author: DENTON, Chief Justice.

text:
    Byrum HAILE et al. v. Clyde H. HOLTZCLAW.
    No. 7557.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1966.
    Rehearing Denied March 7, 1966.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
   DENTON, Chief Justice.

Appellee, Clyde H. Holtzclaw, as Plaintiff, brought suit against the heirs of the estate of W. B. Haile and Irene Haile. Plaintiff’s suit alleges three separate causes of action: suit to set aside a deed and remove cloud from title to a fractional interest in certain lands in Hutchinson County, Texas; an accounting for royalties and rentals allegedly withheld from Plaintiff by the Defendants; and for damages for named Defendants fraudulently procuring said Deed from the Plaintiff. Two special issues pertaining to Plaintiff’s mental capacity to execute the deed in question and the exercise of undue influence upon him were submitted to the jury. The trial court withdrew other issues from the jury and entered an order finding such matters in favor of the Plaintiff. The jury found the Plaintiff did not have the mental capacity to execute the deed in question; and that he was not acting under undue influence. No exception was taken to the latter finding and it is not before us in this appeal. Judgment was entered setting aside the deed from Plaintiff to the Defendants; it declared Plaintiff the owner of an undivided one-ninth (⅛) of the properties of W. B. and Irene Haile under the Will of W. B. Haile; awarded Plaintiff damages as the difference between the amounts paid Plaintiff during the four years next preceding the filing of this case and the amount the Court decreed should have been paid Plaintiff during that period; and denied Defendants’ recovery sought by their cross-action which asserted Plaintiff had no interest in the properties in question and thus not entitled to any damages from the Plaintiff. From this judgment, the Defendants, By rum Haile, Jim Haile, and Nadine Haile Martin, individually and as Trustees of the estate of W. B. Haile, deceased, and Clyde Martin, Verdie Herring-ton, W. C. Haile, Mary Fry Gray, and Walta Fry Russ prosecute this appeal. Gwyn Haile and Patricia Ann Branum were made party defendants but they have filed disclaimer as to any interest in any undivided one-ninth (⅜) interest in the property and have not appealed from the judgment of the trial court.

Although numerous questions are presented, one of the principal basic questions concerns the construction of the will of W. B. Haile, deceased. Mr. Haile and his wife, Irene, executed separate wills on April 26, 1946. For all practical purposes, they are identical. Paragraphs 5, 7, 8 and 10 are identical except for the substitution of names. The pertinent parts of W. B. Haile’s will are as follows:

“FIVE. It is my will and desire if I shall predecease Irene Haile, that I do hereby give, devise, and bequeath unto my beloved wife, Irene Haile, all personal property which I may own at the time of my death including cash on hand and in the bank, together with all other personal property, with the full right to manage and dispose and expend same.
It is further my will that all income from all royalty interests shall be divided into eleven equal parts, and that each of our beloved children named below shall receive an undivided one-eleventh and that Irene Haile shall receive two-elevenths. That there shall be reserved at all times by the Executor sufficient money to pay all inheritance, income and other taxes of every kind and character.”
(( * * *
“SEVEN. It is my will and desire and I do hereby direct that if I should predecease Irene Haile she shall have the sole management and control and direction of all of my separate estate as well as her separate estate, and that so long as Irene Haile shall live, the royalty income from said property shall be divided as provided in Paragraph Five, that is the said Irene Haile shall receive two-elevenths and each of our children shall receive one-eleventh of such income, after deduction of an adequate reserve for the payment of taxes. Proper division of said funds shall be made within a reasonable length of time after the royalty is received, not to exceed thirty days, unless all our children below named consent to a further extension, which they may do for the purpose of convenience in distributing said funds. With reference to all other income except royalty income, it is my wish and desire that my beloved wife shall have the full right to expend and dispose of same should she so desire. Whenever the term 'royalty income’ is used in this will, it shall be construed to mean all income derived from the production and sale of oil, gas and other minerals, including royalty, overriding royalty, and oil, gas and casinghead gas payments.”
“EIGHT. That it is my wish and desire and I hereby direct, after consultation and full understanding with my beloved wife, Irene Haile, that if Irene Haile should predecease me, that our children, including our own child, Byrum Haile, and my children by a former marriage, Verdie Herrington, Chloris Haile, Jim Haile, Betty B. Holtzclaw, Meade Haile and Nadine Haile Martin, and Mrs. Irene Haile’s children by a former marriage, namely Mrs. Mary Fry Gray and Mrs. Walta Fry Russ, shall upon my death be the equal owners of all my property both real, personal and mixed, of every kind and character whatsoever and that all income from said property shall be divided equally between all of said named children without reference to community property rights, or to any separate property rights of either of us hereby stating that it is my will and desire that upon my death, that all of my property together with all the property of my beloved wife, Irene Haile, shall be considered as community property without reference to any separate property rights which either of us may claim.
“TEN. It is my will and desire, and I hereby direct that the real estate, and any personal property used in connection with said residence, which we own in Roaring Springs, Texas, in Motley County, which is being used at this time by Mary Sampson as a residence, shall be and continue as her residence during her lifetime, and she is hereby given and granted a life estate therein; but at her death (or at my death if she should predecease me) then it is my will and desire, that said property shall be considered a part of the estate, and the Executor or Executors above named shall have the right to sell and dispose of same, at their discretion, and the proceeds to be divided equally among our children, named above, except that if Irene Haile shall be living, the proceeds shall be divided into eleven equal parts, and two-elevenths shall be given to Irene Haile.”

W. B. Haile died on November 20, 1948, and left the written will referred to above. Betty B. Holtzclaw, wife of the plaintiff and daughter of W. B. Haile by a previous marriage, died March 31, 1951. She left a written will dated September 15, 1950, in which she named her husband the plaintiff here, the sole legatee and devisee of her estate. She left no children or other descendants. The W. B. Haile will was offered for probate on January 4, 1949 and Irene Haile duly qualified as Independent Executrix under the will. Acting as Independent Executrix, Irene Haile filed an Inventory and Appraisement listing all the property owned by W. B. Haile and' Irene Haile as community property and W. B. Haile’s separate property. Until her death on September 18, 1957, Irene Haile distributed Vn of the total income from the properties to each of the nine children and retained %i for herself. After Betty B. Holtzclaw’s death in 1955, Mrs. Haile began paying Betty Holtzclaw’s. Vli interest in the income directly to the plaintiff herein. Monthly payments' in this. amount were made to him until April, 1964, After Irene Haile’s death, these monthly payments were made to Appellee by the Trustees of the W. B. Haile estate. On May -30, 1963, Ap-pellee executed a deed conveying to the “W. B. Haile estate” as grantee, subject to a life estate in the grantor, the property interest inherited by him .from his wife, Betty B. Holtzclaw, under her father’s will. It is this deed which Appellee seeks to set aside and have declared null and void. Other facts necessary to the issues will be stated in the discussion of such issues.

In construing the will, it seems appropriate to refer to several cardinal rules of construction to be followed. It is the court’s duty to ascertain and enforce the intention of the testator; and if that intention is not clearly expressed by the particular language used, it may be determined by looking to the provisions of the will as a whole, and to the circumstances surrounding its execution. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R.2d 97. Another equally well established rule of construction is that every presumption is against any intestacy and if the will is open to two constructions, the interpretation will be given it which will prevent intestacy. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163; Crowley v. Vaughan (Tex.Civ.App.) 347, S.W.2d 12 (Error refused).

