory stopping area.”

Prior to the preceding quoted matter, the Court held:

“ * * * before it can be said in a given case that an approaching train was ‘plainly visible’ as a matter of law, it must appear, as a matter of law, that a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it.” 291 S.W.2d 936.

With respect to whether the train was within “hazardous proximity” of the crossing, the Court considered the relative speeds of the train and automobile along with the other circumstances and wrote as follows:

“We hold, as a matter of law, under the facts and circumstances of this case, that a reasonably prudent person, situated as was the deceased, should have known that an attempt to proceed over the crossing ahead of the train, was hazardous. We accordingly hold, as a matter of law, that at the time the train became ‘plainly visible’ it was ‘in hazardous proximity’ to the crossing.” 291 S.W.2d 940.

In considering the facts of this case in light of the law pronounced in the McFerrin case, supra we find and hold that Roger McBeth on the occasion in question was under a duty to stop. His failure to do so constituted negligence per se. Such negligence as a matter of law was a proximate cause of the collision in question.

The collision would not have occurred had Roger McBeth stopped his car in compliance with the duty imposed upon him under the conditions prescribed by the statute.

We further find and hold that Roger McBeth was guilty of common law negligence because of (1) his failure to keep such a lookout for his own safety as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstance; (2) his failure to stop before going upon the tracks, and (3) in driving his car onto the crossing when the train was in full view, and that such acts and conduct in each instance was a proximate cause of the collision.

It follows from what we have said that in our opinion the evidence showed conclusively that McBeth was not acting under a sudden emergency. Any emergency under which he acted was created by his own negligence.

The appellant is therefore precluded from obtaining any recovery. Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402 (1958).

We are of the opinion that the evidence did not raise issues of fact as to whether (1) Roger McBeth was in a situation where it was impossible for him to comply with the statute and (2) that he was in that situation as a result of no negligence on his part. Hammer v. Dallas Transit Co. 400 S.W.2d 885, 887 (Tex.1966.)

In Southern Pacific Company v. Matthews, 335 F.2d 924, 927 (5th Cir., 1964, cert. den. 379 U.S. 970, 85 S.Ct. 668, 13 L. Ed.2d 562), a case involving a collision between a train and an automobile, testimony in the record showed that from 20 feet of the nearest rail a person could see for a distance of 225 feet down the track and a panoramic photograph in evidence showed that at a distance of 50 feet from the crossing there was a clear view of the track for at least 250 feet. The driver of the automobile said he was looking for a train and that he did not see it until he was on the tracks. The Court stated :

“ * * * Considering only the testimony of the appellees and their witnesses, and the undisputed proof as to the physical layout, the inescapable conclusion is that had L. D. Matthews looked, as the law required, he would have seen the approaching train in time to have stopped before reaching the tracks.” 335 F.2d 926.

The opinion continued:

“ * * * In any event, at twenty feet from the track the photograph demonstrates what is clear from the testimony of Parker, that at this distance the appellees had a clear view of that portion of the tracks on which the train was traveling. Testimony which is at variance with physical facts is no evidence. * * * ” 335 F.2d 927.

The Court held, as a matter of law, that the railroad was entitled to judgment in that there was no proper issue of fact for the jury to decide.

The appellant contends that McBeth could neither have seen the train nor have observed the signals flashing prior to the time he reached the intersection to commence his turn. This it was argued was because it was essential that he give his undivided attention to finding an opening in the traffic. Then to drive his automobile safely across the two lanes of early morning rush hour traffic at such a speed (20-25 miles) that when he had passed safely across this traffic, it was impossible for him to avoid collision with the train. This argument presumes tht McBeth could not make any effort to stop his car until its rear end had cleared the edge of the street he was leaving and that his reaction time would not permit him to stop. It also presumes that oncoming traffic he was crossing in front of was bearing down on him and was so near that he was not required to look at the road in front of him after he made the turn. We think this argument is untenable. The appellant appears to stress McBeth’s inability to see the train when he made his turn rather than his inability to see the flashing signals and other signs. It is apparent that had he looked in the direction he was going he would have seen the flashing signal. This signal warned of the movement of something on the tracks. It is like a knock on the door or the ringing of the doorbell. While you may not know the identity of the one initiating the signal you are on notice that someone is at the door. In this case there is nothing to explain the failure to see the signal or thereafter to prevent McBeth from turning his head or eyes to either direction to determine what was on the track.

The appellant’s argument could be interpreted to indicate that McBeth was negligent in making the turn at the intersection when he did because of the nearness of oncoming traffic when he knew before making the turn that he must cross the railroad tracks and perhaps be required to stop.

Appellant introduced the affidavits of appellant J. B. McBeth and M. C. McLain, an attorney of record in this case for appellant. Neither of these gentlemen witnessed the accident. Attached to J. B. McBeth’s second affidavit were certain photographs allegedly representing the scene of the accident on January 14, 1964, and at various times thereafter, certain photographs allegedly representing the scene as it unfolded before Roger McBeth on the day of the collision, and a photograph of Roger Mc-Beth’s automobile after the collision. Attached to Attorney M. C. McLain’s affidavit were three exhibits, two of which he said were published by the National Safety Council and are entitled “Stopping Distances” and “Brake Analysis”, respectively, and the third exhibit consists of excerpts from some printed matter he claimed was published by the American Railway Engineering Association entitled “Signals for Highway-Railway Grade Crossing”.

The affidavits contain many statements which would be inadmissible as evidence. They contain opinions and conclusions. They presume matters which find no support in the record. The documentary exhibits attached to the McLain affidavit are not properly identified, and no predicate is made or established for their being received into evidence.

The Supreme Court in Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962), wrote:

“ * * * this Court in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 * * * said that under the provisions of Rule 166-A affidavits to be effective either to support or oppose a motion for summary judgment ‘must be made by competent affiants with the personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence.’ Obviously mere conclusions will not suffice * * *»

Since neither J. B. McBeth nor McLain, the affiants, witnessed the accident then neither could have known the exact conditions which existed at the time of the accident. Their affidavits are fraught with opinions and conclusions based upon conjecture and speculation. Attorney McLain attempted to conduct an experiment by his affidavit without showing, that the experiment was made under the same or similar conditions as existed at the time of the accident. Appellant places great weight and reliance upon the three exhibits that are attached to McLain’s affidavit. Said exhibits are referred to in the affidavit as “Stopping Distances” of the National Safety Council and a portion of Chapter 9 of the Manual of the American Railway Engineering Association. These exhibits are clearly hearsay. They are ex parte instruments. There is no evidence in the record that said exhibits are applicable in any way to the established conditions which existed at the scene of the accident involved in this case.

In Thedorf v. Lipsey, 7th Cir., 237 F.2d 190 (1956), the Appellant contended that the trial court erred in refusing to admit into evidence the “Manual of the Motor Vehicle Department of Wisconsin” pertaining to stopping distances under various circumstances. The Court of Appeals held that it was proper to exclude said Manual and said: “The manual which plaintiff sought to introduce purported to have been issued by the State and contained certain statistics bearing upon stopping distances under various circumstances. It sought to inform motorists of normal expectations in traffic under normal conditions. It was not endowed with the characteristics of a statute; it was not legislative action, but had been issued, apparently, by the Department to supply information and suggestions to the travelling public. It could have had no probative effect upon the question of negligence on the part of defendant'. If it was intended by plaintiff’s offer to supply the jury with evidence as to what was a safe stopping distance for defendant after he discovered plaintiff and the motorcycle at the time of the accident, it was incompetent for the reason that the opinions, conclusions and statistics included in it were unsworn statements made by parties outside the presence of the court, who were not submitted as witnesses and who could not be cross-examined. It comprised merely ex parte statements of third persons, incompetent for any purpose in the trial of the cause.” 237 F.2d 192.

