author: WILLIAMS, Justice.

text:
    CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Rita SHOEMAKE, Appellee.
    No. 16727.
    Court of Civil Appeals of Texas. Dallas.
    May 20, 1966.
    Rehearing Denied June 17, 1966.

      Thompson, Coe, Cousins & Irons, Franklin H. Perry, Dallas, for appellant.
    McKool & McKool, Robert J. Shoemaker, Dallas, for appellee.
   WILLIAMS, Justice.

This is an action brought by Rita Shoe-make against Cambridge Mutual Fire Insurance Company upon a Texas Standard Homeowner’s Insurance Policy for loss of personal property. The defendant insurance company sought to avoid liability by asserting a portion of the policy which specifically excluded loss caused by or resulting from flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water or spray from any of the foregoing, all whether driven by wind or not.

The case was submitted to the jury which found (1) that the loss to the personal property was caused solely by wind and (2) that the loss to the personal property was not caused by surface water, waves or spray, whether driven by wind or not.

The trial court rendered judgment for the plaintiff based upon the jury’s answers to these issues and the defendant, in four points of error, contends that such action was error in that there was no evidence or insufficient evidence to support the jury’s answers to the respective special issues.

We agree with appellant and therefore the judgment of the trial court must be reversed.

The following is a fair summarization of the testimony:

Mrs. Shoemake testified that her husband, an inveterate fisherman for thirty years, left home on April 12, 1964 at about 12:45 p. m. taking with him a large quantity of fishing articles. She said he was going to Lake Tawakoni to fish. She did not go with him to the lake and did not learn what happened to her husband until the following day when he was discovered drowned. She did not know any of the circumstances of the loss of the personal property. Mr. Shoe-make’s nephew, Randy Zoeller, testified that he was not at the lake with his uncle but arrived the next day. Mr. Shoemake’s automobile and trailer were located but did not contain any of the personal property. Randy Zoeller does not know any of the facts and circumstances concerning the loss. Mr. W. J. Price, the Sheriff of Rockwall County, went to Lake Tawakoni on April 12 but he did not see any incident and does not even remember seeing any boat involved in a drowning. He did not know Mr. Shoe-make. He said there was more than one drowning incident at Lake Tawakoni on April 12, 1964. He said that he was at the lake on April 12 and that the wind was blowing very high and that the waves seemed large to him; that such waves caused the lake to be “rough”.

It seems to be undisputed that Mr. Shoe-make’s body was found, as was his boat, but there were no eyewitnesses to the accident.

In an action of this kind upon an insurance policy the burden of proof was upon appellee not only to prove that the loss came within the insurance contract but that such loss was not excluded therefrom. Hardware Dealers Mutual Ins. Co. v. Berglund, Tex., 393 S.W.2d 309.

Appellee concedes that there were no eyewitnesses available to testify as to the loss in question and that she was required to depend upon circumstantial evidence to establish her cause of action. These circumstances, taken at their very best, indicate nothing more than that Mr. Shoemake left home on April 12, 1964 to go fishing at Lake Tawakoni and that he took with him his usual fishing equipment, together with his boat. He was later found dead from drowning and the personal property was gone. However, the record demonstrates rather clearly that there was a high wind at the lake which caused the waves to be high on the occasion in question. From this testimony it is sought to be inferred that the property was lost at Lake Tawakoni on the day in question and that such loss was due to the windstorm and nothing else. While we may very well assume that the windstorm contributed to the loss it may also be logical to assume that the boat capsized due to the action of the wind and the waves There is no proof that the waves did not contribute to the loss although it is logical to assume that such did occur. It is logical to conclude that an ordinary boat would not capsize due to the action of the wind without the rough waves.

Moreover, we believe that from the evidence in this case the inference that the boat capsized due to the wind and the rough waves is just as reasonable and probable as an inference that the boat capsized solely due to the action of the wind.

In Paris & M. P. R. Co. v. Russell, Tex.Civ.App., 104 S.W.2d 650, the court said:

“The rule is that when, in a given case, the existence, or not, of an ultimate fact issue can only be found as an inference from evidentiary facts, the party having the burden of proof upon the issue must produce evidence to warrant the jury in believing that an inference of the issuable fact is more probable or reasonable than an inference of its nonexistence. As this court has recently had occasion to say, ‘if an inference consistent with the existence of a fact in issue is but equally as valid as an inference of its nonexistence, then the jury may not determine the question.’ Texas Pac. Fid., etc., Co. v. Hall [Tex.Civ.App], 101 S.W.(2d) 1050, 1052, and authorities there cited.”

In this connection see also Chanowsky v. Friedman, Tex.Civ.App., 205 S.W.2d 641; Benson v. Missouri, K. & T. R. Co., Tex.Civ.App., 200 S.W.2d 233, 332 U.S. 830, 68 S.Ct. 206, 92 L.Ed. 403; and National Aid Life Ass’n v. Driskill, Tex.Civ.App., 138 S.W.2d 238.

The Houston Court of Civil Appeals in the recent case of Republic National Life Ins. Co. v. Bullard, Tex.Civ.App., 399 S.W.2d 376 had before it a question very similar to this. In that case, being a suit under a double indemnity provision of a life insurance policy, the insured, Bullard, had a history of heart trouble. On the occasion in question he was riding a horse, with other employees of the Texas Prison System, hunting escaped prisoners. He was last seen riding to catch up with other guards. Later, these guards saw his horse, riderless, and one of them went and discovered Bullard, beside the path. He died shortly after without gaining consciousness. The appellate court examined all of the circumstantial evidence tending to prove that Bullard died as a result of falling from the horse and also tending to prove that he died as a result of his chronic heart ailment. The court said, inter alia:

“However, a court or jury may not be left to speculate. The evidence must give rise to more than a surmise or suspicion that death resulted solely from accidental injuries. If there is no direct evidence as to the existence of an ultimate fact and the proven circumstances are consistent with either of two theories and there is nothing to show that one rather than the other probably is correct, then neither is proven.” (Citing cases.)
* * * * * *
“The evidence in this record is equally consistent with the conclusion that Mr. Bullard had a heart attack and fell from the horse.”

We think that appellee has wholly failed to sustain her burden of proof in this case by legally competent evidence. The judgment of the trial court must be reversed and rendered that appellee take nothing from appellant.

Reversed and rendered.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    FORT WORTH NATIONAL BANK OF FORT WORTH, Texas, Appellant, v. Bose JONES et ux., Appellees.
    No. 16731.
    Court of Civil Appeals of Texas. Fort Worth.
    May 13, 1966.
    Rehearing Denied June 10, 1966.

      Heard L. Floore and Richard U. Simon, Jr., Fort Worth, for appellant.
    Huffaker & Green and Harold Green, Tahoka, for appellees.
   OPINION

MASSEY, Chief Justice.

Bose Jones and his wife brought suit for personal injury damages growing out of an automobile collision against the Fort Worth National Bank of Fort Worth, Texas. Based upon jury findings judgment was rendered for plaintiffs and the defendant appealed.

Judgment affirmed.

The collision was what is often described as a “rear ender”. In open-type country Jones and his wife slowed or stopped their automobile for a “yield” sign at the intersection of two highways and the driver of the defendant vehicle which was following behind struck same in the rear.

Agency was not a matter of dispute. Defendant was convicted of liability in that the jury found that the driver of its automobile failed to keep a proper lookout, drove at an excessive speed, followed behind the plaintiffs’ automobile too closely, and failed to apply brakes in time to avoid the collision. In each respect the act or omission of the agent was found to have constituted negligence and amounted to a proximate cause of the collision. The plaintiffs were acquitted of contributory negligence as to each act or omission advanced by the defendants.

It is apparent that the trial practically resolved itself into one where both parties’ proof bore primarily upon the matter of personal injury damages. Of the total of 634 pages of testimony in the statement of facts 400 bore upon the injuries of plaintiffs Bose Jones and his wife Gertrude. The jury found Bose’s damages on account of personal injuries at $7,250.00 and found Gertrude’s damages on account of personal injuries at $10,000.00. There were other items such as medical expenses and automobile damage, going to make up the total amount of the judgment, but these may be disregarded in the discussion required under the points of error advanced.

The brief of the bank is primarily devoted to complaint of the jury argument made by plaintiffs’ attorneys/specifically in the closing argument. It may be noticed that no request was made to reply to any matter first introduced during the course of closing argument — nor was any objection made during the course of that argument that plaintiffs’ counsel was improperly raising new matter at that stage of the proceedings. Further, it may be noticed that the argument complained of was not objected to at the time it was made — the bank contending that the errors occurring were not of the type curable upon objection and/or that the manner in which they occurred was such as inhibited the making of a proper objection during the course of or at the end of the closing argument.