As we understand it, the parties hereto seem to agree on certain aspects of the will. It is conceded that any interest Clyde Holtzclaw may have in the estate must come from his wife, Betty B. Holtz-claw, the daughter of W. B. Haile, deceased. It is further correctly conceded that any property interest acquired by Betty Holtzclaw was passed to her only by the .will of her father, and that she acquired no interest from the will of Irene Haile. However, Appellants take the position that paragraphs 5 and 7 are the only depositive paragraphs of W. B. Haile’s will and that no property interest passed under paragraph 8 of his will because the latter paragraph was contingent upon Irene Haile predeceasing the testator. Since this event did not occur, appellants say paragraph 8 of his will has no effect. However, appellants do not completely ignore paragraph 8 as they recognize it serves the purposes of naming the children of W. B. and Irene Haile referred to in other paragraphs of the respective wills. We think, as will be demonstrated later, that paragraph 8 serves other purposes as well. Appellants argue that no real property, except royalty income, passed to Betty Holtzclaw under her father’s will and that this interest was a life estate and terminated at the death of Irene Haile. It therefore follows, they say, that appellee inherited none of the Haile estate from his deceased wife. They further contend a life estate in the mineral interest was followed by a contingent remainder in the appointees of Irene Haile in her will; and that this contingent remainder became vested in the children who survived Irene Haile, who would take under paragraph 8 of her will. In other words, their position is paragraphs 5 and 7 create a life estate in the royalty interest in Betty Holtzclaw and the other children of W. B. and Irene Haile; and that such life estate was limited by the life of Irene Haile and at her death this contingent remainder vested in the surviving children. The basic difference between the positions of the parties is best stated by the two following questions: (1) Was the interest of the children a contingent or vested remainder? (2) If vested, when did the remainder become vested in the children? Although appellants say the two wills were not mutual or contractual, the language of paragraph 8 clearly shows the intention of the testators was that all their property would pass under the will of the first to die. This construction would be in conformity with the presumption against intestacy.

The W. B. Haile will is ambiguous in that it does not include a residual clause or a paragraph other than paragraph 8 which granted a fee simple estate. However the wills, as written, clearly reveal a general plan of both testators. In our opinion, the language of paragraph 8 must be considered along with the will as a whole in determining the intent of the testator. As previously stated, paragraph 8 of both wills are identical except for the change of names and relationship of husband and wife. The language, “after consultation and full understanding with my beloved wife (husband), Irene Haile (W. B. Haile),” clearly show the wills were executed in furtherance of an agreement and understanding between the testator and testatrix and were contractual in nature. Wagnon v. Wagnon (Tex.Civ.App.) 16 S.W.2d 366 (Error refused). It has been held that a will may, by its terms conclusively prove or tend to prove that it is based on or executed in furtherance of an agreement. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1. We conclude the language of the will, together with the fact the wills were executed on the same day and before the same witnesses conclusively, shows the two wills were executed in furtherance of an agreement and were contractual in nature. Upon the death of W. B. Haile and the probate of his will by Irene Haile, together with her accepting under his will, the disposition under his will became binding upon Irene Haile. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888; Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588.

We think the trial court was correct in finding that after the death of W. B. Haile, Irene Haile took under his will. It is undisputed, the estate of W. B. and Irene Haile consisted of both community and separate property. Mr. Haile’s will bequeathed his wife all of his personal property with the full right to dispose and expend it. Paragraph 5 devised “all income from all royalty interest” in eleven equal parts. Each of the nine children named were to receive Vn and his wife %i. Paragraph 7 gave Irene Haile “the full management and control and direction of all of my separate estate as well as her separate estate” and that so long as Mrs. Haile should live, the royalty income from “said property” was to be distributed as set out in paragraph 5. Paragraph 7 further bequeathed all income except royalty income to his wife with the full right to expend and dispose of such income. All bequeaths in paragraph 7 are predicated on the limitation, “so long as Irene Haile shall live”. Mr. Haile was granting a life estate both in the ¾1 of the royalty income and all other income to Irene Haile from both his separate estate and Irene’s separate estate. She was clearly put to an election whether she would accept under the terms of the W. B. Haile will (a life estate in the income) or take her own interest in the estate. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Nye v. Bradford (supra). It is undisputed Irene Haile did accept under the will of W. B. Haile. She probated his will and qualified as the executrix and distributed the royalty income to herself and the named children until her death. It is also clear the wife’s acceptance under the will of W. B. Haile created an estoppel against her and those claiming under her, to claim any interest in the estate other than the life estate granted to her in her husband’s will. Dakan v. Dakan (supra); Chadwick v. Bristow (supra).

Another applicable rule of construction of wills is that if there is doubt as to whether a vested or a contingent remainder was intended, the doubt will be resolved in favor of a vested remainder. Rust v. Rust (Tex.Civ.App.), 211 S.W.2d 262, affirmed, 147 Tex. 181, 214 S.W.2d 462. Jones v. Hext (Tex.Civ.App.) 67 S.W.2d 441 (Error refused). Paragraph 8 of Mr. Haile’s will devised all property to the nine children equally; and declared at his death that all property of his and his wife’s “shall be considered as community property without reference to any separate property rights which either of us may claim”. Paragraph 10 disposed of property “we own” in Motley County and stated “said property shall be considered a part of the estate”. We have reached the conclusion the testators intended that the nine named children’s interest vested in fee at the death of W. B. Haile, subject to the life estate in the royalty and other income from the entire estate. As stated in Chadwick v. Bris-tow (supra): “It is well 'settled that a remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate.” The nine children were persons in being and the remainder was vested in them at the time of W. B. Haile’s death. The vesting of estates at the earliest possible time is favored by the law. Chadwick v. Bristow (supra). Giraud v. Crockett (Tex.Civ.App.) 142 S.W.2d 243 (Error refused). It is therefore our opinion, under the applicable rules of construction, the nine children’s interest vested in fee at the death of W. B. Haile, subject to the life estate in the proportional share of the income in Irene Haile. Betty Holtz-claw, having survived her father, became vested with an interest in the whole estate; and her inherited interest was capable of being devised by her to the appellee.

Having determined appellee was the owner of a fractional interest in the Haile estate, we must then determine whether or not the trial court was correct in setting aside the deed executed by the appellee. This is the deed he executed on May 30, 1963, in which he conveyed to the W. B. Haile estate, subject to a life estate in the grantor, all property interest inherited by him from his wife, Betty B. Holtzclaw.

In attacking that portion of the trial court’s judgment which set aside this deed, appellants urge error in the following particulars: The admission into evidence of three county court judgments, two committing appellee to a mental hospital and the other ordering a temporary guardianship for him; the contention that there was no evidence and insufficient evidence to support the finding that appellee did not have the requisite mental capacity to execute the deed in question; the assertion that the definition of mental capacity was erroneous; that the trial court erred in finding as a matter of law appellee did not intend to make a gift when he executed the deed; and the.deed was not invalid on its face.

Appellee’s primary cause of action sought to set aside the conveyance of May 30, 1963, contending he lacked sufficient mental capacity to execute such a conveyance. In support of that issue, appellee introduced into evidence two orders of the County Court of Potter County, dated February 13, 1958, and April 12, 1963, and an order of the County Court of Armstrong County, dated May IS, 1963. Both Potter County Court judgments committed appel-lee to the Wichita Falls State Hospital pursuant to the Texas Mental Health Code, Article SS47-1 et seq. Vernon’s Ann.Tex. Civ.St. Each found appellee was mentally ill and required temporary hospitalization in a mental institution as provided for in Article 5547-31 et seq. V.A.T.S. It is appellant’s contention these orders for temporary commitments adjudicate a person as mentally ill as compared to mentally incompetent and such proceeding creates no presumption of legal competency; such proceeding constitutes hearsay, is irrelevant and immaterial and prejudicial. The orders were offered and admitted into evidence as evidence of the appellee’s state of mind at the time he executed the deed in question. Relevant evidence pertaining to mental capacity is not restricted to the time a given act is performed. That issue may be determined upon testimony as to the actor’s mental condition either prior to or subsequent to the time the act complained of was performed. Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849.

Although appellants recognize the distinction between mental incapacity and mental illness, the cases they rely on relate to orders of mental incompetence after the performance of the act in question. Other cases cited discuss the presumption of sanity or insanity. We are not here concerned with the admissahility of the commitments to create a presumption of mental incompetence or as an adjudication of ap-pellee’s mental condition, but as evidence of his state of mind. Whether or not appellee had sufficient mental capability to execute the deed was a fact issue for the jury. We are of the opinion that the commitment orders were admissible as evidence to he •considered by the jury in determining that issue of fact. The Armstrong County order, appointing a temporary guardian of appellee’s estate was not void, as contended by appellants, for lack of service or notice upon appellee. The order was issued pursuant to Section 131 et seq., of the Probate Code, V.A.T.S., which provides that a temporary representative may be appointed, “with or without written application and without notice or citation.” We think this order is also admissable along with the two commitments as evidence to be considered by the jury. Each proceeding occurred prior to the execution of the deed.- In fact, appellee had not been finally released from Wichita Falls Mental Hospital when he executed the deed in question. He was home on leave from the hospital for approximately one week when he executed the deed and was returned to the hospital by one of the appellants on the following day. He was released on the day he returned. The order appointing a temporary guardian was issued fifteen days prior to the date the deed was executed. We find nothing in this record when considered with other evidence of appellee’s mental condition, to indicate they were in themselves prejudicial or unduly inflammatory. We hold that these orders were admissable for the purpose offered.