Appellant contends that the photographs attached to J. B. McBeth’s second affidavit show all that Roger McBeth could have seen as he approached the intersection and came upon the crossing immediately prior to the accident. We disagree. No camera has a lens wide enough to include what a person with good vision can see. Such persons are able to see to the side as well as straight ahead. This is called peripheral vision. The camera used in taking the questioned photographs was not equipped to pick up and portray the side or peripheral areas. Roger McBeth’s peripheral vision would have permitted him to see far more as he approached the crossing than is shown by the photographs. The photographs make no allowance for any movements Roger McBeth may or could have made by turning either his eyes or his head to the right or left just prior to the accident. Higginbotham v. Bagley, 346 S.W.2d 142 (Beaumont Civ.App., 1961, writ dism.).

The undisputed facts properly before the court conclusively showed that there was no issue of gross negligence on the part of the appellee and that neither appellee nor its employees acted with heedless and reckless disregard of the rights of Roger McBeth.

On the other hand we think that such facts conclusively show that the conduct of Roger McBeth on the occasion in question constituted statutory and common law negligence proximately causing the collision and the resulting injuries to his person and damages to the car he was driving. All points of error are overruled and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DENTON, Chief. Justice.

license: Public Domain

text:
    Doris A. SIMONSEN, Appellant, v. John S. SIMONSEN, Appellee.
    No. 7693.
    Court of Civil Appeals of Texas. Amarillo.
    March 6, 1967.
    Rehearing Denied April 10,1967.

      Monning & Monning, Amarillo, Robert R. Bradshaw, Amarillo, of counsel, for appellant.
    Culton, Morgan, Britain & White, Amarillo, Don L. Patterson, Amarillo, of counsel, for appellee.
   DENTON, Chief. Justice.

This is a divorce action brought by John S. Simonsen against Doris A. Simonsen. The trial court, without a jury, granted the husband a divorce; awarded custody of their two minor children to the wife; ordered the plaintiff to pay child support; and divided the community property. The wife, defendant below, has perfected this appeal.

The parties married in Florida in 1959 at which time they came to Texas where the plaintiff was stationed as an Air Force commissioned officer. He was subsequently stationed in West Germany where the parties resided until July, 1963 when they separated. Mrs. Simonsen and the two children then went to Arizona where they have continually maintained their residence. The plaintiff was re-assigned to Amarillo Air Force Base in October 1964. He has resided off the base in Amarillo, Randall County, Texas since that time. He retired from the Air Force on December 31, 1965 and on January 3, 1966 he filed the present suit. On May 25, 1965 Mrs. Simon-sen filed a suit for separate maintenance in Maricopa County, Arizona against the plaintiff below. Personal service was had on Simonsen in Amarillo, Texas, however he made no personal appearance. The Arizona court appointed an attorney to represent Simonsen as he was at that time in the military service. On this attorney’s motion the proceeding was abated for sixty days and on January 17, 1966 the Arizona court entered a default judgment awarding Mrs. Simonsen a decree of separation to live separate and apart from Simonsen. This decree also awarded her custody of the two children; and awarded her what was designated “the separate property”, and further ordered: “That this court retain jurisdiction of the parties and the cause to determine the amount of alimony, child support, and attorneys’ fees, at such time as personal service is secured against the defendant”. In the instant case Mrs. Simonsen, the defendant, filed a special appearance objecting to the jurisdiction of the Texas court over the person and property of the defendant; a plea in abatement and a plea of collateral estoppel.

Appellant’s four points of error present the question of full faith and credit of the Arizona judgment; no evidence and insufficient evidence to support the trial court’s finding that appellee was domiciled in Texas; and the trial court’s ruling that appellant’s special appearance was waived as to child support, custody and division of personal property by her attorney’s appearance in the trial on its merits.

The prior Arizona judgment which appellant contends should be given full faith and credit is a decree of separation from bed and board from appellee. We note appellant filed suit for separate maintenance but the trial court’s judgment was a decree of separation from bed and board. They are two separate and distinct remedies and are authorized by different sections of the Arizona statutes. Title 25, Article 3, Section 25-331, A.R.S., entitled “Separation from Bed and Board” reads:

“A. Separation from bed and board forever, or for a limited time, may be adjudged by the superior court on complaint of a married woman as follows:
1. Between any husband and wife, inhabitants of this state.
2. When the marriage took place within this state, and the wife is an actual resident at the time of filing her complaint.
3. When the marriage took place without the state, and the parties have been inhabitants of this state at least one year, and the wife is an actual resident at the time of filing her complaint.
“B. A judgment granting separation from bed and board shall not be a bar to an action for absolute divorce based upon the same ground.”

Title 25, Article 4, Section 25-341, entitled “Separate Maintenance” reads:

“A. When the husband wilfully deserts or abandons the wife or when facts exist which would be a ground for granting an absolute divorce, the wife may, without the necessity of an action for a limited or absolute divorce, maintain in the superior court an action against the husband for permanent separate maintenance and support of herself, or herself and children.
“B. The action or the judgment shall not bar plaintiff from maintaining an action for absolute divorce upon the same grounds.”

The general rule is that in order for a judgment of another state to come within the full faith and credit clause of the United States Constitution, it must be a final, valid, subsisting judgment not vacated or set aside in the state of rendition, and it must be conclusive on the merits. Roberts v. Hodges (Tex.Civ.App.) 401 S. W.2d 332 (Ref. N.R.E.). 34 Tex.Jur.2d, Section 368 and cases cited therein. It appears on its face that the Arizona judgment is not final and did not finally and absolutely determine all rights between the parties thereto. The judgment provided: “That this court retain jurisdiction of the parties and the cause, to determine the amount of alimony, child support, and attorneys’ fees at such time as personal service is secured against the defendant.” By the very terms of Section 25-331, Subsection B, a judgment granting separation from bed and board “shall not be a bar to an action for absolute divorce based on the same grounds”. The Arizona Supreme Court in Davies v. Russell, 84 Ariz. 144, 325 P.2d 402 distinguishes causes of action for divorce and separation from bed and board. The court said: “It is obvious that the relief demanded in the two causes of action is entirely different — After a decree of absolute divorce, the bonds of matrimony are forever terminated, except by remarriage. After a decree of separation from bed and board, the parties may reconcile their differences and restore their marital status by obtaining a vacation of the decree.” The Arizona judgment under consideration here made no determination of the parties marital status nor did it affect their economic rights insofar as alimony or child support are concerned. The court acknowledged it lacked jurisdiction to determine these matters because of the lack of personal service upon Simonsen. In White v. White, 83 Ariz. 305, 320 P.2d 702, the Arizona Supreme Court accorded full faith and credit to a Colorado divorce judgment to the extent the latter judgment dissolved the marriage between the parties. The Arizona court did not apply full faith and credit to the Colorado decree as it affected the economic and property rights of the wife, a resident of Arizona at the time the husband instituted his Colorado divorce. The Arizona court held the wife could continue a suit for separate maintenance, final before the Colorado divorce decree became final, in Arizona, their matrimonial domicile, after the Colorado divorce decree became final. Although the decision is not directly in point, it does serve to indicate the court’s analysis of the rights of an Arizona wife seeking separate maintenance from an out-of-state husband. The court concluded: “Plaintiff necessarily is limited to seeking support out of property within the state of Arizona in which it is alleged defendant has an interest. On the ■substituted service had in the instant case, a personal judgment cannot be obtained against defendant.” In the present case, Arizona was not the parties’ matrimonial domicile. Simonsen had never resided in the state; no personal service was had upon him in that state; he did not participate in the Arizona proceeding; and except for personal property the parties had no property in the state of Arizona. The Texas •court clearly had jurisdiction to determine the marital status of the parties hereto.

The question then presented is whether or not Mrs. Simonsen’s prior suit for separation is entitled to full faith and credit by the Texas court to the extent it lacks jurisdiction to award custody of the minor ■children, child support, and to divide the community property. The trial court in the instant case in effect carried out the •provisions of the Arizona decree in two respects: it awarded Mrs. Simonsen the custody of the two children; and awarded her the personal property in her possession ■in Arizona. While the trial court here had no jurisdiction of the minor children, dt nevertheless awarded their custody and control to Mrs. Simonsen. While there was also a lack of jurisdiction to divide and award property situated outside of Texas, it has been held that in setting aside to one spouse property within its jurisdiction, courts may consider the property beyond its jurisdiction in possession of the other spouse. Askew v. Rountree (Tex.Civ.App.) 120 S.W.2d 117 (Writ Dis.). Risch v. Risch (Tex.Civ.App.) 395 S.W.2d 709 (Writ Dis.). Both the Arizona and Texas courts set aside the same personal property to the wife. Both courts took the same action in awarding custody of the children to her. No prejudice could have resulted to Mrs. Simonsen from the Texas court’s action. Rule 434, Texas Rules of Civil Procedure. Even if it could be said such action by the Texas court was error, appellant will not be heard to complain. Such action inures to her benefit and it affords no ground for reversal. 4 Tex.Jur.2d, Section 133, page 552.

