author: MORRISON, Judge.

text:
    W. J. WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37691.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.

      No attorney of record on appeal for appellant.
    Leon B< Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful selling of securities without being a registered dealer; the punishment, confinement in the penitentiary for one year and a fine of $1,000.00.

No statement of facts accompanies the record, but the transcript reflects that the trial was had before a jury.

Under the authority of Article 847, Vernon’s Ann.C.C.P., the judgment and sentence are reformed to show that appellant was adjudged guilty of selling securities without being a registered dealer.

The proceedings appearing regular, the judgment and sentence are reformed and as reformed, this conviction is affirmed.


source: Caselaw Access Project

author: WOODLEY, Judge.

license: Public Domain

text:
    Rudy Ovalla CONVERSE, Appellant, v. The STATE of Texas, Appellee.
    No. 37264.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 17, 1965.

      Evans & Egger, by Samuel L. Egger, San Antonio, for appellant.
    J. Taylor Brite, Dist. Atty., Jourdanton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft; the punishment, 8 years.

The indictment alleged the theft of an air impact wrench of the value of $160 from Milton Hurley, Jr.

The evidence shows: Hurley operated Hurley Auto Parts Store in Pleasanton and was a partner in the ownership of the business. Eddie Sanchez, Joe Gonzales, Jessie Fernandez and the appellant Converse resided in San Antonio where they had been seen together on prior occasions. On the afternoon of the date alleged in the indictment, the four were in Pleasanton.

Eddie Sanchez and three companions who were not identified visited Hurley’s Store between 3:30 and 4 o’clock P. M. Sanchez, Gonzales and the appellant were identified as being in Western Auto Store in Pleasan-ton about 4 P. M.

About 5 P. M. Sanchez and Gonzales were in White’s Auto Store and Fernandez was sitting in the driver’s seat of a 19SS two tone green Mercury automobile which was parked across the street. When Sanchez and Gonzales left the store they went to the Mercury car and they drove away.

Minutes later Mr. Tisdale, owner of White’s Auto Store, missed two Arvin Transistor Radios. Officers who were notified obtained a description of the automobile.

Deputy Sheriff Murray Potts, who was traveling toward Pleasanton from San Antonio, heard the radio report of the theft of two radios from White’s Auto Store in Pleasanton, and a description of the automobile in which four suspects were fleeing toward San Antonio. He met such a car, traveling at 60 miles an hour, some 12 miles from Pleasanton, pursued and stopped it about S :45 P.M. Fernandez was driving the Mercury, Gonzales occupied the other front seat. Eddie Sanchez and the appellant were riding in the back seat.

Other officers soon arrived in response to Deputy Potts’ message and the car and its passengers were searched.

Nothing was found on the person of the passengers, nor in the trunk or the inside of the Mercury, but when the hood was raised the officers found the two Arvin Transistor Radios which had been stolen from White’s Auto Store in Pleasanton, and other stolen property which had not been missed, including a 7 inch skill saw and two cartons of spark plugs identified as belonging to' White’s Auto Store, and the air impact wrench which Mr. Hurley later identified as that which was a part of his stock at Hurley Auto Parts before the visit of Sanchez and his three companions, and which he testified were taken without his consent.

The court charged the jury on the law of principals, and submitted the case as one of circumstantial evidence. Appellant contends that the evidence is insufficient to sustain the conviction and points out that he was not in exclusive possession of the stolen wrench; that there was no evidence identifying him as having been in the Hurley Auto Parts Store or White’s Auto Store; no evidence to show that any property was stolen from Western Auto Store, and no evidence to connect him with the theft of the property found under the hood other than the circumstance of his having been riding; in the back seat of the car.

We overrule appellant’s contention' and find the evidence, viewed from the-standpoint most favorable to the jury’s verdict, sufficient to support the finding that appellant was a principal in the theft of the air impact wrench.

The facts and circumstances shown by the evidence are sufficient to support a finding by the jury that the visit of Sanchez and his companions to the auto parts stores in Pleasanton, on a pretended shopping expedition, was in fact for the purpose of acquiring merchandise by theft.

Fernandez drove the car. In each of the stores, Sanchez occupied the attention of the merchant, posing as a customer, and thereby furnished his companions the opportunity to take merchandise from another part of the store. He bought nothing and the jury was warranted in concluding that such was not his purpose.

At Hurley’s Auto Parts Store Sanchez said he wanted to buy some brake shoes for a 1955 Roadmaster Buick; he wanted to see the brake shoes, which Mr. Hurley testified was “a very unusual practice.” He occupied Mr. Hurley’s time and attention for 15 or 20 minutes and then the four left without making any purchase.

At Western Auto Store Sanchez asked for a set of brake shoes “for a ’57 Buick.” Appellant was in the store while the salesman was trying to find such brake shoes and Sanchez said he wanted “a muffler for a ’57.” As Sanchez and Gonzales left, the appellant asked the salesman if they had a smaller solder gun than the one he was standing near when the salesman approached him. Appellant left and the salesman saw him about 10 minutes later walking side by side with Gonzales on the sidewalk across the street.

At White’s Auto Store Sanchez talked to a salesman and to the proprietor while Gonzales “prowled around over the store.”

Less than two and a half hours after Sanchez and his three companions came to Hurley’s Store and less than an hour after Sanchez and Gonzales were in White’s Auto Store, Sanchez, Gonzales, Fernandez and the appellant were fleeing away from Pleasan-ton at a speed of 60 miles per hour in the car in which Fernandez was waiting. They had traveled some 14 miles and had the stolen radios, spark plugs, skill saw and air impact wrench “stashed” under the hood.

The hypothesis that the appellant was a mere passenger in the car, and not a party to the thefts, was not one which the jury was bound to accept as reasonable.

We overrule the contention that the state relied alone upon the joint possession by appellant and his companions of the recently stolen wrench.

The court did not err in admitting evidence regarding the other stolen property found in the car and the evidence as to the conduct of the appellant and his companions on their visit to Pleasanton. Such proof was relevant and was not rendered inadmissible because it tended to prove the commission of another or other offenses. 55 Tex.Jur.2d 468, Sec. 204; Compton v. State, 148 Tex.Cr.R. 204, 186 S.W.2d 74.

The arrest of the occupants and the search of the automobile in flight from the scene of the thefts was admissible. Arts. 215 and 325 C.C.P.

Appellant’s formal bill of exception No. 1 relates to the reading of the indictment to the defendant by the district attorney to which he pleaded not guilty. This occurred in the jury’s presence and hearing and was followed immediately by the reading of the indictment to the jury by the district attorney who stated: “to which the defendant has pled not guilty.”

Appellant contends that such proceeding violated Art. 491 C.C.P. which provides: “There shall be no arraignment of a defendant except upon an indictment for a capital offense.”

We are cited to no case and know of none where this Court has reversed a conviction because a defendant in a non-capital felony case was arraigned.

The bill of exception does not certify that appellant did not plead to the indictment. We must presume that he did. Art. 847 C.C.P.

■ No error appearing, the judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Jessie GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 37682.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is possession of a narcotic drug, to-wit: marijuana; the punishment, five years confinement in the state penitentiary.

The record in this cause is deficient in two respects. No notice of appeal is contained in the record, as required by Art. 827, Vernon’s Ann.C.C.P., Oehlers v. State, Tex.Cr.App., 367 S.W.2d 672; Monrreal v. State, Tex.Cr.App.,368 S.W.2d 948. In the absence of such notice this Court has no jurisdiction.

The record does not reflect that a sentence was imposed upon the appellant. A sentence is requisite to the appeal in ordinary felony cases and notice of appeal may be given either before or after sentence is pronounced. Art. 829, V.A.C.C.P., Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W. 2d 59; Marrero v. State, 164 Tex.Cr.R. 626, 302 S.W.2d 134.