Appellants next contend that there was no evidence, or in the alternative, there was insufficient evidence to support the jury finding of mental incapacity on the part of appellee at the time he executed the deed. As to the no evidence point, we have only to refer to the County Court’s commitment orders and the order appointing a temporary guardian. We believe these documents are evidence of appellee’s mental condition and they were sufficient to raise an issue of fact.

The question of whether or not the evidence is sufficient to support the jury finding requires a review of all the evidence. The County Court judgments are not sufficient in themselves to support the jury findings. Article 5547-83(b), V.A. T.S. reads as follows:

“The judicial determination that a person is mentally ill or the admission or commitment of a person to a mental hospital, without a finding that he is mentally incompetent, does not constitute a determination or adjudication of the mental competency of the person and does not abridge his rights as a citizen or affect his property rights or legal capacity.”

This Article specifically limits the affect of such judicial determination. These proceedings, by the very language of the statute, do not effect such persons’ property rights or legal capacity. We are concerned with appellee’s legal capacity to execute the instrument and that state of mind had to be shown to exist when he executed the deed on May 30, 1963. However, this may be determined upon testimony as to his mental condition either prior to or subsequent to the time the act in question was done. Cole v. Waite (supra). Such testimony must refer to his condition at or near the time of the act which would reasonably tend to show mental incapacity on his part at that time. Chambers v. Winn (Tex.Com. App.) 137 Tex. 444, 154 S.W.2d 454 (opinion adopted). Hollar v. Jowers (Tex.Civ.App.) 310 S.W.2d 721 (Ref. N.R.E.)

Excluding, for the moment, the commitments and order appointng temporary guardianship, the evidence pertaining to ap-pellee’s mental condition at or near the time he executed the deed is, at best, meagre. There was no medical testimony offered and no lay witnesses were called on to express an opinion as to the state of mind of appellee at or near the time in question. Appellee testified he did not remember signing the deed but he remembered many details concerning the scheduled guardianship hearing in Claude, Texas, on Monday before signing the deed on Thursday. On the following day, May 27, Appellee’s attorney filed a divorce suit in Armstrong County. Appellee authorized the suit and participated in a property settlement discussion with his attorney and the attorney for his wife. He recalled his trips to and from Wichita Falls during this time and other events occurring during that week. Appellee’s wife testified that he was a patient in a private mental hospital in Amarillo for some six or seven weeks in the spring of 1962; that they separated on several occasions after their marriage in June of 1959; and that prior to his confinement in 1962 and 1963 he had been drinking heavily. Appellee left their home in Claude on March 29, 1963, and his wife did not see him again until July of that year. In testifying to the August, 1959 separation, Mrs. Holtzclaw testified: “Well, pressure from somewhere was brought to bear on him and he eventually began to drink and he left”. Two months later, she saw him in jail in Dumas. She testified he had been drinking, “and, of course, he was raving and ranting and accused me of * * * calling me everything”. They reconciled within several months and she related that in the spring of 1962 Appellee was in the process of purchasing a drugstore in Claude. She testified: “and then, of course, being under that pressure and strain, why, and eventually that led to drinking again”. It was this incident that preceded her placing ap-pellee in the Underwood Hospital in Amarillo. She testified to no other such incidents until he left their home in March, 1963, previously referred to.

Appellee remained in Wichita Falls State Hospital from April 15 until May 25, 1963, when he was granted the one week furlough. He was formally released on May 31, 1963. There is no evidence that he drank intoxicating liquor at any time during this seven week period. During the week furlough, appellee stayed in the home of Byrum Haile, one of the appellants. Mr. Haile testified that during this period appel-lee was in a nervous condition, worrying about his return to Wichita Falls, but that he appeared to be normal and talked rationally. He further testified Holtzclaw did not drink during that week. Mrs. Byrum Haile corroborated her husband’s testimony and she further testified that after signing the deed in question, appellee stated: “I am glad that I signed that instrument because that is what Betty would want me to do”. Appellee offered no direct testimony concerning his mental incompetency at or near the time that he executed the deed, nor was there any provocative testimony of any peculiar or irrational action on his part at or near the time of the execution of the deed which would reasonably tend to show mental incapacity on his part at that time. We, therefore, conclude the evidence in this record was insufficient to support the jury finding as to appellee’s mental incapacity.

Although this ruling will require that the trial court’s judgment be reversed and remanded, we think, in view of another trial, it advisable to discuss other matters brought forward. Appellant complains of the trial court’s definition of “mental capacity” particularly to the inclusion of the word “memory” therein. The trial court gave the following definition of this phrase: “Mental capacity means that at the time of executing the deed, grantor must have had sufficient mind and memory to understand the nature and effect of his act in executing the deed”. Essentially, the identical definition has been approved and is proper under this record. Pollard v. El Paso National Bank (Tex.Civ.App.) 343 S.W.2d 909 (Refused N.R.E.). Klindworth v. O’Connor (Tex.Civ.App.) 240 S.W.2d 470 (Ref. N.R.E.).

Upon motion of the appellee, the trial court withdrew certain issues from the jury and made findings on those issues. One such issue was that appellee did not intend to make a gift at the time he executed the deed in question. In order for the trial court’s action to be correct, there must be no evidence to the contrary. The only testimony on the matter was the following testimony of appellee himself:

Q. “The question is, to the best of your recollection, did you intend to make a gift of any kind to any of the Defendants or to the W. B. Haile estate ?”
A. No.”

When this self-serving statement is viewed in the light of other testimony, we believe a fact issue was raised. Appellee testified he did not remember signing the deed and the above answer is predicated on “the best of your recollection”. • We think appellee’s testimony here comes under the general rule rather than an exception to the rule as stated in 24 Tex.Jur.2d, Evidence—Section 714, page 37S:

“Ordinarily, the jury is not bound by the uncontradicted testimony of an interested witness. However, under an exception to this general rule, if the un-contradicted testimony of an interested witness is clear, direct, positive, and free of inconsistency, and if there are no circumstances that tend to cast suspicion on it, the witness’ testimony must be accepted as true as a matter of law and no issue of fact is created for the jury”.

Appellee’s statement was based upon a qualified question. In addition, there was testimony that immediately after executing the deed he was quoted as saying: “I am glad that I signed that instrument because that is what Betty would want me to do”. We conclude the trial court erred in finding as a matter of law that appellee did not intend to make a gift when he signed the deed.

By counter-points, appellee contends the deed in question is void on its face for the reasons: (1) The instrument named no grantee or grantees. (2) The property purportedly conveyed is insuffciently described; and (3) The instrument is acknowledged by Byrum H. Haile, a possible grantee and part owner of the property interest sought to be conveyed. The grantee named in the deed is “The W. B. Haile Estate”. The grantee named is sufficient to sustain the validity of the deed. The heirs and devisees of the W. B. Haile estate are capable of ascertainment, thus it is sufficient. The fact one of the questions in this case is whether or not Betty Holtzclaw received a vested fee interest in the death of W. B. Haile does not preclude the conclusion that such named grantee is sufficient for they could be identified by the description given. McKee v. Ellis (Tex.Civ.App.) 83 S.W. 880; Lott v. Dashiell (Tex.Civ.App.) 233 S.W. 1103. Modified on other grounds in Dashiell v. Lott (Tex.Com.App.) 243 S.W. 1072; Vineyard v. Heard (Tex.Civ.App.) 167 S.W. 22; Hill v. Jackson (Tex.Civ.App.) 51 S.W. 357.

