author: CALVERT, Chief Justice. NORVELL, Justice.

text:
    GREAT AMERICAN RESERVE INSURANCE COMPANY, Petitioner, v. Kathleen E. BRITTON, Respondent.
    No. A-10815.
    Supreme Court of Texas.
    July 27, 1966.
    Rehearing Denied Nov. 2, 1966.

      Brundidge, Fountain, Elliott & Churchill, Roger A. Hansen, with above firm, Dallas, for petitioner.
    Howard S. Smith, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for respondent.
   CALVERT, Chief Justice.

Suit was by Great American Reserve Insurance Company to cancel a non-medical life insurance policy issued on the life of Paul D. Britton. Cancellation was sought on the ground that the insured was not in good health when the application for insurance was made or when the policy was delivered and because the insured had fraudulently given false answers to certain questions in the application. A cross-action was filed by Kathleen E. Britton, surviving widow of the insured and the beneficiary named in the policy. By her cross-action Mrs. Britton sought to recover the policy proceeds, a statutory penalty of 12% and reasonable attorney fees in the sum of $4,000.00. The case was tried to a jury and judgment was rendered on the jury’s verdict awarding Mrs. Britton the relief she sought in full. The Court of Civil Appeals affirmed. 389 S.W.2d 320. We affirm in part and in part reverse and remand.

The issue in the courts below concerning answers given by the insured to questions in the application for insurance has gone out of the case at this stage of the appeal, and will not be considered. The issue concerning the good health of the insured is the same whether related to the time of making of application or to the time of delivery of the policy and will be dealt with only as it relates to the time of delivery of the policy.

The insurance policy contains a provision that “ * * * the policy shall not take effect until it has been delivered to its owner during the lifetime and good health of the Insured * * Application for insurance was made by Britton on September 5, 1961, and the policy was executed and delivered on September 13, 1961. Britton died on February 6, 1963.

The pertinent special issue submitted in the trial judge’s charge to the jury and the answer thereto read as follows :

“Do you find from a preponderance of the evidence that Paul D. Britton was not in good health on the date of delivery of the policy in question?
“Answer ‘He was not in good health’ or ‘He was in good health,’ as you may find.
ANSWER: He was in good health.”

The issue properly placed the burden of proof on Great American, whether the case be considered from its standpoint in seeking to cancel the policy or from the standpoint of Mrs. Britton in seeking a recovery of the policy proceeds. Trevino v. American National Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (1943).

There is much discussion in the opinion of the Court of Civil Appeals and in the briefs of the parties as to whether the jury’s answer to the issue has support in evidence of probative force. That is not the question. It would avail Great American nothing to set aside the jury’s answer to the issue: it still would not have discharged its burden of obtaining a finding from a preponderance of the evidence that Britton was not in good health, a finding essential to its right to cancel and to its defense to the cross-action if the issue is one of fact. See 38 T.L.R. 359, 363 (1960). There is also much discussion in the opinion of the Court of Civil Appeals and in the briefs as to the relative weight to be given to lay testimony of the apparent good health, of Britton and a medical diagnosis, made sometime prior to the date of delivery of the policy, that he was afflicted with a disease or bodily infirmity known as angina pectoris. That is not the ultimate issue in the case. Medical diagnoses and lay testimony may have an important bearing, or even controlling effect, on the issue of “good health” under the particular circumstances of a given case, but the true question to be decided in cases of this type in which the insurer fails to obtain a favorable jury finding is whether the evidence establishes conclusively, according to recognized legal standards, that the insured was not in good health. This question was properly raised by Great American’s motion for instructed verdict at the conclusion of the evidence and was properly preserved by its first point of error in the Court of Civil Appeals. With the issue before us thus brought into proper focus, we proceed to its decision.

There is considerable lay testimony in the record indicating that the insured appeared ⅛ be in good health when the policy was delivered. The evidence is set out in detail in the opinion of the Court of Civil Appeals. We need not notice this testimony further as it does not control decision of the issue as we have stated it.

The evidence which Great American asserts establishes as a matter of law that Britton was not in good health consists of the deposition testimony of Dr. John S. Bagwell; a hospital record of a medical history and diagnosis made by Dr. C. D. McMillan; testimony of Dr. Lester Hodges, Britton’s family physician; and Brit-ton’s death certificate.

Dr. Bagwell examined Britton on May 1, 1959, some two years and four months before the policy was delivered. Britton went to see Dr. Bagwell because he was having a tremendous amount of gas pressure and pains in his chest. In May, 1962, Dr. Hodges recommended that Britton see Dr. McMillan because “he was having difficulty with his stomach, and he was burning and [had] symptoms of an ulcer.” Britton was hospitalized by Dr. McMillan from May 15 to May 18, 1962, three years after the examination by Dr. Bagwell and some eight months after the insurance policy was delivered.

Britton gave both doctors a history of chest pain which radiated into his arms. Dr. Bagwell was convinced by the history given him, a physical examination which was “considered to not show any definite abnormality," x-rays which were “considered to be normal," and an electrocardiogram showing features “considered to be probably abnormal” that Britton had “heart trouble” which he diagnosed as “angina pectoris, probably due to arteriosclerosis,” and for which he prescribed nitroglycerin tablets for relief of pain. Dr. McMillan concluded from the history given him, a physical examination which “failed to disclose any significant abnormality," and tests which revealed “changes consistent with left ventricular hypertrophy” and “positive changes indicative of coronary sclerosis” that Britton had a duodenal ulcer of recent origin, chronic gastritis and “Coronary insufficiency.”

Britton was found dead in his bed in the morning of February 6, 1963. The death certificate, signed by Dr. Hodges, gave the immediate cause of death as “myocardial infarction.”

Great American does not contend that Britton had the duodenal ulcer, found by Dr. McMillan, when the policy was delivered, or that chronic gastritis would avoid the policy. We narrow our attention, therefore, to the evidence relating to Britton’s heart condition.

An insurance policy requirement that an applicant for insurance be in “good health” does not mean “perfect health.” If it did, all policies could be canceled within the contestable period. It is for this reason that the courts have evolved certain standards for measuring “good health.” The term is usually defined as a state of health free from any disease or bodily infirmity of a substantial nature which affects the general soundness and healthfulness of the system seriously or materially increases the risk to be assumed by the insurer. See Sovereign Camp, W.O.W. v. Derrick, Tex.Civ.App., 64 S.W.2d 982, 983 (1933), writ refused; Vann v. National Life & Accident Ins. Co., Tex.Com.App., 24 S.W.2d 347, 349 (1930); Southern Surety Co. v. Benton, Tex.Com.App., 280 S.W. 551 (1926); Hines v. Kansas City Life Ins. Co., Tex.Civ.App., 260 S.W. 688, 690 (1924), writ dism.; National Life & Accident Co. v. Moses, Tex.Civ.App., 257 S.W. 289 (1923), no writ hist.; Couch on Insurance, sec. 885a. We have also held that a good health provision is breached if the applicant “is suffering from a serious kind of illness, which continues and eventually causes his death.” Texas Prudential Ins. Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242, 247 (1957). The conclusiveness of Great American’s proof that Britton was not in good health must be tested by these standards.

Athough Dr. Bagwell’s testimony is highly equivocal at best, for opinion purposes we may treat the testimony as establishing conclusively that Britton had “heart trouble,” which Dr. Bagwell diagnosed as “angina pectoris” but which Dr. McMillan diagnosed as “coronary insufficiency.” We are next met with this question : How seriously did the “heart trouble,” “angina pectoris,” or “coronary insufficiency” affect the general soundness and healthfulness of Britton’s system generally, and how materially did they increase the risk of Great American? These are matters about which expert medical witnesses would be competent to testify, but the only competent evidence having any bearing on the question which we may consider is testimony of Dr. Hodges that angina “is a continuing type of disease.” The result is that to hold the good health provision of the policy was breached as a matter of law we would have to take judicial notice that the nature of one or more of the ailments was such as to seriously affect the soundness of Britton’s health or to materially increase Great American’s risk. These are relative matters, and except in extreme cases should be left for jury determination from evidence introduced on trial.

“Heart trouble” is a broad term and no doubt encompasses more than one type of specific ailment. “Angina pectoris” is defined by Webster’s Third New International Dictionary as “a disease characterized by paroxysmal attacks of substernal pain of short duration that is usu. associated with a sense of apprehension or fear of impending death, precipitated by effort or emotion, and relieved quickly by rest or administration of nitroglycerin.” Although angina may be, as Dr. Hodges testified, a continuing disease, the evidence does not tell us whether during its continuance it has a progressively more serious effect on health or the rapidity of its progression. In American Casualty & Life Co. v. Gueringer, Tex.Civ.App., 205 S.W.2d 423, 424 (1947), no writ hist., the court noted that the “details of the nature and progresa, of the disease of cancer are not subjects of either common or judicial knowledge.” Neither may we know the details of the nature and progress of angina pectoris from common or judicial knowledge. In this connection, it is to be noted that Dr. McMillan’s final diagnosis, made three years after diagnosis by Dr. Bagwell and eight months after delivery of the policy, was “Coronary insufficiency.” Webster’s, supra, defines “coronary insufficiency” as “coronary insufficiency of relatively mild degree.”

In Dillard, supra, the evidence was conclusive that the applicant had epilepsy in its most serious form when the policy was delivered, and that the affliction was the cause of death. On that proof we concluded that the insurer had established breach of a good health provision as a matter of law. Dillard does not rule this case. As pointed out, the evidence here does not conclusively establish a serious infirmity when the policy was delivered. Moreover, death from angina pectoris is not conclusively established. Webster’s, supra, defines “myocardial infarction” as “infarction of the myocardium, typically resulting from coronary occlusion,” and defines “coronary occlusion” as “the partial or complete blocking of a coronary artery (as by a thrombus or by spasm or sclerosis of the artery).” We may believe or strongly suspect that Britton’s death from a myocardial infarction was caused by sclerosis of an artery rather than by a thrombus, but we do not know it and no evidence was offered to prove it. We hold that the evidence does not establish conclusively, according to legal standards, that Britton was not in good health when the policy was delivered. Great American’s motion for instructed verdict was properly overruled.