Article 4639a, Vernon’s Ann.Tex. Civ.St. renders it mandatory for a court having jurisdiction of a suit for divorce, where minor children are involved, that such “court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same”. The jurisdiction of the Texas court over the subject matter of divorce is not questioned. The father subjected himself to the jurisdiction of the court for all purposes. He makes no complaint to the trial court’s judgment. Courts do not ordinarily award custody of the minor children to one living in another state, but courts have the power to do so. Reed v. Reed (Tex.Civ.App.) 285 S.W.2d 885. Patterson v. Wilson (Tex.Civ.App.) 177 S.W.2d 1004; (Ref. on merit). Wrather v. Wrather (Tex.Civ.App.) 154 S.W.2d 955; (Ref. on merit). The trial court did not err in awarding the custody and control of the minor children to Mrs. Simon-sen. It was then incumbent upon the court to determine if support was required. The court saw fit to require the father to contribute $150.00 per month for such support.

Appellant next asserts there was no evidence and insufficient evidence to show appellee was a bona fide inhabitant of the state of Texas. He has physically resided in Amarillo, Randall County, Texas since October 25, 1964 when he was reassigned to Amarillo Air Force Base. He and his wife had previously separated in July, 1963 when he was stationed in Germany. He was a native of New York State, but had not resided there since 1950. He had continuously resided in an apartment in Amarillo from October 1964 to the time the suit was filed on January 3, 1966. He was on active duty in the Air Force from the date he moved to Amarillo until December 31, 1965, when he retired from the United States Air Force at Amarillo. Appellee had all the physical appearances of being a Randall County resident. Among other things the parties here stipulated plaintiff: “has resided in Amarillo, Randall County, Texas since on or about the 25th day of October, 1964, until the present time”. He did not consider New York his residence, but considered Texas his legal residence. The statutory residence requirements for divorce are not jurisdictional but prescribe qualifications for petitioner. Allen v. Allen (Tex.Civ.App.) 397 S.W.2d 99. The fact one is a member of the armed forces does not deprive him of the right to change his residence or domicile and acquire a new one. Robinson v. Robinson (Tex.Civ.App.) 235 S.W.2d 228. Article 4631, V.A.C.S. We think the evidence in this case fully supports the trial court’s finding that appel-lee had been a bona fide inhabitant of the State of Texas and Randall County the required time prior to the filing of this suit.

Appellant next challenges the trial court’s ruling that by the appearance of her attorney on the issue of divorce, appellant waived her special appearances as to child custody, support, and division of personal property. Rule 120a, paragraph 3, T.R.C.P. provides: “If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State.” In deciding that an order overruling a plea to the jurisdiction was interlocutory and not appealable the court in Carpenter Body Works v. McCulley (Tex.Civ.App.) 389 S.W.2d 331 (Writ Ref.). (Certiorari denied 382 U.S. 979, 86 S.Ct. 550, 15 L.Ed.2d 469) set out the provisions of paragraph 3 of Rule 120a quoted above and held:

“This language to us shows an intention that the party whose plea to the jurisdiction is overruled shall thereafter proceed to trial on the merits and if he suffers adverse judgment on the merits, his complaints on appeal may encompass one complaining of the trial court’s action in overruling his plea to the jurisdiction.”

We are in agreement with that interpretation of the special appearances rule, and think it is applicable to the instant case. We therefore conclude the trial court erred in holding appellant waived her special appearances by her attorney participating in the hearing on the merits. However, such error was made harmless by the trial court’s other findings and orders. Such error does not constitute reversible error under this record for the reasons previously stated.

The judgment of the trial court is affirmed.


text:
    WESTWORTH VILLAGE, Appellant, v. Earl E. MITCHELL, Appellee.
    No. 16793.
    Court of Civil Appeals of Texas. Fort Worth.
    March 24, 1967.
    Rehearing Denied April 21,1967.
    Hill, Paddock & Street and John G. Street, Jr., Fort Worth, for appellant.
    Arthur Lee Moore, Fort Worth, for ap-pellee.
   OPINION

LANGDON, Justice.

This is a suit brought by Westworth Village, a municipal corporation, for a temporary and a permanent injunction against the unlawful operation of a business at 100 Red Bird Lane in said village because the business involved is prohibited by its Ordinance No. 19. On the grounds that West-worth Village had allegedly been guilty of laches and had waived enforcement of the ordinance the trial court denied the relief sought. We reverse and remand.

It is undisputed that the ordinance was in effect at the time the appellee started operating the business in question on January 1, 1955 and that on that date the appellee knew that the property at 100 Red Bird Lane was not zoned for business. Appellee in open court admitted he was in violation of the ordinance in operating the business. Thus admittedly the appellee intentionally and knowingly commenced violating the ordinance on January 1, 1955 when he opened up his business and has continued such violation every day since that time.

“Since ordinances are not rendered invalid or inoperative for failure of enforcement, or because of the acts of officials in authorizing their violation, a city is not estopped to enforce a valid ordinance by failure of its officers to enforce it on other occasions or in other instances.” 39 Tex. Jur.2d 619, § 288, p. 620. See Eckert v. Jacobs, 142 S.W.2d 374 (Austin Tex.Civ. App., 1940, no writ hist.); Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558 (Tex. 1957).

An injunction suit filed against the appellee in 1961 and dismissed in 1964 for want of prosecution does not constitute a bar against the refiling of such suit. Stone v. Miller, 134 S.W.2d 862 (Texarkana Tex. Civ.App., 1939, dis. judgm. cor.) and authorities cited therein.

Limitations do not run against incorporated cities. Article 5517, Vernon’s Ann.Civ.St.; Brazos River Authority v. City of Graham, 163 Texv 167, 354 S.W.2d 99, 132 (Tex. 1962). In the case of City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex. 1964) it was contended that due to laches on the part of the city there would be irreparable damage if the ordinance was enforced. In reversing the trial court and the Court of Civil Appeals, the Supreme Court held that “Adoption of a zoning ordinance by the governing body of a city represents the exercise of a delegated legislative discretion, and enforcement or nonenforcement of the ordinance is not a matter for judicial discretion. * * If the evidence is conclusive that a zoning ordinance is arbitrary and unreasonable, generally or as to particular property, it is the duty of the courts to refuse to enforce it; but in the absence of such proof, it is the duty of the courts to enforce it.” Additionally the court held that the city made its case when it proved the ordinance and its violation (as was done in this case) and that the burden of proof was then upon the defendants to prove that the ordinance bore no substantial relation to the health, safety, morals or general welfare of the community and was thus arbitrary or unreasonable. The evidence offered by the appellee in the case at bar did not meet this burden.

In City of Fort Worth v. Johnson, supra, the court held that since laches is an affirmative defense the burden was upon defendants to prove two of its essential elements as follows: (1) unreasonable delay by one having legal or equitable rights in asserting them and (2) a good faith change of position by another to his detriment because of the delay. The appellee failed to prove either. Obviously there was no good faith change of position by the appellee to his detriment because of any alleged delay on the part of the appellant. He has made no change in position from the date he opened his business in violation of the ordinance. He has merely continued a day to day violation. See 22 Tex.Jur.2d, § 54, pp. 601, 603, “Equity” and 35 Tex.Jur.2d, § 4, pp. 463, 464, “Laches and Stale Demands.” Laches is an equitable doctrine. It cannot be used to reward inequitable conduct nor to defeat justice. Laches embraces not only the element of time but the added ingredient of prejudicial harm. The delay has subjected appellee to no disadvantage in asserting any claimed right or defense.