The deed described the interest or property conveyed as follows:

“ * * * All interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Hutchinson County, Texas, to-wit: being all of the interest in and to all of the oil, gas and other minerals as inherited by Clyde H. Holtzclaw from Betty B. Holtz-claw and being all of the interest of Betty B. Holtzclaw in and to the oil, gas, minerals and real property of the W. B. Haile Estate as such interest is shown of record in the Probate Records and Deed Records of Hutchinson County, Texas, to which reference is made for a full description of the interest and title herein conveyed ⅜ ⅜ ⅝ it

We think the description was sufficient under the following authorities: Pena v. Frost National Bank (Tex.Civ.App.) 119 S.W.2d 612 (Error Ref.); Smith v. Westall, 76 Tex. 509, 13 S.W. 540; Harris v. Broiles (Tex.Civ.App.) 22 S.W. 421; Texas Consolidated Oils v. Bartels (Tex.Civ.App.) 270 S.W.2d 708 (Error Ref.).

Appellee concedes that the fact the deed in question was acknowledged by Byrum H. Haile, one of the appellants, and one with an interest in the estate, does not in itself render the deed void; but contends this ground, taken with the other facts and circumstances should be considered in setting aside the deed as void. This contention is without merit. Appellee admitted the validity of his signature on the deed. Deeds of grantors are valid as between the parties, grantor and grantee, without a valid certificate of acknowledgment except where the grantor is a married woman. Hill v. McIntyre Drilling Co., (Tex.Civ.App.) 59 S.W.2d 193 (Error Ref.) First State Bank in Caldwell v. Stubbs (Tex.Civ.App.) 48 S.W.2d 446.

For the reasons given, the portions of the judgment of the trial court which declared Clyde H. Holtzclaw the owner of an undivided one-ninth (⅜) of the described properties as sole devisee under the will of Betty B. Holtzclaw, subject to a life estate of Irene Haile in ¾1 of said ⅝; and that which awarded appellee damages on his claim of ⅛ of ¾1 for the four years next preceding the filing of this suit; and the denial of relief sought by appellants on their cross-action are in all things affirmed. That portion of the trial court’s judgment which set aside the deed in question is reversed and remanded to the trial court for a new trial on the issue of mental capacity of Clyde H. Holtzclaw in accordance with this opinion.

Affirmed in part and reversed and remanded in part.

NORTHCUTT, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Maudie ORR et al., Appellants, v. C. U. POPE et al., Appellees.
    No. 7570.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1966.

      Gene E. Steed, Perryton, Linn & Helms, Spearman, for appellant.
    Allen, Allen & Reavis, Perryton, Jerry J. Miller, Amarillo, for Phillips Petroleum Co.
   DENTON, Chief Justice.

This trespass to try title suit was brought by Appellees, C. U. Pope, his brothers and sisters and the children of his deceased brother and sisters, all either children or grandchildren of W. L. Pope, Sr., and Lula Pope, both deceased, against the heirs at law of Eunice Pope, deceased, wife of W. L. Pope, Jr. Plaintiffs below seek to recover title and possession of an undivided one-half (½) interest in the surface of the:

N.W. Yz of Section 140, Block 4T, T. & N. O. Ry. Co. Survey, Ochiltree County, Texas;

and an undivided one-fourteenth (½⅛) of the mineral interest of that section. All parties filed motions for summary judgment and the trial court granted plaintiffs’ motion and defendants below have perfected this appeal.

Plaintiffs C. U. Pope, Alice Pope Fling, Tillman B. Pope and Sally Pope Cocan-noeur are the surviving children of W. L. and Lula Pope; Anna Louise Pope Van-Sant, Jackie Lee Pope and Alfred J. Pope the surviving children of H. B. Pope, deceased, a son of W. L. and Lula Pope; Floy McAllister, Morgan and Pauline Mc-Neeley and Orbye McAllister the surviving children of Ethel Pope McAllister, deceased, a daughter of Mr. and Mrs. Pope, brought this suit against Maudie Orr, Earl Appleton, Ivan Appleton, Rubert Appleton and Bonnie Bealmuer, all brothers and sisters of Eunice Pope, deceased, wife of W. L. Pope, Jr. Phillips Petroleum Company, the owner of a certain pipe line right-of-way and an oil and gas mineral lease of the property involved was impleaded as a party defendant. All parties hereto have recognized Phillips’ interest and that issue is not before us.

The material facts are undisputed. The case was submitted to the trial court on the pleadings, affidavits, stipulations, depositions, admissions and interrogatories. W. L. Pope, Sr. and wife, Lula Pope were the owners of all of Section 140. It constituted their community property and they are the common source of title. Lula Pope predeceased her husband intestate, and there was no administration of her estate. The seven children named above were born of this marriage. W. L. Pope, Sr., died testate in 1945 and his will was probated on July 10, 1945. This will devised various mineral and surface interests to the named children or their heirs and included a devise to W. L. Pope, Jr., of the surface rights to the N.W. ¼ of Section 140. On June 7, 1945, all heirs at law of W. L. Pope, Sr. and Lula Pope, except C. U. Pope, executed a quit claim deed conveying all of Section 140 to C. U. Pope. Thereafter, on July 10, 1945, C. U. Pope joined by his wife, Fern Pope, executed a series of warranty deeds and mineral deeds conveying to the various heirs certain interests in Section 140. Two of these deeds included a mineral deed conveying an undivided ⅝ of the minerals under Section 140 and a warranty deed conveying the surface of the N.W. 1/3 of Section 140 to W. L. Pope, Jr., containing 213.33 acres, subject to Yz of the outstanding indebtedness owed to the Federal Land Bank. Both deeds recited that W. L. Pope, Jr., was a resident of Multnomah County, State of Oregon. W. L. Pope, Jr., died intestate on January 6, 1958, and his surviving wife, Eunice Pope, died intestate on September 16, 1962. No children were' born of this marriage and none were adopted. Appellants, the natural brothers and sisters of Eunice Pope, are her only surviving heirs at law.

The primary question to be determined is whether the surface and mineral interests so acquired by W. L. Pope, Jr. was his separate or community property. Appellants contend the property having been acquired by W. L. Pope, Jr. while he was married to Eunice Pope is presumed to be community property; that such presumption was not rebutted and that upon the death of Eunice Pope, the survivor, the property was inherited by appellants under the laws of descent and distribution of the State of Texas. Appellants concede the undivided 125.7 acres of Section 140 may have originally been the separate property of W. L. Pope, Jr., by virtue of his inheritance of approximately 45.7 acres from his mother and the 80 acres bequeathed by his father’s will; but that this property has been co-mingled with the balance of the property he later acquired, and that therefore, all such property became community property. These general principles of law are sound but the question is whether or not these well-established principles are applicable under the uncon-troverted facts of this case.

We have concluded the judgment of the trial court should be affirmed. In the first place, it is the law of this state that' where a husband acquired real property situated in Texas while he resides in a common law state, the real property is the separate property of the husband.. Huston v. Colonial Trust Company (Tex.Civ.App.) 266 S.W.2d 231 (Ref. N.R.E.); Tasher v. Foster Lumber Company (Tex.Civ.App.) 205 S.W.2d 665; Toledo Society for Crippled Children v. Hickok (Tex.Civ.App.) 252 S.W.2d 739 (Modified by the Supreme Court) 152 Tex. 578, 261 S.W.2d 692, 43 A.L.R.2d 553; McDowell v. Harris (Tex.Civ.App.) 107 S.W.2d 647 (Error dismissed). It is uncontradicted that W. L. Pope, Jr. and wife, Eunice were residents of the State of Oregon at the time the two deeds of July 10, 1945, in which W. L. Pope, Jr. was grantee, were executed. It was established that at all times material to this question, Oregon was a common law state. This was established by written interrogatories propounded to an attorney duly licensed by that state. Under the authorities and the state of this record, we conclude the undivided ⅜ mineral interest under Section 140 and the N.W. ½ of that section, conveyed to W. L. Pope, Jr. by C. U. Pope and wife was the separate property of the said W. L. Pope, Jr. at the time of such conveyance. It is settled that property acquired during marriage takes its status as separate or community property at the time of its acquisition, and that such status is fixed by the facts or circumstances by its acquisition at that time. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529; Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777. By both the devise in W. L. Pope, Sr.’s will and the warranty deed of July 10, 1945, W. L. Pope, Jr., the devisee and grantee, assumed and obligated himself to pay the proportionate share of the indebtedness owed on Section 140. This does not in itself change the status of the property from separate to community. Smith v. Buss (supra); Henry v. Reinle (Tex.Civ.App.) 245 S.W.2d 743 (Ref. N.R.E.). The record shows W. L. Pope, Jr., paid the assumed indebtedness in the amount of $2,614.04, on October 20, 1945, but the record does not specifically show whether the funds so expended were the separate property of W. L. Pope, Jr., or community property or where he resided on this date. The check in payment of the obligation was drawn on a bank in Los Angeles, California, and there was deposition testimony that the couple left Oregon in October, 1945, and moved to California. Assuming these funds were community, this would not change the status of the real property from separate to community. The separate status was set at the time title was acquired. The question of reimbursement to the community estate Is a matter to be determined by appellants’ cross-action. This asserted cause of action was severed by the trial court. We further conclude this record does not support the contention the so-called co-mingling doctrine is applicable under the facts of this case.