For the reasons stated, this Court is without jurisdiction to entertain the appeal. The appeal is dismissed.


author: BELCHER, Commissioner.

text:
    R. C. PERKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 37411.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 17, 1965.

      Ted Odom, Bill Wood, John Heitler, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on December 2, 1963, appellant was found guilty of burglary and his punishment was assessed at a term of three years. The execution of the sentence was suspended and probation was granted.

Among the conditions of probation were that appellant commit no offense against the laws of this or any other State of the United States, and that he avoid injurious or vicious habits and the use of alcohol in any form.

Following the granting of probation on December 2, 1963, the original application to revoke was filed February 13, 1964, alleging that he was under the influence of intoxicating liquor on February 9. The state’s amended application to revoke was filed March 6. It alleged that on February 9 appellant was under the influence of intoxicating liquor; that he also committed burglary and theft on February 9; that he was arrested and charged with being drunk on February 22, for which on February 26, he was tried in Corporation Court, found guilty, and assessed a fine of $35, which he paid.

At the hearing on revocation, the evidence reveals that appellant was arrested and placed in jail for being drank on February 9; that he was arrested for being drunk on February 22, and testified on his trial on February 26 that he had drank three cans of beer about an hour before his arrest February 22, and two officers also testified that he was drunk that day. The trial on February 26 resulted in his conviction for drunkenness with a $35 fine assessed. Testimony was offered which would show that appellant committed burglary and theft on February 9, but it appears that after the missing money was found or returned the matter was not further pursued. The testimony of the appellant on the hearing shows that he had drunk beer during the period of his probation.

The order revoking probation reads in part as follows :

“ * * * defendant herein, R. C. Perkins, has violated the terms of his said probation heretofore granted him by this Court by the use of alcohol, which occurred during the period for which sentence in this case was made probationary.”

From the testimony of the state and the judicial admissions of the appellant, it is concluded that the trial court did not abuse his discretion in revoking the order of probation. Craig v. State, 168 Tex.Cr.R. 193, 324 S.W.2d 557.

The judgment is affirmed.

Opinion approved by the Court


text:
    Paul Dan FOSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 37658.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    David Y. White, (on appeal only), Joan Whitaker, (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder with two prior felony convictions alleged for enhancement; the punishment, life.

Mrs. Abbott, the wife of the injured party, testified that on the' night in question she was alone at home with her child, that she saw appellant standing outside a sliding glass door on her upstairs balcony, .that she fled the apartment with her child • and went to the next door1 apartment where she called the police and her husband. She stated that a short while thereafter she heard a lot. of noise coming from her apartment, then heard her husband “hollering” outside of her apartment and when she got to him “His head was split open and there was blood all down his shirt and face.”

Her husband testified that in response to his wife’s call he hurriedly traversed the ten blocks to his home and entered, that he rushed through a half lighted hall into-the living room where a man hit him in the head, that when he picked up a vase to hit the intruder a pistol which the intruder held fired, that the bullet hit the wall behind him and that the uninvited guest crashed through a plate glass door and escaped.

Through testimony of nine police officers it was established that a 1959 Chevrolet fled the scene of the shooting and was discovered parked nearby, that appellant fled on foot and was not apprehended by the officers until some hours later as he entered his home at 7210 Long Drive. In the Chevrolet was found a bloody shirt, jacket, revolver and a check book printed for “Mr. or Mrs. Paul D. Foster, 7210 Long Drive, Houston 17, Texas,” together with a mutilated check bearing appellant’s signature. Appellant’s fingerprints were found on the mirror in the Chevrolet and the bullet found at the Abbott home- was shown by a fire arms identification expert to have been fired from the pistol found in the automobile.

The prior convictions were established and his confession was offered in evidence and admitted after his counsel had examined it and stated no objection. Appellant did not testify or offer any evidence on his own behalf.

The sole question presented for review is the applicability of the rule expressed in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; to this case. On remand to this Court upon the authority of Jackson v. Denno, supra, in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, we said:

“In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.”

We overrule appellant’s contention that a fair question of the voluntary nature of the confession is raised by the testimony of the officers that appellant had sustained cuts and had lost blood as a result of his encounter with a plate glass door or by that portion of appellant’s confession reciting that he had run all the way from his place of hiding to his home just prior to his arrest.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


text:
    Robert Carroll WARREN, Appellant, v. The STATE of Texas, Appellee.
    No. 37635.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Ronald J. Blask, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, 2 years.

The indictment alleged that appellant and one Alvin Eugene Harris broke and entered a house occupied and controlled by Roscoe Bayless with intent to commit theft. Appellant was tried separately.

The state called as witnesses:

Roscoe Bayless, the principal of the Milby Senior High School, who had custody and control of the school building and the property within the building.

Carter Sylesteine, employed by the School District as custodian of Milby High School.

A. N. Biamonti of the Radio Patrol Division of the Houston Police Department, who was dispatched to Milby High School and made an investigation to determine how entry into the building had been gained.

Police Officer V. C. Holiday of the Burglary and Theft Division of the Houston Police Department, who made an investigation which led to the arrest of appellant at the place where he worked.

The appellant made a statement to Officer Holiday which was reduced to writing and signed by him. The statement or confession was shown to have been voluntarily made and complies with the statute, Art. 727 C.C.P., and was admitted in evidence as a voluntary confession. In it appellant stated that he and his companions, Wayne, Danny, Phil and Eugene, were riding together when Phil and Danny said “Let’s break into Milby High School.” They parked and Phil, Danny and Eugene got out; took two crowbars and screw drivers which were in the back seat and left.

While appellant and his other companion were waiting in the automobile appellant was driving, they saw a police car pull up on the side of the school building “and they had a flashlight and they looked around.”

Appellant then backed up the car with the lights off and took a side street and Danny and Wayne “came running * * * with two boxes of candy and a pocket full of money and hopped in * * *.” Later, they found Eugene and he “came running * * * and hollering, ‘I’ve got lots of money.’ ”

From the testimony of the state’s witnesses above named, the jury was warranted in finding: that entry was obtained into the school building through an upstairs window, and into the teachers’ lounge by breaking the glass out of the door; that the entry was without the consent of the special owner and with intent to steal. Coin operated dispensers in the teachers’ lounge were demolished and the coin boxes or their contents were removed.

The case was submitted to the jury under the law of principals and the evidence is sufficient to sustain the conviction.

Evidence was offered as to the appellant’s mental development and status and the jury was charged on the issue of insanity.

The jury rejected the plea of insanity and the evidence sustains the jury’s verdict in this regard.

No brief has been filed in appellant’s behalf.

We have examined the record and find no error which would warrant reversal.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Dean Walton HEADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37573.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.
    Rehearing Denied Feb. 17, 1965.

      Orville A. Harlan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Cletus A. Davis and Joe Naron, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is driving while intoxicated; the punishment, ninety days in jail and a fine of $50.

The state’s testimony shows that on the date alleged, the appellant, while operating his automobile in the 4500 block of Yale Street in the city of Houston, was involved in a collision with two other motor vehicles.

Mrs. Mary Thornton, the driver of one of the other automobiles, testified that, as she was driving on Yale Street, she collided with the rear of appellant’s automobile while it was in motion and appellant was backing out into the street. She stated that after the collision the appellant did not walk straight and that he looked like he was intoxicated.

Eugene Brannon Milburn, a cab driver who was in the third vehicle involved in the collision, testified that on such occasion he was parked in front of a coffee shop some six or seven feet off of Yale Street when the automobile driven by appellant struck his car in the rear. The witness testified that after the collision he could smell alcohol on appellant’s breath but did not express an opinion with reference to appellant’s condition as to sobriety.

