author: HUGHES, Justice.

text:
    Katie B. MASON, Individually and as Independent Executrix and Trustee of the Estate of Dr. H. B. Mason, Deceased, Appellant, v. H. B. MASON, Jr., Appellee.
    No. 10964.
    Court of Civil Appeals of Texas. Austin.
    July 10, 1963.
    Rehearing Denied Aug. 1, 1963.

      Cox, Brown & Daniel, Temple, for appellant.
    Richey, Sheehy, Teeling & Cureton, Waco, Taylor & Taylor, Temple, for appellee.
   HUGHES, Justice.

This is a will contest in which the jury trying the case found that at the time Dr. H. B. Mason executed the instrument in question (will), he was acting under the undue influence of his then wife, Mrs. Katie B. Mason. No other issue was submitted to the jury, and no complaint is made that any other ground for invalidating the will was raised by the evidence.

It is our opinion that there is no evidence to sustain or support the finding of the jury.

The only parties to this suit are the contestant, H. B. Mason, Jr., and contestee, Mrs. Katie B. Mason, widow of Dr. Mason, beneficiary under and independent executrix and trustee of his will.

Dr. Mason died in Temple, Texas, on March 19, 1957, at the age of 72 years. Dr. Mason was twice married. His first wife died at the birth of their only child, Hubert Jr., appellee, about the year 1919. Dr. Mason married Katie Mason, formerly Mrs. Katie Ozier, in 1935. Mrs. Katie Mason had one son who is now Dr. Billie Burton Ozier. He and his wife, Margery, have three children, Michael, Gary and Mark, the latter being born after Dr. Mason’s death.

Hubert Mason, Jr. is married to the former Rose Hall, daughter of former Chief Justice Reuben Hall of the Texarkana Court of Civil Appeals. Mr. and Mrs. Hubert Mason, Jr. have one child, Richard Gregg Mason, the grandson of testator.

The will of Dr. Mason was dated and executed February 14, 1957. The will was drawn by W. R. Brown, a Temple attorney, who also acted as Notary Public in taking the acknowledgment of and administering the oath of the testator and witnesses to the will. The will was witnessed by Charles William Brown, an attorney and Mildred R. Knight, an employee of the law firm of Cox, Brown and Daniel.

Mr. W. R. Brown, who was 67 years of age at the time of trial, testified that he had known Dr. Mason practically all of his, Mr. Brown’s, life, that he knew him socially and had done a “considerable part” of his legal work for many years. He and Dr. Mason officed in the same building. In 1941, Mr. Brown persuaded Dr. Mason to become a candidate for a place on the Temple City Council. Dr. Mason was elected, and became Mayor of Temple.

Dr. Mason suffered from hypertension or high blood pressure. In 1953 he had what laymen call a slight stroke. He had some numbness in the right side and a slight slurring in his speech. As a result of this temporary impairment, Dr. Mason worked less and did less surgery. He, however, made a complete recovery from this illness.

Dr. Mason also suffered from a prostate condition, and shortly before his death he had a slight attack of phlebitis in his right leg. In February 1956, Dr. Mason consulted Dr. J. G. Rogarde, a member of the medical staff of Scott and White Hospital at Temple and its Chief of Staff for a number of years and also President of the State Board of Medical Examiners, regarding an abdominal pain. An enlarged prostate was noted. Dr. Mason and Dr. Ro-garde were close friends and Dr. Rogarde saw him from time to time. On February 13, 1957, Dr. Mason went to see Dr. Ro-garde and as a result of the examination then made of Dr. Mason and consultation with another physician surgery was recommended for the prostate condition. This surgery was recommended only upon the finding by Dr. Rogarde that Dr. Mason was in good general physical condition. Dr. Mason entered the hospital for surgery on February 14, 1957. The operation was performed the next day. Dr. Mason’s death at 11:30 a. m. on March 17, 1957, was sudden. Dr. Rogarde saw him at 8:15 a. m. and he was “doing very well, having no •complications. * * * was happy and reading his mail.”

Mr. W. R. Brown testified that Dr. Mason consulted with him about 11 a. m. ■on the day he went to the hospital. He did not recall whether or not Dr. Mason had made an appointment with him. Usually, he did not. We quote from the testimony of Mr. Brown:

“A. It is my recollection that Mrs. Mason came with him and they told me, one or the other, that he was going to the hospital at three o’clock that afternoon, and that he wanted a will drawn and wanted it executed before he went to the hospital.
"Q. Were you having your discussion with Dr. Mason or Mrs. Mason?
“A. I think primarily with Dr. Mason.
“Q. What instructions did he give you regarding the will?
“A. First I asked what disposal of his property he wanted to make, and I had assumed and was under the impression that Hubert owned half interest in what we called the community center property, Third and French, and I asked him what he wanted to do with that property. My recollection is that Mrs. Mason turned to him and said, ‘Doctor, I think you ought to give that property to Hubert,’ and he said, ‘No, if I did he would not have it long.’ Then I explained the life estate possibility. * * *
“Q. Did Dr. Mason specifically instruct you to put that type of restriction on that property?
“A. He did. I explained it to him, if that was what he was afraid of, he could handle it that way and he instructed me to do so. * * *
“A. Well, after I got the instructions as to how to draw it with respect to the community center, then I asked about the family homestead and so forth.
“Q. What did he want to do ?
“A. My recollection is he wanted to give Katie a life estate. I did not know whether it was his separate property or community, and he wanted to give her the contents, the household goods and so forth, and the family automobile or automobiles. I believe there were two at the time. I had previously explained to him the problem of the marital deduction as far as estate taxes were concerned. * * *
“Q. Was Dr. Mason interested in minimizing the federal estate tax ?
“A. Well, I have been after him for some years, knew his estate was approaching a good size estate, and I think I was instrumental in causing him to make the gift of the building near the Telegram to Hubert to get that out of the estate. I have talked to him several times, wrote him a note, reminding him that inflation was here and the estate would be liable for a rather heavy federal estate tax. * * *
“Q. Did Mrs. Mason say anything else at that conference other than what you testified earlier?
“A. I have a faint recollection, I think she told him that her grandchildren ought not to share in the remainder in the community center.
“Q. What did Dr. Mason say?
“A. He shook his head and said he wanted to leave it like it was originally framed in my notes.”

Mr. Brown took notes as to how the will should be drawn. His conference with Dr. and Mrs. Mason ended about a quarter to twelve. Mr. Brown shortly thereafter dictated the will to his secretary Mildred R. Knight. Dr. and Mrs. Mason returned to Mr. Brown’s office about 2:30 p. m., and we quote again from Mr. Brown’s testimony:

“Q. At the time he came back did you go over the will with him?
“A. Yes.
“Q. Did you explain it?
“A. I explained it paragraph by paragraph.
“Q. Did he voice any objection or have any changes that he wanted ?
“A. He had no objection and no suggestion.
“Q. Did Mrs. Mason say anything at the time that the will was being explained to him?
“A. Only the two statements that I mentioned.
“Q. I am referring to the time after he came back.
“A. My recollection is that no statement was made by her at all.
“Q. * * * Will you state whether or not this will that is here in evidence, as it was typed up, and as it was finally signed and witnessed and notarized and so forth, if that represented the wishes and desires of Dr. Mason as he had conveyed them to you ?
“A. It did.”

The principal provisions of the will of Dr. Mason are substantially, as follows:

To H. B. Mason, Jr., for life, a one half interest in property located at French Avenue & Third Street, in Temple. The other one half interest in this property was inherited by Mr. Mason from his mother. It was rented for about $500.00 per month. The remainder of testator’s one half interest in this property was devised to his grandson and the two children of Dr. Ozier, per stirpes.