It is therefore apparent that if we should conclude that the errors complained of were of the type characterized as “curable”, i. e., were such that an instruction from the court to the jury that statements made be disregarded and not considered would reasonably be obeyed by the jury and not given credence in the deliberations which followed, they would not amount to reversible error. We have so concluded.

Points one and two of the appellant bank complain that the plaintiffs’ attorney, on closing argument, “purported to read to the jury from the deposition of Dr. Edward Driscoll * * * and misquoted the actual testimony in the case to such an extent in such a manner that was calculated to and probably did prejudice the jury * * * ”, and that in the course of the final argument numerous improper and inflammatory statements and arguments were made and committed which could not have been cured by an instruction of the court, and “the effect of all of such arguments was reasonably calculated to and probably did prejudice the jury to such an extent that they rendered an improper verdict.”

It is obvious from the brief that counsel are well aware of the provisions of Texas Rules of Civil Procedure 434 and T.R.C.P. 503, and that in order to obtain a reversal of the judgment of the trial court they are obliged to show not only the commission of error by adverse counsel, but to go further and demonstrate that the error was not such as was curable upon instruction by the trial court, — and, furthermore, that the error was such as was reasonably calculated to cause and probably did cause the jury to return a verdict other than that it would have returned but for its occurrence. It is apparently conceded that nothing complained of was reasonably calculated to cause and probably did cause jury findings to be made on the liability phase of the case other than those which would have been made but for the error, and certainly that is obvious and is our opinion, — but the real contention is that the answers returned by the jury in finding that Bose Jones’ personal injury damages amounted to $7,250.00 and in finding that Gertrude Jones’ personal injury damages amounted to $10,000.00 were those which counsel believe would not have been so found but for the occurrence of the errors complained of.

From the record as a whole it would have been unreasonable to have expected the jury to have found that there was no personal injury damages sustained by Bose Jones and no personal injury damages sustained by Gertrude Jones. Therefore the obvious contention is that the jury found excessive amounts when the damage issues were answered. Points of error to be hereinafter commented upon raise the contention that the findings were excessive. However, there is no specific point of error which contends that the findings were against the great weight and preponderance of the evidence, other than such as is necessarily implied m any point of error which contends that a damage verdict is excessive.

We quote from the stenographer’s notes on the closing arguments, as follows: “Well, let’s see what Dr. Driskill said. Dr. Driskill said it could be that at this point the back broke down. Talking about Bose Jones. There isn’t a doctor but what tells you that Bose Jones cannot walk today without suffering pain. Everyone of them says it. That it’s real. Dr. Holmes this morning, what did he say? I copied it down practically verbatim. ‘He walked with a cane, quite slowly with apparent pain.’ And then asked as to whether or not he was faking that pain and he said ‘No, sir. I made a slip-up test on him and it’s real.’ What’s one of the last things that Heard Floore said ? He said he started that day building up a cause of action and got his walking cane out so he could build up a cause of action. Now is that being fair, when their own doctor — they had a year to ask for an examination. The first time they ever mentioned it was in the court room the other day.

“MR. FLOORE: If the Court please, that’s out of the record and not so, and I ask the jury be instructed not to consider it.
“MR. HUFFAKER: That is so, sir.
“THE COURT: Just a minute; just a minute. I will do the ruling. Overruled.
“MR. HUFFAKER: Dr. Driskill says that at this point certainly we know that we can go along with conditions, and Dr. Sanders says that it was an injury superimposed upon a condition. Dr. Jackson said it; Dr. Holmes said it. We go along, and when that impact took place — an impact ladies and gentlemen that tore and rendered a car with enough force that krinkled the top of that car. When that condition happened it didn’t take as much. And a man that had been able to support a family, a man that had been able to buy a new car, that had been able to pay for his home for ten straight years suddenly that back had more than it could take. And Dr. Driskill page 26, 36, read his deposition. ‘At that point the back broke down’. Let’s go to page 48 of Dr. Driskill’s testimony. ‘Would attribute his condition at this time, that he can’t work, to the condition of his back’. When he examined him Dr. Dris-kill said he still had soreness and swelling in the lumbar area. He said, ‘I think his condition is treatable and painful and permanent and wouldn’t advise him to work.’ Page 56, Dr. Driskill. And they want to holler. That’s Dr. Driskill’s testimony.”

The testimony of Dr. Driscoll was by deposition. We have no way of determining from the record the page number of the deposition on which any particular testimony appears. The references here made to pages are the page numbers in the statement of facts. We quote therefrom on page 460 as follows:

“Q If he was able to do those up to the time of the injury, this car wreck, now he can’t do them, what would you attribute as being the cause of his not being able to do those things since the car wreck, when he was able to do them before?
“A I don’t know.
“Q You have no opinion?
“A No, sir.
“Q Could it just as well be something that happened in that collision?
“A It could be at that point his back may have broken down; as I indicated before, I don’t know. I have no way of arriving at it. I’m not being facetious. There’s no way I would know.
‘‘Q Would it stand to reason, from a medical standpoint, a person had been able to perform those tasks up to that time and since then, has not been able to perform those tasks, would you have a medical opinion as to the probability?
“A No, sir, I have not.
“Q You wouldn’t care to attribute it to the car collision?
“A No, sir.”

We quote further from the statement of facts, at pages 467-468, as follows:

“Q When a person is involved in a collision like these folks were, back last May, and they are still complaining of some symptoms — pain, disability — that has lasted up until February of this year, can you give any medical explanation as to why those things have continued so long?
“A Well, I have in the case of Bose. I think he has a condition that is treatable, and the nature of spondylolisthesis is such it can be painful. In the case of Gertrude, I think she does have cervical radiculitis, and I think she may have pain; but I don’t know whether I can offer any explanation of why it continues.
“Q Whatever the extent her disability is now, would you say it is probably permanent ?
“A. Well, I think she has a certain degree of permanency to her disability; yes, sir.
“Q Would your opinion be the same as to her husband, Bose?
“A Essentially.
“Q What type of work do you think Bose should be let do, if you say he should not stoop down, lift up; what should he do ?
“A I don’t think I would advise a man with a back like he has to take a job requiring heavy lifting. Believe with that condition he can(t) do that type of work; since he’s having trouble, I don’t think it advisable for him to carry out that type of work.”

It is noticed from the testimony of Dr. Driscoll at other points in the deposition, several points in fact, that he was of the opinion that Bose Jones could hold a job; that anything that he could do before the collision occurred he should be able to do once again because in so far as his disability and discomfort was concerned such was due to a condition which existed prior to the time of the injury, and not due to the condition caused and occasioned by the injuries sustained in the collision — including an aggravation of the pre-existing condition. In general the testimony of Dr. Driscoll was to the same effect relative to the injuries Gertrude Jones sustained as the result of the collision, i. e., that any continuing pain and disability were the result of the congenital defect in the structure of her neck- — not the result of the condition caused and occasioned by the injuries sustained in the collision — including an aggravation of the pre-existing condition.

An attorney purporting to quote the language of a witness during an argument rather than to draw a d jduction therefrom is under a duty to quote it accurately. It would be as reasonable to treat as a deduction “at that point the back broke down” what the court reporter considered to be a quote (by counsel in his argument) from the deposition of Dr. Driscoll. The remainder of the argument listed in the paragraph would not amount to a “misquotation” from Dr. Driscoll’s testimony, save the portion counsel quoted as: “I think his condition is treatable and painful and permanent and wouldn’t advise him to work.” As applied to the matter of his work the doctor’s testimony actually was that in his opinion Bose Jones shouldn’t take a job requiring heavy lifting and that it would be inadvisable for him to carry out that type of work.

Whether or not it was necessarily true as is contended that counsel for the bank was unable to make an objection at the time the argument was made because of his inability to find a page in the witness’ deposition from which adverse counsel was purportedly quoting we do not believe that such would change the character of error from “curable” to “incurable”. Our holding is that the error in the instant case, if any, was of the “curable” type and that it was waived when counsel failed to make an objection. Furthermore, our holding is that even treated as “incurable” error, it was nevertheless not such as was reasonably calculated to cause and probably did cause the jury to return a verdict other than that it would have returned but for the occurrence. Dr. Driscoll’s testimony was from his deposition rather than as from a witness present and on the stand. We see no distinction to be made in a test of the question on appeal because thereof. His lengthy medical testimony made it plain that he attributed the plaintiffs’ condition to pre-existent defects in both, that existent since birth in the case of Gertrude and that existent since an earlier injury to the back in the case of Bose. In our opinion the misinterpretation, “twisting”, or even the alleged “misquotation” of Dr. Driscoll’s testimony by the attorney for the plaintiffs during the closing argument was not such that it misled the jury and it was not probable that it had any effect on the verdict which was returned.