Officer Gartman testified that when he arrived upon the scene a short time after the accident, he determined that appellant was the driver of one of the automobiles involved in the collision. In describing the location of the vehicles, Officer Gartman stated that Mrs. Thornton’s automobile was on Yale Street and “roughly” one half of appellant’s car was on Yale Street. He further testified that at such time appellant had the odor of alcohol on his breath, that he was very unsteady on his feet and had difficulty with his speech, and expressed his opinion that appellant was drunk.

Officer Lenz, who also Went to the scene, corroborated Officer Gartman’s testimony with reference to appellant’s actions and appearance and he also expressed the opinion that appellant was drunk.

Appellant did not testify or call any witnesses in his behalf.

We overrule appellant’s contention that the evidence is insufficient to support the conviction because it does not show that he drove his automobile upon the public highway on the occasion in question.

The testimony of Mrs. Thornton that at the time of the collision appellant was backing his car out into Yale Street and that of Officer Gartman that after the collision appellant’s car was “roughly” one half on Yale Street was sufficient to sustain the jury’s finding that appellant was operating his automobile on the public street. Collins v. State, 132 Tex.Cr.R. 327, 104 S.W.2d 860.

By formal bill of exception, appellant insists that the court erred in permitting the assistant district attorney to advise the jury panel during the selection of the jury that an expert would testify that appellant was intoxicated on the occasion in question.

The bill certifies that during the examination of the prospective jurors the following transpired:

“ * * * the said assistant district attorney stated, in the presence of the panel, that the State would offer proof that the Defendant was intoxicated on the date and at the place alleged in the information through the testimony of two police officers, two civilian witnesses and an ‘expert’, whereupon the Defendant objected and, out of the presence of the panel stated his objection to the Court that the State was attempting. to apprise the panel that there was.a blood test and Defendant did not know if the same would be admissible whereupon the Court sustained the said objection with reference to the blood test but permitted the State to state that an expert would be called upon to testify, to which ruling of the Court the Defendant duly and timely excepted.”

We perceive no reversible error in the bill. The bill does not certify that the jury was apprised that there was a blood test and that an expert would testify concerning such a test. The bill, at the most, merely certifies that the state would call an expert witness to testify on the issue of intoxication. Any inference from the state’s failure to call such a witness would be against the state rather than the appellant.

Nor do we agree that because the state failed to call an expert witness we should treat the case as one evidencing a reasonable doubt as to the sufficiency of the evidence.

Recently, in Bailey v. State, Tex.Cr.App., 385 S.W.2d 241, we said:

“This Court will not treat the failure of the state to call certain witnesses as raising a question of reasonable doubt as to the sufficiency of the evidence to support the conviction where the evidence is not obviously weak and the state does not rely on circumstantial evidence. 24 Tex.Jur. 2d 428, Sec. 745; Barrera v. State, Tex.Crim.App., 371 S.W.2d 881; Lockhart v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749; Barker v. State, 168 Tex. Cr.R. 513, 329 S.W.2d 889; Musser v. State, 321 S.W.2d 882, 167 Tex.Cr.R. 529; Fletcher v. State, 164 Tex.Cr.R. 321, 298 S.W.2d 581; Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394.”

In the present case, the state’s testimony on the issue of intoxication is not “obviously weak” but is ample to support the jury’s verdict. Further, the state’s evidence is direct rather than circumstantial.

The judgment is affirmed.

Opinion approved by the Court.


author: MASSEY, Chief Justice.

text:
    Marjorie Daniel WINN et al., Appellants, v. Ruby K. DANIEL et al., Appellees.
    No. 16588.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.
    Speck, Johnson & Alexander, Dallas, Fred Erisman and Wm. Hurwitz, Longview, for appellants.

      Sarah Daniels, Dallas, Andress, Wood-gate, Richards & Condos, and Wm. Andress, Jr., Dallas, for appellees Cecelia Daniel North et vir.
   MASSEY, Chief Justice.

As tried below the case was one in which contestant sought to set aside the last will and testament of her deceased grandmother on the ground of undue influence, combined with one by which the same contestant sought to have set aside and annulled, on the ground of undue influence, an earlier deed (and correction deed) by which the grandmother had granted certain real estate to the proponents of the last will.

Verdict of the jury was for contestant, both as applied to the will and as applied to the deed transaction(s). Judgment was rendered on the verdict. An appeal was taken therefrom. Grounds relied upon were primarily predicated upon a contention that there was “no evidence” to support the verdict of the jury. We are convinced that the contention is correct.

Judgment is reversed and rendered.

Beulah M. Daniel died on August 18, 1955. Surviving her were three living daughters; Marjorie Winn, married; Mary Conrad, married; and Ruby K. Daniel, a feme sole. Also surviving her were Leonard R. Leonard, Jr. and Mary Jo Olsen, married children of a deceased daughter. Also surviving was a son, Robert Daniel. It is well to remember that the son, Robert Daniel, was alive for a period of time after his mother’s death, and was a party to the proceedings in the probate court. Therein he and Ruby K. Daniel were contestants of the last will executed by their mother.

In November, 1957, Robert Daniel died. His sole heir was Cecelia Daniel North, a married woman. She replaced her father as contestant to the last will of Beulah M. Daniel, deceased, who will be hereinafter referred to as testatrix. She, Cecelia North, and Ruby K. Daniel assumed the position of plaintiffs in a suit brought in district court to attack and have set aside the deeds executed by testatrix to Marjorie Winn and Mary Conrad.

The rural real estate over which dispute arose between the parties is land which had become quite valuable by the time of testatrix’ death in 1955. This was due to the expansion of the Dallas, Texas, metropolitan area. Such expansion has continued and it is highly unlikely that any party will suffer from any depreciation in value of whatever estate in the land is received.

On November 2, 1954, the testatrix executed a deed which purported to convey the whole title to said rural real estate to her daughters, Marjorie Winn and Mary Conrad. On date of November 19, 1954, a correction deed was executed. As heretofore mentioned Cecelia North, appellee, is contending that her aunts, Marjorie Winn and Mary Conrad, induced the execution and delivery to them of the deeds in question through undue influence exercised upon her grandmother, the testatrix.

On July 2, 1955, the testatrix executed the will which we will hereinafter refer to as the “last will”. At the time she was a patient in a hospital connected with the Mayo Clinic in Rochester, Minnesota. By the language of the last will the testatrix named her surviving children, named her living grandchildren by a deceased child (as standing for such deceased child), and devised to them certain property specifically set forth in subparagraphs numbered (a), (b), and (c). In respect to such property the testatrix recited, as follows: “ * * I devise, give and bequeath as their sole and separate property, the following properties and interests which remain in my possession and to which I hold title. * * * ” The property described under the sub-paragraphs were (a) a business lot in Venus, Texas; (b) real estate in Alabama (being all the real estate owned in that state) comprised of several lots; and (c) a one-twelfth interest in a gold mine, which interest had been acquired by her deceased husband about 1914. From the briefs it appears that the properties were of small value. Indeed, the attorney for Cecelia North characterized the property as “worthless cats and dogs”.

The rural real estate was never specifically mentioned anywhere in the last will, and seemingly was not considered as testatrix’ property at the time of its execution. Certainly it was not so considered by Marjorie Winn or Mary Conrad. If it was actually so contemplated and considered by testatrix then it would appear that she intended it to pass under the fourth paragraph of the will, its residuary clause. Such clause reads, as follows: “I give, devise and bequeath to my daughters Mary Daniel Conrad, and to Marjorie Daniel Winn, as their sole and separate property, absolutely all the rest, residue and remainder of my estate, otherwise not already provided for, of whatsoever kind and nature, real personal and mixed and wheresoever situated, of which I may die seized or possessed or in which I may have any interest or over which I may have any power of appointment or testamentary disposition.”