The principal cases cited by Great American for a contrary conclusion are Dillard, supra; Lincoln Income Life Ins. Co. v. Mayberry, 162 Tex. 492, 347 S.W.2d 598 (1961), and Great National Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602 (1940). We have dealt with Dillard. In Mayberry the insured child died within two days of delivery of the policy, and the medical evidence was that at the time of delivery thereof the physical condition of the child was such that it had only a fifty-fifty chance of survival. There is no such evidence in this case. In Hulme there were jury findings supporting the conclusion that the insured was not in good health. See opinion of Court of Civil Appeals, 116 S.W.2d 459, 460 (1938).

Avoiding insurance policies on judicial knowledge of the “substantial” character of certain diseases and their “serious” effect on health is a dangerous encroachment into an area of expert medical opinion. It is safer to require proof; and proof at the trial court level may well settle the issue.

Great American also complains of that portion of the trial court’s judgment which awarded a recovery of $4,000.00 as attorney fees. It asserts that no demand for payment of the policy proceeds was made before the filing of suit therefor and that there is no proof of reasonableness of the sum sought and recovered as fees.

The right to recover attorney fees is given and limited by Article 3.62 of the Texas Insurance Code, V.A.T.S., which reads in pertinent part as follows:

“In all cases where a loss occurs and the life insurance company * * * shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. * * * The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.”

Making demand for payment of policy proceeds is ordinarily prerequisite to the recovery of attorney fees under the statute; and because of the penal nature of the assessment we have held that the requirement is not met by the filing of suit. Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 115 A.L.R. 1301 (1937); Mutual Life Ins. Co. v. Ford, 103 Tex. 522, 131 S.W. 406 (1910). However, when the insurer files suit to cancel the policy before suit for the policy proceeds is filed, we hold that the entire liability of the insurer, both on the policy and under the statute, is put in issue, and the right of the insurer to require demand as a prerequisite to liability for attorney fees is waived. The purpose of the demand provision is to give the insurer a reasonable opportunity to investigate the claim and pay the proceeds before suit is filed. When the insurer files suit to cancel the policy, the statutory purpose would not be served by requiring a demand before a counterclaim or cross-action is filed.

The plaintiff offered no proof of any kind of the reasonableness of the attorney fees sought and recovered. We have held that “[t]he reasonableness of attorney’s fees in an insurance case is a question of fact to be determined and must be supported by competent evidence and may be submitted to a jury.” Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145, 1146 (1936). See also Trevino v. American National Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943). Mercury Life Ins. Co. v. Mata, Tex.Civ.App., 310 S.W.2d 130 (1958), writ ref., does not hold to the contrary. The judgment must be reversed in so far as it awards recovery of $4,000.00 as attorney fees.

There are holdings in some Court of Civil Appeals’ opinions that the reasonableness of attorney fees is not a jury question but is a matter entrusted to the trial judge’s discretion; and further, that the trial judge may adjudicate reasonableness on judicial knowledge and without the benefit of evidence. See Franklin Life Ins. Co. v. Woodyard, Tex.Civ.App., 206 S.W.2d 93 (1947), no writ hist.; American Income Life Ins. Co. v. Davis, Tex.Civ.App., 334 S.W.2d 486 (1960), no writ hist.; American Nat. Ins. Co. v. Points, Tex.Civ.App., 131 S.W.2d 983 (1939), writ dism., judgment correct. Those holdings are in conflict with our own in Johnson and Trevino, supra, and are disapproved. Some of the cited cases were decided after our decisions in Johnson and Trevino, and no doubt were in part responsible for the failure of plaintiff to make proof of reasonableness.

Liability of Great American for the policy proceeds, the statutory penalty and costs, other than the attorney fees, is correctly fixed in the present judgment. The claim for attorney fees is a severable claim, and under Rule 503, Texas Rules of Civil Procedure, we are authorized to sever the claim and reverse the judgment as to it only, which we do. Plaintiff is clearly entitled to recover attorney fees in some amount. Accordingly, we exercise the authority conferred by Rule 505, Texas Rules of Civil Procedure, and remand the severed cause to the trial court for a new trial. The remainder of the judgment is affirmed.

GRIFFIN, NORVELL and HAMILTON, JJ., dissenting.

DISSENTING OPINION

NORVELL, Justice.

As a general rule, the cause, diagnosis, progress and treatment of disease are matters in which we must rely upon the opinions of medical experts. However, this rule is not universal in its application. I think it can be said as a matter of common knowledge that one suffering with some well-known acute disease such as smallpox, diphtheria or typhoid fever is not in good health. In Travis Life Insurance Company v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App.1959, writ ref’d. n. r. e., 160 Tex. 182, 328 S.W.2d 434), it was held as a matter of common knowledge that a person suffering from leukemia is not in good health. As to epilepsy of the most serious type, see, Texas Prudential Insurance Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242 (1957). Other examples of both acute and chronic diseases coming within the range of common knowledge might be given. Cf. Lincoln Income Life Ins. Co. v. Mayberry, 162 Tex. 492, 347 S.W.2d 598 (1961).

In my opinion, the evidence in this case shows conclusively that at the time of the delivery of the policy sued upon, Paul D. Britton was suffering with angina pectoris due to arteriosclerosis and that his chest pains at times were so severe that it was necessary for him to take nitroglycerin tablets in order to dilate the coronary arteries so that the blood could flow more easily and thus supply oxygen to the heart muscle. Admittedly, the term “good health” as used in life policies such as that issued to Mr. Britton is a relative one, but in my opinion, it is a matter of common knowledge that any person suffering from angina to the extent that it is necessary to take a powerful drug in order to dilate the blood vessels cannot be said to be in “good health”. The Oxford Universal Dictionary defines the term “angina” or “angina pectoris” as, “A dangerous disease, marked by sudden and severe pain in the lower part of the chest, with a feeling of suffocation; called also, breast-pang, heart-stroke, and spasm of the chest.”

A perusal of the discussion of judicial notice contained in McCormick and Ray, Texas Law of Evidence (2d Ed.) §§ 151 to 211, inclusive, demonstrates that the field is an expanding one and I think the judicial notice device may be safely exercised in the present case. See McCormick and Ray, supra, § 197. I would reverse the judgments of the lower Courts and render judgment for the petitioner. Accordingly, I respectfully dissent.

GRIFFIN and HAMILTON, JJ., join in this dissent.

      . Emphasis ours throughout unless otherwise indicated.


source: Caselaw Access Project

author:
BELCHER, Commissioner.
      McDONALD, Presiding Judge WOODLEY, Judge. MORRISON, Judge

license: Public Domain

text:
    Thomas Edward BANNON v. STATE. Jack Carroll SMITH v. STATE.
    Nos. 38575, 38576.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Feb. 2, 1966.
    Second Motion for Rehearing Denied March 9, 1966.
    Certiorari Denied Oct. 10, 1966.
    See 87 S.Ct. 38.

      Ronald R. Waldie, Dallas, Robert Downing, Richardson, Emmett Colvin, Jr., Dallas, (on appeal only), for appellants.
    Henry Wade, Dist. Atty., Don Koons, Curtis Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellants were separately charged by information but were convicted upon a joint trial for misdemeanor theft; and the punishment for each was assessed at thirty days in jail and a fine of $100.

Howell A. Wall, the resident manager of a 16 unit apartment house testified that shortly after midnight March 6, he saw a late model gray Corvette Stingray automobile occupied by two men parked at the rear of the apartment house; that after a brief time and from a distance of ten feet, he saw said automobile parked in the driveway in front of the apartment house; that during the day of March 7, Dan McElveen, the owner, noticed that some furniture was missing from an unoccupied apartment; and that he had not given anyone permission to take the furniture from the apartment.

Dan McElveen, owner of the apartment house, testified that on March 7, he determined that a chair, an end table and two lamps of the aggregate value of forty dollars which he saw on March 6, had been taken, without his consent, from one of his apartments. The loss of the furniture was reported to the police, and on April 3, he identified the furniture he had missing at the police station. Three girls had previously occupied the apartment.

Detective Helm testified that from his investigation of the theft of the furniture he determined that a gray Corvette Stingray had been seen at the apartment during the night the furniture was taken; that from a girl who had lived in the apartment he learned that she had dated the appellant Bannon; and his further investigation showed that Bannon owned the same type car as the one which was seen by Wall on March 7, at the apartment house and he obtained the license number of said car; that on March 15, when he stopped a car for speeding he observed that it was the same type car that had been seen at the apartment house, and he advised the occupants, who were the appellants, that he was a police officer, and after they identified themselves he told them that he wanted to talk with them about a case, and asked them to accompany him to the police station which they did by following him in their car. On talking with the appellant Bannon, alone, at the police station, Bannon at first denied but soon admitted to Helm that he and Smith took the furniture from the apartment house. Officer Helm then called Smith into the room and upon being asked he admitted to Helm that he and Bannon took the furniture from the apartment. Both Bannon and Smith stated that the furniture was then in the apartment where they were living. When they agreed with officer Helm to bring the furniture to the police station, they left and in fifteen or twenty minutes they returned with the furniture in the gray Corvette Stingray, and later McElveen identified the furniture at the station as that removed from his apartment.

The appellants did not testify or offer any evidence in their behalf.

It is contended that the trial court erred in refusing to grant a mistrial on the ground that the prosecutor commented on appellants’ failure to testify.

The contention is directed to the following jury argument of the state: “I told you, Gentlemen, that we have brought you every scintilla of evidence that the Constitution or the laws of the State of Texas will allow us to bring you and told you everything about the case we know. I also want to read you something additional in the Charge.” Then the state’s attorney read the court’s instructions in the charge on the failure of the appellants to testify.

The motion for mistrial on the ground that such argument, followed by a reading of that portion of the charge to the jury, violates the rules and is prejudicial and deprives the appellants of a fair trial, was overruled.

It is concluded that the argument complained of did not constitute a comment on the failure of the appellants to testify.