We think the property in question constituted the separate property of W. L. Pope, Jr., for another reason. An examination of the will, the quit claim deed of June 7, 1945, and the deeds of July 10, 1945, from C. U. Pope to W. L. Pope, Jr., and the others, together with the circumstances surrounding their execution reflect a plan of distribution by these parties of their deceased parents’ estate. Family settlements of estates are looked upon with favor. Pleasant v. Johnson (Tex.Civ.App.) 367 S.W.2d 173 (Ref. N.R.E.) and cases cited therein. Lula Pope died intestate and there had been no distribution of her estate after her death. The attorney who handled the probate of the father’s will testified by deposition the deeds were executed for the purpose of distributing the estate. An affidavit of Fern Pope, wife of C. U. Pope, corroborated this testimony. In support of their own motion for summary judgment, appellants attached an affidavit of heirship by appellee, C. U. Pope and wife, dated March 30, 1954. The affidavit named the heirs at law of W. L., Sr. and Lula Pope and contained the following- language:

“That as a means of distributing the estates of the said W. L. Pope and wife, Lula Pope, all of the above named heirs except C. U. Pope executed and delivered a quitclaim deed dated June 7, 1945, recorded in Vol. 79, page 22, Deed Records in Ochiltree County, Texas, conveying all of their right, title and interest in the said Section 140 to C. U. Pope, and the said C. U. Pope and wife, Fern Pope, then executed and delivered a separate mineral deed to each of the other above named heirs of W. L. Pope and wife, Lula Pope, conveying to each of said heirs the same undivided mineral interest in said Section 140 as he or she would have taken under the will of W. L. Pope, deceased, and the laws of descent and distribution of the State of Texas.”
* * * * * *
“ * * * said deeds were not intended to alter or change the separate character of the interests derived by each of said heirs by virtue of being an heir and devisee of W. L. Pope and wife, Lula Pope.”

Although the affidavit made no reference to the warranty deeds executed by C. U. Pope and wife on the same date which conveyed the surface rights, we think the same plan was intended for the surface rights as the mineral rights. The fact all heirs were not deeded surface rights and that W. L. Pope, Jr. was deeded more acreage than he received by devise and inheritance does not alter this conclusion. It is uncontradicted the land in Section 140 was not of equal value and the estate consisted of a considerable amount of personal property, including over $5,000.00 in cash. The record does not show how the personal property was distributed, but under the circumstances it must be assumed the heirs who were not deeded surface rights received a proportionate share of the personalty. Evidence other than the deeds themselves is admissable to establish the character of the property acquired. Under this record the status of the property acquired by W. L. Pope, Jr., may he proven as any other fact by any competent evidence, including parole evidence, surrounding circumstances and declarations of the parties, if the latter evidence is otherwise admissable. Foster v. Christensen (Tex.om.App.) 67 S.W.2d 246; Von Hutchins v. Pope (Tex.Civ.App.) 351 S.W.2d 642 (Ref. N.R.E.). We, therefore, conclude the summary judgment evidence supports the trial court’s judgment.

Appellants further urge the trial court erred in severing appellants’ counterclaim for reimbursement for money alleged to have been expended by the community estate in paying off the indebtedness against the property and for funds expended by them for farming operations, taxes, etc. A determination of the issue of severance involves the discretion of the trial court and the trial court’s action in such matter will not be disturbed on appeal in the absence of abuse of that discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677. The merits or demerits of appellants’ cross-action depends upon a determination of the character or the status of the property acquired by W. L. Pope, Jr. It is thus essential that that question be first determined. We cannot say the trial court abused its discretion in ordering the severance.

Finding no reversible error, all of appellants’ points of error are overruled.

The judgment of the trial court is affirmed.


author: CADENA, Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Eusebio GONZALEZ, Appellee.
    No. 14451.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1966.
    Rehearing Overruled March 16, 1966.
    Waggoner Carr, Howard M. Fender, Douglas H. Chilton, Austin, for appellant.
    Werner A. Gohmert, Alice, for appellee.
   CADENA, Justice.

Appellant, Texas Liquor Control Board, complains of the action of the trial judge in setting aside an order of the Administrator of such Board suspending the retail on-premises beer license of appellee, Eusebio Gonzalez, for a period of sixty days.

On December 14, 1964, the Administrator, acting pursuant to Art. II, § 22, of the Liquor Control Act (Art. 667-22, Vernon’s Ann.P.C.), suspended appellee’s license for a period ending December 29, 1964. The suspension was based on the fact that the Administrator had ascertained that a breach of the peace had occurred on the licensed premises on December 8, 1964. The order of suspension recited that a hearing would be held on December 29, 1964, at which appellee would be given an opportunity to show that the act constituting such breach of the peace was beyond his control and was not the result of improper supervision of the licensed premises.

Appellee does not question the validity of the above order. The hearing was held on December 29, 1964, and on January 4, 1965, the Administrator entered an order suspending appellee’s license for a period of sixty days.

On January 6, 1965, appellee filed his petition in the District Court of Starr County seeking judgment vacating and setting aside the order of January 4 imposing the sixty-day suspension. The Liquor Control Board filed a plea to the jurisdiction of the District Court, relying on the provision of Art. 667-22, supra, to the effect that no appeal shall lie from an order suspending a license. After the trial court had temporarily restrained enforcement of the order of suspension pending the outcome of the trial on the merits, a trial was held before the court on February 24, 1965. At this hearing appellee presented two witnesses. The Board, relying on its plea to the jurisdiction, offered no evidence. On July 7, 1965, the trial court entered judgment setting aside the order of suspension.

Under the plain language of Art. 667-22, no appeal lies from an order of suspension, as distinguished from an order refusing or cancelling a license. The constitutionality of the statutory denial of the right of appeal in suspension cases has been upheld. Texas Liquor Control Board v. Falstaff, Tex.Civ.App., 369 S.W.2d 483, no wr. hist.; Texas Liquor Control Board v. Scrivano, Tex.Civ.App., 256 S.W.2d 598.

Appellee’s main contention is that Art. 667-21, Vernon’s Ann.P.C., authorizes a suspension of only thirty days for breach of the peace, and that the Administrator exceeded his authority in imposing the sixty-day suspension. This contention is without merit.

Under Art. 667-21, the Administrator is empowered to suspend, for a length of time not exceeding thirty days, the license of a retail beer dealer, upon ascertaining that an act constituting a breach of the peace has taken place upon the licensed premises. At the expiration of such initial suspension period, the statute provides that the Administrator shall cancel the license unless he is satisfied that the breach of the peace “was beyond the control of the person holding, the license and did not result from improper supervision by the licensee of the conduct of persons permitted by him to be on the licensed premises or premises under his control.”

In 1943, the Legislature added Sec. 19A to Art. 667. Sec. 19A provides: “As to any causes for cancellation of licenses herein provided, in lieu of such cancellation, the Board or Administrator shall have the discretionary power and authority to suspend any such license for a period not to exceed sixty (60) days.”

It is clear that, prior to the enactment of Sec. 19A in 1943, the occurrence of a breach of the peace on the licensed premises was a “cause for cancellation” of a retail beer dealer’s license. The necessary effect of the 1943 amendment was to authorize the Administrator in such cases, in his discretion, to suspend the license for a period not exceeding sixty days, instead of cancelling the license permanently. It follows that the Administrator, in imposing the sixty-day suspension in this case, did not exceed the authority vested in him.