As applied to the bank’s complaint of the plaintiffs’ final argument — as a whole — we could write several pages. However, we believe that to do so would further lengthen this opinion for no good purpose. Our holding is that the error, if any, contended by the bank to have existed because of taint of the whole final argument was such that the alleged individual reprehensible elements therein were curable upon objection (and at times and as to some of such elements objections were made and sustained) and did not — considered cumulatively, and with the argument in its entirety — constitute reversible error under the test to be made under provisions of T.R.C.P. 434 and 503. Of course, tests under the provisions of these Rules are not required except in cases where the error is “incurable” for it is only in such cases that a necessity exists to test the “reversibility” of an error. Rogers v. Broughton, 277 S.W.2d 121 (San Antonio Civ.App., 1955, writ ref., n. r. e.); 36 Texas Digest, Trial, “Objections and exceptions—Necessity”.

The medical evidence amply supports the amount awarded in damages because of injuries to both plaintiffs. The trial court did not err in denying the bank’s motion for remittitur reducing the same. We overrule its points of error contending that the verdict was excessive.

That the trial court chose, in framing the charge to place the damage issues next after the plaintiffs’ liability issues— and before the defensive issues of the defendant bank did not constitute error. Such matter is within the sound discretion of the trial court, and better left so. There was no abuse of discretion in the manner adopted for submitting the issues.

The bank’s contention that the trial court erred in not granting its requested instructions pertaining to plaintiffs’ duty to keep a proper lookout to the rear immediately prior to the occurrence of the collision is overruled. As submitted the term “proper lookout” was defined as such lookout as an ordinarily prudent person in the exercise of ordinary care would have kept under the same or similar circumstances. As a contributory negligence issue the inquiry made was whether plaintiff Bose Jones failed to keep a proper lookout for the automobile driven by the bank’s agent prior to the occurrence. This automobile was to the rear of that of the plaintiffs.

The controlling issue of the matter of Bose Jones’ contributory negligence, as applied to the matter of proper lookout, was fairly submitted under the provisions of the Rules of Civil Procedure. See the Commentaries under Vernon’s T.R.C.P. 279, at the section by former Chief Justice Alexander, and under title, “No reversal where ‘controlling issues’ submitted”. It is obvious that if the requested instruction of the bank had been given it would have presented to the jury nothing more than a varying shade of the same issue.

Judgment is affirmed.


author: RENFRO, Justice.

text:
    Addie Adele FURR, Appellant, v. E. E. FURR et al., Appellees.
    No. 16732.
    Court of Civil Appeals of Texas. Fort Worth.
    May 13, 1966.

      Anderson & Connell, and Jack Connell, Wichita Falls, for appellant.
    Thornton & Thornton, and E. G. Thornton, Olney, Nelson, Montgomery & Robertson, and Allan D. Montgomery, Prothro & Sellers, and Lee Sellers, Wichita Falls, for appellees.
   OPINION

RENFRO, Justice.

This is a will contest case.

The will in question was admitted to probate in the County Court of Young County upon the application of Addie Adele Furr, daughter of the testatrix, Fannie Belle Furr. The will was probated over the contest of E. E. (Ellis) Furr and G. F. (Grover) Furr, sons of Fannie Belle and brothers of Addie Adele. Appeal was perfected to the District Court where a jury found that Fannie Belle Furr was unduly influenced at the time of the making of the will by Addie Adele Furr.

Addie Adele Furr’s motion for judgment was overruled and judgment entered for E. E. and G. F. Furr.

Addie Adele Furr appealed.

The issue before this court is whether the record contains any evidence of probative force to support the finding of the jury that undue influence was exercised by Adele in the execution of the will of Fannie Belle Furr.

Bear in mind that the jury has found such undue influence. We must therefore indulge the presumption that the jury believed and accepted all probative evidence to sustain its verdict. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 (Sup., 1939).

In Rothermel v. Duncan, 369 S.W.2d 917 (1963), the Supreme Court held: “* * * 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.”

The statement of facts is somewhat voluminous. Much of the testimony is cumulative. We have endeavored to summarize below the material evidence tending to support the jury finding.

At the time of the execution of the will Mrs. Furr was 71 years of age, in poor health, and weighed about 100 pounds. The will bequeathed all her property to Adele with provision that if Adele predeceased testatrix all the property would go to the Methodist Orphans Home and the Boys Ranch.

Nothing was bequeathed to her two sons and five grandchildren.

Adam Furr, husband of Mrs. Fannie Furr, and father of appellant and appellees, died intestate July 3, 1958, possessed of considerable property.

Within days, or weeks, a family conference was held to discuss Adam’s estate.

The conference was not a peaceful one, and from that time feelings between appellant and appellees grew from bad to worse.

For several years preceding Adam’s death, Adele, a single woman, lived with her parents on the home farm. After Adam’s death she continued to live on the farm with her mother.

Following the death of her father, Adele claimed her father had given her a farm in Archer County. Her brothers denied such gift had been made. Litigation ensued between Adele and her brothers.

The evidence shows that Mrs. Furr “From time to time discussed each and every one of her children and how she wanted to take care of those children.”

Adele made frequent visits to her lawyer in company with Mrs. Furr preceding the execution of the will. Mrs. Furr discussed with the attorney, in the presence of Adele, her proposed will and other business. On the date the will was executed Adele went with Mrs. Furr to the attorney’s office but left before the actual execution of the instrument.

Appellee Ellis Furr testified that following his father’s death a dispute arose concerning property appellant claimed as a gift; when Mrs. Furr was in the hospital he attempted to see her but appellant ordered him to stay out of the room, called upon a man named Frank to stand in the door and keep him out of the room.

The witness Juanita Furr, wife of Ellis, testified: Prior to Adam’s death family relations were good and cordial; all the families met at the homeplace Thanksgiving and Christmas; visits were frequent; Mrs. Furr always, prior to the family conference after Adam’s death, gave presents to her grandchildren; the grandchildren would spend days in the home of the Furrs. After the “conference” relations changed completely; they were never thereafter invited to Mrs. Furr’s home; she invited Mrs. Furr to visit her home, but Mrs. Furr refused to visit without Adele; while Mrs. Furr was in the hospital she tried to visit her but Adele pushed the door in her face; she tried again to visit Mrs. Furr but was denied entry by Adele. On another occasion she attempted to tell Mrs. Furr about a sick relative but Adele answered the phone and slammed the receiver down.

There was testimony by Ruth Furr, wife of Grover, that: Family relations were good until Adam’s death, with frequent family visits; after the “conference” Mrs. Furr never visited her family at all; on one occasion she, her husband and children were moving some of their property from one of the Furr farms when Adele, in company with Mrs. Furr, drove up; Adele, in the presence of Mrs. Furr, threatened witness’ son (Mrs. Furr’s grandson) with a gun, said “ * * * if we wanted him alive by sundown we better stop him”; following the “conference” her family was not permitted to see Mrs. Furr; Mrs. Furr never thereafter visited her grandchildren and ceased to send them Christmas presents.

The witness Rutledge testified: In the summer of 1962 he went to Mrs. Furr’s home to secure a lease from Mrs. Furr and Adele; Mrs. Furr directed him to come back when Adele would be home; when he returned, Adele refused to sign; she said “she would sign no lease that Ellis Furr had ever signed”; in the presence of Mrs. Furr, witness was told by Adele that Ellis had once stolen some cows from her mother; all his conversation at that time was with Adele.

According to witness Mills he was, at Mrs. Furr’s request, advising her in a business matter when Adele came in and made the decision; Mrs. Farr quietly acquiesced. On another occasion Grover’s family was visiting in witness’ home when Mrs. Furr and Adele drove up; soon thereafter Adele came into the room and said to her mother, “Get your coat. We’re going home. I don’t like the company”; Mrs. Furr left without protest.