There had been two prior wills executed by the testatrix. One was a will of October 29, 1953. It was holographic. No mention whatever was made therein of testatrix’ daughter, Ruby K. Daniel. The three living children other than such daughter were mentioned by name, and mention was made that testatrix wanted the children of her deceased daughter to stand in place and stead of their mother, with each of her three living children to receive }4th of her estate, and her grandchildren so referred to to receive the remaining Marjorie Winn and Mary Conrad were named as independent co-executrices.

The other will was prepared by an attorney and was executed on November 5, 1953. Therein, after directing that Marjorie Winn and Mary Conrad collect and disburse among the other beneficiaries all her personal property and effects, such as books, keepsakes, equipment, etc., according to their fair conscience and best ideas of fitness, “ * * * giving first consideration to the wishes of my beloved son, ROBERT N. DANIEL”, she devised the remainder of her property like unto the provision made in the will of October 29, 1953. Incorporated into the paragraph so providing, however, was the following: “But if my son, Robert, should be incapacitated, I hereby instruct that his share and any money or monies due him be held in trust for him by my daughters. MARJORIE DANIEL WINN and MARY DANIEL CONRAD, and I appoint them trustees of such fund or interest to administer it at their discretion for the best benefit to his welfare and interest And/or in the event of his death, I instruct that my bequest to him be held in trust for his daughter, CECELIA DANIEL, to be used for her best welfare and interests. And in such case I appoint my daughters, Marjorie and Mary, to be the trustees for such fund or interest”

In this will the testatrix expressly stated that she had made no provision for her daughter, Ruby K. Daniel, giving reasons for excluding her as a beneficiary. Testatrix provided that Marjorie Winn and Mary Conrad be appointed co-executrices, and as trustees for Robert Daniel in the event of necessity.

Marjorie Winn and Mary Conrad filed the “last will” for probate. Ruby K. Daniel and Robert Daniel appeared and contested. Following hearing in the probate court it was decreed that the “last will” be admitted. Contestants appealed to the District Court. While the case pended in the District Court it was thought well to file the wills of October 29, 1953, and November 5, 1953, in the probate court. This was done by Marjorie Winn and Mary Conrad. Admission to probate was refused because of the pendency of the litigation upon the “last will”.. Another appeal was taken therefrom to the District Court. There the case(s) were eventually docketed tinder the same number as that already in litigation.

Robert Daniel died. His daughter, Cecelia North, succeeded to his position as a litigant. Cecelia North also filed an original suit by which the deeds of November, 1954, were attacked. The case was consolidated with that contesting the will. Through amendment of her pleadings Ruby K. Daniel likewise attacked the deeds, though on more restricted grounds.

Our description in the preceding paragraph has been somewhat simplified. It would be pointless to trace the entire litigation history through times when other entities were parties in representative capacities, etc. Neither have we mentioned the husbands of the married women, in respect to the litigation. Suffice it to say that conduct of the litigation has been procedurally correct and parties who should be present were when they should have been.

We believe we should mention the position of Ruby K. Daniel on the appeal. In the courts below she asserted that the testatrix was without testamentary capacity at all material times, and was without ability to transfer title to the rural real property by the deeds of 1954. The decision of the jury was to the contrary of her contention. She decided not to appeal. Cecelia North contended on trial that the testatrix’ execution of the “last will” and her earlier execution and delivery of the deeds, should be annulled because induced by undue influence on the part of Marjorie Winn and Mary Conrad. She prevailed under the jury’s findings. Judgment was entered for her. Marjorie Winn and Mary Conrad appealed. On the appeal, therefore, Ruby K. Daniel is before us only in respect to the matter of costs. The trial court acquitted her of any liability for court costs, assessing all costs against said appellants. Appellants are complaining thereof. Hence, Ruby K. Daniel is an appellee, though merely in respect to costs.

Rothermel v. Duncan, 369 S.W.2d 917 (Tcx.1963), may be said to have brought into focus the questions arisen for deciding cases of this nature, and rules to be applied to resolve the questions so arisen. Therein is stated (p. 922) : “ * * * before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.”

Further quoting (from Rothermel v. Duncan, p. 922) : “The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence.” Further: “ * * * it has even been held that one may request or even importune and entreat another to execute a favorable dispositive instrument; but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.” Further: “Influence that was or became undue may take the nature of, but is not limited to force, intimidation, duress, excessive importunity or deception used in an effort to overcome or subvert the will of the maker of the testament and induce the execution thereof contrary to his will. The courts of Texas treat the exertion of such influence in the execution of a dispositive instrument as a species of legal fraud.”

Further quoting (from Rothermel v. Duncan, p. 922) : “In the absence of direct evidence all of the circumstances shown or established by the evidence should be considered; and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion. (Authority cited.) However, the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence.”

In the left hand column on page 923 of the Southwestern 2d Reporter, under Rothermel v. Duncan, the author of the opinion gives the generally adopted trial usages of a litigant who seeks to establish the existence of undue influence in connection with the execution of a will which is under attack because thereof. In other words the author points out the nature of proof ordinarily presented to prove: (1) the existence and exertion of an influence; (2) effective operation thereof so as to subvert or overpower the mind of the testator at time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.

At one point in the brief of Cecelia North, appellee, is stated the following: “Nor does it (certain evidence of her adversaries) begin to explain, on any rational basis, why a loving mother, who had in November of 1953 discussed at great length Robert’s drinking problem with her longtime attorney and who had provided for it carefully, and who in March had solemnly advised the doctor caring for him that he was a loving and dutiful son who had always looked after her and shown her great care and affection, and who had continued to live alone in the same home with him without any scrap of writing or living testimony that she feared to do so prior to September of 1954, would of her own accord and volition and without undue influence, so turn against him that within sixty days she had effectively deprived him of his patrimony, and within ninety days had sworn he was crazy enough to be in jail and effectively segregated herself frorp him for the remainder of her life!”

In the quoted statement the attorney for f Cecelia North was demonstrating the inadequacy of opposing evidence to meet a test of showing that the circumstances under which occurred the actions of the testatrix — in executing the deed and correction deed in November of 1954, and in execut- 1 ing her last will July 2, 1955, — were as consistent with the absence as with the existence of undue influence. It is, of course, to be remembered (pursuant to the quoted statements from Rothermel v. Duncan, supra) that if she would prevail the burden rested upon Cecelia North and was necessary to be discharged by her, — as contestant of the will and in her contentions attacking the validity of the deeds, — to show that the circumstances relied upon as establishing the elements of undue influence were not equally as consistent with the absence as with the existence of undue influence.

Therein lies the “key” to our decision that the evidence in the case falls short of amounting to evidence of probative force and effect to establish any issue of undue influence. It is the evidence of Cecelia North which thus falls short of the requisite of necessary evidence. Our holding, therefore, is that there is no evidence to support the judgment. Although the evidence might be deemed sufficient to show (1) the existence and exertion of an influence upon testatrix by her daughters, Marjorie Winn and Mary Conrad, — it falls short of evidence that (2) such influence effectively operated so as to subvert or overpower the testatrix’ mind at the time of the execution of either the deeds or the will; — and it falls short of evidence that (3) the testatrix’ execution of either the deeds or the will would not have occurred but for such influence. Otherwise stated-: it was not established that testatrix’ actions at the material times were performed under circumstances which rendered such acr tions inconsistent with the absence of operative subverting' and overpowering influence on the part of Marjorie Winn and/or Mary Conrad.

The statement of facts consists of over two thousand pages. It would be impossible to mention or discuss all the evidence relied upon by Cecelia North to support the jury findings upon which judgment was rendered in her behalf. We think it fair, however, to outline events as follows: Cecelia North’s father, Robert Daniel, had been a beloved child of his mother. Indeed it might properly be said that Robert, her only son, was for many years her favorite child. Counsel refers to an event as “the invasion of Avondale”. Date thereof was on or about September 20, 1954. The “invasion” counsel has in mind was the occasion of Marjorie Winn’s move from her permanent home in New Orleans, Louisiana, to Dallas, Texas and into the testatrix’ home on Avondale Street. There testatrix and her son, Robert, had been living alone for well over a year. Counsel also bears in mind, furthermore, the quite considerable amount of time that Mary Conrad (who lived at a different address in the City of Dallas) spent with her mother, the testatrix, and with her sister, Marjorie Winn, after the “invasion”.