To Katie B. Mason, in fee simple, the family homestead; also its contents and family automobile.

To Katie B. Mason a one half interest, in fee simple in any separate property testator might have, not otherwise specifically devised.

To Katie B. Mason a life estate in all property not otherwise specifically devised.

Upon the death of Katie B. Mason, all property not specifically devised was given, devised and bequeathed to the Temple National Bank, in trust, one half for the use and benefit of testator’s grandson, and one half for the use and benefit of the two children of Dr. Ozier living at the time of testator’s death.

For estate tax purposes, the value of the estate passing to Katie B. Mason was appraised at $131,344.19; to H. B. Mason Jr., $12,785.25; to Richard Gregg Mason (grandson) $74,396.24; to each of Dr. Ozier’s children $37,198.12.

Dr. H. B. Mason was an eminent physician. He was a humanitarian. He was charitable. He was generous. He was very devoted to his son, the son of his wife, his grandson and the children of his wife’s son. With it all, however, Dr. Mason was a hard headed and very successful business man. He worked for and earned all of the estate he left, and he respected its value. He was very proud, and rightly so, of his accomplishments.

H. B. Mason Jr., is now a minister. He took pre-medical training at the University of Texas, but he did not pursue it. He tried his hand at numerous vocations; he was at various times, but not for very extended periods, a house to house salesman, worked in an unemployment office, for a newspaper, as a roustabout for an oil company and in an oil company office. He worked some on his father’s stock farms. He was in the Army for more than five years. As a young man, Mr. Mason had ambitions to be a writer and an actor.

Dr. Mason expressed dissatisfaction with his son’s inability to handle money. In 1946, he borrowed $2500.00 from his father to go in the baby furniture manufacturing business. He did not go in the business and he did not return the money.

Dr. Mason was extremely generous with his son. He gave him a building in Temple about the time he was married. This building is rented for $230.00 a month. Dr. Mason also sold a building and divided the proceeds, $15,000.00 equally between his son and his wife’s son. He gave his son numerous cars and other gratuities. He left him $10,000.00 in life insurance. He bought an educational policy for his son (grandson).

Dr. Rogarde testified to the following conversation with Dr. Mason:

“Q. What did he tell you about Hubert?
“A. His main preoccupation about Hubert was he had never been able to settle down, had tried to give him everything he could, and had tried to send him to school, and he did not take advantage of that, had helped him financially — that Hubert seemed to run through with everything he gave him, and could not settle down to anything in particular and that sometimes for weeks and months he would not hear from him and did not know where Hubert was. And one time in particular he worried about him a lot, that Hubert was trying to convert or salvage souls, particularly alcoholics and other people that needed help, and he was concerned about what might happen to his wife and child, because Hubert was out nights looking for these poor victims — and that his house was open for anybody who wanted shelter and that he wanted Dr. Mason to help him buy a place that he could convert into that type of place.
“Q. That he wanted him to send him money for it?
“A. I don’t recall he wanted him to give him money. Dr. Mason worried that if he had that kind of place, it was not a proper place to bring up the child and for his wife to be there with all those derelics, and that was his main concern.
“A. Another time he told me that everything he had given Hubert he had disposed of or run through, he would not take care of it, that he was going to see to it that in the future what he would give Hubert was going to be in such a manner that he could collect the rents, or get something out of it — the only way he could protect Hubert, giving him a certain amount of income every month instead of the gross amount, that he would dispose of it, like he had everything else he had given him.”

Dr. Mason was characterized by many close and long time friends as a strong willed and very determined man. This characteristic remained with him all his life. Those who testified to this trait were: Mrs. Elizabeth Bosl, a witness for appellee, who was a graduate registered nurse employed by Dr. Mason for 17 years; W. R. Brown; Frank A. Thompson, Manager of the Scott and White Clinic at Temple (50 years close acquaintance) ; H. F. Blum, President of the Federal Savings and Loan, Temple (50 years close acquaintance) ; Mrs. Frank A. Thompson; Dr. Frank A. Robinson (more than 50 years close acquaintance); Dr. W. B. McCall (28 years as good friends); Dr; J. G. Rogarde (acquainted since 1935, very close since 1950) ; Mr. Gene Mewhinney, Vice President of the First National Bank in Holland (30 years).

Mrs. Bosl testified that in the fall of 1956 Dr. Mason received notice from an insurance company that his son had applied for a sum of life insurance, regarding which she testified:

“Q. Now just what came up between you and Dr. Mason or what conversation did you have with the doctor at that time?
“A. The doctor gave me a letter to read from the insurance company, and I thought nothing of it. He said, well, he did not want Hubert to do that, because ‘Hubert is taken care of and he will never have to worry about a thing.’
“Q. What are the facts with reference to whether the doctor said he was going to write him a letter ?
“A. He said he was going to write him a letter.”

Dr. Mason did write his son a letter concerning this insurance, which we quote:

“Dear Son:
“In the mail this morning I had a request from your friend Ray Toussant with a blank for insurance, and asking a lot of questions. Now you can do as you like about this but I have $15,000.00 insurance paid up for you; there is about $150,000.00 in Texas Company, Sinclair, Humble, Sears Roebuck and United States Steel Stock that is paid up and will eventually be yours besides most of the real estate in West Texas and here. Your old insurance will cost you a lot at age 43 so think it over.
“Didnt Texas do herself proud Saturday?
“I am getting four Cotton Bowl Tickets any way on a gamble.
Let me know.
“Love,
“Pappy. (In ink) HBM
“Envelope. Via Air Mail. To Hubert B. Mason Jr., Muscatine, Iowa. Postmarked, Temple, Oct. 15, 1956.”

On cross examination, Mrs. Bosl testified:

“Q. And that at that time he was upset and did not think Hubert should take out that life insurance?
“A. Yes, that is what—
“Q. At that time did Dr. Mason tell you any reason why he thought it would not be good for Hubert to have that life insurance?
“A. Yes. He made a statement.
“Q. What was that statement ?
“A. That he was afraid that perhaps. Hubert had suicide in mind or something.”

On re-direct examination by appellee, Mrs. Bosl testified:

“Q. Mrs. Bosl, Mr. Brown asked you something about the doctor in one of your conversations saying he was afraid Hubert had suicide in mind when he got the letter about the insurance policy. Did he say where he got the idea or what caused him to have that belief, that possibility?
“A. To the best of my recollection it was that there was something like that in the background of the family.
“Q. Some kinsman somewhere back there had committed suicide?
“A. Yes.”

On February 14, 1957, the morning Dr. Mason conferred with Mr. Brown about drawing his will, Dr. Mason saw five or six patients in his office. He was working as usual. Mrs. Bosl gave this testimony regarding a telephone call she received that morning:

“Q. Back to the last morning Dr. Mason was in his office, the morning of February 14, 1957. During that morning, did you or did you not answer the telephone for Dr. Mason ?
“A. Yes, I did.
“Q. Did you receive a call for Dr. Mason from Mr. Brown, the attorney, from his office?
“A. Yes.
“Q. Was that office in the same building, the Temple National Bank Building ?
“A. Yes.
“Q. What was the nature of that call?
“A. They asked that the doctor come up to their office, that they were ready for him.
“Q. Asked the doctor to come to Mr. Brown’s office, that they were ready for him?
“A. Yes.
“Q. Did you relay that message to Dr. Mason ?
“A. Yes, I did.
“Q. What was his response?
“A. He said, T am not going to do it,’ and T am not going up.’ ”

After the conference about the will, Dr. Mason went home to lunch. His brother, Robert Mason, and his sister, Mrs. H. W. Barton, were present. Mrs. Barton testified:

“Q. Did you see your brother Dr. H. B. Mason at that time ?
“A. Yes. He was sitting at the table.
“Q. Did you notice anything out of the ordinary or strange about him, the way he acted at the time you saw him ?
“A. Well, he acted in a most abnormal way. He looked at me in a puzzled manner, just puzzled. I could not understand it.
“Q. Did he talk to you ?
“A. Very little. He spoke, but talked very little.
“Q. Tell us whether he was a very sociable, talkative man ?
“A. He certainly was.
“Q. Since this seems to have made an impression on you, — was he seated at the table?
“A. Yes, and only toying with his food. He wasn’t eating.”