Witness Wright, long time friend of Adam and Fannie Furr, testified: Shortly after Adam’s death he was present at the Furr home; Adele was leaving for Archer County; witness testified: “She told her mother she was going to Archer County to see about the cattle that she had up there and she asked Mrs. Furr — told her, she said, ‘If Mr. Wright leaves before I get back, I wish you’d lock the doors in case Ellis and Grover comes up and don’t appear. Don’t let them in.’ And whenever she did, why, Mrs. Furr said, ‘Why?’ And she said, ‘Well, Mother, I’m afraid for you to let them in.’ She said, ‘I don’t know what would happen to you if you let them in and nobody was here.’ She said, ‘They might just do anything to you to get their part of what you own too.’ ”

The witness also testified: In her mother’s presence Adele stated she would not sign anything that would help her broth» ers; Mrs. Furr would not say anything after Adele spoke; witness knew of antagonistic feeling between Adele and her brothers and tried to patch things up; carried a proposal from the boys to Mrs. Furr; Mrs. Furr said the proposition sounded fair; that afternoon Adele was told about the offer, she would not go for it; she did not consult with Mrs. Furr; Mrs. Furr said nothing; after Adam’s death, “Well, Mrs. Furr just seemed to be like she was cowed to say anything or do anything whenever Adele was around. * * * She didn’t act like the same person.” In Adele’s presence Mrs. Furr would not talk about the estate or the boys; Adele “* * * would just try to tell her mother how much the boys hated her and what they would do to her and how they wanted to get their hands on her part of the estate and Mr. Furr’s and everything in general. That’s the way she would just — she would just, you might say, be raving about the boys every time you’d go over there.” He was asked, “What reference, if any, did she make as to her daughter, Miss Adele Furr, in living with her?” He answered, “Well, she said, ‘I have to get along — ’ She said, ‘Adele and I are living together and I’ve got to get along with Adele.’”

The witness Ling, who had done business with Adam for many years, testified: During the year 1961 he went to see Mrs. Furr about signing a lease; was told he would have to talk to Adele; Adele would not sign the lease; he paid Mrs. Furr several social visits and tried to pacify the family; during one visit Mrs. Furr said the boys were against her; she said further, “ ‘Well, there’s one thing I would like * * * If I could see my grandchildren and have it like it used to be * * * It’s only natural that I long to have my grandchildren.’” Sometime later he met Mrs. Furr and Adele in an office building; he spoke to them, Mrs. Furr nodded but Adele ignored him; he again sought to obtain a lease from Mrs. Furr. “Q — Well, did you ask her (Adele) if her mother would sign the lease? A — Yes. Q — What did she say to that? A — I asked her if her mother was there and she said, ‘Yes,’ her mother was in the house. Q — Did you ask her if you could see her mother? A — Yes, sir, and she said, ‘No.’ Q — Did she say you could see her mother or not? A — No, I couldn’t see her mother”; he was never able to talk to Mrs. Furr about the lease.

Louis Edward Furr, son of Grover Furr, testified: Shortly after Adam’s death witness and his father attempted to move some cattle to a fresh pasture; after loading the cattle he was confronted by Adele and Mrs. Furr; Adele said, “* * * put the steers back, that she was going to run things just like PawPaw (Adam), had been running the operation and that if they didn’t do what she wanted and what she said to do she would get rough and that we all knew how rough and mean she could be.” He put the steers back where they had been before he loaded them; witness went with his father and mother to the Sand farm to pick up some equipment which belonged to his father; when they started home Adele, Mrs. Furr and another couple were at the gate blocking the drive; Adele said she would not let them out; witness started the tractor, Adele then said to his parents, in Mrs. Furr’s presence, “ ‘If you want that boy alive, you better stop him’ ”; on one occasion when Mrs. Furr was in the hospital witness visited her, “she seemed very receptive that we stopped by and visited with her. * * * ”

Witness Isham worked on the Furr place after Adam’s death; Adele told him she was boss over “the whole outfit”; he was to take his instructions from her; he heard Adele tell Mrs. Furr the boys “were too sorry to come on the place”; the statement was repeated several times; Adele told witness not to allow the boys on the place; “ * * * not to let them come in at all”; he heard Adele tell some combine men “if they talked to Ellis and Grover she would run them off the place and fire them”; heard Adele tell Mrs. Furr the boys had cut one of her fences; he heard Adele tell Mrs. Furr that Ellis and Grover had put dirt in the gas tank of her tractor; he never did hear Mrs. Furr dispute a word Adele told her.

The issue of undue influence was strongly contested. The evidence introduced by appellant and her witnesses was such that it undoubtedly would have supported a verdict of no undue influence. The jury chose to believe, however, that undue influence was exercised over Mrs. Furr.

The evidence is ample to show, when believed by the jury, (1) the existence and exertion of an influence, and (2) the effective operation of such influence so as to subvert or overpower the mind of Mrs. Furr at the time of the execution of the instrument.

Whether the execution of the instrument would not have been performed but for such influence depends upon circumstantial evidence.

The establishment of the subversion or overpowering of the will of the testator is generally based upon an inquiry as to the testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted. Words and acts of the testator may bear upon his mental state. Likewise, weakness of mind and body, whether produced by infirmity of age or by disease or otherwise, may be considered as a material circumstance in establishing this element of undue influence. The establishment of the fact that the testament executed would not have been executed but for such influence is generally predicated upon a consideration of whether the testament executed is unnatural in its terms of disposition of property. Long v. Long; Rother-mel v. Duncan, supra.

The will in question was unnatural in that it bequeathed to Adele all the property. The evidence is undisputed that Mrs. Furr thought fondly of her five grandchildren until her death. Yet, her will provided that if Adele predeceased her the property would all go to two named charities. No provision whatever was made for her sons or grandchildren presently or for the future. The evidence is also undisputed that up to the death of Adam the “boys” meant as much to her as did Adele.

In Rothermel v. Duncan, 369 S.W.2d 917, the Supreme Court held: “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.”

In view of all the evidence in the record, the following statement from In Re Olsson’s Estate, 344 S.W.2d 171 (El Paso Civ.App., 1961, ref. n. r. e.), is deemed particularly appropriate: “As was said in Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208, 214, it (undue influence) may be exercised through threats or fraud or the silent power of a strong mind over a weak one.’ It has also been held that it is immaterial when the influence was first brought to bear, if the effect of it continued until the time of the execution of the instrument, and procured its execution contrary to the maker’s wishes. In such cases, it is held that the influence was exerted at the time of the making of the instrument. Kutchinsky v. Zillion, Tex.Civ.App., 183 S.W.2d 237 (wr. ref.) ; Cloudt v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643 (wr. ref.). * * * She had become largely, if not wholly, dependent upon appellant for all of her needs. She was dominated by appellant in many of her activities and decisions. He controlled to some extent where she went, who she visited and who visited her, who she talked to, who she was permitted to be alone with and who she was not. He also determined when she should exercise, and for how long. The influence and dominance exercised by appellant over testatrix was acquired shortly after her stroke and was frequently asserted prior to the execution of the will in question. Whether such influence, as was shown to have been exercised over testatrix by appellant, was ‘undue influence’; whether it was the result of the power of a strong mind over a weaker mind and body, or whether it resulted from fear, or for a desire for peace; and, whether the will itself was unnatural in its terms, were fact questions, all of which, we believe, were raised by the evidence, as well as the ultimate question of whether the disputed will was a product of such undue influence.”

The jury could believe from the evidence that Adele completely dominated the mind and action of Mrs. Furr from Adam’s death to Mrs. Furr’s death.

From all the circumstances and evidence, the jury was entitled to believe that this influence existed at the time Mrs. Furr executed the will, and but for such influence Mrs. Furr would have executed a different will.

The jury did so believe. The evidence supports the finding and the finding is not against the great preponderance of the evidence.

Affirmed.


author: GREEN, Chief Justice.

text:
    Shirley Sternberg LEBOWITZ, Appellant, v. Allen Bernard LEBOWITZ, Appellee.
    No. 199.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 26, 1966.

      North, Blackmon & White, by John C. North, Jr., Corpus Christi, for appellant.
    Sorrell, Anderson, Porter & Stone, by Charles R. Porter, Jr., Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This appeal from a jury trial concerns the inclusion in the trial court’s judgment on one sentence reading as follows:

“It is further ordered, adjudged and decreed by the Court that the residence of Dana Jean and Dwight Marshall Lebo-witz shall not be changed from Nueces County, Texas, and that such children shall not be permanently removed from such county and state, subject to further order of this Court;”

Appellant Shirley S. Lebowitz, the wife, filed suit against Allen B. Lebowitz, the husband, for divorce, custody of Dana Jean Lebowitz, three years old, and Dwight Marshall Lebowitz, five years, born of the marriage, for child support, attorney’s fees, and a declaration of property rights. Appellee filed a cross-action also seeking a divorce, custody of the children and for a division of the property. On the trial before the court and a jury, it was agreed that only the issues of custody and one other proposition not relevant to this appeal should be submitted to the jury, and that the issues of divorce, property, support, attorney’s fees, and visitation rights should be determined by the judge. The jury found from a preponderance of the evidence that it would be to the best interests and welfare of each of the minor children to award custody to appellant, their mother.