It is insisted that the trial court erred in admitting the oral statements of the appellants made while they were under arrest and for the failure to offer them effective assistance of counsel before the statements were made.

The evidence reveals that officer Helm stopped the appellants for speeding, identified himself as a police officer and when they had identified themselves, Helm told them that he had a case he wanted to talk to them about and asked them to follow him in their car to the police station which they did. At this time Helm had talked with one of the girls who had previously occupied the apartment and while there she had had dates with Bannon; and Helm had obtained the license number of his car which was a gray Corvette Stingray, which corresponded with the car he had stopped for speeding. On talking with the appellants at the station, they admitted to Helm that they took the furniture and voluntarily brought it from their apartment to the station. No. charges had been filed when they brought the furniture to the station. At this time Helm told them: “I’m not sure what charge I will file on you, and I would advise you to contact an attorney,” and then released them, and the next day the attorney now representing the appellants telephoned Helm, and he advised him that they had not been filed on but he was going to do so, and in about two weeks they made an appearance bond.

The oral statement of the appellants that they took the furniture, which they soon brought to the station, and the testimony of officer Helm that he had no knowledge of its location before the statements were made, authorizes the admission of such oral statements in evidence under the provisions of Art. 727, Vernon’s Ann.C.C.P. Langer v. State, 171 Tex.Cr.R. 8, 343 S.W.2d 463; Henderson v. State, 172 Tex.Cr.R. 75, 353 S.W.2d 226.

The appellants never at any time requested counsel or that they be provided counsel before the making of any oral statement; and never asked to use the telephone or that any person be notified; and no attorney sought to confer with them. The contention as to the assistance of counsel before the statements were made is overruled.

The evidence is sufficient to support the convictions and no error appearing; the judgment is affirmed.

Opinion approved by the Court.

McDONALD, Presiding Judge

(concurring).

I concur in the affirmance, but I feel that 'just as a trial court is precluded from giving undue prominence in its charge to a jury by singling out particular facts or specific parts of testimony and charging thereon, a similar rule applies to a prosecutor in cases of this kind. He should not be allowed to utilize the court’s charge as was done in the case at bar. True, any lawyer may read to the jury portions of the Court’s charge, or all of the Court’s charge. However, in those areas of our jurisprudence wherein restraint is imposed upon prosecutors to refrain from alluding to or mentioning the failure of a defendant to testify, I think it highly improper for a prosecutor to use the Court’s charge as a vehicle to get before the jury what amounts to an improper comment by the prosecutor. I do not condone such practice. In fact, I condemn it. Such trial strategy, if allowed, would in effect be arming the state with a weapon it is not entitled to use. The clear purpose and intent of Art. 658, Vernon’s Ann.C.C.P. would be given a new and mis-intended meaning. A continuance of such trial antics will call for a reversal of many cases. While the complained of argument does border closely upon improper comment on the failure of appellants to testify, I agree that it does not call for a reversal of this case.

MORRISON, J., joins in this concurring opinion.

ON APPELLANTS’ MOTION FOR REHEARING

WOODLEY, Judge.

The writer joined in the unanimous approval of the opinion of Commissioner Belcher affirming the above convictions in a joint trial and holding that the complained of argument did not constitute a comment on the failure of the appellants to testify. He did not join in the concurring opinion of his fellow judges condemning the conduct of counsel for the state because of such remarks, which they said border closely upon improper comment on such failure of appellants to testify, but did not call for reversal.

The complained of argument did or did not offend against the rule found in Art. 710, Vernon’s Ann.C.C.P., which provides that the failure of any defendant to testify shall not be alluded to or commented on by counsel in the cause. If the complained of remarks did offend against this rule it is the duty of this court to enforce the statute and reverse. On the other hand, if, as we concluded unanimously on original submission, the remarks complained of did not constitute a comment on the failure of the defendants to testify, (and such remains the view of the writer) neither condemnation nor reversal is warranted.

Appellants’ motion for rehearing is overruled.

MORRISON, Judge

(dissenting).

I respectfully dissent to the overruling of appellants’ motions for rehearing. I will state my reasons.

I joined my brother McDonald in his concurrence on original submission. The argument complained of is here set forth:

“MR. GLOVER: * * * I told you, Gentlemen, that we have brought you every scintilla of evidence that the Constitution or the laws of the State of Texas will allow us to bring you and told you everything about the case we know.
I also want to read you something additional in the Charge. The court further instructs you that the law allows the defendant to testify in his own behalf, but a failure on his part to do so is not a circumstance against him and no presumption of guilt can be indulged in by the jury for a failure on his part to do so.
MR. WALDIE: Your Honor, I’d like to approach the bench at this time.
THE COURT: He wants to approach the bench.
(At this time a conference was held at the bench.)
MR. WALDIE: Your Honor, I’m going to at this time object to the line of argument of the counsel and move for a mistrial. Counsel knows the rules which we are bound under. We are bound the same as he is and he is in infraction of those rules and depriving the defendant of a fair trial. And for that reason, we move for a mistrial.
THE COURT: The court reporter has taken the statement of the district attorney, and I will overrule the motion for a mistrial.
MR. WALDIE: Note my exception.
MR. GLOVER: And no presumption of guilt can be indulged in the jury for a failure on his part to do so.
THE COURT: The record will show that the district attorney is reading from the Charge, all right.
MR. GLOVER: I tell you again, Gentlemen, the State has brought you every iota of evidence, every scintilla of evidence that the law will allow us to bring you.
MR. WALDIE: Your Honor, I’m going to move for a mistrial again. He’s implying that we are hiding something by not testifying to this jury, that this is prejudicial and it biases these clients’ rights to a fair trial, and move for a mistrial.”

On rehearing counsel for appellants has pointed out that the original opinion and the concurrence will not act as a deterrent to prosecutors, but will instead merely have the effect of establishing a guideline of permissible conduct whereby Article 710 Vernon’s Ann.C.C.P., the statute which prohibits an allusion or comment by counsel to an accused’s failure to testify, may be continually circumvented. Since such prohibition has now reached Federal Constitutional dimensions, I have become convinced that this Court should do more than condemn, as we did in Holtzinger v. State, 162 Tex.Cr.R. 231, 284 S.W.2d 158, but should reverse these convictions.

      . Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.


author: DICE, Commissioner.

text:
    Charles O. BRIAN, Appellant, v. The STATE of Texas, Appellee.
    No. 39648.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Rehearing Denied Oct. 26, 1966.

      Baldwin, Goodwin & Matheny, by Joe B. Goodwin, Beaumont, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an appeal from the entry of a judgment nunc pro tunc.

On July 27, 1962, appellant was convicted in the 128th Judicial District Court of Orange County, in Cause #6480, of the offense of burglary. Trial was before the court, a jury being waived, upon appellant’s plea of guilty to the indictment. The judgment entered in the minutes found appellant guilty of the offense, as confessed in his plea, and ordered that he be punished “by confinement in the State Penitentiary for a term of not less than two years nor more than twelve (12) years.” Sentence was pronounced upon such judgment and appellant was given credit for thirty days’ time spent in jail.

An original application for writ of ha-beas corpus was subsequently presented to this court by appellant in which he alleged that the judgment of conviction as to the punishment was void for indefiniteness and that his restraint in the Texas Department of Corrections was therefore illegal.

After the facts were developed by order of this court, an opinion was delivered on April 28, 1965, granting the writ of habeas corpus, and appellant was ordered delivered to the sheriff of Orange County to abide further orders of the district court. Ex parte Brian, Tex.Cr.App., 389 S.W.2d 467.

In the opinion we said:

“We adopt herein the procedure outlined by this Court in the case of Ex parte Hannen, 155 Tex.Cr.R. 10, 228 S.W.2d 864, 230 S.W.2d 236, in our disposition of this case.
“Relator is not entitled to be discharged, but he is ordered relieved from present confinement in the Texas Department of Corrections and delivered by the authorities of said Texas Department of Corrections to the custody of the Sheriff of Orange County, Texas, to abide the further orders of the District Court of Orange County, in Cause No. 6480, on the Criminal Docket of said court.
“Unless upon a hearing in said court it be shown that the entry of the judgment was by clerical error, and such error be corrected in the manner provided by law by the entry nunc pro tunc of the judgment actually rendered showing a definite punishment to have been actually assessed at the time of the trial, relator shall be held to answer the charge in the indictment as though a new trial had been granted.
“But should it be shown that on the original trial, relator was adjudged to be guilty of the offense of burglary and his punishment was assessed at a definite term, and a correct judgment be entered nunc pro tunc (now for then), relator’s sentence may likewise be reformed to follow such judgment. The sentence may not be otherwise altered except to make it speak the truth as to the sentence heretofore pronounced, but may be by the court credited with the time relator has been confined on such charge. Relator shall have his right of appeal from such judgment and sentence so corrected by nunc pro tunc entry.”

On June 11, 1965, a motion was filed by the state, in Cause No. 6480, to enter judgment nunc pro tunc, fixing appellant’s punishment at a definite term of twelve years in the penitentiary. In the motion it was alleged that the judgment rendered by the court on July 27, 1962, fixed appellant’s punishment at confinement in the penitentiary for twelve years and that there was a failure to correctly enter the judgment upon the minutes of the court.

On July 6, 1965, after notice and hearing, judgment nunc pro tunc was entered by the court in the cause, fixing appellant’s punishment at confinement in the penitentiary for a definite term of twelve years. A sentence following said judgment was also entered nunc pro tunc upon the minutes, directing that appellant be confined in the penitentiary for an indeterminate term of not less than two (2) nor more than twelve (12) years. The sentence further provided :

“Defendant is given credit for all time served under the original judgment herein commencing thirty (30) days prior to July 27, 1962, including credit for all good time earned since that date.”

From such judgment nunc pro tunc appellant gave notice of appeal.