At such time, testatrix’ last will was that which had been prepared by an attorney in November of 1953. This has been previously mentioned. By it, Robert Daniel was provided for to the extent of one-fourth of testatrix’ whole estate, which included the rural real estate. It is to be remembered that the will provided that in the event of Robert Daniel’s incapacity his share in testatrix’s estate was to pass to Marjorie Winn and Mary Conrad in trust for him, or, in the event of his death, for his daughter, Cecelia North.

Robert Daniel was what is known as “an alcoholic”. He was known so to be by the testatrix in 1953 when the aforesaid will was executed, and it is without dispute in the record that she considered his condition such that it might be necessary that the share to be received by him, under her will, be in trust. Cecelia North, his daughter, was then a minor. She did not attain her majority until long after the litigation was begun.

Through testatrix’ arrangements Robert Daniel was given “the cure,” in a hospital primarily devoted to such a purpose. Time thereof was in the Spring of 1954. There is evidence in the record that before the time Marjorie Winn moved to Dallas and after Robert Daniel left the hospital and resumed living with testatrix, he had again “fallen off the wagon”, and/or that testatrix believed such to be a fact There is no evidence which disputes the fact that she so believed. Testatrix was then an elderly woman, having reached the age, with accompanying infirmities, when it would be well to have readily available someone to care for her in case of need. Circumstances, however, were such that she was living in the home and supplying readily available care for Robert — or believed that this was the actual state of affairs— rather than availed the security of any assured care from Robert. Undoubtedly, Marjorie Winn left her husband and family in New Orleans and moved to Dallas in September of 1954, either to help her mother care for Robert, to help Robert care for her mother, or disregarding Robert, to assume responsibility for the care of her mother.

Cecelia North’s theory, as presented by her attorneys, was that Marjorie Winn moved in on Avondale either with the intention already conceived of gaining control of testatrix’ property, or that she conceived that idea immediately after she arrived. In this she contended, Marjorie had the ready aid and wholehearted assistance of Mary Conrad. In respect thereto it is stated in her brief: “In September of 1954, two things happened: Marjorie Winn moved into Robert’s and Beulah’s home on Avondale, and Beulah Daniel began to keep a diary for the first time in her life. Within ninety days thereafter Robert had been forced out of his home, never to see his mother again, and his mother had given all of her valuable property to Marjorie Winn and Mary Conrad.”

The matter of the testatrix’ diary is of considerable concern to Cecelia North. Exigencies of her case made it necessary that she contend that testatrix’ institution of the practice of keeping a diary was at the instance and suggestion of Marjorie Winn and/or Mary Conrad, — and that what was written therein constituted statements of said daughters rather than independent statements of the mother. The substance of the diaries reflect much that constituted reasons why the testatrix did the very things she did do (at least as applied to Robert), towit: deed the rural real estate to Marjorie Winn and Mary Conrad, and thereafter treat such as property to which her daughters held the legal title.

We believe, and hold, that it was a circumstance which was as equally consistent with absence of undue influence as with the existence thereof when the testatrix instituted the practice of keeping a diary. The same thing is true of the maintenance of the practice once instituted, and of the recitations found in the diaries.

Concededly, for purposes of the appeal we are obliged to treat the testatrix as having maintained at all times that capacity generally referred to as testamentary capacity. This done, the case is one where questions are clarified in respect to existence, imposition, and operation of undue influence upon testatrix in connection with these actions of which complaint is made. Of course, if the testatrix in fact retained the equitable title to the rural real property after she executed the deeds, we must treat the entire title as having passed to Marjorie Winn and Mary Conrad under the residuary clause of the will. Due to the nature of the case as it developed, we must disregard any theory of the equitable title having been intended to belong to anyone else, for Cecelia North abandoned such prior to the time the evidence was closed and the issues submitted to the jury.

The matter of Robert Daniel’s having been “forced out of his home” (referred to in the Cecelia North brief), relates to December 9, 1954. Prior to that date he had been living in the home on Avondale with the testatrix and Marjorie Winn. On said date testatrix caused a lunacy warrant to be executed and her son Robert arrested and removed. A few days afterward she caused a restraining order to be served upon him in jail in order to supply a safeguard in the event of his release and any attempt on his part to come into her presence. Actually, Robert was released through the aid of his sister Ruby K. Daniel. The cases against him were never tried. Testatrix never again saw her son, but accompanied her daughter, Marjorie Winn, to New Orleans. Later she went to the Mayo Clinic in Rochester, Minnesota, after which she returned to New Orleans where she entered a hospital under an assumed name. She died there on August 18, 1955, presumably believing that Robert was beyond her help to combat the weakness she believed alcohol had caused, and that he had shifted his affections and dependence to his sister, Ruby K. Daniel, in her stead.

Counsel for Cecelia North was unable to develop any testimony from Marjorie Winn or Mary Conrad of benefit to establish her case on undue influence. Of course, the jury was entitled to disbelieve testimony of said witnesses, as it did. The jury, however, was not entitled to believe the contrary of that to which the witnesses testified. This it apparently did. That it did do so would not serve to endow what it believed with evidentiary character. Lacking and continuing to be lacking, was evidence that any influence upon the testatrix by Marjorie Winn and/or Mary Conrad effectively operated so as to subvert or overpower her mind at any material time, or that testatrix’ acts at said times would not have taken place but for such influence. We refer again to the requisite that circumstances relied upon must not be equally as consistent with the absence as with the existence of undue influence.

If we are correct the District Court erred in its annulment of the testatrix’ last will of July 2, 1955, decreed as such by the probate court, when it ordered admission thereof to probate. It likewise erred in its adjudication that the deeds of November, 1954 be annulled. In this, of course, decision is of little consequence if we are correct in our holding upon the last will, for the devisees of the rural real estate (passing under the residuary clause) would be Marjorie Winn and Mary Conrad, who were likewise the grantees under the deeds.

If and in the event it should be determined that we err in our holding and decision aforesaid, and that there was in fact evidence of undue influence, then we take occasion to state that we would hold that the findings of undue influence by the jury would be against the great weight and preponderance of the whole of the evidence in the case. The cause would in that event be remanded to the District Court for another trial though the Supreme Court deem us in error in our holding of “no evidence”.

Under either of such holdings disposition of the case is entirely controlled, and it is therefore not essential that we decide questions posed by the other points of error presented by Marjorie Winn and Mary Conrad. We do not make any decision thereon.

The cross-assignments of Cecelia North are overruled. In view of our decision they either fail completely or relate to matters simply resolved in the Probate Court of Dallas County, in which, as we have held, the proper will of testatrix was ordered admitted to probate.

Judgment of the District Court upon the probate of the will is reversed. The decree in the probate court upon the matter in controversy should have been and is sustained, and accordingly the will of Beulah M. Daniel, dated July 2,1955, is ordered admitted to probate. Judgment of the District Court annulling the deeds is reversed and rendered. Costs of appeal are assessed against Cecelia North. Costs in the proceedings conducted in the courts below, as applied to matters litigated, are assessed one-half against Cecelia North and one-half against Ruby K. Daniel.


author: SELLERS, Justice.

text:
    W. B. HANDLEY et al., Appellants, v. Patricia Dean BOSWELL et al., Appellees.
    No. 97.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 14, 1965.
    Rehearing Denied Feb. 11, 1965.