Mrs. Barton also testified to the following incident:

“Q. Do you recall an incident when your husband and Dr. Mason were in another part of the house of Mrs. Katie B. Mason making a statement to you?
“A. Ido.
“Q. Will you tell the jury what she said?
“A. Mrs. Katie B. Mason told me she wanted to tell me something, and this something was did I know that Hubert Jr. had sold his son’s educational policy and spent the money and I said that was pretty hard for me to believe, and I worried about it for months.”

With regard to this incident, Mrs. Bosl testified that early in 1957, Dr. Mason told her that he had heard that his son had cashed the educational policy for the grandson, and that he was very upset. She testified that Dr. Mason checked with the insurance agent and learned “that the policy was intact, that it had not been cashed.”

With reference to this same incident, Mr. Robert Mason, Dr. Mason’s brother, testified :

“Q. Do you remember an incident that happened with reference to an educational policy that Dr. Mason had purchased for his grandson, Dick, do you recall the instance when he said something about that to you?
“A. Yes, I do.
“Q. With reference to the time he went to the hospital the 14th of February, when did that happen?
“A. Getting pretty close to that, would say a week or ten days before he went to the hospital.
“Q. Can you tell what he said ?
“A. Yes. I can. I remember that. We were sitting in the car, and he says, What do you think of Hubert ? ’ I said, What do you mean ? ’ He says, Well, he cashed that policy I took out for Dick’s education.’ I said, ‘Doc, I don’t believe that.’ He said, ‘It is true.’ I said, ‘How do you know ? ’ He said, ‘Katie knows.’ He was all excited, on edge, and shouting. I said, ‘Doc, you calm down. That isn’t doing you any good. If it is true it is past and gone, and if not true, you will find out about it.’ I said, ‘You are in no condition to get excited by a thing like that.’ ”

Mrs. Rose Mason, Hubert Jr.’s wife, testified to a conversation with Mrs. Katie Mason, as follows:

“Q. Now, did you have any conversation with Mrs. Katie B. Mason after the funeral of Dr. Mason with reference to any will ?
“A. Yes, the day after the funeral, my husband and I went to the house to see Mrs. Mason, and we were sitting in the living room, and she said, ‘I just think you all ought to know that I talked Dr. Mason into making another will because the one he had, the government would take nearly everything.”

Mrs. Katie Mason denied making this statement.

Mr. Hubert Mason Jr. denied that he had made a statement attributed to him by Mrs. Katie Mason that he hated his father and that he had often sat with a gun in his lap, undecided as to whether to kill his father or himself. Mr. Mason also denied ever telling Mrs. Katie Mason, as she testified, that he had ever tried to commit suicide.

There are other contradictions in the record, but those noted are the major ones.

There is also in the record considerable evidence tending to show strained or hostile relations between Mrs. Katie Mason and Hubert Jr. and his wife Rose. The incidents are mostly petty and trivial. Before their marriage, Mrs. Rose Mason testified she and Hubert were visiting the Masons and Mrs. Katie Mason “made quite a scene” over a smudge on the rug caused by one of her shoes. She testified that Mrs. Katie Mason never made them feel at home when they visited her; that she complained that they either came without notice, or if they gave notice that she had gone to much trouble preparing for them. On another occasion, Mrs. Rose Mason testified, that she and Hubert Jr. came in unexpectedly at dinner time and they were made to eat in tlie breakfast room although there were seats at the dining table. Mrs. Rose Mason also testified that Mrs. Katie Mason told her that she and Hubert must never live in Temple as Hubert and his father did not get along.

Mrs. Frank A. Thompson had known Dr. Mason for forty years. She was one of three friends who attended Dr. Mason’s wedding in 1935. Mrs. Thompson testified that Dr. Mason told her that Mrs. Rose Mason was “cold as ice toward” him.

There are, in the record, letters of endearment from Dr. Mason to his son and his family. Dr. Mason branded his cattle “Mason and Son.” He referred to his stock farm as belonging to “Mason and Son.”

It is indisputable that Dr. Mason loved his wife and her son, his own son and his grandson. If Dr. Mason did not love his daughter-in-law, there was no manifestation of it. His bountiful generosity always included her. In fact, this record reveals that Dr. Mason loved everyone and everyone loved Dr. Mason.

Wills are made to be respected. They are not made to be “broken.” They represent a most solemn and personal undertaking. A will may be set aside for legal cause. A will may not be set aside because it is not the will some interested person, or some jury, might think the testator should have made.

Dr. Mason possessed all of the qualifications required to make a will. He was unusually capable of weighing the matters to be settled in his will. Dr. Mason knew his son. He knew his son better than any other person. He had a right to judge him when he wrote his will. Dr. Mason may have misjudged his son, but the judgment was his.

We are asked to find that there is evidence to support the jury finding that Mrs. Katie Mason, his wife for twenty-two years, unduly influenced Dr. Mason in the execution of his will.

Undue influence was correctly defined by the Trial Judge as follows:

“ ‘Undue influence’ as used in the foregoing special issue is such influence or dominion by excessive impor-tunities, imposition, or fraud, exercised at the time of the making of said instrument, as destroys the free agency of the testator and overcomes his wishes in regard to the disposition of his property to such an extent that the instrument does not in fact express his wishes as to the disposition of his property, but those of the person exercising such influence.”

The “undue” influence which will vitiate a will must be exercised at the time of its making. Besteiro v. Besteiro, 65 S. W.2d 759, Tex.Com. of Appeals.

The only evidence here is that at the time of the planning and making of the will Mrs. Katie Mason attempted to persuade the testator to be more liberal with contestant.

The statement attributed to Mrs. Katie Mason that she had “talked” Dr. Mason into making another will is not evidence of undue influence. There is no evidence that any other will existed. Besides, Mrs. Katie Mason had a right to persuade or “talk” her husband of twenty-two years into making a will according to her wishes. In Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208, Mr. Justice, now Chief Justice, Calvert stated:

“ * * * It has 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.”

Wives have a right to talk with their husbands, a right freely exercised. We would not, if we could, either restrict or discourage free communication between spouses.

Evidence that appellee did not receive as much under the will as he expected, or that his own son, his father’s wife of twenty-two years and her son who lived with testator since he was a small child and who is now, like his benefactor, a medical doctor, received more under the will of Dr. Mason is no evidence that Mrs. Katie Mason substituted her mind and will for the mind and will of Dr. Mason. Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564.

Whether or not a will makes an unnatural disposition of the estate of a testator must be weighed in the light of all circumstances. Only in the absence of a reasonable basis for the preference is this fact given weight on the issue of undue influence. Curry v. Curry, supra.

We find the circumstances here of such nature as to constitute a reasonable basis upon which the testator could naturally dispose of his property as he did.

The utterance of Dr. Mason when called to Mr. Brown’s office that,, “I am not going to do it. I am not going up,” is difficult to evaluate. If it had reference to conferring about his will and its execution, the answer is that he did go up to Mr. Brown’s office, not once, but twice, after receiving the message; and he did execute his will. Nothing, so far as the record discloses, transpired between receipt of the message and the visits to Mr. Brown’s office, which caused Dr. Mason to “go up” and to execute his will against his own volition.