At the hearing, the state introduced in evidence the criminal docket sheet in Cause No. 6480, which — among other notations— contained the following:

“7 27 ’62 [date] Both the State and the defendant announced ready, the indictment was read, to which the defendant, although duly admonished by the Court, entered a plea of guilty; a jury being waived the evidence was heard before the Court, and the defendant was found to be guilty of the offense charged & punishment fixed at 12 yrs,_ in State Penitentiary & credited with 30 days in Co— Jail—
“Owen M_ Lord
“Judge
“7 27 62 [date] Deft duly sentenced to serve not less than 2 yrs__ nor more than 12 yrs_ in State Penitentiary_” “OML”

Mrs. Ethel Burton, District Clerk of Orange County, testified that she was familiar with Judge Lord’s signature and that it was his handwriting on the docket sheet. Mrs. Burton further testified that the judgment originally entered in the minutes of the court fixed appellant’s punishment at confinement in the penitentiary for twelve years but that two years later she changed the judgment in the minutes to read “not less than two nor more than twelve.” Mrs. Burton admitted that such judgment was then incorrect and that she made the error.

From the evidence presented, it is shown that the judgment rendered by Judge Lord fixed appellant’s punishment at confinement in the penitentiary for a definite term of twelve years and that such was the judgment originally entered in the minutes of the court. The testimony of Mrs. Burton, the district clerk, shows that it was through her error and mistake that the judgment was later changed to fix the punishment at an indefinite term of “not less than two nor more than twelve years.”

Under the record, the trial court was authorized to correct the error and make the record speak the truth by entry of the judgment nunc pro tunc. Johnston v. State, Tex.Cr.App., 323 S.W.2d 449.

We overrule appellant’s contention that the judgment nunc pro tunc entered by the court is void as a matter of law because it recites that Honorable James N. Neff was the judge presiding and the testimony shows that Honorable Owen M. Lord was the judge who presided at the trial. The testimony adduced at the hearing shows that while Judge Lord was not the judge of the District Court of Orange County, he was sitting as acting judge at the time of the trial “under an order from The Honorable Max M. Rogers * * which order was entered of record in the minutes.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Freddie Ray BURK, Appellant, v. The STATE of Texas, Appellee.
    No. 39722.
    Court of Criminal Appeals of Texas.
    June 25, 1966.
    Rehearing Denied Oct. 26, 1966,
    Robert B. Maloney (on appeal only), Dallas, Sam N. Vilches (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John C. Vance, Tom F. Reese and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is murder with malice; the punishment, confinement in the state penitentiary for 99 years.

The record reflects that on the evening of September 3, 1964, appellant and the deceased vied for the attention of Mrs. Shirley Martin, a 15-year-old married woman separated from her husband, and that Mrs. Martin finally entered an automobile with the deceased, and the couple drove away. Appellant walked a short distance to the home of witness Tommy Anderson, with whom he was to spend the night, and armed himself with a knife, saying, “I’m going to have to whip some smart son of a bitch.” Appellant then located the deceased and Mrs. Martin, stating, as he approached their vehicle, “Don’t never try to mess me around,” and, “Yes, you sonavabitch.” Appellant then kicked the deceased, or kicked at him, and a scuffle ensued during which both combatants fell to the ground. No one saw the actual stabbing, but as the deceased arose and fled, appellant wiped a bloody knife in the grass, asking, “Which way did the sonavabitch go?” The body of the deceased was located a short distance away, whereupon appellant made the statement, “I hope nobody rats me in.” He later washed the knife blade in a sink at the home of witness Anderson, saying, “There’s the knife.”

Appellant thereafter fled to Oklahoma, where he was arrested and returned to Dallas County to stand trial.

Dr. Earl Rose, Medical Examiner for Dallas County, performed an autopsy upon the body of the deceased and testified that the cause of death was hemorrhage resulting from a stab wound about four and one-half inches deep, which entered the left chest area and penetrated the left lung and heart.

The evidence is sufficient to support the jury’s verdict.

There were no objections made to the court’s charge. The record contains no formal bills of exception, and we find no informal bills which merit discussion.

We overrule appellant’s contention that the evidence fails to support a finding that appellant had the specific intent to kill the deceased. Green v. State, 157 Tex.Cr.R. 546, 251 S.W.2d 736; Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744.

Appellant urges reversal of this conviction because, prior to trial, witness Anderson allegedly refused to discuss the case with appellant’s counsel after representatives of the district attorney’s office had advised that witness that it would be best if he did not discuss his testimony with appellant’s attorney.

The record does not reflect that appellant’s counsel ever made any attempt to talk to the witness. Further, there is no indication that the state suppressed any evidence favorable to appellant, or that appellant was in any manner surprised by the testimony of that witness. It is apparent from appellant’s cross-examination of Anderson that the witness knew that he was free to talk to appellant’s attorney if he chose to do so. Additionally, no motions were made to the court before, during, or after the trial, and the issue was first raised in this Court on appeal. Under these facts, no reversible error is presented.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Presiding Judge.

text:
    Paul Ignatious BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39669.
    Court of Criminal Appeals of Texas.
    June 15, 1966.
    Rehearing Denied Oct. 12, 1966.

      Alfred J. Jackson, Jr., Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Glenn Goodnight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is fondling; the punishment, IS years.

Appellant’s motion for new trial was overruled and he gave notice of appeal on December 6, 1965.

The statement of facts reflects that appellant was living with the mother of three small children, one of whom was the two year old girl named in the indictment.

James Earl Pierce was keeping the children when appellant came to the house about 3 P.M. on the day alleged in the indictment. He testified that appellant laid down on the bed and called the two year old girl to him. She got in bed with him and appellant put his thumb up between her legs. She started crying and James ran outside the house for help.

In response to his call, Jerry Wayne Clemons and Emma Lou Blanton went in the house where they saw the little girl lying in appellant’s arms, crying.

These two witnesses testified that the child’s panties were torn and bloody and that appellant said her nose had been bleeding and all he did was to wipe her nose.

Dr. Charles Miles, who examined the injured child at John Peter Smith Hospital, testified that he found fresh red blood on the inside and on both sides of her vaginal area; that she had fresh lacerations on her vaginal opening which extended over the posterior part of the vagina down toward the rectum.

Appellant’s statement in writing was offered by the state as his voluntary confession and, after hearing before the court in the jury’s absence, was found by the court to have been voluntarily given after the warning set out at the top thereof and after he had been advised of his constitutional rights.

Appellant testified before the court, and also before the jury, and the issues of fact raised by his testimony were resolved against him.

His testimony was to the effect that he had been drinking heavily; that he frequently suffered from headaches, dizzy spells, and periodic loss of memory, and did not remember fondling the two year old child because he was suffering from one of his periodic losses of memory.

Appellant further testified that he had not molested any of the children before and if he did molest the two year old girl he did not remember it, and if he did “it hurts me so much, I have nothing I could say. * * * But to my knowledge I did not.”

The evidence is sufficient to sustain the jury’s verdict.

The evidence heard by the court is deemed sufficient to support the trial court’s findings that there was no coercion and no mistreatment, that appellant was not denied due process of law and that the statement of the appellant was admissible.

Appellant was permitted to testify before the court in support of his oral request to dismiss his court appointed attorney. No cause was shown why the court should grant such request.

The appellant contends, in his brief, that the court erred reversibly when it denied his plea of insanity, his motion for separate trial on the issue of insanity, and motion for continuance to obtain “more medical records, evidence and witnesses to testify as to his mental condition, headaches, and periodic loss of memory.”

The record does not reflect that a request was made for a separate hearing on insanity and we fail to find in the transcript a motion for continuance or any objections or exceptions relating to the court’s charge.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

Appellant contends among other things that we overlooked the recent opinions of the Supreme Court of the United States relating to confessions. Appellant’s trial was begun on November IS, 1965. The Supreme Court of the United States in Johnson and Cassidy v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, stated that the rule in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applies to those cases in which trial began after June 13, 1966.

We have examined appellant’s other contentions and find them to be without merit.

Remaining convinced that a proper disposition was made originally, appellant’s motion for rehearing is overruled.


author: WOODLEY, Judge.

text:
    Ex parte Robert Arthur SANDERS.
    No. 39721.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1966.
    Sam Burns, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Alabama to answer an indictment for forgery.

The Governor’s Warrant, regular on its face, was introduced in evidence as was a copy of the Alabama indictment.

There is no merit in appellant’s contention that it was necessary that the requisition upon which the Governor of Texas issued the extradition warrant be introduced. Foskett, Ex Parte, Tex.Cr.App., 390 S.W.2d 273.

The judgment is affirmed.


author: CHADICK, Chief Justice. DAVIS, Justice.

text:
    A. C. ALEXANDER, Appellant, v. LING-TEMCO-VOUGHT, INC., Appellee.
    No. 7710.
    Court of Civil Appeals of Texas. Texarkana.
    May 24, 1966.
    Rehearing Denied May 24, 1966.

      Don W. Davis, Irion, Cain, Cocke & Ma-gee, Dallas, for appellant.
    Harold Hoffman, Wynne, Jaffe & Tins-ley, Dallas, for appellee.
   CHADICK, Chief Justice.

This litigation was initiated by appellant, A. C. Alexander, a plaintiff in a declaratory judgment action to determine ownership of a house trailer; by cross-action ap-pellee, Ling-Temco-Vought, Inc., (successor in interest to M. System, Inc., as a result of a corporate merger) sued Alexander and Pioneer Finance Company to establish and quiet legal and equitable title to the trailer, for possession thereof, and alternatively, to establish a first lien thereon securing a promissory note for its purchase price. Summary judgment was rendered vesting legal and equitable title in Ling-Temco-Vought, Inc., etc. Alexander alone has perfected an appeal. The judgment of the trial court is modified and affirmed.

M. System, Inc., manufactured the subject Ranchero house trailer, serial RN 55-27, in its Texarkana, Texas, plant and at such place on November 16, 1961, sold and delivered possession of the trailer to Stevens Trailer Sales, Inc., a dealer whose place of business was located in Atlanta, Georgia. The sales transaction, in the part entirely evidenced by written instruments, is shown by (1) a Conditional Sales Contract dated November 16, 1961, executed and delivered as to both parties, wherein it is agreed that the “contract, the note given in connection therewith, and the formalities of execution * * * shall be a contract of and construed pursuant to the laws” of the State of Georgia where the instrument provided the trailer would be located; (2) a promissory note dated November 16, 1961, executed by Stevens Trailer Sales, Inc., and delivered to M. System, Inc., in the sum of $4,131.00 payable 30 days from date, or on demand at the holder’s option. The Conditional Sales Contract by express terms retained in the manufacturer the title to the house trailer until the purchase price evidenced by the promissory note was paid.