In City of Corpus Christi v. Lone Star Fish & Oyster Co., 335 S.W.2d 621 (San Antonio Tex.Civ.App., 1960, no writ hist.) the court held that the status quo to be protected is the status which existed before the appellees began to operate the oyster shucking plant in violation of a valid city ordinance. Further that since the business was being operated in daily violation of city ordinances that the rule of balancing of equities or hardship did not apply.

In Bartlett v. City of Corpus Christi, 359 S.W.2d 122 (El Paso Tex.Civ.App., 1962, no writ hist.) the court found that the contention that the city had waived its right to enforce a particular ordinance by permitting appellant to operate for eight years without protest was without merit.

“The general rule is that the mere fact that, without more, city officials fail to enforce a zoning ordinance against a violator does not estop the city from subsequently enforcing it against him. * * * ” 58 Am.Jur. 1045, § 192. See also Leigh v. City of Wichita, 148 Kan. 607, 83 P.2d 644, 119 A.L.R. 1503 and Annotation in 119 A.L.R. 1511; 62 C.J.S. Municipal Corporations § 226(13), p. 477, and 18 Baylor Law Review 488, under the title of “Injunction for a Zoning Violation” and authorities cited therein.

There is no evidence in this record to support a claim of discrimination because other persons in the city are violating the ordinances. Hill v. Board of Adjustment of City of Castle Hills, 301 S.W.2d 490 (San Antonio Tex.Civ.App., 1957, ref.).

In Hemphill County v. Adams, 406 S.W. 2d 267 (Amarillo Tex.Civ.App., 1966) the court held that the county’s cause of action for damages for conversion of its property can be barred by a statute of limitation and is barred by the two year statute. In a per curiam opinion dated December 7, 1966, Vol. 10, Tex.Sup.Ct.Journal, p. 146, the Supreme Court under Rule 483, Texas Rules of Civil Procedure reversed the judgment of the Court of Civil Appeals without granting writ of error and in remanding to that court held, “ * * * The primary holding is in conflict with our opinions in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961) and City of Port Arthur v. Tillman, Tex., 398 S.W.2d 750 (1965) in which we held that by virtue of the provisions of Article 5517, Vernon’s Texas Civil Statutes, rights of action held by the governmental entities there named, which includes counties, cannot be barred by any statute of limitation.” Incorporated cities are also named as one of the “governmental entities.”

The judgment of the trial court denying appellant a temporary injunction is reversed and remanded to the trial court with instructions to grant it.

Reversed and remanded with instructions.


author: PHILLIPS, Chief Justice.

text:
    Robert L. WHEELOCK, Jr., Appellant, v. AMERICAN FIRE & CASUALTY COMPANY et al., Appellees.
    No. 11490.
    Court of Civil Appeals of Texas. Austin.
    April 5, 1967.
    Rehearing Denied April 26, 1967.

      William J. McKie, Corsicana, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, Robert Keith Drummond, Thompson, Coe, Cousins & Irons, Franklin H. Perry, Dallas, for appellees.
   PHILLIPS, Chief Justice.

This is a suit by appellant Wheelock against six insurance companies on fire and extended coverage policies as a result of destruction of a pier at Lake Texoma by a windstorm in August, 1961. The jury verdict was for Wheelock. However, on proper motion the trial court entered a judgment non obstante veredicto for the insurance companies, hence this appeal.

We affirm.

Appellant is before this Court on two points of error, the first being the error of the court in rendering judgment for the defendants, because the uncon-troverted evidence establishes that at the time in question there was no “high water” or other exclusion as set out in defendant’s policies and therefore the trial court charged the jury properly and plaintiff was entitled to judgment on the verdict.

We overrule this point.

The following question was submitted to the jury: Do you find from a preponderance of the evidence that the windstorm was the proximate cause of the damage to the boat dock of the plaintiff? In response thereto the jury answered, “yes.”

Each policy of insurance provides as follows:

“Conditions applicable only to windstorm, hurricane and hail:
Unless specifically named hereon, this company shall not be liable for loss * * caused by * * * tidal wave, high water, or overflow, whether driven by wind or not; * * * ”

To quote from appellant’s brief: “All of the evidence regarding what caused the destruction of the boat dock was to the effect that it was caused by the wind and the waves.”

This case is controlled by the decision of our Supreme Court in Hardware Dealers Mutual Insurance Company v. Berglund, 393 S.W.2d 309 (Tex.1965) which opinion quotes with approval from Coyle v. Palatine Insurance Company, Tex.Comm’n App., 222 S.W. 973, 1920 as follows:

“It may be admitted, as the plaintiffs in error urge, that the wind was the cause of the action of the water. But, as related to the loss in dispute, the contract expressly provided that the insurer was not to be responsible for any damage, whatever, due to the action of water caused by the wind. All part of the loss caused by water, though the water’s action was due to the wind, is thus eliminated. Therefore, the rule invoked, that where there is no order of succession in time and there are two concurrent causes of a loss in which the damage done by each cannot be distinguished, the predominating cause will be deemed the proximate cause, can have no application. The water as a concurrent cause, or as any element in the cause, which produced the loss, is by the contract put out of the case.”

Both in Coyle and Berglund the excluded loss in practically identical to the case at bar.

Appellant contends that the damage was done by waves created by high wind and that waves caused by high wind do not constitute high water as contemplated by the exclusion. He further contends that the level of the lake was not appreciably higher when the storm struck and at the time the lake was below flood level. That “high water” under the exclusion contemplated a raising of the lake level such as flooding by adjacent streams. The abovementioned cases make no such distinction. Their only distinction is between wind and water and wind and wind-driven water.

Berglund quotes from Newark Trust Company v. Agricultural Insurance Co., 237 F. 788 (3rd. Cir. 1916), also cited in Coyle, to the effect that:

“[I]t is manifest from the terms of the contract, as well as from the enumerated elements, that the perils insured against are the perils of the air, and among those expressly excepted are perils of water; and that after disclaiming liability for damage caused by such specific water forces as tidal wave, high water, overflow and cloudburst, the insurance company broadly refuses to assume liability for any loss or damage caused generally by water, even when ‘driven by wind.’ ”

The Court points out in Berglund that from an underwriting standpoint there is a vast difference between insuring against loss by hurricane winds only and insuring against loss by a combination of hurricane winds and water; that from a standpoint of verbiage, there is little difference between the wording of the exclusion clause in Berglund and that in Coyle.

Appellant’s second point of error is that of the court in rendering judgment for the defendants, because even if defendants are correct in their position that the court’s charge was in error then there is sufficient evidence to charge the jury as requested by defendants and therefore a mistrial should have been declared.

We overrule this point.

The sole issue on causation submitted to the jury and set out above was the only issue submitted by the court. Appellant failed to tender any other issues, and failed to object to the absence of any other issues.

The appellees objected to the submission of this issue pointing out the court’s failure to submit any issues relating to high water whether driven by wind or not, and relating to causation by a combination of windstorm and high water. Appellees further objected that the court, by the submission of the issue set out above, was reforming the contract, or, in effect, misinterpreting it.

Texas Rules of Civil Procedure, rule 279 provides that the failure to submit an issue shall not be deemed a ground for reversal of- the judgment unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party.

Appellant failed to submit any issues relating to the high water whether driven by wind or not, although they were necessary parts of his case. Thus he cannot be heard to complain here because of the issue submitted.

Appellant asks this Court, in the event we hold as we have on his point, of error number one, to reverse and remand the case so that it can be submitted to the jury on the theory set out in the Berglund decision. Appellant is apparently referring to the judgment therein where a percentage of damage which was caused by or resulted from water or water driven by wind could be ascertained (as distinguished from that caused by wind alone) thus deleting that part of the damage caused by water and allowing a recovery for the wind damage alone.

In Berglund, the Court held that where the insurance company pleaded specific exclusions which were set forth in the policy and thus raised issues of contract coverage, the burden of producing evidence to demonstrate that their losses were not attributable to the pleaded excluded hazards rests upon the party asserting recovery under the policy. Thus it became the duty of the appellant here to present evidence to demonstrate that his loss was not attributable to high water, whether driven by wind or not. The evidence before us is conclusive that the damage was done by combination of the elements in question and there is no evidence upon which any issue could be submitted to a jury allowing them to find a percent of the damage caused by the wind, unaccompanied by the effect of high water.