The court rendered judgment granting divorce to appellee on his cross-action, dividing the community property, providing recovery by appellant of the sum of $3,-000.00 as attorney’s fees, awarding custody of the two children to appellant, with an order that appellee pay $400.00 per month child support, providing for the visitation rights of appellee with the children, and included in the decree the sentence copied in the commencement of this opinion.

The appellant attacks the said provision of the judgment limiting the residence of the children to Nueces County, Texas, and prohibiting their permanent removal therefrom, by six points, contending (1) that such order contravenes the jury’s verdict, as it is in violation of Article 4639a, Vernon’s Ann.Tex.St.; (2) no special issue was requested by appellee as to it being to the best interest of the children to so restrict their residence, and so any right thereto of appellee had been waived; (3) no evidence and (4) insufficient evidence to support such provision of the judgment; (S) such order amounted to an abuse of the court’s discretion; and (6) that it deprived appellant of her liberty without due process.

Prior to 1961, it was the rule in Texas that in child custody cases the proceedings were considered to be in equity in which the trial judge sat as a chancellor, and that if a jury was allowed its findings were advisory only and not binding on the trial court. 3 Speers Marital Rights in Texas, § 844, pp. 211-212 and cases cited; 16 Southwestern Law Journal, 507 et seq.; Welch v. Welch, Tex.Civ.App., 369 S.W.2d 434. But in 1961 Art. 4639a, Section 1, V.A.T.S. was re-enacted and amended so that it now reads in part as follows:

* * Upon the trial of any such cause, and in the event a divorce is granted by the court, if there are such minor children, it shall be the duty of such trial court to inquire into the surroundings and circumstances of each such child or children, and such court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; provided, however, that the judgment of the court in a jury trial of a divorce cause may not contravene the jury’s determination of child custody. In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination. * * * ”

We have copied a portion of the article as it read before it was amended, to attempt to place it in proper context; the language emphasized, starting with “provided, however,” is the part added to the article by the amendment of 1961. Nothing was deleted from the article when the amendment was enacted.

This amendment was obviously intended to make jury verdicts relative to custody of minor children binding on the court, and not merely advisory. Quarles v. Quarles, Tex.Civ.App., 386 S.W.2d 337, writ dis. Tex.Sup.Ct., 388 S.W.2d 926; Fatheree v. Eddleman, Tex.Civ.App., 363 S.W.2d 784; Welch v. Welch, Tex.Civ.App., 369 S.W.2d 434; Burson v. Montgomery, Tex.Civ.App., 386 S.W.2d 817; Hollestelle v. Hollestelle, Tex.Civ.App., 371 S.W.2d 121, writ ref. n. r. e. The trial court, as a result of the jury’s verdict, awarded to appellant custody of the children. However, appellant by her first and second points contends that the modification of such custody by the provision that the residence of such children shall not be changed from Nueces County, contravened and did not conform to the jury findings, in violation of Art. 4639a, Section 1, as amended, and that there was no jury finding, and no request for such finding, that such modification was for the best interest and welfare of the children.

We overrule these two points. It is well established in Texas that a trial court has the power in a divorce case where child custody is concerned to restrict the residence of a child to a named county. Ex Parte Rhodes, 163 Tex. 31, 352 S.W.2d 249. We have heretofore copied that portion of Art. 4639a, Section 1, unrepealed and expressly re-enacted by the Legislature when the amendment was added in 1961, which provides that the trial court “shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same.” The new portion of the Article then follows with the proviso that the judgment must not contravene but must conform to the jury’s determination of child custody. Children have always been considered the special wards of the courts, which have large equity powers and obligations to act for their best interests and welfare, and such equity jurisdiction remains modified only by the terms of the amendment. Burson v. Montgomery, supra. The portion of the judgment requiring the children’s residence to be maintained in Nueces County did not contravene the jury’s determination of child custody. The custody of the children was awarded to appellant in the judgment, which conformed to the jury findings. The 1961 amendment of Art. 4639a, Section 1, did not deprive the court, in a jury case, of the power to enter the order of which appellant here complains. Such order could, in a jury trial under appropriate facts, be entered without an additional jury finding that the best interests of the children required that their residence remain in Nueces County, and that they not be taken permanently from such county, under the authority granted the trial court by Art. 4639a, Section 1, as re-enacted and re-affirmed by the Legislature in 1961.

So far we have passed upon the contention that the order of the court here complained of violated the 1961 amendment to Art. 4639a, Section 1, and that the trial court was therefore without power to enter such order, and we have overruled such contention. We next proceed to the points raised by appellant to the effect that the trial court acted in abuse of its discretion in restricting the residence of the children to Nueces County, Texas, and prohibiting their permanent removal from such county, and that there was no evidence, and insufficient evidence, to support such order, and that such order deprives appellant of her liberty without due process.

The admitted facts show that immediately prior to the separation of these two parties, appellant had been engaged for several weeks in an illicit amorous affair with a married man. Appellant and the other party were teachers in the Corpus Christi public schools, and appellant, at the request of the school board, resigned her position, and at the time of the trial in June, 1965, was not employed. By preliminary order, the temporary custody of the children pending trial and judgment had been placed in appellee. The testimony shows without any serious contradiction that appellant must depend on her ability and training as a teacher for her means of support, except for such help as she might obtain from relatives and the child support to be paid by appellee. The record reflects that in the Fall of 1965, after the trial, she entered the University of Houston (though maintaining her residence in Nueces County) to do work leading to a master’s degree, having already completed some graduate studies, and that she expected to secure such degree in June, 1966. The evidence strongly suggests that it was most unlikely that she could secure a worthwhile teaching position in Nueces County, and that she would have to look elsewhere for such employment. She owned no home in Nueces County, and if she had to live there in order to retain custody of the children, it would be necessary for her to rent. The payments which the court ordered appellee to make for the maintenance of the children appear from the record to be sufficient to provide only for their support, including medical expenses. While she testified that if she got custody of the children, she would not expect to work the first year so that she could give more attention to the needs of the children, it is apparent that she needed to be in position to secure employment for which she has qualified herself if she is to retain custody.

Appellee has not raised any point on this appeal against the propriety of the jury verdict or of the judgment awarding custody of the children to their mother. In fact there was no finding by the court and no contention made by appellant or ap-pellee on this appeal that either parent is unfit to have custody.

Prior to the trial of the cause, the court requested the Welfare Division of the Corpus Christi-Nueces County Department of Public Health and Welfare to make a complete investigation of the facts of this case, and to make a report with recommendations as to custody of the children in the event of divorce. An experienced social welfare case worker made such investigation, and in her written report to the court as well as in her testimony on the trial, gave as her opinion that the mother should have the custody of the children with liberal visitation rights in the father, and with supervision by the welfare department. Appellee relies strongly on the grant of visitation rights to appellee, and the testimony of the need for official supervision of appellant’s custody, and the testimony by appellant that if she got custody, she would remain with the children without working outside the home, as a substantial basis and justification of the court’s order that the best interests of the children required that their residence be restricted to Nueces County. We do not agree. We take judicial knowledge of the fact that the Child Welfare Division of the State Department of Public Welfare, is a state wide organization, with agencies over the State, well qualified to particpate in any official supervisory capacity concerning children when directed by a court of competent jurisdiction. The courts of Texas will on proper application enforce the father’s rights of visitation with his children as they are provided for in the court’s decree. As heretofore stated, it reasonably appears that appellant must secure employment in her chosen field in order to adequately provide for the best interests and welfare of the children.