      Ben T. Warder, Jr., Carter, Gallagher, Jones & Magee, Henry D. Akin, Leach-man, Gardere, Akin & Porter, Dallas, Waggoner Carr, Atty. Gen., J. Gordon Zuber, Asst. Atty. Gen., Austin, Snowden M. Leftwich, Jr., Stigall & Maxfield, Dallas, for appellants.
    Paul S. Adams, Jr., Storey, Armstrong & Steger, Dallas, Arch B. Gilbert, Brooks, Tarlton, Wilson & Gilbert, Fort Worth, for appellees.
   SELLERS, Justice.

Plaintiffs’ Original Petition contains the following:

“NOW COMES, PATRICIA DEAN BOSWELL, joined by her husband, BRUCE L. BOSWELL, and JOHN HENRY DEAN, III, of Tarrant County, Texas, complaining of W. B. HANDLEY of 6316 Churchl Way, Dallas, Texas, In■dividually, and as Co-Trustee under the Testamentary Trusts created by the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased; W. B. DEAN of 607 Kessler Lake, Dallas, Texas, Individually, and as Successor Individual Co-Trustee under the Testamentary Trusts created by the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased; THE DEAN MEMORIAL CHILDREN’S HOME, Dallas, Texas a charitable corporation, organized and existing under the laws of the State of Texas, whose registered agent for the service of process is WILLIAM B. .DEAN, 3647 Henson, Dallas, Texas; and the ATTORNEY GENERAL of the State of Texas, Capitol Station, Austin, Texas.

“THE REPUBLIC NATIONAL BANK OF DALLAS, Dallas, Texas, a National Banking Corporation, having its principal place of business in Dallas, Texas, as Co-Trustee under the Testamentary Trusts created by the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased, is also joined as a defendant, only by reason of its capacity as Co-Trustee of the said Trusts. The said Bank was not an executor of the said Estate.

“The Plaintiff, PATRICIA DEAN BOSWELL, is the primary beneficiary of the PATRICIA DEAN BOSWELL TRUST, created pursuant to the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased. Bruce L. Boswell is joined as party plaintiff because he is the husband of Patricia Dean Boswell, but otherwise has no interest herein. The Plaintiff, JOHN HENRY DEAN, III, is the primary beneficiary of the JOHN HENRY DEAN III TRUST, created pursuant to the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased. The Defendants, W. B. HANDLEY, and W. B. DEAN, both of Dallas, Texas, were nominated in the said Will as Co-Independent Executors of the Estate of Mrs. Carrie Slaughter Dean, Deceased, and both were confirmed by the court as Co-Independent Executors and both qualified and served as Co-Independent Executors of the decedent’s Estate. The Defendants, W. B. Handley and The Republic National Bank of Dallas, Dallas, Texas, Co-Trustees, were named in the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased, as Co-Trustees of the trusts created therein. The Defendant, W. B. Dean, was named as Substitute Co-Trustee with the Republic National Bank of Dallas, Dallas, Texas in the said Last Will and Testament, in the case of the death, resignation or inability to act on the part of W. B. Handley. The Dean Memorial Children’s Home, of Dallas Texas, would succeed to the beneficial interest in the trusts created for the primary benefit of the Plaintiffs, pursuant to the Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased, in the event the Plaintiffs were to forfeit their interest in the trusts as provided in Section III of the said Will. The Attorney General of the State of Texas is made a party hereto as required in Vernon’s Annotated Civil Statutes Article 4412a.

“The above Defendants and the Plaintiffs are all of the parties who have an interest in or could be affected by this proceeding. Plaintiffs allege for their cause of action as follows:

I

“Mrs. Carrie Slaughter Dean died testate on the 7th day of August, 1958, a resident of Dallas County, Texas. Her Last Will and Testament and the Codicil thereto were duly admitted to probate in the County Court of Dallas County, Texas, on the 25th day of August, 1958, in probate proceeding No. 45453-P. W. B. Handley and W. B. Dean, Defendants herein, were named Co-Independent Executors without bond in said Will, were confirmed by the Court, duly qualified, and were granted Letters Testamentary as Co-Independent Executors of the Estate of Mrs. Carrie Slaughter Dean, Deceased, on August 25, 1958. The Estate of Mrs. Carrie Slaughter Dean, Deceased, was closed, and the administration completed, as of May 31, 1962. Upon termination of the Estate of Mrs. Carrie Slaughter Dean, Deceased, the residue of the estate was to be transferred to The Republic National Bank of Dallas, Dallas, Texas, and W. B. Handley, as Co-Trustees, who are required pursuant to the Will of Mrs. Carrie Slaughter Dean, Deceased, to hold an undivided one-half interest of all the residue of the estate in the Patricia Dean Boswell Trust, and the other undivided one-half interest in the residue of the Estate in the John Henry Dean III Trust.

II

“Plaintiffs would show the Court that they do not intend in any manner, in this proceeding or in any other proceeding, to contest or question the validity or legality of the Will of Mrs. Carrie Slaughter Dean, Deceased, or any part or clause of the said Will, or the probate thereof. Nevertheless, it has come to the attention of the Plaintiffs and the Defendant, The Republic National Bank of Dallas, Co-Trustee, and the Plaintiffs in good faith believe, that gross irregularities occurred in the handling and administration of the Estate of Mrs. Carrie Slaughter Dean, Deceased, by the former Co-Independent Executors, W. B. Handley and W. B. Dean. Because of these gross irregularities, the Plaintiffs would like to join with the Defendant, The Republic National Bank of Dallas, Co-Trustee, in bringing an action against the former Co-Independent Executors, W. B. Handley and W. B. Dean, to surcharge them for numerous breaches of their fiduciary responsibility in handling the Estate, gross neglect, and for the wrongful conversion of assets of the Estate. However, Section III, pages 13 and 14 of the said Will, contains what is commonly referred to as an ‘in terrorem’ or a forfeiture clause, which provides as follows :

“ ‘SECTION III. It is my will, and I now expressly provide and make it a condition precedent to the taking, vesting, receiving or enjoying of any property, benefit or anything whatsoever under and by virtue of this will, that neither of my grandchildren, Patricia Dean Boswell and John Henry Dean III, shall in any manner contest the probate thereof or question or contest the same or any part or clause thereof in any judicial proceeding, and I further will and provide that should either of them so contest or question, or in any manner aid in any such contest or questioning, then the one doing so shall thereupon lose and forfeit all right to any benefit and all right or title to any property or thing herein directly or indirectly intended to be vested in her or him or for her or his use and benefit, shall thereupon vest in the one who does not so question or contest or give aid in such questioning or contesting of this will or the probate thereof or any clause or provision of same; and it is my further will, and I expressly provide, that if both of my said grandchildren shall contest or question, or in any manner aid in any such contest or questioning, this will or the probate thereof or any clause or provision of same, then both of them shall thereupon lose and forfeit all right to any benefit and all right or title to any property hereby intended for them, or either of them, and thereupon every such right, title, property or other thing emanating therefrom shall vest in Dean Memorial Children’s Home, of Dallas, Texas.’

and the Plaintiffs are unable to determine (without possible great loss to themselves) the proper construction of this section of the Will. Pursuant to the provisions of Vernon’s Annotated Revised Civil Statutes, Uniform Declaratory Judgment Act, Article 2524 — 1, Sections 2 and 4, Plaintiffs ask this Court for a construction of Section III of the said Will so that the Plaintiffs may proceed safely. A copy of the Will and Codicil of Mrs. Carrie Slaughter Dean is attached hereto, marked Exhibit ‘A’ and made a part hereof.

Ill

“The Plaintiffs in good faith believe that it is necessary that an action be brought to surcharge the former Independent Executors for the numerous breaches of their fiduciary responsibilities, for self-dealing, collusion, and to obtain an accounting for all moneys paid by the former Independent Executors out of estate funds to themselves. The Plaintiffs further believe in good faith that it is necessary to bring an action to remove W. B. Handley as Co-Trustee of the trusts and W. B. Dean as Successor Co-Trustee, because of incompetency, self-dealing, breaches of trust, and demonstrated hostility, if the funds-of the trusts are to be properly protected and administered.”