The judgment of the trial court is affirmed.


author: HIGGINS, Commissioner.

text:
    Sarah M. Grim WIMP et al., Plaintiffs-Respondents, v. H. Gordon COLLETT, Executor of the Estate of Hubert L. Collett, Deceased et al., Defendants, Edna Alice Palmer Hughes et al., Defendants-Appellants.
    No. 52284.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.

      Jayne, Oswald & Cottey, Kirksville, for plaintiffs-respondents.
    Ely & Cary Hannibal, for defendant, H. Gordon Collett, individually and as Exr. of Estate of Hubert L. Collett, Deed.
    J. Andy Zenge, Jr., Dennis W. Smith, Canton, Robert H. Renaud, McKesson, Renaud, Cook & Miller, Phoenix, Ariz., for appellants.
   HIGGINS, Commissioner.

Appeal from judgment specifically enforcing an oral contract between Dr. Edward A. Grim and Effa Alta-(Allen) Grim, husband and wife both deceased, to make testamentary disposition of their property, including real estate, one half to collateral heirs of Dr. Grim and one half to collateral heirs of Mrs. Grim. Respondents (plaintiffs) are the collateral heirs of Dr. Grim and appellants (defendants) are the collateral heirs of Mrs. Grim. Title to real estate is involved.

Edward A. Grim was born August 25, 1867, and, during his adult life, was a practicing medical doctor in Kirksville, Missouri; Effa Alta Allen was born March 30, 1874, and, prior to her marriage, was a schoolteacher. On June 24, 1915, these parties were married; he was then 48 and she was 41 years of age. Neither had been previously married and both were, and remained, childless.

Prior to this marriage Dr. Grim had acquired a 5-acre residential property (the home place), a business building, and a half interest in another business building, all at Kirksville, Missouri. Mrs. Grim owned no real property prior to her marriage. After the marriage Dr. Grim took title in his own name to 108 acres in Adair County in 1922, to 220 acres in Adair County in 1925, to a small triangular tract in Adair County in 1922, and to another small tract in Adair County in 1926. Dr. Grim conveyed none of his property except for a 6.8-acre tract in Adair County in 1922.

On May 6, 1929, Dr. and Mrs. Grim executed and published their joint will:

“Know ALL MEN BY THESE PRESENTS, That we, Edward A. Grim, and Effa Alta Grim, husband and wife, of Kirksville, Missouri, both being of sound mind and disposing memory, do make, publish and declare this instrument to be, jointly as well as severally, our last will and testament, hereby revoking all former wills by us made.
“First. — We direct that all of our just debts, including funeral expenses and expenses of last illness, be first paid.
“Second. — After the payment of said debts, all of our property, both real and personal, of which we may be possessed at the time of the decease of either of us, shall be held by the survivor during the period of his or her natural life, such survivor to have the right to use the same as he or she shall see fit, except that such use shall not be construed at any time to mean that the survivor shall have the right to sell any of the real estate owned by either of us at the date of death. Such survivor, however, shall have the right to all rents and profits derived from said property.
“Third. — All of the rest, remainder and residue of our property, both real, personal and mixed, and wherever situate and existing at the date of the death of the survivor, and not paid out as hereinabove provided, we give, bequeath and devise as follows, to-wit:
“One-half thereof, share and share alike, to the brothers and sisters of the undersigned Effa Alta Grim living at the date of the demise of the survivor, who are as follows: Levi Allen, Memphis, Missouri; Peter R. Allen, Memphis, Missouri; Grover C. Allen, Kansas City, Missouri; and Mrs. Cora I. Palmer, Hu-mansville, Missouri; the remaining one-half, share and share alike, to the brother and sister of Edward A. Grim living at the date of the demise of the survivor, who are as follows; to-wit: Ezra C. Grim and Emma J. Collett, of Adair County, Missouri; and should any of the above named brothers or sisters predecease the survivor, then and in that event the share that would have gone to such brother or sister had they been living shall descend to the children or heirs of such deceased brother or sister.
“In case of administration hereon at the decease of one of us, then we agree that the survivor is appointed executor or executrix of this will, to act without bond. Upon the death of the survivor we direct that Warner Mills be appointed executor of this will.
“IN WITNESS WHEREOF, We have hereunto set our hands on this the 6th day of May, 1929.
“s/Edward A. Grim
“s/Effa Alta Grim
“The foregoing instrument was, at the date thereof, signed and declared by the said Edward A. Grim and Effa Alta Grim to be their last will and testament, in the presence of us, who, at their request and in their presence, and in the presence of each other, have subscribed our names as witnesses thereto.
“s/W. F. Murrell of Kirksville, Missouri “s/Nellie R. Mock of Kirksville, Missouri “s/J. B. Elmore of Kirksville, Missouri”

At the time of trial W. F. Murrell lived in St. Louis and Nellie R. Mock and J. B. Elmore were dead. Charles Murrell, a practicing attorney in Kirksville, prepared the will and he, too, was dead at the time of trial.

Dr. and Mrs. Grim acquired other real property as tenants by the entirety subsequent to execution of their will. In 1933' they acquired 407 acres in Knox County known as the Childress farm identified by a round red barn; in 1934 they acquired an additional 400 acres in Knox County known as the Meilicke farm, and the Shepherd Shoe Store building in Kirksville; in 1935 they acquired an 80-acre tract in Knox County and 400 acres in Adair County.

Dr. Grim died February 17, 1936, and the 1929 joint will was admitted to probate in Adair County. Mrs. Grim qualified and served as executrix and, at the close of administration, made distribution of property according to the terms of the will. In her own right Mrs. Grim made no renouncement but took the provision made for her in the will. Included in the property then distributed was real estate owned by Dr. Grim in his own name appraised at $33,194 which, upon termination of Mrs. Grim’s life estate, less a portion condemned by Northeast Missouri State College, was sold in partition for $105,500 which was distributed one half to Dr. Grim’s collateral heirs and one half to Mrs. Grim’s collateral heirs.

On August 24, 1959, Mrs. Grim, then 85 years of age, executed a second will giving the Adair County real estate and half of the residue, valued in the aggregate at $48,113.78, to Dr. Grim’s heirs, and giving the Knox County real estate, personal property, and half the residue, valued in the aggregate at $217,992.68, to her side of the family. In addition, Dr. Grim’s heirs were to be charged with all federal and state estate and inheritance taxes. (Respondents’ brief contains a statement unrefuted by appellants, that $74,376.63 federal estate taxes alone have now been paid, with state inheritance taxes yet to be assessed.)

Mrs. Grim died September 8, 1963. Her 1959 will was admitted to probate and letters testamentary were issued to Cecil Darr, the executor named in the 1959 will.

This suit was instituted June 15, 1964, for :a declaration: that an enforceable contract existed between Dr. and Mrs. Grim to make .an irrevocable will disposing of all their property, and that the 1929 will was executed pursuant to that agreement; that by virtue of that oral contract, the 1929 will could not be revoked; and for specific performance of the oral contract.

The court found that the evidence, all of which came from plaintiffs, established the pleaded oral contract between Dr. and Mrs. Grim to make testamentary disposition of all their property, and decreed specific performance of that agreement to the end that one half of all such properties go to Dr. Grim’s collateral heirs and one half to Mrs. Grim’s collateral heirs. (The decree computed the specific shares of each such heir under the 1929 will.)

The first question posed by appellants’ first assignment of error is whether plaintiffs presented “clear, cogent and convincing” evidence sufficient to establish that Dr. and Mrs. Grim entered into an irrevocable contract covering the disposition of their property after their deaths as found by the court.