In Thompson v. Townsend, Tex.Civ.App., 238 S.W.2d 810, writ ref., n. r. e., this Court, Chief Justice Archer writing, held that the statement of a testator, “I don’t see why I signed them papers for anyway; I didn’t want to do it” was no evidence of undue influence in its execution, the Court saying, “If he had reference to the will, then he had an opportunity to have revoked the will had he cared to do so.” Dr. Mason had a similar opportunity if he desired to revoke his will.

It is to be noted that this utterance of Dr. Mason does not imply that his wife or, in fact, anyone was compelling him to do anything. It only indicates the state of his mind which, evidently, he altered. No reason prompting the utterance can be found in the record. Nor does any reason appear for its prompt disobedience.

The letter of October 15, 1956, from Dr. Mason to his son, copied above, has complete explanation in the testimony of Mrs. Bosl. Even if unexplained, it is a matter with which Mrs. Katie Mason had no connection. If the letter bespoke the then intentions of Dr. Mason, the fact remains that they changed and he did not leave his property as indicated in the letter. To honor this letter and other expressions Dr. Mason may have made about the disposition of his property at death would make futile the execution of a will. We wish to have no part in the establishment of any such doctrine.

If there is evidence tending to show that Mrs. Katie Mason sought to engender estrangement between Dr. Mason and his son, the evidence completely proves her failure. This record will not admit of any conclusion other than that Dr. Mason loved his son and that he provided for him and the other beneficiaries in his will as he thought best, acting free from the domination of any person, and in the exercise of his own will dictated by an intelligent mind and a loving heart.

We sustain appellant’s no evidence points, and we do so under the rules applicable thereto as stated in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

If necessary, we would also sustain the points of appellant that the verdict of the ■jury is against the great weight and preponderance of the evidence as to be manifestly unjust. This we would do from a •consideration of all the evidence.

The judgment of the Trial Court is reversed and judgment is here rendered that appellee, contestant, take nothing by his ■contest.

Reversed and rendered.

      . See Mason v. Mason, 366 S.W.2d 552, Tex. Supreme Court.

      . “Proof that the daughters were favored and that the contestants got nothing under the will is not proof that the daughters did in fact substitute their mind and will for the mind and will of the testator.” 154 Tex. 589, 280 S.W.2d 566.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    Carl E.CALVERT, d/b/a Calvert’s Termite Control, Appellant, v. Mary WELCH, Appellee.
    No. 7504.
    Court of Civil Appeals of Texas. Texarkana.
    June 11, 1963.

      Gordon Wellborn, Houston, Phenix & Keeling, Henderson, for appellant.
    Law Offices of Tom Bankhead, Carthage, for appellee.
   CHADICK, Chief Justice.

This is a venue case. The trial court’s order overruling a plea of privilege is affirmed.

Carl E. Calvert, doing business as Calvert Termite Control, was sued by Mary Welch, a widow, in a District Court of Panola County, Texas. In her original petition Mrs. Welch alleged that she was the owner of a lot and the house situated thereon in Carthage, Panola County, and that the house was damaged by an explosion caused by Mr. Calvert in the course of his application of an insecticide on the premises. In pleading a measure of damages, Mrs. Welch also alleged the value of the “land and premises immediately prior to damage”, and the value of the “land and improvements thereon” immediately after damage.

Mr. Calvert plead the privilege accorded him by the general rule of venue, Art. 1995, Vernon’s Ann.Tex.St, of being sued in the county of his residence, which he alleged to be Rusk County. Mrs. Welch controverted his plea, and claimed the venue of her suit properly lay in Panola County by the terms of Subdivision 14, Art. 1995. The controverting affidavit adopted her original petition, and alleged that Mr. Calvert “caused and allowed damage and injury to the residence and home and land * * * situated in Carthage, Panola County, Texas.”

On the hearing of the plea of privilege Mrs. Welch testified that her residence was 116 North Adams Street, Carthage, Panola County, and that the property involved in her suit is at such address, and has been her home and residence since she acquired it April 4, 1962, a date prior to the time Mr. Calvert allegedly inflicted damage upon the property.

Mrs. Welch’s original petition clearly states a cause of action for damage to a house situated upon land owned by her. The remaining venue fact she is burdened with proving is that the alleged damaged property is land located in Panola County. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428; Marshall v. McMurrey, Tex.Civ.App., 303 S.W.2d 811, W/R.; 32 Texas Law Review 617, 1 (McDonald) Texas Civil Practice 378, Sec. 4.12 (pocket part supplement).

Mr. Calvert tacitly recognizes the foregoing statement of the burden of proof as correct, but makes this contention: “The petition bases the lawsuit solely upon alleged damage to the frame house which was occupied by plaintiff as her place of residence. No damage is plead as to the real estate, and none was here sought to be proved.” Later he sums up his objection to the trial court’s action with this argument: “ * * * there is not one line of evidence showing any damage to realty, showing any ownership of real estate in the plaintiff, showing that her residence is a permanent part of the real estate, or in any other manner showing that this suit is based upon damage .to real estate or land.” His brief then reduces the scope of his contention to the absence of (1) evidence that Mrs. Welch’s house is a permanent part of the land it is located upon, and absence of (2) evidence of ownership of the land to bring his appeal within the compass of the only two authorities cited in his brief: Holly v. Craig, Tex.Civ.App., 334 S.W.2d 586, N.W.H.; and Rogers v. Fort Worth Poultry & Egg Co., Tex.Civ. App., 185 S.W.2d 165, N.W.H. These two cases held that suits for damage to structures erected upon land did not come within the purview of Subdv. 14, Art. 1995, in the absence of proof that the land belonged to the owners of the damaged buildings.

Mr. Calvert’s contention, (1) in the paragraph next above, respecting the absence of proof that Mrs. Welch’s house was a part of her land is devitalized by the presumption, arising in the absence of evidence to the contrary, that a house located upon land is regarded as a part of the land. Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, N.W.H.; Clark v. Clark, Tex. Civ.App., 107 S.W.2d 421, N.W.H.; Bedford v. Moore, Tex.Civ.App., 244 S.W. 565, N.W.H.; Counts v. Dobbs, Tex.Civ.App., 235 S.W. 716, N.W.H.; “Fixtures”, 25 Tex.Jur. (2) 396, par. 5; “Real Property”, 35 Tex.Jur. 886, par. 2; “Fixtures”, 36A C.J.S. § 26 p. 676. It has been held in a case of similar nature that the plaintiff was not required to plead in specific terms that the destruction of a house constituted damage to the land on which it was situated. Sims v. Trinity Farm Const. Co., Tex.Civ.App., 28 S.W.2d 856. Also in this type action it is said that where ownership of a house and the land on which it stands is shown to be in the same person as in Mrs. Welch’s case, the house is to be treated as a part of the land in determining the damage the owner is entitled to recover in an action for the partial or total destruction of the structure. Pacific Express Co. v. Lasker Real-Estate Ass’n, 81 Tex. 81, 16 S.W. 792.

As to the complaint (2) in the second paragraph above, attention is directed to the previous recitation where it is shown the allegations of Mrs. Welch’s original petition stated that she owned a lot and the house situated thereon in Panola County, and alleged the value of such land and premises immediately before and after damage thereto, and her testimony that the property described in her original petition is her home and the property involved in her lawsuit. The only evidence offered upon the questions shows that Mrs. Welch owned both the lot and the house located upon it which she occupied as her home. Ownership is not an issue in a plea of privilege hearing in the case. See Marshall v. McMurrey, supra.

The pleadings filed and the proof made authorized Mrs. Welch to bring her suit in Panola County pursuant to Subdivision 14, Article 1995. The trial court correctly overruled Mr. Calvert’s plea of privilege. The appellant’s points of error are overruled, and the judgment of the trial court is affirmed.