The trial court erred in not sustaining appellant’s plea to the jurisdiction. The judgment of the trial court is reversed and judgment is here rendered dismissing appellee’s suit.


author: MURRAY, Chief Justice.

text:
    Harry Lee CARTER, Appellant, v. Lady P. BRADY, Individually and as Independent Executrix of the Estate of Frank T. Brady, Deceased, Appellee.
    No. 14450.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1966.

      Cofer, Cofer & Hearne, Austin, Thomas Y. Banks, Tyler, for appellant.
    W. F. Nowlin, Carl Wright Johnson, San Antonio, for appellee.
   MURRAY, Chief Justice.

Appellant, Harry Lee Carter, instituted this suit in the Probate Court of Bexar County, Texas, against Lady P. Brady, individually and as independent executrix of the estate of Frank T. Brady, deceased, seeking an order of such court closing the independent administration of the estate of Frank T. Brady. The Probate Court sustained a plea in abatement and dismissed the suit. Appellant duly appealed to the District Court of Bexar County, where the same judgment was rendered as in the Probate Court, from which judgment Harry Lee Carter has prosecuted this appeal.

Lady P. Brady is the independent executrix and a beneficiary under the will of Frank T. Brady, deceased. She was bequeathed the three-story Brady Building free from all liens, and one Gladys Nichols was bequeathed the eight-story Brady Building subject to all debts of the estate. Appellant, Carter, loaned Gladys Nichols the sum of about $70,000, and took a lien against her interest in the eight-story Brady Building. This loan was not repaid and Carter foreclosed his debt, and at a public sale bought Gladys Nichols’ interest in the eight-story building for the sum of $25,000. Carter also purchased a note in the sum of $500,000 secured by a first lien mortgage against the eight-story Brady Building. Thereafter Lady P. Brady, as independent executrix, released to Carter the eight-story Brady Building free from the administration of the Brady Estate. In this transaction he paid to Lady P. Brady the sum of $147,141.70, that she had advanced out of the Brady Estate to prevent a lien against the eight-story Brady Building from being foreclosed. Carter is now in possession of the eight-story Brady Building, and is the owner of the $500,000 note formerly held by Alamo National Bank, together with the first lien against the eight-story building. Carter has never foreclosed his lien against the Brady Building, and therefore has no claim for any deficiency which might have developed if there had been a foreclosure. Carter was not a devisee or legatee under the Frank T. Brady will. He is now in possession of the eight-story Brady Building and treats it as though he was the sole owner thereof.

Section 152, Vernon’s Ann.T.S. Probate Code, reads as follows:

“At any time after an estate has been fully administered and there is no further need for an independent administration of such estate, any distributee may file an application to close the administration; and, after citation upon the independent executor, and upon hearing, the court may enter an order closing the administration and terminating the power of the independent executor to act as such.”

This is the only method provided in the Probate Code for closing an independent administration, other than by acts of the independent administrator as provided in Section 151.

A distributee is defined in the Texas Probate Code, § 3(j), as follows:

“ ‘Distributee’ denotes a person entitled to the estate of a decedent under a lawful will, or under the statutes of descent and distribution.”

No one other than a distributee can force the closing of an independent administra tion. Harry Lee Carter is not a distributee, and therefore he can not compel the closing of the Frank T. Brady Estate.

The trial court properly sustained the plea in abatement and dismissed the cause. The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    William Albert PEARCE, Appellant, v. Floyd M. CROSS, Appellee.
    No. 16710.
    Court of Civil Appeals of Texas. Fort Worth.
    March 4, 1966.
    Rehearing Denied March 25, 1966.

      Garrett & Garrett and Rufus S. Garrett, Jr., Fort Worth, for appellant.
    Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellee.
   MASSEY, Chief Justice.

In the lower courts appellee Floyd M. Cross sought to set aside a will which was executed on September 1, 1961 by Testatrix Effie Ferguson, now deceased, and to reinstate an earlier will dated July 27, 1961. Gravamen of the suit was the allegation of undue influence exerted upon said testatrix in the execution of the later will. The person alleged to have exerted the undue influence was a Mrs. Della Pearce, testatrix’ sister, mother and grandmother of those who were heirs to testatrix’ estate.

Judgments in both the Probate Court of Tarrant County and the District Court were for appellee Cross. William Albert Pearce, proponent of the disputed will, is the appellant in the case before this appellate court.

Appellee Cross attacks propriety of points of error presented by appellant in which complaint is made because the trial court overruled the Motion for Judgment non obstante veredicto, on the ground that the Motion for New Trial made no reference thereto in a case where (because of the nature of other complaints) a motion for new trial was a necessary predicate for appeal. The contention is without merit. As applied to the conditions and instances mentioned in Texas Rules of Civil Procedure 324, “Prerequisites of Appeal”, where an appeal may be taken without the necessity of filing a motion for new trial, it is not essential that the motion for new trial, if filed, make mention thereof. If an appeal is perfected the complaining appellant is at liberty to found point or points of error thereon despite the fact no mention or complaint thereof was made in his Motion for New Trial. For example: the appellant may advance a point of error in his brief because a judgment non obstante veredicto was given or refused though a Motion for New Trial he filed in the trial court makes no reference thereto. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); T.R.C.P. 418, “Briefs: Contents”.

Appellant’s Motion for New Trial read as follows: “1. The verdict of the jury is contrary to the evidence. 2. The judgment entered herein is contrary to the law and the evidence. 3. Numerous errors in admission of evidence were made at the time of trial.” As applied to points of error founded thereon, such will not be considered by this appellate court. The trial court has not, perforce examination of such a motion for new trial, been afforded the first full and fair opportunity to correct errors, if any, pointed out in the motion. The assignments of error are in nebulous and indefinite form and insufficient upon which to found points of error. This is fully discussed in Wagner v. Foster, supra, at page 890 of the Southwestern Reporter under syllabus (3). See also Texas Digest, Appeal and Error,

As the result, appellant is in this case confined to his Point of Error No. 1 in which he complains because the trial court overruled his Motion for Judgment non obstante veredicto. Therein he contended that there was no evidence of probative force which would support the jury’s finding that the making and execution of the will of September 1, 1961 was procured by undue influence.

The appellant’s second point is construable only as advancing a contention that the jury’s finding of undue influence was contrary to the greater weight of the evidence in the case, a matter to be presented by motion for new trial. Since it was not therein presented, the point will not be considered.

We proceed to determine the question of whether there was evidence of probative force which entitled the trial court to submit the issue of undue influence to the jury and which will support the jury’s finding that undue influence had been exerted upon the testatrix.

An attorney by the name of Jackson prepared the will in question. Essentially it is noted that the only material paragraphs in the will of September 1, 1961 were those which changed provisions of an earlier will of July 27, 1961 (the will admitted to probate) so that a life estate granted appellee Cross in the home occupied by him and the testatrix was eliminated and a bequest of $1,000.00 was substantially reduced. As applied to dates earlier than September 1, 1961, there was evidence only of the relationships of the parties, and no evidence which spoke of influence being exerted upon the testatrix. Principally, the evidence bearing upon the cause and occasion for the execution of the will in September related to subsequent statements made by the testatrix to the attorney who handled the matter and to other persons.

The testatrix spoke to the attorney a few weeks after the will had been changed on September 1, 1961. She told him that she wished to make a third will so that she could leave the life estate in the property to her son-in-law, appellee Cross. Concerning the reason she had executed the will of September 1, 1961 (changing the will made earlier in the year) testatrix at first stated that “she was grieving, upset still about her daughter, Jewell, dying and that Della (the party who exerted the undue influence) had just been riding her so that she decided to do it; * * In reply to the attorney’s repeated question: “Gosh, just why did you do it ?” she replied, “Well, Della made me.”

This evidence from attorney Jackson was admissible and amounted to competent evidence of probative force. 61 Tex.Jur.2d 681, “Witnesses”, § 114 “ — Communications during preparation of will or deed”.

A Mrs. Leverett, who was staying with testatrix at time of the will of September 1, 1961, testified that after testatrix returned to the house she stated: “ * * * Della took me down and had me to just make another will and completely willed Floyd out of my property, my home and everything * * * I feel awful bad about it.”

There was other evidence which will not be described. We hold the above sufficient to raise the issue of undue influence. Although all the evidence which was adduced on the point were declarations of the testatrix after the fact of execution of the new will, we consider such competent to prove the existence of undue influence inducing testatrix’ act, and also her state of mind at the time.