Much of the applicable law may be found in Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910, 915-916 [3, 4] [8, 9]:

“The rule is well stated in Clements v. Jones, 166 Ga. 738, 742, 743, 144 S.E. 319, 322, as follows: ‘The general rule is, although not undisputed, that if two persons execute wills at the same time, either in one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation. By the weight of authority agreements to make wills are not established merely because two persons make some reciprocal testamentary dispositions in favor of each other; the language of such wills containing nothing to the effect that the instruments are the result of a contract. The case is different, however, where the mutual wills are the result of a contract based upon a valid consideration, and where, after the death of one of the parties, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement. In such cases, where all the facts are fully proven, equity will interpose to prevent fraud. * * * However, to enable one to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their reciprocal provisions, but the existence of a clear and definite contract must be alleged and proven, either by proof of an express agreement, or by unequivocal circumstances.’ * * *
“As to the nature of evidence necessary to establish an agreement of the kind in question, it was stated in the leading case of Edson v. Parsons, 155 N.Y. 555, 567, 568, 50 N.E. 265, 268:

* * * It is not essential to the intervention of equity, in order to prevent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made, and may have reinforcement from the evidence of the conduct of the parties, at the time and subsequently. But, concerning as it does the statutory right of a person to dispose of his property after his death by a last will, the court should refuse to interfere unless the agreement depended upon for the award of the relief demanded has been clearly and definitely established. The law permits a person to dispose of his property at his pleasure. He may make a valid agreement, binding himself to make a particular testamentary disposition of his property, if it be a reasonable one, and he may validly renounce the power to revoke his will, in the absence of fraud or deceit. Equity will enforce such an agreement, when well and fairly founded, and will not suffer him to defraud and to defeat his obligation by another will. But the court must have full and satisfactory proof of the agreement. ⅜ * *

“ ‘A general maxim which equity recognizes is that a testator’s will is ambulatory until his death. It is a disposition of property which neither can nor is supposed to take effect until after death. I think it needs.no further argument to show that to attribute to a will the quality of ir-revocability demands the most indisputable evidence of the argeement (sic) which is relied upon to change its ambulatory nature, and that presumptions will not, and should not, take the place of proof.’

“In Wanger v. Marr, 257 Mo. 482, 493, 165 S.W. 1027, 1031, it is stated: ‘While direct evidence of the existence of such a contract is not indispensable, yet the contract must be proved by evidence measuring up to the standard fixed by the authorities cited [including Edson v. Parsons, supra] and principles adverted to in the preceding paragraph.’ * * *

“However, as before stated, it is not necessary that the agreement be established by direct evidence. If the contract does not expressly appear in the language of the wills, the agreement ‘may be supplied by competent witnesses who testify to admissions of the testators, or an express promise may be shown, evidence is also admissible of such facts and circumstances, and such relations of the parties, as to give rise to an implication that such an agreement was made, and such implication may have reinforcement from evidence of the conduct of the parties at the time of making the wills, and subsequently. Thus for the purpose of showing that reciprocal wills were intended to be mutual, evidence may be admitted of facts tending to show that each of the parties acted, in making his will, with the knowledge of the other, that the two wills were drawn by the same person, at the same time, and at the joint request or directions of both parties, and, even though their dates differ slightly, that they were in fact executed in pursuance of a common purpose and understanding.’ 69 C.J. p. 1034.”

As to joint wills specifically, “the simple fact that husband and wife executed a single instrument as their will is evidence of an agreement, but, alone, is not conclusive.” Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027, 1030 [3],

The circumstances previously stated show that Dr. and Mrs. Grim were married in their 40s and were childless. They executed a joint will in 1929 at a time when considerable real estate had been acquired by, and stood in the name of, Dr. Grim alone; Mrs. Grim owned no real property. Each of them had similar collateral relatives consisting of brothers and sisters who, absent the existence of children, would ordinarily be the natural objects of such persons’ bounty. That is to say, it would be reasonable to infer that Dr. Grim would wish to provide for his collateral heirs and Mrs. Grim would tend to favor her family. It was in that situation that Dr. and Mrs. Grim had a practicing lawyer to prepare the will which they executed jointly May 6, 1929, a situation similar to that in Shackleford v. Edwards, Mo., 278 S.W.2d 775. The testators there also were husband and wife. The husband was a bachelor in his 50s when he married his wife who had a child by former marriage. Each owned separate real estate. They executed separate reciprocal wills and devised all their real property to each other and, upon the death of the survivor, the estate was to go one half to the wife’s son and one half to the husband’s collateral heirs. The husband died first and the wife thereafter conveyed the property all to her son to the exclusion of the husband’s heirs. A suit for specific performance of the contract which gave rise to the wills, instituted by the husband’s heirs, was successful. A paraphrase of the circumstances and logic in that case is in point here. Dr. and Mrs. Grim were both educated adults and, in making and publishing their joint will, obviously and necessarily acted with the full knowledge of each other. Their single instrument joint will was drawn by a single scrivener, learned in the law; it was executed at the same time before the same witnesses, and was intended to accomplish a mutual or common purpose, i. e., that of providing for each of the testators during their lives and thereafter to benefit their respective families in equal shares. The will itself, then, being joint and mutual, is some evidence under the rules that it was made pursuant to an agreement that it was to remain in force after the death of the testators. Certainly, it would be illogical to suggest that such a comprehensive scheme came into being ipso facto. Qf course, this alone is not sufficient to prove that the parties did in fact agree that their property was to be ultimately disposed of as provided in the joint will, but the circumstances provide additional strong evidence of a contract not to revoke this joint will. In order to have such a will drawn and to execute it, the parties necessarily had to discuss the disposition they intended to make. Having reached a decision on disposition, they then conferred with their lawyer and obtained the drafting of an instrument representative of their common purpose and scheme and executed it for the accomplishment of that purpose. “Now this was the kind of arrangement which would be expected under these facts — one which unerringly bespeaks the prior existence of an agreement that the disposition then agreed on would be the final ultimate disposition of their separate properties, and one which would be most unlikely in the absence of such a definite agreement.” Shackleford v. Edwards, supra, 278 S.W.2d 1. c. 780 [7].

This evidence of an express contract is reinforced by specific language in the will indicative of the intent of the testators to be jointly and irrevocably bound. Reference to the will shows that “ * * * we * * * both * * * declare this instrument to be, jointly as well as severally, our last will * * * revoking all former wills by us made. * * * We direct that all of our just debts * * * be first paid. * * * all of our property * * * of which we may be possessed at the time of the decease of either of us, shall be held by the survivor during * * * his or her natural life * * *. All of the rest * * * of our property * * * at the * * * death of the survivor * * * we give * * * one-half * * * to the brothers and sisters of * * * Effa Alta Grim living at the date of the demise of the survivor, * * * one-half * * * to the brother and sister of Edward A. Grim living at the date of the demise of the sur vivor * * *. In case of administration * * * we agree * * *. IN WITNESS WHEREOF, We have * * * set our hands * * Such recitals are similar to those of the joint will in Glueck v. McMehen, Mo.App., 318 S.W.2d 371, where it was said: “ * * * the facts which appear from the will, itself, from the reciprocal provisions, and from the manner and mode of its execution, constitute significantly strong evidence of the existence of a contract between (husband and wife) not to revoke this will.” 318 S.W.2d l. c. 376 [5]. “The agreement * * * as expressed in the will became irrevocable after the death of (husband) and (wife) had no right to give away a valuable tract of land. To hold otherwise would be to hold that the survivor could nullify the agreement written into the joint will while both were alive.” 318 S.W.2d l. c. 377 [7].

Drawn as it was, and in the circumstances of this case, the 1929 will of Dr. and Mrs. Grim was, as in Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395, 400 [13], “eminently fair and just and was without preference to any person or either set of brothers or sisters. Certainly the mutual promise of each testator to the other testator that his or her brothers and sisters should have an equal share and only an equal share with the brothers and sisters of the other testator was sufficient consideration for the mutual agreement. Neither could know at the time the will was made which one of them would be first deceased. The promise of one with its resultant benefits to inure to the brothers and sisters of that one was consideration for the promise of the other, with benefits likewise to inure. The evidence shows a mutual interest of the two testators in all the beneficiaries under the will. That the agreement between (husband) and (wife) was certain as to its terms and subject matter is supported by the oral testimony and by the joint will itself.”