Then follows some ten pages of misconduct on the part of the two co-executors which we deem unnecessary to quote.

“13. That the Plaintiffs in good faith believe that if the said trusts are to be properly administered and carried out according to their terms, it will be necessary that the said W. B. Handley be removed as Co-Trustee of the said trusts and that the said W. B. Dean be removed as Successor Co-Trustee.

IV

“The Plaintiffs, are not questioning or contesting the probate of the Will or any clause of the Will, nor the validity of same. Because of the existence of the ‘in ter-rorem’ clause in Section III of the Will, the Plaintiffs are presently constrained to proceed with the proposed actions herein set forth, until a judicial construction of that section has been obtained. If such judicial construction is favorable to these Plaintiffs, an appropriate civil action will be filed against W. B. Handley and W. B. Dean for an accounting, for recovery of-funds improperly paid to them, for gross negligence and negligence in the administration, to surcharge them for the numerous breaches of their fiduciary responsibilities, incompetent administration of the estate, and for the various wrongs above set out; and to seek the removal of W. B. Handley as Co-Trustee and W. B. Dean as Successor Co-Trustee, by reason thereof. Plaintiffs therefore request this Court to construe Section III of the said Last Will and Testament of Mrs. Carrie Slaughter Dean, Deceased, and answer the following questions in said construction:

“1. Would an appropriate action brought in good faith by these Plaintiffs or joined in by them to surcharge the former Co-Independent Executors, W. B. Handley and W. B. Dean, for the relief above described and for such other relief to which Plaintiffs or the Tiusts may be entitled in law and equity, for numerous breaches of trust, for collusion, for gross negligence and negligence in the administration, for gross mishandling of estate funds, and for the various wrongs above set forth, constitute a contest of the probate of the Will or a contest of the validity of the Will or any part thereof within the meaning of Section III of the said Will?

“2. Would an appropriate civil action brought in good faith by these Plaintiffs or joined in by them, seeking the removal of W. B. Handley, as Co-Trustee, and W. B. Dean, as Successor Co-Trustee (while specifically recognizing the validity of their appointments under the Will), and for such other relief which Plaintiffs or the Trusts may be entitled in law and equity, on the ground of hostility, incompetency, self-dealing, flagrant abuses of their fiduciary responsibilities, and the various wrongs above set forth, constitute a contest of the probate of the said Will or constitute a contest of the validity of the Will or any part or clause thereof within the meaning of Section III of the said Will?

“3. Would an appropriate civil action brought at any time during the terms of these trusts seeking a construction of the administrative or other provisions of the trusts, by these Plaintiffs or joined in by these Plaintiffs constitute a contest of the probate of the said Will or constitute a contest of the validity of the Will or any part or clause thereof within the meaning of Section III of the said Will?

V

“There exists a bona fide legal controversy and dispute between the parties that only a decree of the Court can resolve.

“WHEREFORE, the Plaintiffs pray that the Defendants be cited to appear and answer herein, that Section III of the Will of Mrs. Carrie Slaughter Dean, Deceased, be construed by this Court, that the questions propounded to the Court be answered in the negative, and for such other and further relief, at law and in equity, to which the Plaintiffs may show themselves justly entitled.”

There is attached to plaintiffs’ petition Exhibit “A” which purports to be a copy of the will of Mrs. Carrie Slaughter Dean. This instrument is neither verified nor certified to. Neither is the petition of the plaintiffs. All of the defendants filed answers containing many special exceptions and general denials of plaintiffs’ allegations.

The Attorney General’s, answer contains the following:

“The defendant neither admits nor denies the allegations of fact made by the plaintiffs in this cause but respectfully requests that this Honorable Court require that the allegations of plaintiffs’ Petition be properly proved and that this Honorable Court then act in such manner, in the premises, as the interests of all parties require, consonant with equity, justice and the laws applicable to the facts as proved.”

We have quoted at length from plaintiffs’ petition in order that our holding may be understood. We will say for brevity that this is an action under the Declaratory Judgments Act of this State, seeking a construction of the will of Mrs. Carrie Slaughter Dean, deceased, alleged to have been duly probated in Dallas County, Texas. The record comes to this Court from a summary judgment rendered by the trial court in favor of the plaintiffs, answering each of the issues in their favor. In order to secure a summary judgment the burden was upon plaintiffs to comply with Rule 166-A(e) of the Rules of Civil Procedure. The plaintiffs’ motion for summary judgment was not verified but has attached thereto an affidavit as follows :

“In support of the motion of Cross-Defendant, Patricia Dean Boswell, et vir, and John Henry Dean, III, for summary judgment in the above entitled and numbered cause the undersigned affiant makes this affidavit and thereby on oath states the following:

“I am over twenty one (21) years of age, am of sound mind, have never been convicted of any crime or offense and have personal knowledge of every statement herein made and am fully competent to testify to the matters stated herein:

“I honestly and in good faith believe that W. B. Handley and W. B. Dean, Defendants herein, as Independent Co-Executors of the last will and estate of Carrie Slaughter Dean, are guilty of numerous breaches of their fiduciary responsibility and gross neglect in handling said estate, and are guilty of wrongful conversion of assets of said estate. I have been informed by Republic National Bank of Dallas, Dallas, Texas, that they, because of said acts and omission, as Co-Trustee of John Henry Dean III Trust, intend to commence action against the said W. B. Handley and W. B. Dean to surcharge them and remove W. B. Handley as Co-Trustee and W. B. Dean as Successor Co-Trustee of the John Henry Dean III Trust. Republic National Bink of Dallas has invited and asked me to join them in this suit. Although I did not believe that such an action would violate the in terrorem clause of said will, because of the large sums of money involved I wanted to secure a judicial construction of this clause prior to joining in said lawsuit against the former Independent Co-Executors. This declaratory judgment suit was filed in good faith to determine in advance whether or Not I could bring such a suit or join in such a suit without violating the in terrorem clause of the will.

“John Henry Dean III /s/

' Affiant”

No sworn or certified copy of the will or the order probating the same is attached to said affidavit. The record in this case seems to us to require a certified or sworn copy of both the will and order probating the same before this Court could answer the question submitted by plaintiffs. We think our holding is supported by the case of Gardner v. Martin et al., 162 Tex. 156, 345 S.W.2d 274, by the Supreme Court where it is held:

“Defendants, who referred to record in a prior case in their motion for summary judgment, but who failed to attach certified copies thereof to their motion were not entitled to summary judgment. Rules of Civil Procedure, rule 166-A and subd. (e).”

Since this whole lawsuit is dependent on the will involved, we do not believe that this Court should proceed to construe the same without the referred to instruments being in the record.

For this reason, the judgment of the trial court is reversed and the cause remanded.


author: DIXON, Chief Justice.

text:
    TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellant, v. Dr. Hugo FIELDSMITH (Fieldschmidt), Appellee.
    No. 16433.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 18, 1964.
    Rehearing Denied Jan. 29, 1965.

      Waggoner Carr, Atty. Gen., and Pat Bailey, Asst. Atty. Gen., Austin, for appellant.
    Ralph Gismant, Dallas, for appellee.
   DIXON, Chief Justice.

Texas State Board of Dental Examiners has appealed from a judgment of a district court setting aside the Board’s order revoking the license of Dr. Hugo Field-smith to practice dentistry in the State of Texas.