In considering whether the trial court abused its discretion and entered an improper order in this cause, we must bear in mind that this is a direct appeal from the judgment, and that appellant vigorously objected to the inclusion in the judgment of the offensive (to her) paragraph made the subject of this appeal. In Ex Parte Rhodes, 163 Tex. 31, 352 S.W.2d 249, the judgment of the trial court which contained a similiar provision restricting the residence of the child to the county of the trial was permitted to become final without any appeal therefrom. The mother who married and moved to the home county of her husband was subsequently held to be in contempt of court, and ordered confined in jail until she had purged herself of such contempt, for violating such provision. The mother sought relief from such order by filing a petition for a writ of habeas corpus in the Texas Supreme Court. That court'held that since the judgment had become final without an appeal, it was not enough, in order for the court to be able to grant the relief prayed for, that the judgment be erroneous; it would have to be void. The court further held that since the court had the power to enter the restrictive provision, the judgment was not void, and the relief prayed for was denied. However, in speaking of the restrictive residence provision of the decree, the Supreme Court stated:

“While we have held that the restrictive residence provision of the custody decree was not void, it is one of an extreme nature. It may drastically affect the freedom of decision of the custodian of the child as to what is best for the child. And, as pointed out by counsel for Betty Rhodes, if request for removal to another county is denied, it may materially restrict the right of a citizen (who would not move without her child) to change the place of his or her residence. If permission to move were denied, she would be in a better position to assert that she was deprived of her liberty without due process. We express no opinion on that matter. In any event, the appellate court will look with care to see whether there has been an abuse of discretion on the part of a court which denies permission to remove the residence of the child to that of a new residence of the person having been adjudged the proper person to be the custodian of the child. By citing White v. Lobstein [Tex.Civ.App.,] 246 S.W.2d 953, we are not to be understood as approving the decision that there was no abuse of discretion in refusing to grant consent for the removal of the child to the residence of the custodian. That case did not reach this court.”

In this appeal from the judgment of the trial court, we may consider whether the order of the court objected to by appellant was erroneous under the evidence, and whether or not the court, in our opinion, abused his discretion by entering it. Since appellant did object strenuously, as shown by the record, to including the restrictive residence provision in the judgment, arguing to the trial court that such provision would drastically affect the freedom of her decision as to what was best for the welfare of the children, we feel that her rights are the same as though she had been denied her request for removal to some other county than Nueces. In fact, in our opinion such is the effect of the court’s decree.

We hold that under the entire record before us the trial court did abuse its discretion in entering the restrictive residence of the children order copied in the first sentence of this opinion in so far as such order confined the residence of the children to Nueces County.

The evidence did justify the court’s action in so far as it restricted the residence of the children to the State of Texas, and ordered that the children not be permanently removed from the State, or from the jurisdiction of Texas courts. The testimony of appellant included statements justifying a finding that she intended to change her residence and that of the children from Texas to some other state where relatives lived who would help her, or where she might more readily secure employment. The finding of the trial court that it would not be to the best interests of the children that their residence be changed from Nueces County, Texas, necessarily included a like finding as to the State. Texas courts should be in a position to enforce the visitation rights of the father, as granted in the court’s decree, and which the court found were for the best interests and welfare of the children. Based on the facts of this case as they appear from the record, we have the jurisdiction to reform and modify the trial court’s order so that it would read that the residence of the children shall not be changed from the State of Texas, and that the children shall not be removed from the State of Texas, subject to further orders of the Texas Courts having jurisdiction and venue. Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347, writ ref. n. r. e. The judgment is so reformed and modified.

The appellant’s brief contains a motion for additional attorney’s fees for the prosecution of this appeal, and asks that the cause be remanded to the trial court solely for the purpose of determining a reasonable amount of money that should be awarded as such. The trial court awarded appellant and her lawyers the sum of $3,000.00 as attorney’s fees in this cause, to be paid by appellee. Appellant’s motion is overruled. All costs of this appeal are assessed against appellee.

Judgment reformed as herein directed, and as reformed is affirmed.


text:
    Della Portia CLARK et vir, Appellants, v. Frank K. WISDOM, Trustee and Individually, et al., Appellees.
    No. 191.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 28, 1966.
    Rehearing Denied May 26, 1966.

      Gary Gurwitz and Edward C. Mainz, Jr., of Atlas, Freeland, Schwarz & Gurwitz, Mc-Allen, for appellants.
    Vinson, Elkins, Weems & Searls, by Thomas Fletcher, Houston, for appellees.
   OPINION

GREEN, Chief Justice.

This controversy involves title to and ownership of 37.2 acres of land, more or less, situated in Hidalgo County, Texas, and for the most part centers around the construction and effect to be given a deed dated February 8, 1939, executed by appellants. The deed reads as follows:

“That we, Della Portia Clark, also known as Della P. Clark, and as D. P. Clark; and Prather A. Clark, her husband, also known as P. A. Clark, for a valuable consideration in hand paid by P. W. Wisdom, subject always to the life estate hereinafter created, do hereby sell and convey to the said P. W. Wisdom the following described Real Estate situated in Hidalgo County, Texas, to wit:
All of Block Twenty-nine (29), in Hall Fifield, Subdivision of the El Gato Tract in said County and State, in trust for the use and benefit of the following named persons, and none others, to-wit Wade Wisdom Clark, Della Portia Clark, Franklin Dale Wisdom, William Russell Wisdom, King Huey Wisdom, Mary Josephine Maxwell, Margaret Jane Maxwell, Donald Wisdom son of D. F. Widom, Frank King Wisdom, Calvert Wisdom, Anita Florence Wisdom, Barbara Eldora Wisdom, Durward W. Price, Jr., George Mack Price, Mary Pauline Wisdom, Leo Thomas Wisdom, and Franklin John Wisdom, and Mary Elizabeth Price; and power is hereby conveyed on said P. W. Wisdom as trustee, subject always to the aforesaid limitation to hold, possess, and preserve said property for the benefit of said persons heretofore named as Cestui Que Trusts. He also has authority regardless of said life estate to/ease said premises for the production of oil, gas and minerals, and for such terms as in his judgment seem expedient, but he shall not have authority to rent for crops until the terms of said life estate be terminated, and thereafter he may do so. It is intended that each of the parties above named shall have, after the termination of Life estate hereinafter mentioned, a ¾7⅛ interest, excepting that Durward W. Price, Jr., and George Mack Price shall receive a ¾?⅛ interest between the two of them, share and share alike from any agricultural income raised therefrom or other income.
As a prior and dominant estate, we hereby for a valuable consideration sell, and convey to Frank Wisdom a life estate in said premises; however with this limitation, said life estate shall not be transferable by him or from him, nor can he establish a lien thereon either directly or indirectly, and no person, creditor or otherwise, can subject the the interest of the said life estate to the payment of any obligation heretofore or hereafter created by Frank Wisdom, and any attempt to to establish said lein or subject land to any claim against the said Frank Wisdom shall ipso facto work a forfeiture of any right Frank Wisdom has or could have in the said premises, and the title hereto conveyed to him shall pass to said Trustee. This conveyance is made upon this consideration: It shall be the duty of said Frank Wisdom during his life, to pay the taxes, flat water rate, and any other taxes, or the tax leins against said premises which are now leins or which may hereafter become leins. To enable him to do so subject to the right of the Trustee to lease for oil, gas, or other minerals, he shall have the exclusive possession of said premises and the benefits of such occupancy, and the right to rent the same and collect the rents and apply the same to the payment of said taxes, flat water rates, and other present leins.
If the said Frank Wisdom shall deem it profitable or expedient he may make such improvements on said premises as he may elect, so as to enhance the value of it, or enhance its occupancy, or enhance the valuable for rental purposes thereof. He shall also have the right to remove such improvements during his lifetime; and after his death his vendee, assignee, or administrator shall have the same right.
SIGNED and ACKNOWLEDGED this 8th day of February, A.D. 1939.
Della Portia Clark
Prather A. Clark”

All of the parties to this suit are nonresidents of Texas. Della Portia Clark was the daughter and P. W. Wisdom the son of Frank Wisdom named as the life tenant in the 1939 deed, and all of the others named in the deed as beneficiaries or remainder-men were Frank Wisdom’s grandchildren except Durward W. Price, Jr. and George Mack Price, who were his great grandchildren.

What, if anything, P. W. Wisdom, named as “trustee” in the 1939 deed did concerning the land after the death of Frank Wisdom, the life tenant, in 1940 is not disclosed in the record. He did not use the authority given him to execute a mineral lease. In September, 1950, he executed two instruments to appellee Frank K. Wisdom, one of the beneficiaries named in the 1939 deed, purporting to convey the land to him in trust for the same beneficiaries, and to authorize him to do anything that grantor P. W. Wisdom had power to do in connection with the property, including the power to rent or lease the land for agricultural purposes, to lease same for oil, gas, and minerals, and to collect the rents, issues and profits therefrom, and from such proceeds pay any necessary taxes and expenses. At this time, P. W. Wisdom delivered to Frank K. Wisdom the sum of $451.85, as proceeds from income off the land up to then.