In addition to the background and circumstances previously detailed and the joint will itself, there was also oral testimony here which bore on the existence and nature of the contract between Dr. and Mrs. Grim. Louis McBride was a long-time Knox County resident, 78 years of age, engaged in livestock raising and grain farming. He had known Dr. Grim for a considerable time but “didn’t know her until I had business with the two of them.” He helped the Grims, apparently as an agent, to purchase the Meilicke farm and sold them the Childress farm identified as having a distinctive big red barn. “It’s plum round— it’s just as round as it can be.” Mr. McBride farmed the lands for several years after the purchase for Dr. and Mrs. Grim, and for Mrs. Grim after the doctor’s death until 1948.

“Q. Now, Louis, at the time you started doing business with the Doctor, did you have any conversations with his wife, Effa Alta Grim, concerning any contract or will which she and the Doctor had made? * * * A. I did.
“Q. * * * What did she say about any will or contract she had with the Doctor? A. Well, Mrs. Grim said that she had a contract and a will that this land I sold her was, or it was in a joint deed, and that she and he both wanted me to kind of look after it and see that each one got their share of the, half and half of the will, that it should be divided that way.
“Q. Divided half and half to whom? A. To Dr. Grim and to Mrs. Effa Grim.
“Q. During the years that you farmed this land, after the Doctor died, did you ever have any other conversations with her about this ? A. Well, yes, she talked to me about it, to see that it was that way, that she wanted the contract— * * * She said that she wanted me to see that the will went just like they contracted it to go, to be divided half in their family and half in her family. * * *
“Q. At the time you settled up with her (Mrs. Grim), in 1948, just tell the Judge what it was she told you, just what she said about her Knox County land ? A. She said that it was — she told me that—
“Q. Let me ask you this — did the subject matter come up about selling it? A. Yes.
“Q. All right. And what did she say in that connection? A. She said she couldn’t sell it because it was in a contract in their will and according to that, she couldn’t sell the land — it had to be divided up equally unless she needed the money to live on.
“Q. All right. Did you have a buyer for her at that time? A. I had a buyer for her.
“Q. And who was that fellow ? A. Roy Keyes of Chicago. He wanted me to buy him a big farm.”
Upon cross-examination, Mr. McBride was asked:
“Q. When was it that you had the next (after 1933) conversation with her in which you say she made some statement about wanting you to see that she got half of the property and he got half of the property? A. There was a good many times after that that she said that * * *.
“Q. So you had one conversation after you sold the farm and then another conversation was after the, or when you were settling up in 1948, is that correct? A. Well, and in between that a lot of times she talked about it.
“Q.- Mr. McBride, isn’t it a fact that Mrs. Grim didn’t discuss business affairs with anybody, as far as you know, did she? A. She did with me pretty often.”

Upon further cross-examination in respect to termination of their farming agreement, Mr. McBride was asked:

“Q. And that’s when she said that she wanted you to see that the contract was carried out, is that your testimony? A. That’s when she told me again, yeah.”

Joseph S. Miller was a retired special agent and adjuster for 36 years with Hartford Fire Insurance Company. He adjusted some losses for Mrs. Grim on the Knox County premises, particularly on the farm with the round barn. On September 13, 1936, he met with her to “settle the loss and present her with the proof of loss. * * * When I presented Mrs. Grim with this proof of loss, I said to her: ‘Mrs. Grim, I am submitting you a proof of loss but we must insert the names of the heirs mentioned in the joint will.’ * * * She said, ‘I know about that joint will, and I know I have it my lifetime, then it goes to our heirs, but I don’t want their names in that draft.’ ”

Charles F. Gardner had been in the insurance business for about 40 years. He first insured the Knox County buildings for Mrs. Grim “shortly after Dr. Grim died.”

“Q. * * * Now in connection with your insurance business and the insuring of these buildings, did you ever discuss with Effa Alta Grim the title or a will that she had in effect, a joint will with her husband? Did you ever discuss that with her during those years? A. We talked about her title to the property.
“Q. What did she tell you in connection with the title that she had to that property? A. She said she had a life interest in it.
“Q. Did she tell you anything about who was to take that property after she was gone, died? A. It was to be divided between her family and Dr. Ed’s family. * * *
“Q. Now, did she ever say anything to you in any of these conversations about her right to dispose of that Knox County land ? A. Yes, she did. Q. What did she say? A. She said that she had only a life interest in it, then it was to go to the families.”

Mr. Gardner also identified two applications made by Mrs. Grim for insurance on the Knox County properties. In each instance the applicant’s title was shown as “life estate.” “Many times we went over her title.”

“Q. All right. What did she tell you? A. She told me she had only a life interest in it. The application shows only a life interest.”

Mrs. Grim did not at any time after Dr. Grim’s death voluntarily convey or mortgage any of the Adair or Knox County real estate.

Appellants argue that such testimony is “far from being the clear, definite and unequivocal proof” relied upon by the court in finding an agreement not to revoke in Shackleford v. Edwards, supra; however, a comparison shows the testimony in the two cases to be similar. The pertinent testimony in that case is summarized at 278 S.W.2d 1. c. 780-781 [7]: Mrs. Crawford, the surviving widow, told a Mr. Wendleton that she and her husband had “finally agreed” on what they were going to do with their property and executed “a joint will.” She told a Mrs. Stevens that she and her husband had “decided together” and that the property would go half to the defendant and half to the plaintiffs. She told the Chambers sisters that she and her husband had made a “contract and joint wills” whereby plaintiffs would receive her husband’s half and her son would receive her half. She and her husband had “fixed a contract.”

Another matter recognized by the cases as indicative of the existence of a contract between two testators is the survivor’s acceptance of benefits and provisions under the contract and will. Plemmons v. Pemberton, supra, 139 S.W.2d 1. c. 915 [4], There the court enforced an oral contract between bachelor brothers who, as testators, executed two reciprocal wills in 1916. One brother died in 1932, his will was probated, and the survivor accepted the benefits of the will. In 1936 he executed a second will purporting to revoke his 1916 reciprocal will, but the court enforced the 1916 will against the survivor’s heirs in favor of the first brother’s heirs. The oral testimony presented additional similarities in respect to execution of the Grim will in that there was no direct evidence of a contract not to revoke. Such contract was found from the circumstances previously mentioned together with oral testimony from the scrivener that he drafted the wills in accordance with the brothers’ agreement, evidence from a witness that one testator referred to the wills as a “jint will,” and from another who said the brothers called the wills a “contract, that is what they called it.”

When Dr. Grim died in 1936, the 1929 joint will of Dr. and Mrs. Grim was admitted to probate and Mrs. Grim was appointed executrix as provided (agreed to) in the will. She administered the estate in accordance with the will and enjoyed as life tenant the lands owned by Dr. Grim as provided in the joint will. At least until 1959 she accepted and made use of such benefits as well as using the even greater amount of entirety property the same way. She also recognized, by her admissions, her obligations under the 1929 will and agreement made with her husband. From the death of her husband in 1936 until 1959 Mrs. Grim abided by the disposition called for in the 1929 joint will and admitted that her family and Dr. Grim’s family were to share equally upon termination of her life estate. Such conduct is indicative of her recognition of her obligations, and only when she was 85 years of age, 30 years after her execution of the 1929 will, did she act in any way inconsistent with recognition of her contract with her husband.

Seat v. Seat, 172 Tenn. 618, 113 S.W.2d 751, 754 [4], is in point and is cited with approval in Stewart v. Shelton, supra, 201 S.W.2d l. c. 399: “ ‘The terms of the joint will, the fact that the greater part of the real estate was held by the entirety and might have passed to the survivor, that the property was acquired by the parties and owned jointly or in common, that defendant left the will in force from the date of execution until her husband’s death, and the equitable manner in which the parties disposed of their joint and common property, authorizes the inference that some sort of domestic prearrangement was made by Mr. and Mrs. Seat looking to an equitable division of their property and which culminated in their joint will. * * * such facts negative any conclusion but that the will was executed pursuant to agreement.’ ”

The admissions made by Mrs. Grim interpreting her situation as a life tenant under a contract and joint will, unable to sell or dispose of any lands, are competent evidence of the existence and nature of a contract. See Glueck v. McMehen, supra, 318 S.W.2d 1. c. 374; Shackleford v. Edwards, supra, 278 S.W.2d 1. c. 778; Findley v. Johnson, Mo., 142 S.W.2d 61, 65 (“I can’t sell that property, any of it”).