Appellee’s proof in the trial court met the tests discussed by the Supreme Court in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 (1939) and in Rothermel v. Duncan, Tex.Civ.App., 369 S.W.2d 917 (1963). See also this court’s consideration of a similar question in Winn v. Daniel, Tex.Civ.App., 386 S.W.2d 293 (1965, writ ref., n. r. e.).

The judgment is affirmed.


author: TOWNSEND, Commissioner.

text:
    Alois B. MILLER, Employee, Plaintiff-Respondent, v. LEVER BROTHERS COMPANY, Employer, and Aetna Casualty and Surety Company, Insurer, Defendants-Appellants.
    No. 32137.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.
    Rehearing Denied March 17, 1966.
    Robert R. Schwarz, Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for defendants-appellants.
    William A. Ens, St. Louis, for plaintiff-respondent.
   TOWNSEND, Commissioner.

These proceedings were initiated December 13, 1962, by the claimant employee, respondent here, filing with the Division of Workmen’s Compensation claim for compensation, in which he alleged a back injury occurring on October 8, 1960, and in which he described the occurrence in the following language: “Stacking machine operation stopped due to cases of soap being jammed. Necessary to crawl up on machine to pull cases loose. While pulling and tugging on case of soap to break up jam, case came loose causing employee to be twisted backwards and sideways and sustain injury to back.” After hearing, the Referee awarded the claimant compensation in the net sum of $3,574.58 on the basis of six and six-sevenths weeks of healing time and a finding of twenty-five percent permanent partial disability of the whole man.

Upon review by the Industrial Commission the award of the Referee was affirmed by a divided tribunal. Upon appeal to the Circuit Court of St. Louis County the decision of the Industrial Commission was affirmed and final judgment entered thereon. This appeal followed. By Section 287.490, RSMo 1959, V.A.M.S. our review is limited to questions of law.

As he was alone at the time of the injury, the claimant was the only witness before the Referee who testified as to the facts of the occurrence causing his asserted injury. This testimony was to the effect that he was employed by the Lever Brothers Company as an electrician, engaged in construction and maintenance work; that among his other duties he was instructed to keep a palletizer, hereinafter referred to, running, that he devoted about one percent of his time to the operation of or correcting the operation of the machine.

The palletizer is a device eight feet by ten feet and ten feet high which receives cases of soap powder on conveyors from the Company’s packing department. This machine arranges cases of soap in a pattern and by layers. When the cases reach the palletizer two photo-electric cells operate, one to count the cases that come in and the other to operate a rotator which turns the cases into an appropriate pattern. When the cases come into the machine a compressed air device comes into operation on all four sides and squeezes the cases closely together. On the occasion in question the claimant detoured from other activities because of the flashing of a red light and the ringing of a bell which signified that the palletizer was not operating. The machine operator was not at the machine, so claimant climbed up on the machine to see what was wrong. He discovered that the cause of the trouble was the reception of one more case of soap than the pattern called for; the photo-electric cell had miscounted and the safety switch had shut off operation. From the platform on which he stood claimant crawled through safety bars to remove the extra case and so get the machine into operation. In order to remove it, he had to stand on top of the layer of cases. He described the removal operation as follows: “I stooped over, got my hand underneath the flap of the case to pull it out and the air pressure was holding it and I gave it a real good one, and that is when I felt the pain in my back.” There was no handle on the case, only a “small opening in the top, small crack in the top you could get your hand in.” Claimant did not succeed in removing the extra case. He left it and got off the machine. He states that he was using all the strength he had to pull the case out but that it came only part way. “Just when I gave a tug to get it out, when it broke loose is when I felt the pain.” He states that he had never done that type of work before under the same conditions. When the photo-electric cell miscounts and one less case is thrown in than the pattern calls for, the error can be readily corrected by simply pushing a button which starts the machine for the reception of one more case. Ninety percent of the counting errors are those where one less than the required number enters the layer. Usually there were two employees present when the machine would stop and the two together would pull a case out. Claimant recalls no other occasion when he had to release a jam by himself. Upon the return of the operator, he was told what had happened and he took care of it. Claimant finished the rest of his shift at 8 A.M. on a Saturday. When he tried to get up the next morning — Sunday-—his back was “terribly sore and stiff” at the spot where he had suffered the pain the day before. On Monday claimant appeared early at the Company dispensary, reported that he had hurt his back to the nurse who took down the information and instructed him to come in the next day to see the Company doctor, which he did. He continued to work at his job for a period of about three weeks, although his back was “terrifically painful”. At that point he was taken to Deaconess Hospital by the Company’s safety supervisor. The lower part of his back was operated on. [Witness did not otherwise state the nature of the operation but the records of Deaconess Hospital state the following: “Final diagnosis, herniated disc L-5 bilateral. Operation, lamenectomy and excision of disc L-5 bilateral.” Date of admission is shown as 10/28/60, of discharge as November 18, I960]. Claimant returned to work on December 15, 1960, was examined by the Company doctor and was told that he could come back to work on limited duty. After the limited period he performed the same type of work as he had done previously. Recurrent difficulties with his back caused him to receive treatment at the Company clinic where he received heat treaments from the nurse or doctor and medication from the doctor. From December 1960 until October 12, 1962, when he quit work with the employer, no period of more than two months elapsed in which he did not receive treatment at the clinic or from the Company doctor, without cost to himself. Such is the case made out by claimant’s own testimony.

Upon cross-examination the following questions and answers were had:

“Q. Mr. Miller, did this case when you pulled or tugged on it, come loose, causing you to be twisted backward and sideways ?
A. No, sir.
Q. You are sure?
A. I am positive, it didn’t even come loose.
Q. Didn’t come loose and cause you to bend backward and sideways ?
A. No.”

Thereupon claimant identified his signi-ture on a duplicate original of his claim as set forth in the first paragraph above and the following interrogation ensued:

“Q. * * * is that now how you are telling this happened?
A. Yes, I would say it was.
Q. Didn’t you five minutes ago say that wasn’t how it happened?
A. I said I can’t remember back three years ago exactly how everything happened.
Q. You can’t remember, your memory isn’t too good what happened November 8, 1960?
A. I didn’t say that.
⅝ ⅜ ⅜ ⅜ ⅜
Q. You think your memory of how this happened would have been better in November 1960 than at the present time?
A. Could very well be.”

On redirect examination:

“Q. Was there any movement of your body when the pain struck you ?
A. I don’t truthfully recall.”

Thereafter, for purposes of impeachment the appellants put into evidence paragraph 15 of the claim, although the claim was already and necessarily a part of the record. Paragraph 15 is the statement of how the occurrence happened and is quoted verbatim in the opening sentence of this opinion.

Upon his return to work on December 15, 1960, claimant signed a statement written out by the nurse on duty at the Company clinic. The pertinent parts of that statement follow:

“On Oct. 8, 1960 on or about 4 AM I was trying to release a jam-up on convey- or at Palletizer. I leaned over and started to pick up the case that was jamming * * * as I picked the case up and had part of the weigh or the full weigh I felt a very sharp pain in the center of my back at my waist line. I did not lift the case up because of the pain. I just let go of the box and got down off of the machine. I was working alone and therefore no one saw this happen * * *. On Oct. 8, I960, I did not have an accident of any kind. I did not slip, fall or stumble. Nor did the case of powder slip or start to slip out of my hands. Nothing unusual happened except that I felt a sharp pain in my back. I have moved these cases many many times and it is part of my regular work.”

Appellants’ attack upon the award as developed by their application for review before the Commission and by their brief in this Court rests upon two principal contentions : 1 — that there was no substantial credible evidence upon which the award could be based and 2 — that the finding of fact (adopted by the Commission) that “employee was lifting a case of soap powder out of a conveyor machine and caused injury to his back,” was not such as to show an accident within the meaning of the statute. These contentions of appellants were adopted by the dissenting member of the Commission.

We do not share appellants’ belief that there was a lack of substantiality in claimant’s evidence. Hence what remains under the first contention is an assault upon his credibility.