      . “14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”


author: WILSON, Justice.

text:
    MID-WEST ELECTRIC COOPERATIVE, INC., et al., Appellants, v. WEST TEXAS CHAMBER OF COMMERCE, Appellee.
    No. 4159.
    Court of Civil Appeals of Texas. Waco.
    July 11, 1963.
    Rehearing Denied Aug. 15,1963.

      Bradbury, Tippen & Brown, Abilene, Powell, Rauhut, McGinnis, Reavley & Loch-ridge, Austin, Robert R. Patterson, Snyder, for appellant.
    McGown, Godfrey, Logan & Decker, Ft. Worth, for appellee.
   WILSON, Justice.

Summary judgment for defendants was rendered in appellants’ action for declaratory judgment and injunction. Appellants are members of appellee corporation, chartered without capital stock as a Chamber of Commerce to promote the civic and business interests of the western Texas area^ Joined as defendant was its executive vice president.

Appellants alleged appellee published a magazine, periodically distributed to its 3500 members, in which appellants had attempted to place advertising which was refused; that denial of the right to buy advertising space constituted unfair discrimination against them as members; that it was beyond the purpose of appellee “to refuse these plaintiffs the right even to advertise their existence in the official publication of the corporation”; that as members they were entitled to “state their position” in the pages of the magazine. They prayed for declaration of their rights as entitling them to equal treatment by the official publication and acceptance of their advertising therein, an order enjoining defendants from deny-, ing them the right to place advertising in the magazine or refusing to accept copy for publication, and enjoining acts or communications with members to deny them full and equal treatment. Pleadings and depositions constitute the record.

The publishers of newspapers or magazines are generally under no obligation to accept advertising from any and all who may apply for its publication, but are free to deal or decline to contract with whom they please. 87 A.L.R. 979 ; 39 Am. Jur. Sec. 22, p. 12. Appellants recognize this rule, and state they do not contend they have “the right to place all the advertising offered in the magazine” or that appellee “has a legal duty to publish the advertising of anyone who submits it.” They concede “the publisher may publish or refuse to publish advertising as he wishes.” This would appear to end the case; but appellants say the further issue is that refusal of their advertising unfairly discriminates against them as members of appellee. They say an arbitrary decision has been made that no advertising from them will be accepted by appellee, “no matter what it says.”

The undisputed record before the trial court refutes this position. Appellants submitted a series of advertisements for publication. Appellees’ by-laws vested determination of its policy in its board of directors, some 135 in number. When the series of ads was submitted, the directors adopted a resolution to the effect that the magazine would not accept advertising where the content is contrary to the policies of the organization, and the tendered advertisements were rejected for publication. Appellees were informed that the content of their advertising would not be found objectionable “if it omits any presentation of political or economic philosophy contrary to our policies. To be specific in citing one instance, advertising which relates entirely to the sale of a product or service would encounter no objection from or conflict with our policies.”

To hold as appellants ask would constitute judicial intervention to change the policy of West Texas Chamber of Commerce. Courts are not to interest themselves in the internal policy of a non-profit organization such as appellee, except to see that it is fairly administered and is not contrary to law. Screwmen’s Ben. Ass’n. v. Benson, 76 Tex. 552, 13 S.W. 379, 380; 14, Tex.Jur.2d 342; 6 Tex.Jur.2d 532. Whether the policy be wise, be in the best interests of its membership, or be acceptable to the court are not questions justifying the interposition of judicial action

Appellants say there may be many valid reasons for rejecting their advertising, among which are that “the copy might be objectionable for conflict with some bona fide policy which would exclude it regardless of who tendered it”, and state, “We agree that the board of directors could, if they wished, exclude every statement with which any person in West Texas disagreed.” Without adopting this broad statement, if appellants’ contention is that membership in the organization places them in a status different from that in which they admit other advertisers to be, we find no authority for the position. In our opinion appellee’s non-duty to accept all advertising tendered was not altered by appellants’ admission to its membership, and appellee was not thereby deprived of the right to exercise choice in selecting the content of advertisements to be circulated to its members.

The record negatives existence of any genuine issue of material fact, and the summary judgment was proper. Affirmed.


author: McDONALD, Chief Justice.

text:
    Thomas D. FERGUSON et ux., Appellants, v. AETNA CASUALTY & SURETY COMPANY, Argonaut Insurance Company, and Donald E. Bowles, d/b/a Shelton and Bowles Insurance Agency, Appellees.
    No. 4149.
    Court of Civil Appeals of Texas. Waco.
    Aug. 1, 1963.
    Rehearing Denied Aug. 15,1963.

      Carter, Gallagher, Jones & Magee, Joe Hill Jones, Dallas, for appellant.
    Bailey & Williams, James C. Allums, Jr., L. W. Anderson, Touchstone, Bernays & Johnston, Wade Smith, Dallas, for appellee.
   McDONALD, Chief Justice.

Plaintiff sued defendant Insurance Companies upon the “medical payments provision” of policies issued upon her automobile (and sued defendant Insurance Agency upon policy which was requested but not issued). Such policies provide medical payments for the named insured who sustains “bodily injury, caused by accident, while occupying or through being struck by an automobile” The term “occupying” is defined in the policy as meaning “in or upon or entering into or alighting from an automobile."

Plaintiff had been to the beauty parlor. She left the beauty parlor, came out onto the parking lot where she had left her automobile. In front of the beauty shop was a board that went out into the parking area. Parked alongside of this board at the end of it was “an automobile”. Plaintiff walked to the end of the board and reached out and grabbed the door handle of the car to support herself. While holding onto the handle for support, she stepped off the board and went down into the mud, breaking both legs and suffering other injuries. (The car plaintiff had hold of was not her own, and she was not in the act of entering such car; she was merely holding onto the handle for support as she walked around the car on her way to her own car, which was parked further down on the parking lot. However, if plaintiff was “in or upon, or entering or alighting from” this particular car, she would be covered by the policies. Houston Fire & Cas. Ins. Co. v. Kahn, Tex.Sup.Ct., 359 S.W.2d 892).

The Trial Court entered summary judgment that plaintiff take nothing, holding that plaintiff was not “occupying an automobile" within the definition of the medical payments of the policies which provide that the term “occupying”, is defined as “in or upon or entering into or alighting from an automobile”, at the time of sustaining injury.

Plaintiff appeals, contending that the trial court erred in rendering such summary judgment, and that the policies afforded coverage in the factual situation involved. Plaintiff further contends that plaintiff was “in or upon" the automobile that she was touching if she had “physical contact" with such automobile. Plaintiff had hold of the door handle to steady herself as she went around the car; she was not entering this automobile; she had not occupied this automobile, nor was she intending to enter it; she was simply holding on to the handle to steady herself as she walked around it.

The sole question for determination is whether plaintiff was “in or upon” the automobile she had her hand upon at the time she fell and sustained injury.

We think the language employed in the coverage of the insurance policies reasonably plain and unambiguous; and to say that plaintiff was “in or upon” the automobile she had her hand on would be placing a distorted meaning, and unreasonably strained construction upon the described coverage.. If plaintiff had been entering or alighting from the car she had her hand upon, at the time of her injury, a different situation would be presented. We cannot say she was “in or upon” the car simply because she put her hand upon it to steady her walk around it on the way to her own car from the beauty parlor. Moreover, we reject plaintiff’s contention that “physical contact” alone is the test as to whether an insured is “in or upon” an automobile. We think the trial court correctly entered summary judgment that plaintiff take nothing. All of plaintiff’s points and contentions are overruled and the judgment of the trial court is Affirmed.


text:
    Dow MAHALEY et al., Appellants, v. J. A. JENKINS et al., Appellees.
    No. 4152.
    Court of Civil Appeals of Texas. Waco.
    July 18, 1963.
    ' Mays & Jacobs, Corsicana, for appellants.
    Palmer & Palmer, Dallas, for appellees.
   McDONALD, Chief Justice.