Dr. Fieldsmith, appellee, was charged with violation of Section (g) of Article 4549, Vernon’s Ann.Civ.St. in that he permitted an unlicensed employee named Ruby Conner to practice dentistry on several occasions on Charles McDowell, Willie Buford and Marion Tuck; and also permitted his unlicensed employee Adolph Korn-gut to practice dentistry on Wayne R. Youngblood. Subsequent to the Board’s action revoking his license Dr. Fieldsmith took an appeal to the district court pursuant to Art. 4549, V.A.C.S. The court in setting aside the Board’s order held that (1) the order did not have reasonable support in substantial evidence and (2) Dr. Fieldsmith was denied due process of law.

The Board’s first two points on appeal are that the trial court erred in (1) substituting its discretion for the statutory discretion of an administrative agency and (2) in holding that the Board’s order did not have reasonable support in substantial evidence. We agree with appellant.

Our courts have held that an appeal to the district court under the dental statute must be tried in accordance with the substantial evidence rule. Texas State Board of Dental Examiners v. Fenlaw, Tex.Civ.App, 357 S.W.2d 185, 187; State Board of Dental Examiners v. Fieldsmith, 242 S.W.2d 213, 26 A.L.R.2d 990 (ref. n. r. e.) ; Tamez v. State Board of Dental Examiners, Tex.Civ.App, 154 S.W.2d 976. whether there is substantial evidence to support the Board’s order is a question of law. In such cases if there is substantial evidence introduced in the district court reasonably supporting the Board’s order, the order must stand notwithstanding the fact that the evidence may be conflicting. The district court cannot substitute its discretion for that of the Board. Northeast Tarrant County Water Authority v. Board qf Water Engineers, Tex.Civ.App, 367 S. W.2d 720, 726; Texas Liquor Control Board v. Warren, Tex.Civ.App, 360 S.W. 2d 821, 823; Texas State Board of Dental Examiners v. Fenlaw, Tex.Civ.App, 357 S.W.2d 185; Vrocher v. Texas Liquor Control Board, Tex.Civ.App, 350 S.W.2d 349; Texas Liquor Control Board v. Cervantes, Tex.Civ.App, 333 S.W.2d 466; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, 623-624; Board of Water Engineers v. Colorado River M.W. Dist, 152 Tex. 77, 254 S.W.2d 369, 372; Hawkins v. Texas Co, 146 Tex. 511, 209 S.W.2d 338; Board of Firemen’s Relief, etc. v. Marks, 150 Tex. 433, 242 S.W.2d 181.

In this case the court prefaced his utterance of the judgment with this statement from the bench:

“ * * * where the Court might have denied the appeal of the Plaintiff if the action of the State Board of Dental Examiners had been a thirty or even a sixty day suspension of Dr. Hugo Fieldsmith’s license, the Court was influenced in its decision and took into consideration in making its decision the fact that the State Board of Dental Examiners revoked and can-celled the license of Dr. Fieldsmith to practice dentistry in the State of Texas; * *

The quoted statement indicates that the court felt that the Board’s order of cancellation was too severe, otherwise the order would have been sustained. To that extent the court was substituting its own discretion for that of the Board. Appellant’s first point is sustained.

There was substantial evidence presented in the district court in support of the Board’s order. Charles McDowell testified that on various occasions Ruby Conner, an employee of Dr. Fieldsmith, put medicine in his jaw, treated the place where two teeth had been extracted, removed a piece of bone from his jaw, removed a temporary filling from a tooth, drilled on his teeth, placed permanent fillings in his teeth, and cleaned his teeth. Willie Buford testified that Ruby Conner made impressions of his front teeth and fitted a gold crown on a tooth. Marion Tuck testified that Ruby Conner made impressions of his teeth for the purpose of constructing a fixed bridge and later adjusted the bridge to his teeth. Wayne R. Youngblood testified that Adolph Korngut, also an employee of Dr. Fieldsmith, fitted and adjusted a partial plate for him. It is undisputed that neither Ruby Connor nor Adolph Korngut has a license to practice dentistry.

Dr. Fieldsmith, Ruby Conner and Adolph Korngut contradicted the testimony of the Board’s witnesses. They testified that they assisted Dr. Fieldsmith by mixing dental cement, squirting water in the patients’ mouths, and building dental plates in the laboratory, but that they did not practice dentistry. A supplier of dental materials also testified that a partial plate introduced as an exhibit was not made from ■material sold by him to Dr. Fieldsmith.

The testimony was sharply in conflict, but there was an abundance of substantial •evidence in support of the Board’s order. Appellant’s second point is sustained.

In its third point on appeal appellant ■charges that the court erred in holding that .appellee was denied due process of law by .appellant. The court so held because Dr. Emmett Johnson, a member of the Board, 'had participated in the investigation which led to the filing of the complaint against Dr. Fieldsmith.

Charles McDowell, one of the witnesses, ■was an employee of Texas Bank & Trust ■Company. He went to Dr. Fieldsmith for ■dental work on Dr. Johnson’s recommendation. The State of Texas through Dr. Johnson advanced money to McDowell to pay for the dental work. Dr. Johnson did likewise in the case of Willie Buford, an employee of Texas Bank Building where Dr. Johnson had his office, and in the case of Marion Tuck, an employee of the Texas Bank Garage. Another witness for the State, Wayne Youngblood of Austin, Texas, an employee and investigator for the Board, was reimbursed by the State for the money expended in having dental work done by Dr. Fieldsmith.

The complaint was filed by Tom A. Garner, investigator and Assistant Executive Secretary of the Board. Garner testified that he selected and hired the men who went to Dr. Fieldsmith for dental ■work after Dr. Johnson had found out that they needed dental treatment. Afterward Garner, in Dr. Johnson’s office, took the ■statements of the men as to what had happened on the occasions when they had gone to Dr. Fieldsmith. Each man had first written out his statement in his own handwriting. The statement was then typed and afterward signed and sworn to before a notary in some other office in the building. Garner, acting for the State, also advanced the money or part of it to enable the witnesses to pay for the dental work.

Article 4S49 of the dental statute contemplates that complaints may be made by a member of the Board or its agents and employees, and a complaint so made shall be filed by the Secretary and set down for hearing before the Board after notice.

Dr. Fieldsmith, though duly notified, chose not to appear at the hearing before the Board. No testimony was offered in his behalf. Testimony was offered .in behalf of the State. At the conclusion of the hearing all six members of the Board, including Dr. Johnson, voted in to revoke and cancel Dr. Fieldsmith’s license. Even if we were to hold (we do not so hold) that Dr. Johnson was disqualified to sit as a Board member at the hearing, we are faced with the undisputed fact that the other five members voted unanimously to revoke Dr. Fieldsmith’s license.

At the hearing on appeal in the district court Dr. Fieldsmith and several other witnesses appeared and testified in his behalf. The State’s witnesses withstood cross-examination.

It must be remembered that the Texas Board of Dental Examiners is an administrative agency. It is charged with the duty of aiding in the enforcement of the statutes regulating the practice of dentistry. To that end it is authorized to hire investigators, make complaints and to revoke a dental license for any one or more of the causes set out in the statute. The statute does not provide for disqualification of a Board member because he aided in an investigation.

We have not found a case exactly in point, but we think some light is shed on the question by the opinions in these cases: State Board of Dental Examiners v. Fenlaw, supra; Farb v. State Banking Board, Tex.Civ.App., 343 S.W.2d 508; State Banking Board v. McCulloch, Tex.Civ. App., 316 S.W.2d 259. Appellant’s third point is sustained.

The judgment of the trial court is reversed and judgment is here rendered sustaining and affirming the action of the Board in revoking Dr. Fieldsmith’s license to practice dentistry in Texas.

Reversed and rendered.

      . On November 21, 1964 our Supreme Court in the case of Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 mentioned that neither the dental statute, Art. 4549, nor the pharmacy statute, Art. 4542a, Sec. 12, nor the optometry statute, Art. 4563, requires that the proceeding on appeal from the acts of said Boards revoking and cancelling licenses shall be by trial de novo as in the appeal from the justice court to the county court.