Appellants’ first contention rests upon the fact that claimant’s cause depends upon his own testimony alone and that he had made prior statements relating to the incurring of his injury which were allegedly inconsistent with his testimony. From this appellants conclude that claimant’s evidence was in hopeless conflict and hence there was “no basis for giving any weight or creditability or providing any substantial evidence or attaching any weight to the employer’s [sic] testimony”.

We proceed to consider claimant’s statements in chronological order. The statement of December IS, 1960, set out above, was written up by the Company nurse and the phraseology indicates that the choice of words was hers. There was no evidence of the circumstances under which the statement was taken. There is no testimony as to the reason why it was taken, but it was obviously intended as a summary of events leading up to the employee’s absence and operation, executed upon his return to work. Appellants introduced the statement as an admission against interest and for purposes of impeachment. Insofar as the recitation of the events leading to the incurring of the injury is concerned there is nothing therein contradictory of claimant’s testimony. Insofar as admissions are concerned, his statement that he did not have an accident is of no significance; whether or not he had an accident is a question of law as to which claimant had no competence. In view of the fact that the circumstances of taking the statement were not developed no special importance can be attached to the statement that “nothing unusual happened”, for that statement seems to be associated with the negative statement regarding slipping, falling and stumbling and the slipping of the case of soap. We find in the written statement nothing inconsistent with claimant’s testimony as to how his injury occurred and therefore nothing by which his credibility can plausibly be questioned.

The balance of claimant’s statement of December 15, 1960, is well and adequately explained by his testimony.

Considering next the statement of claim made to the Division of Workmen’s Compensation, the following sequence is noted: (1) the claim states that “While pulling and tugging on case * * * case came loose causing employee to be twisted backwards and sideways * * *(2) at the hearing claimant testified that the case came loose part way but that he did not fall; at a later point he testified that the case did not come loose causing him to be twisted backwards and sideways because the case didn’t even come loose; (3) upon cross-examination, when the entire contents of statement 15 was read to him he said that was how “this” happened; upon being questioned about his statement at (2) above, he replied: “I said I can’t remember back three years ago exactly how everything happened”; (4) upon redirect examination claimant said that the case came loose “to a certain extent”. Upon further redirect examination he was asked: “ * * * when you got this pain in your back, what was your reaction?” Ans.: “I just quit and crawled off the machine.” Q. “Was there any movement of your body when the pain struck you?” Ans.: “I don’t truthfully recall.” Claimant had previously testified that the case had come part way out when he pulled at it and that he felt the pain “just when I gave a tug to get it out, when it broke loose”. Thus, the charge of incredibility based upon asserted inconsistencies rests upon discrepancies in claimant’s statements as to whether or not the case came loose and as to whether or not he was “twisted backwards and sideways”. It is to be noted that the injury occurred October 8, 1960, the statement to the nurse was dated December 15, 1960, the formalized claim was dated December 13, 1962 and claimant’s testimony before the Referee was given on March 25-26, 1964.

It seems clear that the whole of the evidence relating to the case “coming loose” simply amounts to claimant saying that in the effort to release the case from the jam {and so to overcome the air pressure) it yielded only part way before the pain struck claimant and hence that he did not extricate it from the jam. As for the “twisting backwards and sideways” it is equally clear that if claimant’s case depended upon such a twisting, he has not sustained his burden. But the ultimate question in this case would be whether or not he has made out a case of accident without proof of such twisting. However our immediate problem is oné of credibility. If there be discrepancies between claimant’s statement of claim and his testimony, they must be regarded as minor ones. It must be remembered that the claim was made more than two years after the injury was incurred and that his testimony was given about three and one-half years after the injury. If at the hearing he makes out less of a case on the points here considered than his claim asserts we may well attribute the difference to the frailties of human memory. In any event making out less of a case is not sufficient to throw his testimony into the obfuscating shadow of incredibility.

The larger issue of law remains: Did the claimant suffer an industrial accident on October 8, 1960? The statutory definition of “accident” is found in Section 287.020(2), RSMo1959, V.A.M.S.: “The word ‘accident’ * * * shall * * be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” Under the enlarged concept of accident adopted by the Supreme Court of Missouri in Crow v. Missouri Implement Tractor Co., 307 S.W.2d 401, 404, 405, “ * * * the general rule is that an abnormal strain causing injury to workman may be classified as an accident” and “An abnormal strain may, therefore, be classified as an accident, even though not preceded or accompanied by a slip or a fall.” Such a statement by-passes any specific consideration of the statutory requirement that there must be an unexpected or unforeseen event happening suddenly and violently and, in and of itself, equates abnormal strain to an unexpected or unforeseen event. And such was the holding of the Court in Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61,65, quoted approvingly in Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, 297.

Plainly this case was tried before the Referee and on oral argument before the Commission on the theory that claimant had sustained an abnormal strain in the course of his employment. The form in which the findings of facts are made leaves much to be desired. The first finding of “fact” is that there was an accident. A subsequent finding states in the barest detail that the employee was lifting a case of powder and caused injury to his back.

The right to compensation depends upon the happening of an accident. But the determination of accident or not turns logically upon the preliminary finding of certain facts after which application of the law can be made. Here, no evidence was offered by appellants; the matter of claimant’s credibility having been settled, the award which the Commission should have made becomes a question of law. Where, as here, the Referee and the Commission find that an accident occurred —or as it is sometimes referred to, make a finding of the ultimate fact — without making an expressed determination of the preliminary facts and where the finding of accident is reached by an interpretation or application of law, the case must be reviewed upon the whole record. This does not mean that an appellate court can substitute its judgment for that of the Commission. The review of the whole record is directed solely to a determination of whether there was an error of law committed by the Commission. The Court’s review is by the statute limited in this manner: “The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: * * * (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.” Sec. 287.490, RSMol959, V.A.M.S. By so limiting the scope of review, the statute requires that the Commission’s award stand unless an error of law be shown.

Where there is a dearth in the findings of fact as here (except for the “ultimate fact”) it must be concluded that the Commission reviewing the evidence discerned therein a definite showing of abnormal strain (the case was obviously tried on that theory alone), resulting in the described injury, and hence determined, in accordance with statutory definition, that claimant thereby suffered an accident.

Proceeding to the consideration of the occurrence as a whole, no doubt can be entertained that the claimant’s injury was incurred in the course of his employment— he was instructed to keep the machine running. He was not injured in the course of performing a routine job in a routine way; the very job he was doing was not one of a uniformly or consistently repetitive character. While the type and the locale of the work which he was doing fell within what may be designated as his assigned work since it was in accordance with instructions received, it was still work which he performed very infrequently. The circumstances leading up to the occurrence were unusual. Claimant’s estimate that he devoted one percent of his time to the process of unjamming the machine was not rebutted. Ninety percent of the unjamming operations involved a situation where the error of 'the machine consisted of placing one too few cases in the frame; here the machine threw one too many cases into the pattern. In the former situation the loose pattern could be rectified by readily shifting a stray case and by merely pushing a button to run another case in; here considerable physical effort was required to extricate the surplus case. On previous occasions claimant had been an aide to the operator of the machine; here claimant was on his own. Claimant recalled no previous occasion when he had to release a jam by himself.

Does the record show an abnormal strain from which claimant’s injury resulted? More properly put, the crucial question is: Was there sufficient competent evidence from which the Commission could find that claimant suffered an abnormal strain resulting1 in the injury and hence could conclude as a matter of law that he suffered an accident, thereby justifying the award? The situation in which claimant found himself was an unusual one; he was engaged in a task the like of which he had not experienced. In trying to remove the extra case against the pressure of the compressed air, “Just when I gave a tug to get it out * * * is when I felt the pain” and “I gave it a real good one and that is when I felt the pain in my back.” As to the effort exerted claimant stated: “I was using all the strength I had to get it out.” It is quite evident that there is no norm by which to measure the extent of claimant’s physical exertion because the particular task was not a repetitive one, he had never before engaged in the operation of removal under the same conditions, and under different but milder conditions he had been but one of a team of two who customarily handled the cases in the event of a miscount. If comparison be made with the physical effort required to be exerted under the latter conditions the muscular exertion here can well be labelled abnormal. It seems clear that the strain here was greater than any known normal strain in any part of claimant’s routine occupation.

From a review of the whole record we find that there was sufficient competent evidence to warrant the making of the award.

The judgment of the Circuit Court of St. Louis County is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.