This case involves the right of the Trial Court to enter a judgment “nunc pro tunc,” to correct a “misrecital of fact.” In 1960 Mahaley sued Jenkins in trespass to try title to cancel an oil and gas lease held by Jenkins. The parties agreed that judgment should be entered for Mahaley, which judgment provided further that Jenkins should have 90 days to remove his equipment from the leased premises. The judgment was prepared by counsel for Mahaley and mailed to counsel for Jenkins for approval on January 9, 1961. Such judgment began “Be it Remembered that on this --- day of January 1961 * * * Counsel for Jenkins approved the judgment and returned it to counsel for Mahaley on February 9, 1961. Counsel for Mahaley inked the figures “11th” in the blank, and it was signed by the District Judge on February 11, 1961, and entered in the District Court Minutes of Navarro■ County on February 11, 1961. Subsequently controversy arose as to whether Jenkins had removed his equipment within the “90 days” prescribed by the judgment. Jenkins, on December 21, 1962, filed this case, as an application to the trial court to correct the former judgment dated January 11, 1961, to read “February 11, 1961”, (the date on which it was actually entered.) After hearing the trial court entered judgment nunc pro tunc correcting the former judgment’s date to February 11, 1961.

Mahaley appeals, contending that the trial court could not enter judgment nunc pro tunc, to reflect the true date upon which the judgment was entered because: 1) the position of the parties had undergone material change; 2) the original entry was a mistake of law, and could be corrected only by appeal; 3) the error was a judicial error and not a clerical error.

It is undisputed that the original judgment dated January 11,1961 was signed and entered by the Trial Court on February 11, 1961.

Rule 316 Texas Rules of Civil Procedure provides that mistakes in the record of any judgment may be amended by the judge in open court according to the truth or justice of the case, provided reasonable notice is given the opposite party of an application to enter a judgment nunc pro tunc. Moreover, courts have inherent power to correct their judgments by entry nunc pro tunc, so as to properly and correctly recite the true action taken. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040.

There can be no question but that the error was a clerical error, and not a judicial error, or a mistake of law as contended by appellant. The cases are numerous which permit correction of misrecital of fact by entry of judgment nunc pro tunc. See: Campbell v. Hart (n. r. e.), Tex.Civ.App., 256 S.W.2d 255; Hays v. Hughes, W. E. Ref., Tex.Civ.App., 106 S.W.2d 724; Texas Emp. Ins. Ass’n v. Pillow (n. r. e.’, Tex.Civ.App., 268 S.W.2d 716.

The trial court had the right to correct its judgment to show the true date of its entry. Appellants’ points and contentions are overruled and the judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Oscar Harvey SMITH et al., Appellees.
    No. 7501.
    Court of Civil Appeals of Texas. Texarkana.
    June 11, 1963.

      Herbert Boyland, Kenley, Ritter & Boy-land, Longview, for appellant.
    E. A. Martin, Martin & Martin, Long-view, for appellees.
   FANNING, Justice.

This is a venue case. Appellees brought suit in the District Court of Harrison County, Texas, to set aside a compromise settlement agreement entered into between the parties which agreement had been approved by the Industrial Accident Board and the sum of $1198.50 had been paid to appellees. The settlement was based upon the death of the son of appellees while he was allegedly employed by Marshall Brick Company. Appellant filed a plea of privilege to be sued in the county of its residence, Dallas County, Texas. Appellees duly controverted the plea, and sought to maintain venue in Harrison County under Section 7 of Art. 1995, Vernon’s Ann.Civ.St., on the basis of alleged fraudulent representations by an agent of defendant, contending to the effect that such agent falsely represented that appellees were not entitled to anything as their son was not an employee of Marshall Brick Company, and that the sum of $1198.50 which they were receiving was in effect a donation to defray or help defray the funeral expenses, etc. Upon a hearing before the court, the plea of privilege was overruled and appellant has appealed.

We have carefully reviewed the record, and find that there was no competent evidence of probative force in the record to show that the deceased son of the appellees was acting in the course of his employment as an employee of Marshall Brick Company at the time he received his fatal injuries.

Appellees introduced in direct evidence without limitation or reservation the compromise settlement agreement and a signed statement (signed by both appellees) in support of said agreement which agreement and statement had been filed with the Industrial Accident Board. In said above referred to statement are found the matters quoted below:

In Stancil v. Mills & Exports Co., Tex. Civ.App., 146 S.W.2d 787, it was stated:

“ * * * Appellant introduced in evidence garnishee’s answer which contained, among other statements of the pleader, the paragraph quoted above. This answer he placed in evidence without any limitation. As stated in 20 Am.Jur. p. 771, § 915, ‘One introducing documentary proof bearing upon an issue vouches for its accuracy so far as that issue is concerned and is, as a general rule, bound by its recitals for all purposes.’ Plaintiff, having introduced in evidence these statements in the quoted paragraph without any limitation, is concluded by them. Texas & N. O. R. Co. v. Patterson & Roberts, Tex.Civ.App., 192 S.W. 585; McClung Const. Co. v. Langford Motor Co., Tex. Civ.App., 33 S.W.2d 749; 17 T.J. p. 929.”

Also in this connection see Seifert v. Brown, Tex.Civ.App., 53 S.W.2d 117, wr. ref., and Lock v. Morris, Tex.Civ.App., 287 S.W.2d 500, wr. ref., n.r.e.

Appellee Oscar Smith testified that his son was an employee of Marshall Brick Company. This was done over the objection of appellant that the same was a conclusion. Appellant’s objection was good and such inadmissible conclusion testimony was of no probative force. See the following authorities: Texas Employers Ins. Ass’n v. Sewell, Tex.Civ.App., 32 S.W.2d 262, wr. ref.; Texas Reciprocal Ins. Ass’n v. Stadler, 140 Tex. 96, 166 S.W.2d 121; Wade v. Superior Insurance Company, Tex.Civ.App., 244 S.W.2d 893, wr. ref.

In order to sustain venue under Section 7 of Art. 1995, V.A.C.S., it is necessary that all of the constituting elements of fraud must appear. These are (1) a false representation made by the defendant; (2) the reliance thereon by the plaintiff; (3) action in reliance thereon by the plaintiff ; and (4) damage to the plaintiff resulting from such fraud or misrepresentation. See Trinity Universal Ins. Co. v. Soliz, Tex.Civ.App., 241 S.W.2d 625, and authorities therein cited.

The burden of proof was upon appellees to prove that their son was an employee, and in failing to produce any evidence of probative force on this matter, they failed to show any false representation on the part of defendant’s agent, and also failed to show damage because if their son was not an employee of Marshall Brick Company they were not damaged by accepting the $1198.50.

Finding that there was no evidence of probative force in the record to sustain venue of this cause in Harrison County, Texas, under Section 7 of Art. 1995, V.A. C.S., the judgment of the trial court is reversed and the cause is ordered transferred to a District Court of Dallas County, Texas.

Reversed and rendered.