There appears to have been a collateral parol agreement made at the same time and as a part of the same transaction the Conditional Sales Contract referred to. Involved in the parol agreement are (1) a Bill of Sale and (2) a Manufacturer’s Statement of Origin of a Motor Vehicle, hereafter referred to as a Manufacturer’s Certificate. At completion of the sales transaction M. System, Inc., intentionally withheld delivery of these two instruments. The agreement of the parties concerning the instruments, according to the uncon-troverted affidavit filed by the appellee, was that the manufacturers would retain possession of the Bill of Sale and the Manufacturer’s Certificate until Stevens Trailer Sales, Inc., made full payment of the trailer’s $4,131.00 purchase price.

Stevens Trailer Sales, Inc., sold the trailer to Kenneth E. Smith at Leesville, Louisiana, on January 23, 1962. This sale transaction embraced a trade-in, a cash payment, and a note for deferred payments. Stevens took a mortgage on the trailer securing the note from Smith for the credit part of the purchase price and assigned the note and mortgage to Pioneer Finance Company. Thereafter on July 26, 1962, appellant Alexander purchased the trailer from Smith, paying $100.00 for Smith’s equity and assumed payment of an unpaid balance of $6,890.17 then payable to Pioneer Finance Company. Prior to suit appellant Alexander made monthly payments to the finance company totaling $1,046.76. At the time of purchase Alexander’s title investigation disclosed to him the existence of Pioneer Finance Company’s mortgage lien and the indebtedness it secured; his affidavit says he found “no other liens, claims or rights outstanding in anyone other than the owner, Kenneth E. Smith”. Alexander made application for a Louisiana title certificate but was unsuccessful in securing it. He was first advised Ling-Temco-Vought Inc., asserted some claim or interest in the trailer in October or November, 1963.

The rights and obligations of the parties will be reviewed and ascertained as though the entire transaction occurred in the State of Texas and subject to its laws; the effect, if any, of Georgia or Louisiana law will then be considered. Terms, such as “first sale”, “subsequent sale”, "motor vehicle”, etc., defined in the Certificate of Title Act, Art. 1436-1, § 1 et seq., Vernon’s Ann.Texas P.C., are used in the sense of their statutory definition throughout this opinion.

The Certificate of Title Act is a statute having special application to motor vehicles, which term includes house trailers ; Sec. 41 of the Act declares: “No lien shall be valid on any motor vehicle which is hereafter the subject of a first sale, or be enforceable against any such motor vehicle unless there is noted on the importer’s or manufacturer’s certificate the date, name, and address of the mortgagees whose rights arise out of or are incident to such first sale by reason of the execution of any written instrument by the transferee.” The Conditional Sales Contract mentioned above created a chattel mortgage lien. Art. 5489, Vernon’s Ann.Tex.Civ.St., in part says: “All reservations of the title to or property in chattels, as security for the purchase money thereof, shall be held to be chattel mortgages * * M. System, Inc.’s sale of the trailer house to Stevens Trailers Inc., is a first sale, and the lien provisions of Sec. 41 of the Act are clearly applicable to the transfer. The lien created by the Conditional Sales Contract was valid and subject to preservation by notation thereof on the manufacturer’s certificate. Motor Inv. Co. v. Knox City (1943), 141 Tex. 530, 174 S.W.2d 482 at page 486. Motor Inv. Co. v. City of Hamlin (1944), 142 Tex. 486, 179 S.W.2d 278. The facts developed reflect that M. System, Inc., retained the Bill of Sale and the Manufacturer’s Certificate without exhibiting them to anyone outside of company personnel handling such matters from the time of sale until suit was filed. No notation of a lien was ever made upon the Manufacturer’s Certificate.

The preservation and priority of liens on motor vehicles is governed by the Certificate of Title Act. The Act’s provisions superseded inconsistent provisions of the chattel mortgage registration laws in this field. Commercial Credit Co. v. American Mfg. Co. (Tex.Civ.App.), 155 S.W. 2d 834, writ ref.; Bank of Atlanta v. Fretz, 148 Tex. 551, 226 S.W.2d 843; “Automobiles”, 7 T.J.2d 396, Sec. 71. While the cases last cited authoritatively determined the Act’s primacy where certificates of title are concerned, the same conclusion with respect to manufacturer’s certificates is not so pointedly settled, but there can be little doubt of it. The emphasized language from Motor Investment Co. v. Knox City, supra clearly recognizes a similar predominance in manufacturer’s certificates, to-wit:

“It is true that Section 41 provides that no lien shall be valid on any motor vehicle unless there is noted on the manufacturer’s certificate certain evidence of the existence of such a lien, and, by implication at least, s^^ch statute charges purchasers with notice of such a lien if it is so noted on the certificate. For this reason it is necessary for purchasers, in order to protect themselves against any outstanding liens shown on the certificate, to obtain such certificate before buy ing the vehicle; but the mere failure to obtain such a certificate on a first sale does not invalidate the sale, particularly where, as in this case, no evidence of any lien had been noted on the certificate at the time of the sale.” (Emphasis added).

See also Motor Inv. Co. v. City of Hamlin, supra. This construction is in harmony with the purposes of the Act and necessarily will be followed in this case.

The lien of a lender having exclusive physical possession of a certificate of title is superior to the equities of subsequent purchasers or lien holders, although the lien is not noted on the certificate as directed in the Certificate of Title Act, when the subsequent sale transaction is not influenced by the omission of the lien notation from the certificate. Associates Investment Co. v. National City Bank of Waco (Tex.Civ.App.1950), 231 S.W.2d 661, no writ; First State Bank of Corpus Christi v. H. Austin Motors (Tex.Civ.App.1958), 315 S.W.2d 390, wr. ref.; Ballard v. Associates Investment Co. (Tex.Civ.App. 1963), 368 S.W.2d 232, wr. ref., n. r. e.; Southwestern Investment Co. v. American Nat. Bank of Amarillo (Tex.Civ.App.1963), 374 S.W.2d 318, wr. ref., n. r. e.; Clade v. National City Bank of Waco (Tex.Civ.App.1950), 229 S.W.2d 815, wr. ref., n. r. e. The facts of this case do not show that M. System Inc.’s failure to note its lien on the manufacturer’s certificate or the omission of the notation played any part'in, influenced or had a bearing upon the subsequent sales transactions between Stevens Trailer Sales Inc., and Smith or Smith’s sale to Alexander. The reasoning of the certificate of title cases cited leads to a similar conclusion that the Conditional Sales Contract lien should not be regarded as waived or forfeited by omission of a notation thereof on the manufacturer’s certificate which M. System, Inc., retained in possession at all relevant times and never exhibited to Smith or Alexander. In Motor Investment Co. v. Knox City, supra, the original Manufacturer’s Certificate was delivered to the dealer without a notation of a lien upon it, and the dealer was permitted to and did exhibit it to the purchaser, Knox City. A fraudulently obtained duplicate Manufacturer’s Certificate issued after sale to Knox City, bore a notation of a lien securing indebtedness contracted after Knox City purchased the vehicle. These facts decisively distinguish the present from that case.

Appellant Alexander claims title to the trailer house as an innocent purchaser for value. This claim is based in part upon a contention that the law of Georgia governs the transaction. The proposition is not sustained by the record. Earlier it was mentioned that the Conditional Sales Contract between M. System, Inc., and Stevens Trailer Sales, Inc., provided that the instrument was to be deemed a Georgia contract and construed in conformity with the laws of that state. Such provision is an effort to impart to the agreement the attributes and effect of a contract made and executed in the State of Georgia. The evidence is uncontradicted that the trailer house was located in Texas at the time the contract was consummated in Texas. Also, it is shown that the trailer was at Lees-ville, Louisiana, when Stevens Trailer Sales, Inc., sold it to Kenneth E. Smith, and Smith resold to Alexander. There is no evidence the trailer house reached the State of Georgia after removal from Texas. The situation presented by the record is analogous to that existing when a mortgage is executed in one jurisdiction on property in another jurisdiction. “Re-statement, Conflict of Laws,” § 265 espouses the application of the following rule in such instances, to-wit: “The validity and effect of a mortgage of a chattel are determined by the law of the state where the chattel is at the time when the mortgage is executed.” See also “Chattel Mortgages”, 12 T.J.2d 7, § 2; 15 Am.J.2d 21, § 17, and 14 C.J.S. Chattel Mortgages § 14, p. 606. In this instance the State of Georgia has not had actual jurisdictional contact with the property or the contract or the parties to this litigation; the absence of such contacts strengthens the reason for concluding that the law of the situs governs. It follows that Georgia law does not govern the transaction, and such law can have no bearing on Alexander’s standing as an innocent purchaser for value. Further consideration of the question of innocent purchaser and the complications incident to the trailer being in the State of Louisiana when it was sold to Alexander will next be noticed.

The trial court was not requested to take judicial notice of the law of Louisiana, and such law was not pled nor proved, so it must be presumed that Louisiana law is identical with Texas law having application to the case. Milner v. Schaefer (Tex.Civ.App.1948), 211 S.W.2d 600, wr. ref.; Kansas City Title Ins. Co. v. Butler (Tex.Civ.App.1954), 265 S.W.2d 154, wr. ref., n. r. e.; Sanders v. Treend (Tex.Civ.App.1954), 266 S.W.2d 235, wr. ref., n. r. e.; Ogletree v. Crates (Tex.Sup.Ct.1963), 363 S.W.2d 431. Since disposition of the appeal does not require it, for brevity’s sake, the sale of the trailer by Stevens Trailer Sales, Inc., to Smith at Leesville, Louisiana, will be disregarded in the further consideration of the innocent purchaser question. The facts that have been recited show that the sale of the trailer by Smith to Alexander did not, and could not, comply with the requirements of the Texas Certificate of Title Act, §§ 8, 27, 33, 51 and 52. This evidence shows Alexander bought the trailer in a sale rendered void by § 53 of the Act. He is not an innocent purchaser under applicable Texas law. Guinn v. Loky (1952), 151 Tex. 260, 249 S.W.2d 185; “Automobiles”, 7 T.J.2d 393, §70.