Appellants assert that the oral statements are too “technical in their terminology” to be “generally understood by the layman” and that they are merely “loose or casual conversation.” Similar admissions have been found of probative value. For examples, see Loumar Development Co. v. Redel, Mo., 369 S.W.2d 252, 257 [15] (“ * * * agreement prepared * * *”); Kidd v. Kidd, Mo.App., 216 S.W.2d 942, 946 [7] (error to exclude admissions as to ownership); Dreckshage v. Dreckshage, 352 Mo. 78, 176 S.W.2d 7, 13 [4] (error to exclude exhibits containing admissions using expressions of interest such as “trustee” and “this trust”) ; Stewart v. Shelton, supra, 201 S.W.2d 1. c. 397 (“lifetime claim”). Mrs. Grim’s statements are material and of particular probative value when viewed in the light of her education as a schoolteacher and her 30-years’ experience in managing over 900 acres of farmland. They also are of particular value when connected to real estate, title to which was taken by the entirety, which, except for her acknowledged agreement, she would have been able to sell to Mr. Keyes or at any other time following her husband’s death. Similarly, she would not have applied for insurance on the farm buildings as having only a life estate if she were, in fact, the fee owner as the survivor of an entirety.

A good summary of requirements which must be satisfied in order to establish a contract to execute joint wills that shall be and remain irrevocable from the date of their execution may be found in Workbook for Missouri Estate Planners, 1966, The Bobbs-Merrill Company, Inc., Chapter 11, Section EO.2, page 21: “(1) There must be a definite agreement, fair and just and certain as to terms and subject matter, to dispose of the property as the will provides (Stewart v. Shelton, supra). (2) There must be specific agreement that the wills be irrevocable (Glidewell v. Glidewell, 360 Mo. 713, 230 S.W.2d 752 (1950)). (3) The agreement must be based upon a sufficient consideration (Stewart v. Shelton, supra). The existence of such a contract must be shown by clear, cogent and convincing evidence. Jeffress v. Piatt, Mo., 370 S.W.2d 383 (1963).”

The evidence in this case satisfies this expression of the reqúirements necessary to establish irrevocability of the Grims’ joint will as well as the similar expression of the law and requirements in other cases, particularly Plemmons v. Pemberton, supra.

Certain of appellants’ citations already have been discussed. In addition, they cite other cases which are distinguishable: In re Opel’s Estate, Mo., 352 Mo. 592, 179 S.W.2d 1, holds that an oral contract to execute mutual wills cannot be established by loose or casual conversations. The case is otherwise of no value to appellants, however, because the only testimony bearing upon the alleged agreement was “indefinite and uncorroborated by any other circumstance. The wills were not made at the same time * * *, are not reciprocal, differ in their terms and do not comply with the alleged agreement testified to by (the witnesses).” 179 S.W.2d 1. c. 4 [3], Wanger v. Marr, supra, also refused enforcement of an alleged contract to execute mutual wills. The testators there were John and Barbara Marr >vho, in 1895, executed separate wills giving each a life estate in the property of the other with remainder to the plaintiff and defendant. John executed a second will and about a year later Barbara died. There was testimony that John had stated to witnesses that he and his wife had “agreed” as to what they wanted in the wills and that they had entered into an agreement on what the wills would provide. Neither of the separate wills contained any recitals which would indicate them to be “other than an ordinary last will and testament.” 165 S.W. l. c. 1029. “The witness Porter knew nothing and heard nothing of any agreement between Barbara and John * * *. Stigall drew both wills. His testimony and the will of 1897, drawn by him, indicate he is a man of intelligence. It is strange, if he knew of any agreement carried into effect by the will of 1895 and violated by the will of 1897, that he should have utterly forgotten drawing the will of 1897. * * * The statement of John Marr * * * had no bearing upon the question of the existence of an agreement between John and Barbara, and, if made, is directly contradicted by the witnesses Stigall and Porter, * * *. The fact the wills (which were different) were made on the same day and that in each the maker of the other was given a like estate in the property devised is evidence of concert of action, but not sufficient to prove the existence of a binding contract.” 165 S.W. l. c. 1031 [5]. That case overruled Bower v. Daniel, 198 Mo. 289, 95 S.W. 347, in its holding that only a preponderance of the evidence was needed to prove a contract of this nature; but, otherwise, the case held in favor of an alleged contract to be bound by a joint will under a joint will, and circumstances similar to those surrounding the Grims’ joint will. Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265, is yet another case on the burden of proof in these situations, but it is not in point for the reason found in the language of the case itself in Plem-mons v. Pemberton, supra, 139 S.W.2d l. c. 918: “ ‘It was not claimed * * * that there was any formally expressed contract between the sisters, or that such a contract for the making of mutual wills is evidenced, except by the wills themselves, and by some facts relating to and illustrating their making and execution, and the strong attachment which united the sisters to their brother.’ ”

Appellants contend also that even if the existence of a contract to make an irrevocable joint will be found, the court erred in holding that the property held by Dr. and Mrs. Grim as tenants by the entirety passed under the will.

“It is true that ordinarily a will does not affect property held in an estate by the entirety. It is also true, however, that a husband and wife acting jointly may agree upon the ultimate disposition of their entirety property.” Shackleford v. Edwards, supra, 278 S.W.2d l. c. 781 [9, 10]; Stewart v. Shelton, supra, 201 S.W.2d l. c. 398 [8, 9]. Both of these cases enforced contracts to make mutual irrevocable wills and properties held by entirety were affected. See also Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72, 73 [1], on creation of tenancy by the entirety.

The thrust of appellants’ argument is that there was no showing “of an agreement between Dr. Grim and Mrs. Grim to include the after-acquired entirety property (the Knox County lands held by the entirety) in the terms of that will.” In the absence of such a showing, the entirety property would, of course, have passed by operation of law to Mrs. Grim as the surviving spouse and not under the joint will upon the death of the survivor.

Reference to the will previously set out both in full and in part shows that the Grims did intend to include their after-acquired entirety properties in their contract and joint will; In paragraph Second they provided that “ * * * all of our property * * * of which we may be possessed at the time of the decease of either of us, shall be held by the survivor” for life; the right to use the same for life “shall not be construed * * * to mean that the survivor shall have the right to sell any of the real estate owned by either of us at the date of death.” Item Third disposes of “all * * of our property * * * wherever situate and existing at the * * * death of the survivor,” half to Dr. Grim’s heirs and half to Mrs. Grim’s heirs. Even though the evidence shows that at the execution of the will all real estate was then owned by Dr. Grim, yet the joint will covers “our” property as it may exist at the death of either. “Our” would have no meaning if all properties owned by both were not included. Similarly, reference to all property existing at the death of the survivor would be meaningless unless it included after-acquired property regardless of how acquired. If Dr. and Mrs. Grim had not intended to dispose of their properties in the fair and equitable manner found by the court, it would have been a simple matter to provide differently or to have revoked their contract by agreement prior to Dr. Grim’s death. Certainly people of the ability of the Grims took title to property by the entirety with full knowledge of their prior agreement and will. This is evidenced in Mrs. Grim’s admission during the years following her husband’s death. As said in Shackleford v. Edwards, supra, 278 S.W.2d 1. c. 781 [8] : “Now the same evidence which convinces us that there was a definite agreement between the Craw-fords to make mutual irrevocable wills also convinces us that those wills were to provide for the ultimate disposition of their separate properties which simultaneously were placed in an estate by the entirety.” See Mueller v. Buenger, 184 Mo. 458, 83 S.W. 458, where a residuary clause using language similar to that in the Grim joint will was held to contemplate after-acquired property.

Glidewell v. Glidewell, 360 Mo. 713, 230 S.W.2d 752, cited by appellants, simply recognized that there was not sufficient evidence from which to infer a contract to make joint and mutual wills.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

HOLMAN, P. J., HENLEY and SEILER, JJ., and HAYES, Special Judge, concur.