      . “This is to certify that my name is Oscar Harvey Smith, I am a white, male, married, age 52. I reside at 2004 Ark. St. in Marshall, Texas. I am employed by the Marshall Brick Company of Marshall, Texas, and have worked for the Company for the past six years. My job with the Marshall Brick Company has been as a truck driver during the time that I have been employed by this firm. I am also the father of Thomas Eugene Smith age 15. My son Thomas Eugene Smith, whom we all called Tommy was killed on July 2, 1962, near Canton, Texas on Highway 19 around 2:00 A. M. My son was helping out Gene Martin on his truck. Mr. Gene Martin came by our home around 8:00 PM on the night of July 1, 1962, and talked to me about getting Tommy to help him on his truck. I didn’t know whether Tommy was going to go on the truck with Mr. Martin. Tommy had helped Mr. Martin on the truck the week ■ before as his helper. The week before Mr. Martin hired Tommy to go with him as his helper to unload the truck. Tommy told me that Mr. Martin paid him $7.50 for a trip. Tommy my son also - worked with me on my truck and helped me unload, when Tommy wasn’t helping me he usually helped Mr. Martin out on his truck. Tommy was not an employee of the Marshall Brick Company, and he was not on the payrolls of the Brick Company. Mr. Robert Geddie who is the manager of the brick company does not hire a helper for the drivers of the trucks. The driver hires his own helper and pays him out of his own pocket. It is up to the driver of the truck to get his own helper to unload his truck. We usually take a helper with us or else pick up someone in the town that we go to to help with the unloading. Tommy Smith my son was never on the pay rolls of the Marshall Brick Co. and never and employee of the Brick Company.
      “I have read the foregoing statement and find it to be true and correct to the best of my knowledge and belief.
      “/s/ OSCAR HARVEY SMITH “Oscar Harvey Smith, (Eather) of Thomas Eugene Smith
      ■‘/s/ MRS. OLA MARGET SMITH “Mrs. Ola Marget Smith (Mother) of Thomas Eugene Smith.”


author: BATEMAN, Justice.

text:
    Johnny DE FUR et ux., Appellants, v. Tommy L. SPEERS et ux., Appellees.
    No. 16189.
    Court of Civil Appeals of Texas. Dallas.
    June 14, 1963.
    Rehearing Denied July 19,1963.

      Flannigan, Sample & Patterson, J. Tom Sample, Dallas, for appellants.
    Gibbs & Hooks, Dallas, for appellees.
   BATEMAN, Justice.

This habeas corpus proceeding involves the right to custody of two little boys. Ap-pellees alleged that they were the natural parents; that appellants obtained possession of the children by fraudulent misrep-sentation inducing the natural mother to surrender such possession, but that the natural father had never consented to adoption or given legal authority to the appellants to restrain such minor children. Appellants answered that Tommy L. Speers, the natural father of the children, abandoned them on or about March 26, 1960, leaving them to the care, custody and control of appellants, making no contribution whatever to the support of the children commensurate with his ability to do so, and that on or about June 24, 1960 Judith Ann Speers, the natural mother of the children, abandoned them to the care, custody and control of appellants under a written agreement consenting to their adoption of the children; that appellants are fit and proper persons to retain the care, custody and control of the children and that it would be to their best interest that no change in their custody be made. Appellants also filed a cross-action setting forth substantially the same facts alleged in their answer, adding that on April 4, 1962 they had filed their petition for leave to adopt the children, and praying that the children be adjudicated dependent and neglected children, and for temporary custody of them pending final hearing of this suit as well as of the adoption proceedings.

On June 21, 1962, after a non-jury hearing, the trial court entered an order granting the writ of habeas corpus and denying the appellants’ claim that the children were dependent and neglected. Material findings of fact filed by the court were:

(1) That appellants have had the exclusive care, custody, maintenance, support and control of the children on a voluntary basis since June 24, 1960, and that they have not at any time filed any action in any court regarding the guardianship or custody of the children save and except their cross-action filed in this case and the adoption petition filed on April 4, 1962, after the filing of this suit by the natural parents.
(2) That on June 24, 1960, Judith Ann Speers, the natural mother of the children, voluntarily executed a written agreement surrendering and transferring to appellants her parental rights to said children and consenting that appellants might adopt them; that the natural father did not join in this consent.
(3) That on or about March 26, 1960 the natural father, Tommy L. Speers, voluntarily left his wife and minor children and went to California, and did not communicate his whereabouts to his family until about November 21, 1960, at which time the natural mother went to California to join her husband.
(4) That in January 1961 appellees became financially able to care for and maintain the minor children, had they elected to do so, and had they been in their physical custody and control.
(5) That from November 21, 1960 until shortly before the filing of this suit appellees remained in California but made certain efforts from time to time to communicate with their children and with appellants, who had moved temporarily to Houston, but were unable to do so.
(6) That on April 4, 1962, twelve days after the filing of this action, appellants filed their petition for leave to adopt the minor children, and that on May 30, 1962 the natural mother, Judith Ann Speers, filed an instrument in the adoption proceeding withdrawing her consent thereto.
(7) That since the spring of 1960 the appellees have not contributed or offered to contribute towards the maintenance and support of the minor children, save and except that they filed this proceeding on March 23, 1962 and upon the hearing thereof established their willingness and ability to assume full financial responsibility and parental control of their said minor children.

The court’s conclusions of law were:

(1) there is no question as to the moral character or fitness of appellants and that appellants and appellees are fit and proper persons to have the custody of said minor children ;

(2) that in accordance with the provisions of Art. 2330, Vernon’s Ann.Tex. Civ.St. the children are not dependent and neglected children, and that appellees’ application for habeas corpus and return of the physical custody of their children to them should be granted.

Appellants present only two points of error on appeal, as follows:

1. “The trial court erred in its conclusion of law to the effect that said minor children are not dependent and neglected children.”

2. “The trial court erred in its conclusion that, as a matter of law, it could not consider prior dependency and neglect but could only consider the circumstances as they existed at the time of hearing in the trial court.”

In the absence of a statement of facts, we must presume that the trial court heard sufficient testimony to support its fact findings. 3 Tex.Jur. 540, Sec. 379; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551; Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683; Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79. Art. 2330, Vernon’s Ann.Tex.Civ.St., sets forth in detail the various conditions under which children may be said to be dependent and neglected. In making the conclusion of law complained of the trial court impliedly found that none of those conditions existed with respect to these children at the time of the hearing.

The rights and welfare of the children are of primary importance and concern in ’ adoption and child custody cases, but this is not to say that the court must award the custody to whomever is better able to furnish the child with pecuniary or material advantages. Pettit v. Engelking, 260 S.W.2d 613, 618, err. ref. n. r. e.

The trial court saw and heard the witnesses and his fact findings are not challenged. The conclusion of law complained of was within his discretion, and there is no showing here that such discretion was abused. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790; Whatley v. Nelson, 86 S.W.2d 517, no writ. hist. Appellants’ first point is therefore overruled.

Their second point must likewise be overruled. In the first place, our search of the entire transcript fails to reveal any conclusion by the trial judge that he could not, or did not, consider the alleged fact that these children had previously been dependent and neglected, but only the circumstances at the time of the hearing. So far as we can determine from the record before us, he did consider all relevant and material evidence introduced at the hearing. However, even if such a conclusion was made, we think it was correct. Evidence of abandonment or neglect of children by their parents in the past cannot be made the basis of a conclusion that the children are in imminent danger of becoming dependent or neglected within the immediate future. "The fact that at some time in the past a parent had been guilty of child neglect or misconduct is not sufficient in itself to deprive the parent of custody of the child, where there is nothing to show that the parent is not presently a fit and capable custodian for the child.” Pettit v. Engel-king, 260 S.W.2d 613, err. ref. n. r. e.

Finding no reversible error, the judgment will be affirmed.

Affirmed.


author: DAVIS, Justice.

text:
    J. E. GREEN, Appellant, v. George Edward HANNON et al., Appellees.
    No. 7473.
    Court of Civil Appeals of Texas. Texarkana.
    June 11, 1963.
    Rehearing Denied July 18,1963.