Associated with the innocent purchaser phase of the case is Alexander’s claim that the lien of the Conditional Sales Contract was waived. The agreement provided that the trailer would be located at Stevens Trailer Sales, Inc.’s address in Atlanta, Georgia, and not removed therefrom without the written consent of M. System, Inc. It also authorized Stevens Trailer Sales, Inc., to display the house trailer at its place of business, “ * * * for resale for cash only, provided that when a sale is made all of the proceeds of said sale, whether in cash or in kind, which shall not be less than the deferred balance above indicated, shall be received by the buyer in trust for the seller or assigns and shall be immediately transferred by the buyer to the seller, or assigns.” Alexander construes the quoted language as permission for Stevens Trailer Sales, Inc., to transfer the trailer to a buyer, in this instance to Kenneth E. Smith, free and clear of the lien and to substitute the proceeds of that transaction for the vehicle. Whether or not this provision should be given Alexander’s construction need not be decided because there was not a substantial compliance with the condition set up. The trailer was sold partly for cash, partly trade, and partly for deferred payments not in Atlanta, Georgia, but in Leesville, Louisiana. The sale by Stevens Trailer Sales, Inc., to Smith violated the condition prerequisite to permission. The circumstances do not show a waiver of the lien. Highland Park State Bank v. Continental Nat. Bank of Fort Worth (Tex.Civ.App.1957), 300 S.W.2d 304, wr. ref., n. r. e.

Alexander also asserts title by operation of the two year statute of limitations, Art. 5526. Ling-Temco-Vought, Inc., sued to establish its title or an enforceable lien securing a debt, both evidenced by instruments in writing. The suit was instituted less than four years after the maturity date of the indebtedness. The four year statute of limitation, Art. 5527, applies to the action. The suit to establish a lien is not barred. Graham v. Leto (Tex.Civ.App.1937), 103 S.W.2d 1031, wr. dism.; Liquid Carbonic Co. of Texas v. Logan (Tex.Civ.App.1935), 79 S.W.2d 632, no writ; Jolly v. Fidelity Union Trust Co. (Tex.Com.App.1928), 118 Tex. 58, 10 S.W.2d 539. A mortgagee may follow and subject mortgaged property, in the hands of one who has converted it, to the purposes of the mortgage at any time before the secured indebtedness is barred by limitation. “Chattel Mortgages”, 15 Am.Jur.2d 328, § 159.

Appellant counters the appellee’s rights under the mortgage with the argument that he is in “the position of a converter, albeit one whose good faith is not challenged;” and insists that he may be sued, if at all, for conversion, a tort barred by the two year statute of limitation. He relies on Art. 5526, the two year statute of limitation as a bar to any action against him, and cites Port Arthur Rice Milling Company v. Beaumont Rice Mills (1912), 105 Tex. 514, 143 S.W. 926, in support of his argument. He cites no authority that limits the appellee’s redress to a suit for conversion. The mortgage instrument, the Conditional Sales Contract, placed possession in the mortgagor, and gave mortgagee no present right of possession, such right maturing, if at all, upon default in payment. The mortgagor can not be held to know property is being claimed and possessed in hostility to the lien unless the possessor acts to bring his adverse claim and possession to the attention of the lien holder. The evidence does not show a use or claim of ownership by Alexander two years or more before suit that was inconsistent with appellee’s lien or that was timely brought to appellee’s notice. The general rule is stated in 2 C.J.S. Adverse Possession § 241, p. 886, where it is said:

“Possession of a chattel, with the consent or permission of the owner, however long-continued, will not give title by adverse possession; and where the possession is permissive in its inception, its character will be changed to adverse, so as to permit the running of the statutory period only when the possessor evinces a claim of ownership by some tangible act in hostility to the rights of the real owner.”

No case similar to this under review has been found, but the general rule has had application by Texas courts in other situations. See Federal Electric Co. v. Johnson (Tex.Civ.App.1945), 187 S.W.2d 410, wr. dism.; Moerbe v. Beckmann (Tex.Civ.App.1939), 132 S.W.2d 616, wr. dism., judg. cor. There is no evidence of any action on Alexander’s part that visited notice on appellee that appellant was denying appellee’s lien or claiming title to the trailer house adversely to appellee’s lien. The appellant’s contentions are overruled.

Pursuant to the conclusions reached above the judgment of the trial court as it applies between the appellant and appellee will be modified to the end that the appellee is adjudged to be the owner and holder of a valid first lien upon the trailer securing payment of a matured and unpaid promissory note in the principal amount of $4,131.00, with no bar to its foreclosure or to the exercise of all rights conferred upon it by the Conditional Sales Contract or inherent therein, and for all costs, etc.; as modified the judgment is affirmed.

The opinion filed herein on March 29, 1966, is withdrawn and the foregoing is filed in lieu of it in passing upon appellant’s first motion for rehearing. Such motion is denied.

FANNING, J., concurs.

DISSENT

DAVIS, Justice.

I dissent. The house trailer was sold by “M.” System, Inc., to Stevens Trailer Sales, Inc., hereinafter referred to as Stevens, on November 16, 1961, and apparently was delivered to 2114 Piedmont Road, Atlanta, Georgia. The house trailer was then sold on January 23, 1961, by Stevens to Kenneth E. Smith. Smith executed a Chattel Mortgage in favor of Pioneer Finance Company on January 26, 1962. Pioneer Finance Company paid Stevens. The appellee is not mentioned in this transaction. Appellant purchased the trailer house on July 26, 1962, from Kenneth E. Smith. The appellee was not mentioned in this transaction.

The Contract of Sale provides, in part, as follows:

“3. Buyer shall not remove said property from the place of business herein-below described without the written consent of the Seller or assigns, nor use the same for any unlawful purpose, nor sell, encumber nor permit any liens to be incurred against the same, except as hereinafter provided: Buyer may display said property at its place of business herein-below described for resale for cash only, provided that when a sale is made, all of the proceeds of said sale whether in cash or in kind, which shall not be less than the deferred balance above indicated, shall be received by the Buyer in trust for the Seller or assigns and shall be immediately transferred by the Buyer to Seller or assigns. Said proceeds in form as received by Buyer on resale shall be the property of the Seller and shall not be used by the Buyer for any purpose. At any time Seller or assigns may examine the personal property herein sold, together with the books and records of the Buyer with reference to the above obligation.
“ * * . *
“8. This contract, the note given in connection therewith, and the formalities of execution thereof including witnessing and acknowledgment shall be a contract of and construed pursuant to the laws of the state where the property shall be located, which shall be only the place of business of the dealer (Buyer) hereinbe-low set forth.”

The contract provided that Stevens could sell the trailer house and the money would become the property of M. System, Inc., or its assigns. The place of business of Stevens was 2114 Piedmont Road, Atlanta, Georgia.

Appellant filed a motion that the trial court take judicial notice of the laws of the State of Georgia. The motion was granted.

On the date of the Bill of Sale and Conditional Sales Contract and Note, November 16, 1961, Georgia did not have in effect a Certificate of Title Act. Art. 68-4A, Code of Georgia, took effect July 1, 1962. Statutory and case law applies to the transactions between Stevens and appellee’s predecessor. Under the Georgia law, such contracts must be duly recorded. The Bill of Sale and Conditional Sales Contract was nowhere recorded, and the Conditional Sales Contract provided for the resale of the house trailer. There is no allegation or proof that the contract was recorded in Georgia, or anywhere else. There was a conversion of the house trailer when it was sold by Stevens to Smith, and there was a further conversion when it was sold by Smith to appellant. More than two years time elapsed after the sale of the house trailer to Smith and by Smith to appellant, and the only recourse that the appellee has is a suit for damages against Stevens. I think the law of Georgia is applicable. Peoples Loan & Finance Corporation of Rome v. McBurnette (1959), 100 Ga.App. 4, 110 S.E.2d 32; 47 Am.J. 57 § 863; Jewelers Investment Company, Inc. v. Elliott Addressing Machine Co. (1957), 95 Ga.App. 152, 97 S.E.2d 548; Mize v. Paschal (1949), 206 Ga. 189, 56 S.E.2d 266; Lewis v. Jackson (1960), 102 Ga.App. 573, 117 S.E.2d 209.

There was no pleading nor proof of fraud. I think that Art. 5526, V.A.C.S. is applicable. The sale of personal property to Smith and appellant was without notice of any lien whatever. They were innocent purchasers for value. There was no effort on their part to try to sell the same, and nobody was negligent except the appellee and its predecessors in title, because they had a Note that was payable 30 days after the date of sale. The appellee’s Note was for the sum of $4,131.00, and was due 30 days after November 16,1961. They did not take any action until more than two years after the property was sold. I think the following cases are applicable: Luter v. Hutchinson (1902), 30 Tex.Civ.App. 511, 70 S.W. 1013, N.W.H.; Port Arthur Rice Milling Co. v. Beaumont Rice Mills (1912), 105 Tex. 514, 143 S.W. 926; Clevenger v. Galloway & Garrison (Tex.Civ.App.1907, W.R.), 104 S.W. 914; Ellis v. Heidrick (Tex.Civ.App.1914, W.R. W.M.), 154 S.W.2d 293; Meyer Bros. Drug Company v. Fry (1898), Tex.Civ.App., 48 S.W. 752, N.W.H.

Smith, without any notice of the lien whatever, purchased the trailer house for a cash selling price of $6,191.34. He paid $953.34 in cash, and a trade-in allowance of $585.00. He executed a chattel mortgage to be paid off in 84 monthly installments of $87.23 each, or a total of $7,326.32. Smith sold his equity to appellant for $100.00 and the assumption of the balance due on the note. If appellant is required to pay the $4,131.00 that is claimed by the appellee, plus the $7,326.32 that is due to Pioneer Finance Company, that would be degrading. The blame for the situation that exists here is due to the action of Stevens and the negligence on the part of the appellee and its predecessor in title.