Frank K. Wisdom testified that he took over the management of the property, leased the land annually for farming purposes, and made regular reports to all of the persons interested in the land. On April 30, 1951, Frank K. Wisdom, as “Trustee” executed an oil, gas and mineral lease of this land to Defendant Union Producing Company, receiving a bonus of $372.00, reporting such fact to all parties interested. A reply from appellant Della Clark congratulated him on such action, and expressed complete satisfaction therewith.

Union, acting under the provisions of the lease, executed a designation creating a unit of 674.81 acres including this 37.2 acres, and completed a producing gas well on another tract in the unit in 1956. Frank K., acting under advice of Union, sent forms to all of the “remaindermen” mentioned in the 1939 deed, requesting them to authorize Union to pay to him all royalties due from their share of the unit. Fourteen of the eighteen named in the deed, representing %7ths of the total interest in the property (12 asserted a ¾7⅛ interest each, and the two great grandchildren claimed ⅜7⅛ between them) signed such form, but appellant Della, her son and two others did not sign. Della protested that Frank K. was exercising too much power, and in full recognition of the rights and interests of the other remaindermen under the 1939 deed, insisted that she and another be named with him as “trustees”, but Frank K. disagreed, and this was not done. As a result of the failure of the four to execute the form, Union suspended payment of all royalties and accrued all payments to which the owners of the 37.2 acre tract were entitled.

This suit was then filed by Frank K. Wisdom, Trustee and Individually, as plaintiff against the persons named in the 1939 deed (except the life tenant, who had long since died), alleging by amended petition that said deed created a trust in P. W. Wisdom which was continued in plaintiff by the instruments executed by P. W. to plaintiff in September, 1950, and further alleging that by the terms of said 1939 deed all defendants and plaintiff were granted an undivided ¼7⅛ interest in the property; further alleging the execution of the mineral lease, the production of minerals, the fact that royalties were not being paid due to the controversy between the parties, the receipt by plaintiff of other money from surface lease of the property, the fact that the property was too small for partition in kind to the many interest owners, and other material facts. Plaintiffs’ amended petition ends with the prayer that

“ * * * judgment be entered ratifying said trust, or in the alternative, creating an equitable trust; that a Receiver be appointed to sell the above described property and apportion the proceeds, or in the alternative, Plaintiff be given the power of sale; that the lease to Union Producing Company be ratified; and that the royalties held in suspense be ordered paid in proportion to each beneficiary’s share, and for all other relief either in law or in equity to which Plaintiff may show himself to be entitled.”

Appellants and their son Wade Wisdom Clark, defendants below, in their answer plead that the 1939 deed was illegal and void and created no vested interests in any of the parties, and also that the deed and power of attorney from P. W. Wisdom, Trustee to Frank K. Wisdom were void in that P. W. Wisdom had no authority to delegate his duties, and that Frank K. had no authority to act as successor-trustee, or to file the suit. Plaintiffs’ amended petition, in reply, plead estoppel by deed, equitable estoppel, ratification, and laches. In such amended petition, Union Producing Co. was made a party defendant by reason of its mineral lease.

The trial was to the court without a jury. Of the numerous defendants, only the claims of appellants and their son Wade were antagonistic to plaintiff. The statement of facts consists of 95 pages of oral testimony and statements, and 275 pages of exhibits. The court, in its judgment, determined that the deed of February 8, 1939, hereinbefore set out, granted a life estate in Frank Wisdom, and a vested remainder of a ¾7⅛ each in the named beneficiaries (except that the two great grandchildren, Durward W. Price Jr. and George Mack Price share a ¾7⅛ interest), and created in P. W. Wisdom, Trustee, a special agency to execute an oil, gas and mineral lease on the land on such terms as he deemed expedient. The court further concluded that P. W. Wisdom was not authorized by the deed to assign to any person his discretionary powers to execute a mineral lease binding upon the interests of the remainder-men; that the purported lease executed by Frank K. Wisdom (not to be confused with the original Frank Wisdom, life tenant) was subject to being ratified and confirmed and had been ratified and confirmed by ¾7⅛ of the interests, as had the Declaration of Unit of Union Producing Company, and that such lease and unitization was valid as to and inclusive of the interests of the parties ratifying same. The judgment proceeded to approve the reports and accounts of Frank K. Wisdom and discharged him as Trustee; found that the land was not subject to being partitioned in kind and ordered the surface sold and the proceeds divided as the interests of the parties appeared; appointed a commissioner for such purpose; ordered the monies on deposit distributed to the remaindermen, and allowed attorney fees of $955.00 and reasonable expenses of $94.59 to plaintiffs’ attorneys, to be paid out of funds received as income from the property. The court filed detailed Findings of Fact and Conclusions of Law, which are adequate to support the judgment. Of the parties asserting interest in the property only Della Portia Clark and her husband Prather A. Clark are in this court on appeal.

The trial court, in its finding of facts, found that P. W. Wisdom did not receive any title, legal or equitable, in the deed of 1939 from Della Portia Clark and husband to him as Trustee, but that there was created in him a special agency for the named re-maindermen to execute a mineral lease, which authority was discretionary, and not obligatory. Appellants’ position on this appeal with reference to the court’s construction of the deed, as raised in their first eight points of error, is summarized by them in their brief as follows:

“Appellants further submit that the Ap-pellees fully developed their case but the Trial Court held that that instrument of February 8, 1939, did not create a trust. Appellants contend that, by the operation of the law as set forth in this brief, title to the subject property either remained in or reverted to them, or, a resulting trust arose in their favor. In either event, Appellants constitute the sole owners of the property, and not having ratified the oil, gas and mineral lease in question, fee simple title to the surface and minerals rests in the Appellants. A determination of this question fixes the right of the parties under all other points of the case.”

Appellees answered this contention with their first counterpoint, to the effect that the trial court correctly construed the deed as granting to Frank Wisdom a life estate, and to the named beneficiaries a vested remainder of an undivided ⅛7⅛ each (except the joint ¾7th in the two great grandchildren) and in creating in P. W. Wisdom a nondelegable discretionary power as special agent to execute oil, gas and mineral leases. We agree with appellee. We have considered each of appellants’ first eight points, and after a thorough study of the instruments involved, the other evidence, and the briefs of the parties, overrule each of them.

In passing upon the construction made by the trial court of the deed we shall be guided by well established rules heretofore laid down by our courts. The intention of the parties, when it can be ascertained from a consideration of all parts of the instrument, will be given effect when possible. Should there be any doubt as to the proper construction of the deed, that doubt should be resolved against the grantors, whose language it is, and the deed should be held to convey the greatest estate permissible under its language. Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904; Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798; Waters v. Ellis, 158 Tex. 342, 312 S.W.2d 231. It is to be presumed that the parties intended to effect a conveyance, and a construction affirming the validity of a deed will be adopted in preference to one which would nullify the instrument. Waters v. Ellis, supra; Curdy v. Stafford, supra; Heirs and Unknown Heirs of Barrow, Jr. v. Champion Paper & Fibre Co., Tex.Civ.App., 327 S.W.2d 338, writ ref. n. r. e.; Bryan v. Thomas, Tex.Civ.App., 359 S.W.2d 131, aff’d, Sup.Ct., 365 S.W.2d 628.

If we sustain the contention of appellant that the parties to the 1939 deed intended that title to the subject property, after the termination of the life estate, either remained in or reverted to grantors, or that a resulting trust arose in their favor, and that they became the sole owners of the property, we would be nullifying, rather than affirming the validity of the deed as to the named beneficiaries. We would also be holding counter to the rule of construction that when in doubt, the greatest estate permissible under the language of the instrument was intended to be conveyed.

The record shows, by appellant Della Clark’s letter written in 1957, that the conveyance of the land to appellants by her father in 1932 (10 acres) and 1934 (the rest of the tract) was a family matter, and that appellants, though having record title to the whole, only claimed actual title apart from the family to ten acres. This is evidence to be considered in determining the matter of the consideration and purpose for the 1939 deed, and whether grantors intended to convey remainder interest to the named beneficiaries.