      Florence, Garrison & Holt, Gilmer, W. H. Edwards, Mt. Vernon, for appellant.
    Roberts & Smith, Longview, Joe N. Chapman, Sulphur Springs, Jones & Jones, Min-eóla, for appellees.
   DAVIS, Justice.

Plaintiff-appellant, J. E. Green, sued defendants-appellees, George Edward Han-non, Mrs. Sam (Mary) Hannon, R. B. Smith, and Leon Cates for specific performance for the transfer of 13 shares of stock in the First State Bank of Hawkins, Texas, and, in the alternative, for damages. Appellant, in his brief, has admitted that this is not a proper case for damages. Appellees filed a motion for summary judgment. A summary judgment was granted. Appellant brings forward only one point of error.

By the point of error appellant takes the position that the court erred in granting the summary judgment because there was some evidence that he had a cause of action as revealed by the pleadings, affidavit, depositions, and the last Joint and Mutual Will of Sam F. Hannon, deceased, and Mary N. Hannon, an appellee herein, that entitled him to a conveyance of the 13 shares of stock in the First State Bank at Hawkins by “Mrs. Sam Hannon and George Edward Hannon”.

There are two questions to be decided r (1) Was George Edward Hannon an agent, either actually or implied, of Mrs. Sam (Mary) Hannon ? (2) Does appellant have a right to specific performance for the 13. shares of stock?

There are many issues that are necessary to discuss before answering the questions. There are 500 shares of stock in the First State Bank of Hawkins that were owned by about 19 different people-The shares of stock were actually worth about $420.00 per share. Appellant knew that Mrs. Hannon owned 13 shares of stock that were willed to her by her husband", who passed away in 1949. He had previously been an employee of the bank. Through some manipulation, he was discharged. He owned 153 shares of stock in. the bank. Apparently several of his-friends owned some shares of stock, and he was expressly interested in acquiring the. 13 shares of stock from Mrs. Hannon.

Sam F. Hannon, deceased, and Mrs. Sami (Mary) Hannon, had two children; viz., a. son, George Edward Hannon, and a daughter, Lou Hannon.

Sam F. Hannon, deceased, and Mary Hannon, in their Joint and Mutual Will,, named their son, George Edward Hannon,, as Independent Executor. After the death of Sam F. Hannon, the Will was probated.. Appellee, George Edward Hannon, qualified' as Independent Executor in 1949. There-is no record that the independent administration had ever been closed, or ceased to. exist. Prior to 1955, the courts had no-power to close an independent administration, such as was involved in this case, and1 the holdings were to the effect that the independent administration terminated when, the estate was fully administered; or, when> the claims were paid and a distribution of the remainder of the estate had been completed. Lumpkin v. Smith, 62 Tex. 249; Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248; Hunt v. Seeley, 5 Cir., 115 F.2d 205. The courts have also held that it was-a condition precedent to a final distribution! that the executor filed a final account. City-National Bank of San Saba v. Penn, Tex. Civ.App., 92 S.W.2d 532, N.W.H. Also, see 33 T.L.R. 115, “Power to Close the Administration”. It seems that the estate had been fully administered. Nevertheless, the stocks were still in the name of Sam F. Hannon. Title to the stock was vested in appellee, Mrs. Hannon. The only right that could have been left with the Independent Executor, as to the 13 shares of stock, was to transfer the stock to the person lawfully entitled to same.

In 1955, the Legislature enacted a statute, Sec. 151, V.A.T.S., Probate Code, that provides a method of closing an administration by affidavit. This case has to be decided by the law prior to the enactment of the statute.

Appellee, George Edward Hannon, was employed in Dallas on May 7, 1962. On that day, appellant, in company with Dr. Peterson, made a trip to Dallas. W. A. Pounds was in Dallas attending a bankers’ convention. Appellant and Dr. Peterson got in touch with Pounds, and all three of them went to see the appellee, George Edward Hannon, for the purpose of buying the 13 shares of stock. They had a conversation with appellee, George Edward Hannon, and the appellant made him an offer of $10,000.00 for the 13 shares of stock, •about $793.23 per share; nearly double the .actual value. Apparently, appellant was trying to buy the stock from the appellee, George Edward Hannon, on the theory that he was Independent Executor of the estate of his father. The following day, May 8, 1962, appellee, George Edward Hannon, went to Hawkins to talk to his mother about the sale of the 13 shares of stock. There is testimony in the record that he called appellant on the telephone and told him that the appellee, Mrs. Hannon, would let him have the stock. There is also testimony that appellant then called appellee, ■George Edward Hannon, on the telephone, -and that appellee, George Edward Hannon, 'told the appellant that his mother did not want to let him have the stock. Such evidence would be inadmissible against appel-lee, Mrs. Hannon, for the purpose of showing a contract of sale, or agency, or for specific performance. Appellant had not talked to appellee, Mrs. Hannon, about buying the stock. Appellant testified, by deposition, as follows:

“Q. I see. Then, what else was said ?
“A. I told him, I know that I have got to pay a premium if I get possession of it.’ He said, ‘What will you give.’ I said, ‘George,
I will give you ten thousand dollars.’ I said, ‘George, it is pretty rough, I will give you ten thousand dollars.’
“Q. What?
“A. Pretty rough. He studied a few minutes and said, ‘We will accept it under these terms’, said, T will go talk to my mother and she is agreeable to it, and which it is agreeable to me, I won’t tell anybody, I won’t get out and try to peddle or nothing,’ that is about all he said. After he said that, that is about all of the conversation. He came down to Hawkins the next day.
“Q. He told you if his mother wanted to sell it he would see about it?
“A. No, he didn’t say that. He said they would accept it if it was o. k. •with his mother.
* * * * * *
“Q. That wasn’t my question. Did he tell you he had the power to sell it?
“A. I don’t recall, but I think he did, if it was o. k. with her. Said he didn’t want to go against her will.” (Emphasis added)

All the other witnesses corroborated this testimony.

Appellant takes the position that the appellee, George Edward Hannon, was actually the agent of appellee, Mrs. Hannon, or at least he was an implied agent. An agency is founded on the express or implied contract of the parties, or else created by law. An express agent is usually created by a legal written contract. An implied agent is created by oral contract, or denotes a consensual relation existing between the two persons. In the absence of such contract or relations, no agency exists. 2 T.J. 436, Sec. 1; 2 T.J.2d 446, Sec. 11; 2 C.J.S. Agency § 1, p. 1023; and 2 C.J.S. Agency § 114b(l), p. 1314; 3 Am.Jur.2d 637, Sec. 274.

The sale of the 13 shares of stock was not a transaction between the buyer and the seller, nor was it one involving the relation of a principal and an agent. There was actually no sale. 2 T.J.2d 441, Sec. 7.

Appellant plead that he had made a contract to purchase the 13 shares of stock from the appellee, George Edward Hannon. He proved the contract, but he made no proof of agency, and the proof shows that appellee, Mrs. Hannon, owned the stock. There is no evidence that would prove a contract between the appellant, as buyer, that would require the appellee, Mrs. Hannon, the owner, or the other defendants, to convey the 13 shares of stock to the appellant. 38 T.J. 574, Secs. 126 through 132; 49 Am.Jur. 146, Sec. 125; 81 C.J.S. Specific Performance §§ 65 through 71, pp. 568-580.

Equity generally refuses to order specific performance of a contract relating to personal property. Although a suit against a stockholder may be secured by specific performance for the sale of corporate stock, where such stock is not readily available on the open market. 38 T.J. 532, 533, Secs. 83 and 84.

According to the pleadings and the evidence, this is a proper case for summary judgment. Rule 166-A, V.A.T. Rules of Civil Procedure, and authorities cited thereunder. The judgment of the trial court is affirmed.