As I study the provisions of the contract it seems to me that the lien claimed by ap-pellee was released when the property was sold by Stevens to Smith. The money that was paid to Stevens, along with the trade, by Smith and Pioneer Finance Company became the property of the appellee and its predecessor in title. The sale was made according to the contract and the money was paid to Stevens, “IN TRUST”. If appellee and its predecessors in title had been diligent they could have collected from Stevens. I am a strong believer in the principle of: “That which is morally is, and of right ought to be, the law.” If these principles are applied to the contract, and the action of the parties, the appellant is an innocent purchaser as far as the appellee and its predecessors in title are concerned.

I would sustain the appellant’s point of error and would reverse and render the judgment in favor of the appellant.

      . The article also provides generally that when possession of a chattel is delivered to the vendee the mortgage lien created by reservation of the title shall be void as to creditors and bona fide purchasers, unless such reservation be in writing and registered as required of chattel mortgages, and then provides that the article shall not be construed to contravene the landlord and tenant law; however the applications of these provisions to house trailers has been superseded by the Certificate of Title Act as shown hereafter.

      . To avoid lengthening this opinion reference is made to Art. 1436-1, Vernon’s Penal Code for the text of these and other sections of the Act which may be mentioned in this opinion.


author: FANNING, Justice.

text:
    John Kent COOPER et al., Minors, Appellants, v. Myrtle LIVERMAN, Appellee.
    No. 7742.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 30, 1966.

      Woodrow Edwards, Mt. Vernon, F. L. Garrison, Gilmer, for appellants.
    Cornelius & Cornelius, Jefferson, for appellee.
   FANNING, Justice.

John Kent Cooper, Joyce Louise Cooper, Scott Charles Deaner, Jeffers Deaner and Christine Deaner, through their next friend, Mahlon Walters, appellants, have timely filed and perfected a petition for writ of error to remove a judgment from the District Court of Marion County, Texas, to this Court of Civil Appeals for revision and correction. The judgment sought to be revised and corrected was entered in Cause No. 17,762, in the District Court of Marion County, Texas, on June 17, 1965, and styled at that time as John D. Cooper, et al. v. Myrtle Liverman.

O. P. Deaner, deceased testator, on September 6, 1962, executed a holographic will, which will is quoted below.

Myrtle Liverman, appellee, was the proponent of the above referred to holographic will as well as the proponent of a typewritten codicil of O. P. Deaner of July S, 1963, which will and codicil were probated by the County Court of Marion County, Texas.

The said codicil was dated July 5, 1963; a self proving affidavit attached to the codicil on a separate sheet bore date of July 13, 1963; and O. P. Deaner died on July 15, 1963.

John D. Cooper, individually and as next friend for his children, John Kent Cooper and Joyce Louise Cooper, both minors, and E. C. Deaner, individually and as next friend for his children, Scott Charles Deaner, Jeffers Deaner and Christine Deaner, all minors, filed in the County Court of Marion County, Texas, a contest of the July 5, 1963, codicil of O. P. Deaner. The contested typewritten codicil is found below. The County Court upheld the probate of the will and codicil. Contestants appealed to the District Court of Marion County, and there the will and codicil were upheld by the granting of a summary judgment in favor of appellee, Mrs. Liverman. Costs were adjudged against contestants. Contestants also filed a motion for summary judgment which was denied by the trial court. Contestants gave notice of appeal to this Court of Civil Appeals but the appeal was not perfected. The minors, through their next friend, Mahlon Walters, are now in this court on their Petition for Writ of Error which petition was timely filed and properly perfected.

Appellants present two points which are as follows:

“FIRST POINT
“The trial court erred in failing to appoint a guardian ad litem for the minor contestants in Cause No. 17,762 because this failure was material and reversible error as to them since their next friend fathers’ interests were opposed to theirs as reflected on the face of the record.
“SECOND POINT
“The Court of Civil Appeals should revise and correct the judgment brought forward here and reverse and remand this cause to the trial court for new trial as to them only of their cause of action asserted in the codicil contest, thus allowing them the legal representation required by law under their circumstances. In this connection, appellants aver the Court of Civil Appeals would not be taking a vain action because thesA minor appellants do have a meritorius cause of action.”

We have carefully examined the provisions of the holographic will of Sept. 6, 1962, and the typewritten codicil of July 5, 1963, hereinbefore shown, and we think there is a conflict of interest between the minor appellants and the individual interests of their fathers, as regards to the probate of the codicil. As we view it, the codicil gives benefits to the fathers which were not given to them under the will and that such benefits would be adverse to the benefits given to the minor children by the holographic will. The fathers each receive 25% of the residual O. P. Deaner estate under the codicil. The minors are given less by the codicil than by the will and it would he to their disadvantage if the codicil was probated. This conflict of interests between the fathers and their minor children, appellants herein, is apparent from the face of the record in this case. It is also apparent from the face of the record and it is not disputed that the appellants herein were minors and that no guardian ad litem was appointed by the trial court to represent the interests of the minor appellants. The record does not indicate that anyone requested the trial court to appoint a guardian ad litem for the minors.

Rule 173, Texas Rules of Civil Procedure provides as follows:

“When a minor, lunatic, idiot or a non-compos mentis may be a defendant to a suit and has no guardian within this State, or where such person is a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend or a guardian who appears to the court to have an interest adverse to such minor, lunatic, idiot or non-compos mentis, the court shall appoint a guardian ad litem for such person and shall allow him a reasonable fee for his services to be taxed as a part of the costs. (Emphasis added)

Section 376, Texas Probate Code, V.A.T.S., reads in part as follows:

“Where there are minors, or persons of unsound mind, having no guardian in this state, who are entitled to a portion of an estate, or whose guardians also have an interest in the estate, the court shall appoint a guardian ad litem to represent such minors, * *

The minors were not represented by any lawfully appointed guardian or guardians. Their fathers were not proper next friends because they had adverse interests to said minors. We hold that under such circumstances, even though the matter was not called to the attention of the trial court, that nevertheless a guardian ad litem should have been appointed to represent the interests of said minors. In this connection see the following authorities: Rule 173, T.R.C.P.,, supra; Sec. 376, Texas Probate Code; 30 Tex.Jur.2d 713, Infants; Missouri-Kansas Texas R. Co. v. Pluto, 138 Tex. 1, 156 S.W.2d 265; Clarkson v. Ruiz, Tex.Civ.App., 108 S.W.2d 281, wr. dism.; Reeves v. Fonhille, Tex.Civ.App., 267 S.W.2d 238, wr. ref., n. r. e.; Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567; Parr v. Parr, Tex.Civ.App., 207 S.W.2d 187, wr. ref., n. r. e.; Maze v. Ruscher, Tex.Civ.App., 269 S.W.2d 860, no writ; Jaynes v. Lee, Tex.Civ.App., 306 S.W.2d 182, no writ.

Appellee contends, among other contentions, that the petition for writ of error should be dismissed because this court has no jurisdiction under Article 2249a, Vernon’s Ann.Tex.Civ.St, in that appellants participated in the trial of this cause in the court below, that appellants were represented by the same attorneys in all previous proceedings as well as the present proceedings and that appellants and their attorneys are estopped to complain that such representation was inadequate or injurious to the minors’ interests.

Art. 2249a, V.A.T.C.S., provides in part as follows:

“Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.”

Appellee has presented many authorities in her brief which holds in accordance with the rule of law stated in Art. 2249a, supra. However, these cases do not deal with the situation here involved where next friends, who have adverse interests to the minors represent said minors in court proceedings as plaintiffs. It is our view that since the next friends had adverse interests to the minors a guardian ad litem should have been appointed by the trial court to represent the interests of the minors. It is thus our view that the minors are not estopped by anything done or left undone by the next friends or by the attorneys. It appears that the minors now have a next friend, Mahlon Walters, and no contention has been made that he is in any way disqualified to act as next friend for the minors. The fathers of the minors, who were disqualified to act as next friends for said minors by reason of their adverse personal interests, are not parties to the present petition to review by writ of error. It is true that the attorneys representing the minors and Mahlon Walters, next friend for said minors, in the present petition to review by writ of error, are the same attorneys that represented the fathers of said minors, individually and as next friends for said minors, and represented the minors in the prior proceedings. However, we are of the view that none of such matters will estop the minors or prevent them from securing a review of the judgment complained of by their petition for writ of error.

Appellee also contends to the effect that the petition for writ of error should be dismissed because the result would have been the same even if a guardian ad litem had been appointed in Cause 17,762. Appellants in reply and under their second point contend that the minor appellants have a meritorious cause of action. The July 5, 1963, codicil, which allegedly became a part of the Sept. 6, 1962, will, appears on its face to have been executed by the testator O. P. Deaner, and by Dr. J. M. DeWare III and Freda Klein as witnesses. The record indicates that Dr. DeWare did not sign as a subscribing witness in the presence of the testator, did not see the testator sign the codicil, and that he was not a lawful subscribing witness to the codicil. The record indicates that Freda Klein was a lawful witness to the codicil. The following stipulation was made in court:

“It is stipulated and agreed that there is no question or dispute of fact or law in this case concerning the validity of the codicil and will of O. P. Deaner involved herein, except the single question of whether the signature of C. R. Newland to said codicil constitutes in law the signature of a subscribing witness thereto as required by the Law of Texas, and that if the signature of Newland thereto constitutes the signature of a subscribing witness, said codicil and will are valid; otherwise, the codicil is not, and further that contestants withdraw any claim of undue influence.”

It would take two lawful subscribing witnesses to make valid the typewritten codicil offered for probate in this cause. Sec. 59, Probate Code, V.A.T.C.S. If the Notary Newland was not a lawful subscribing witness, the codicil would be witnessed by only one lawful subscribing witness, Mrs. Freda Klein, and the codicil not having been executed with the formalities required by law, would not be a valid codicil and would not be entitled to probate.