In their contention that the title to the entire property remained in or has reverted to grantors in the deed, appellants allege that the trial court erred in his finding that no trust was created, and that P. W. Wisdom became a special agent for the named beneficiaries to perform, at his own discretion, but with no obligations, the acts mentioned. Appellants say a trust was created because trust like language was used in the instrument, and the parties on occasion used the term “Trustee.” Nothing inheres in the actions of renting for crops, preserving funds, paying taxes, or leasing for oil, gas, and other minerals which would require one to be a trustee to do these things. An agent could do them as well. It is well settled in law that the mere calling of one a trustee or for one to call himself a trustee does not necessarily indicate that he is in fact or in law a trustee. Gibbs v. Barkley, Tex.Com.App., 242 S.W. 462, opinion approved by Sup.Ct.; Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554; McCamey v. Hollister Oil Co., Tex.Civ.App., 241 S.W. 689, aff’d, 115 Tex. 49, 274 S.W. 562; Duncanson v. Howell, Tex.Com.App., 222 S.W. 232; Pendery v. Panhandle Refining Co., Tex.Civ.App., 169 S.W.2d 766, writ ref. w. o. m. Whether one acting under authority granted him by an instrument of conveyance is a trustee vel non depends, as the trial court correctly appreciated, on the construction of the instrument.

However, if the trial court were in error in his finding that no trust was created in P. W. Wisdom by the 1939 deed, such would not affect title to the property following the death of the life tenant. It is provided in the deed that the trust is “for the use and benefit of the following named persons, and none others” and then follows the names of the eighteen beneficiaries; and next is the grant of power to the trustee to hold, possess and preserve the property for the benefit of said persons. No obligations or duties of any nature are placed on the named trustee. He was not obligated to do anything with reference to the land. He had authority, but not the duty, to execute a mineral lease, and after the termination of the life estate, to rent for crops. This was the limit of his trustee-ship. In our opinion, if any trust was created in P. W. Wisdom under such deed, it was a mere passive trust, and was intended as such by the grantors, the trustee to hold legal title to the land for the named beneficiaries until the termination of the life estate, with authority to execute a mineral lease for the benefit of the beneficiaries if he deemed it expedient, with the legal title vesting in the remaindermen according to the interests stated at the death of the life tenant. 89 C.J.S. Trusts §§ 17-18, pp. 730-731. We are of the opinion that the phrase “from any agricultural income raised theréfrom or from any other income” was not intended to, and did not limit the remainder interests conveyed to the beneficiaries to the right to receive income only.

It is our view that if the instrument was effective to create some type of trust cognizable by a court of equity, the trust terminated at the death of the life tenant; and that if the trustee retained any further power as regards making mineral leases or renting the land, such power was that of an agent, and was terminable at the will of any of the co-tenant remaindermen.

The two cases cited by appellants in support of their contention that the trust failed, and title to the property either remained in or reverted to grantors, are not in point. The decision in Meyer v. Holle, 83 Tex. 623, 19 S.W. 154, cited by appellants, resulted from the holding in Nolte v. Meyer, 79 Tex. 351, 15 S.W. 276 that the trust deed relied on in the subsequent case was void because of the indefiniteness and uncertainty of the trust attempted to be created, and the beneficiaries and the direction with reference to the appointment of trustees are left in uncertainty by the terms of the instrument. The case was decided strictly upon the facts there presented, which bear no similarity with our present case.

In Morrison v. Parish, Tex.Civ.App., 384 S.W.2d 764, writ dism., cited by appellants, the trust failed, and the trustee held title on a resulting trust for the grantors, due to the fact that no beneficiaries of the trust were included in the deed. The court held that “the existence of a beneficiary is an indispensable element of an expressed trust, and in the absence of a beneficiary the effort to create the trust aborts.” Such holding is no authority for the appellants’ contentions in the present case.

The trial court properly determined in the judgment that the deed of February 8, 1939, granted a life estate in Frank Wisdom, and a vested remainder of ½7th each to the named sixteen beneficiaries, with Durward W. Price, Jr. and George Mack Price to share a ½7⅛ interest, and created in P. W. Wisdom, Trustee, a special agency, and appellants’ contentions that title to all of the property remained in or reverted to appellants are overruled.

Appellants’ points 7 and 8, that the trial court erred in ordering the surface partitioned by sale thereof, and in appointing a commissioner to effect such sale, and in ordering the monies on deposit with the court distributed to the 18 beneficiaries, are, in appellants’ brief, expressly made to depend on the correctness of their position as to their ownership of the entire tract. Since we have held to the contrary of that position, we hold that the court’s ruling on the partition and the distribution were proper, and overrule these points.

Appellants’ 9th Point of Error reads as follows:

“The Trial Court erred in entering a judgment the terms of which are contrary to the pleadings filed in the Trial Court and not, in any manner, supported by the pleadings of the Appellees, when the Court decreed in its judgment that that instrument from Della Portia Clark and husband, Prather A. Clark, to P. W. Wisdom, Trustee, dated February 8, 1939, had the effect in law and in fact to create and vest a legal remainder in the eighteen parties named in the instrument as beneficiaries.”

We have heretofore briefly summarized the amended petition of plaintiffs, and the pleadings of appellants. We feel that such pleadings placed in issue the question of the construction of the deed of February 8, 1939, and of the title to the land, and that the trial court was authorized to construe the deed and rule on the condition of the title.

Plaintiffs’ petition and amended petition prayed for general relief. Conflicting interpretations as to the effect of the 1939 deed on the title to the property were alleged by plaintiffs and appellants. The rule is well settled that under a prayer for general relief, any relief appropriate to the facts proved at the trial may be given, and it is for the court to declare what form of relief is appropriate under the pleadings and the evidence. 45 Tex.Jur.2d, Pleading, § 49, pp. 458 et seq.; Silberberg v. Pearson, 75 Tex. 287, 12 S.W. 850; Morris v. Biggs & Co., Tex.Civ.App., 165 S.W.2d 915, writ dism.; Galindo v. Garcia, Tex.Civ.App., 222 S.W.2d 477; Gilbreath v. Douglas, Tex.Civ.App., 388 S.W.2d 279.

Appellants’ 9th point is overruled.

Appellants, by their 10th point, assert that plaintiffs’ attorneys fees and expenses were not recoverable in this case. The trial court correctly held that P. W. Wisdom, had no power to delegate his discretionary authority and rights conveyed under the deed of 1939 to a successor, as he attempted to do by the instruments executed in September, 1950. 57 Tex.Jur.2d, Trusts, § 119, pp. 509-510; Michael v. Crawford, 108 Tex. 352, 193 S.W. 1070; Grundy v. Broome, Tex.Civ.App., 90 S.W.2d 939. These instruments, therefore, did not create any trusteeship in Frank K. Wisdom. Hence Frank K. Wisdom as plaintiff was not entitled to recover attorney fees under any statutory provisions applying to trustees. No contention is made of any contractual relations between the parties providing for attorney fees or expenses. We quote from Turner v. Turner, Tex.Sup.Ct., 385 S.W.2d 230, 233, as follows:

“The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or by suit upon a contract. Van Zandt v. Ft. Worth Press, 359 S.W.2d 893, 896(5), Tex.Sup. 1962; Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333 (2-4), 1938; Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032, 1035 (3), Tex.Com.App., 1932; Sherrick v. Wyland, 14 Tex.Civ.App. 299, 37 S.W. 345, 1896”

We feel that such rule of law is applicable here.

The judgment included recovery by plaintiff of $955.00 in attorneys fees, and $94.59 in expenses, to be paid from money on deposit with the court, and with appellees’ attorney. Since only the appellants, representing a ¾7⅛ interest in the property and the proceeds, have appealed, and since they alone have complained of the allowance of the attorneys fees, it is our holding that the judgment be reformed so as to deduct ¾7⅛ of the sum allowed as attorneys fees, and expenses, and add such amount to the appellants’ portion of the sums on deposit decreed to be distributed to the joint owners of the property.

Consideration of appellants’ remaining points Nos. 11, 12, and 13 is, by their brief, made to depend upon the correctness of their contentions that the title to this land remained in or reverted to appellants, as raised in their points 1-8 inclusive. Since we have overruled these points and held adversely to these contentions, points 11, 12, and 13 are also overruled.

The judgment of the trial court is reformed, so that the amount of attorney’s fees and expenses allowed to plaintiffs’ attorneys is reduced by ¼7& thereof, and such ¾7⅛ is added to the sum ordered to be paid to appellant Della Portia Clark in the distribution of the assets on deposit in the registry of the trial court.

Costs of the appeal are assessed two-thirds against appellants and one-third against appellees.

Reformed and affirmed.

      . Not including the pro-forma defendants.

      . Their son Wade Wisdom joined in the motion for new trial, and the appeal bond, but not in the briefs filed in this court. The record indicates that after the entry of the trial court’s judgment, but before the motion for new trial was acted on the two parties other than appellants and Wade Wisdom asserting each a ⅛⅛ interest in the property in addition to the l%7th mentioned have ratified the mineral lease instruments.