It is our view under the record in this cause that Newland did not sign as a subscribing witness to the will, as his signature does not appear anywhere but at the end of the self-proving affidavit to the codicil where he signs as a Notary. It is therefore our view that Newland was not a lawful subscribing witness to the will. In this connection see the following authorities : McGrew v. Bartlett, Tex.Civ.App., 387 S.W.2d 702, writ refused; Boren v. Boren, Texas Supreme Court Journal, Vol. 9, p. 340, dated April 13th, 1966. We quote from Boren v. Boren, supra, in part as follows:

“The self-proving provisions attached to the will are not a part of the will but concern the matter of its proof only. The only purpose served by such self-proving provisions is to admit a will to probate without the testimony of a subscribing witness. In re Price’s Estate, 375 S.W.2d 900, 903 (Tex.Sup.Ct.1964). The provision was introduced into the Texas Probate Code in 1955 as an alternative mode of proving a will. Acts 1955, 54th Leg., p. 88, ch. 55. It was not the purpose of the Legislature to amend or repeal the requirement that the will itself must meet the requirements of the law. Section 59 expressly states that a self-proved will, except for the manner of proof, shall be treated no differently than a will which is not self-proved. The execution of a valid will is a condition precedent to the usefulness of the self-proving provisions of Section 59. This Court approved the judgment and opinion in McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965, wr. ref.), that a will was a nullity because the signatures of the testator and the witnesses appeared on the. self-proving provisions, but not on the will itself.
“A testatmentary document to be self-proved, must first be a will.”

We therefore hold that the minors have a meritorious cause of action to contest the codicil in question on the ground that the codicil was not witnessed by two lawful subscribing witnesses.

We further hold that the trial court did not err in refusing to consider appellee’s alternative offer to probate an alleged May 16th, 1963, holographic will of O. P. Deaner and did not err in sustaining contestants’ plea to the jurisdiction to this alternative offer of proponent. The trial court in its order sustaining contestants’ plea to the jurisdiction of the trial court regarding the alleged May 16th, 1963, holographic will of O. P. Deaner stated:

“On this 7th day of May, 1965, the parties having appeared by their attorneys of record at a previous date, and the Court having considered Contestants’ Plea to the Jurisdiction of this Court in paragraph I of Contestants’ First Amended Original Answer to offer of probate of May, 1963 will and reading as follows:
“ ‘Contestants show the Court that the District Court does not have jurisdiction to consider for probate the purported holographic will of O. P. Deaner, deceased, dated May 16, 1963, because same has not been probated in the County Court of this or any other county of the state nor has any evidence been offered in any of such courts to support its probate.’ And having considered the record brought forward from the County Court of Marion County, Texas, the evidence, pleadings and argument of counsel, finds that the facts and the law as to such plea are with the contestants;”

Appellee’s cross-point one raising the above question is overruled. In this connection see the following authorities: Aven v. Green, 159 Tex. 361, 320 S.W.2d 660; Magee v. Magee, Tex.Civ.App., 272 S.W. 252, writ dism.; Quiroz v. Cantu, Tex.Civ.App., 119 S.W.2d 569, no writ; Art. 5, Sec. 16, Texas Constitution, V.A.C.S.

Appellee’s other contentions have been considered and are respectfully overruled. Appellants’ points 1 and 2 are sustained.

The summary judgment granted in favor of appellee is set aside only insofar as the minors are concerned and the cause is remanded to the trial court for a new trial as between appellee and the minors. Missouri-Kansas-Texas R. Co. v. Pluto, 138 Tex. 1, 156 S.W.2d 265; Parr v. Parr, Tex.Civ.App., 207 S.W.2d 187, wr. ref., n. r. e.; Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567; Reeves v. Fonville, Tex.Civ.App., 267 S.W.2d 238, no writ. Costs in the court below are taxed against John D. Cooper and E. C. Deaner in their individual capacities; costs in this court are taxed against appellee.

      . “I, Otto P. Deaner, of Jefferson, Texas, do hereby make, publish and declare this to be my last will and testament, revoking all former wills made by me.
      I.
      “To Myrtle Liverman, of Jefferson, Texas, I give and bequeath:
      (a) All income of every kind, with the right to lease, all mineral and the interests I may have in Marion and Anderson Counties, Texas, at her death these interests to become part of my residual estate.
      (b) All savings accounts in the First National Bank, Jefferson, Texas, and the First Federal Savings and Loan Association, Longview, Texas, also any money remaining, after my debts are paid, in the First National Bank, Jefferson, Texas.
      (c) One hundred fifty dollars ($150.00) per month from the income of my interest in the producing royalties acquired by me from the estate of Mabelle L. Dean-er, deceased, at her death this interest to become part of my residual estate.
      (d) All personal property including any automobile I may have, also the cancellation of a note for $1250.00 dated May 14, 1962.
      n.
      “All the rest, residue and remainder of my estate, real and mixed, I give to my nephew, John D. Cooper, of Wichita, Kansas, as Trustee, for him to create an interest bearing trust, in any institution of his choice, for the higher (college) education, wholly or in part, of his (John D. Cooper) children and the children of E. C. Deaner and Margaret Deaner, his wife, of Westminster, Colorado. The said John Cooper, as Trustee, has full authority in creating said Trust as he may determine. Should there be more money in my estate than the said Trustee deems necessary for the above Trust, the remainder shall go to my natural heirs.
      HI.
      “I hereby appoint and designate John D. Cooper as Executor of my estate to serve without bond and with full power to sell or lease, including oil and gas, all property of my estate, on such terms as he may determine.
      IV.
      I direct that no court take any action with respect to my estate with the exception of the Probate of this will and the filing of an Inventory, appraisement and list of claims.
      This will is written wholly in my own handwriting this 6th day of September, 1962.
      '/ Otto P. Deaner’

      .“CODICIL TO THE HOLOGRAPHIC WILL OP OTTO P. DEANER OP MARION COUNTY, TEXAS
      “Whereas, I, Otto P. Deaner, of Marion County, Texas, have heretofore made my last -will, wholly written by myself, consisting of one and one-quarter pages and bearing date of September 6th, 1962, in view of events transpiring subsequent to the writing of such will, do make and publish this codicil to the same so as to alter and change the provisions of such prior will:
      1. I do by this, formally executed codicil to said will, which I declare and publish to be a codicil to such will, to be taken as part thereof and read and construed with the said previously written will, (1) revoke, strike, delete and eliminate in entirety paragraph ‘II’ of said previously quoted will so that the same shall be of no force or effect and shall not be considered as part of such will and (2) revoke, strike, eliminate in entirety paragraph ‘IIP of said previously will so that the same shall be of no force or effect and shall not be considered as part of such will.
      2. I nominate and appoint Myrtle Liver-man, of Jefferson, Texas, as Independent Executrix of my will and estate and direct that no bond or other security be required of her and that the probate court have and take no further jurisdiction of my estate than to admit my will and this codicil to probate and record and to receive and record the statutory and required inventory, appraisement and list of claims, intending hereby to enable my Executrix to administer said estate free and independent of the court to the extent possible.
      3. All of my estate, real, personal and mixed, in possession and in expectancy, wherever situated and of all character, I give, devise and bequeath unto Myrtle Liverman to do with as she may see fit, with full power of alienation, sale, encumbrance, in fee simple without reservation, restriction, restraint or limitation (it being understood between us that she knows what I want accomplished with my estate and I having full confidence in her executing my desires without defining the same herein) with such part thereof as may remain upon her demise, if any, to pass to and vest in the following persons, in the proportions herein set forth, viz:
      (1) John D. Cooper.25%
      (2) E. C. Deaner.25%
      (3) Each of the five children of the aforenamed, John D. Cooper and E. C. Deaner, 10%
      provided, however, that in the event of the demise of any of the foregoing, or in the event of the birth of additional children to either John D. Cooper or E. C. Deaner, such portions of my estate shall pass to and vest in the survivor of them, John D. Cooper and E. C. Deaner, and to such of their children as may then be living, whether survivors of the present children or additional children who may subsequently be born as heirs of their body, in ratio of the same proportions and percentages.
      4.It is my desire that this my present codicil be annexed to and made a part of my will to all intents and purposes.
      “5. This I make and publish as my last codicil to my last will, hereunto signing and subscribing my name this 5th day of July, A. D. 1963, in the presence of Ercida Klien and Dr. J. M. DeWare, III who attest the same at my request.
      O. P. Deaner
      O. P. Deaner
      The above instrument was now here published as his last codicil to his last will, and signed and subscribed by OTTO P. DEANER, the testator, in our presence and we, at the request of him, the said. OTTO P. DEANER, and in his presence, and in the presence of each other, sign and subscribe our names hereto as attesting witnesses.
      Mrs. Freda Klein
      Freída Klien
      Jesse M. DeWare III
      Dr. J. M. DeWare, III
      The State of Texas,
      County of Marion.

      BEFORE ME, the undersigned authority, on this day personally appeared OTTO P. DEANER, FREIDA KLIEN and DR. J. M. DeWARE, III, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed and foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said OTTO P. DEANER, testator, declared to me and to the said witnesses in my presence that said instrument is his last codicil to his last will and is, together with the previous writing made by him as his will, his last will and testament, and that he had willingly made and executed it as his free act and deed for the purposes therein expressed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last codicil to his last will and, together with the previous instrument written in his own handwriting, is his last will and testament, and that he executed the same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of said testator and at his reguest; that he was at that time over the age of nineteen years and was of sound mind; and that each of said witnesses was then more than fourteen years of age.
      O. P. Deaner
      Otto P. Deaner, Testator
      Mrs. Freda Klein
      Freída Klien
      Jesse M. DeWare III
      Dr. J. M. DeWare, III
      SUBSCRIBED and ACKNOWLEDGED before me by the said OTTO P. DEANER, testator, and subscribed and sworn to before me by the said FREIDA KLIEN and Dr. J. M. DeWARE, III, witnesses, this 13th day of July, A. D. 1963.
      C. R. Newland
      Notary Public, Marion County, Texas.”