author: DICE, Commissioner. BELCHER, Commissioner.

text:
    Bobby Joe CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36396.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1964.
    Rehearing Denied April 15, 1964.
    Second Motion for Rehearing Denied May 13, 1964.

      Ben Henderson, Dallas, Charles F. Herring, Austin (on rehearing only), for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Mark Troy and John J. Orvis, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted under Art. 6687b, Vernon’s Ann.Civ.St., of operating a motor vehicle upon a public highway while his operator’s license was suspended, and assessed punishment at ninety days in jail and a fine of $300.00.

The state’s evidence was undisputed that on May 10, 1962, the appellant operated a motor vehicle upon a public street and highway in the city of Dallas, Dallas County, Texas.

It was shown that prior to such date a-summary judgment was rendered in County Court at Law No. 2 of Dallas County, on October 25, 1960, sustaining an order of the Texas Department of Public Safety, dated January 6, 1960, suspending appellant’s operator’s license under Sec. 22(b) (4) of Art. 6687b, supra, for a period of twelve months from November 17, 1959. The summary judgment provided that the order of suspension was approved and upheld for a period of twelve months from the date of the judgment.

Appellant duly excepted to the court’s judgment and perfected an appeal to the Fifth Court of Civil Appeals sitting at Dallas, by execution of a proper cost bond.

After the appeal was perfected, the cause was transferred to the Court of Civil Appeals for the Sixth Supreme Judicial District sitting at Texarkana. On September 26, 1961, that court entered its order dismissing the appeal for want of prosecution and the court’s mandate was issued on November 24,1961. On February 5, 1962, a notice from the Texas Department of Public Safety, pursuant to said judgment, was addressed to appellant by certified mail, advising that his operator’s license was suspended for a period of twelve months, effective February 8, 1962. Demand was also made that appellant surrender his license to the department.

Appellant did not testify or offer any evidence in his behalf.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the conviction.

He first contends that the summary judgment entered by the County Criminal Court No. 2, on October 25, 1960, suspending his operator’s license for twelve months, was not superseded by his appeal to the Court of Civil Appeals upon the mere execution of a cost bond and that the suspension therefore expired on October 25, 1961, which was prior to the date of the alleged offense on May 10, 1962.

In support of his contention appellant relies upon Bostick v. Garrison, 302 S.W.2d 945, decided by the Galveston Court of Civil Appeals in 1957 in which it was held that where a motorist, who had appealed to the County Court under Sec. 31 of Art. 6687b, supra, from an order of the Department of Public Safety suspending his operator’s license, in appealing from an adverse judgment of the County Court to the Court of Civil Appeals, filed only a cost bond and made no effort to supersede the judgment, it was not suspended or superseded pending the appeal. Appellant apparently overlooks the amendment of Art. ■6687b, supra, by the Fifty-sixth Legislature, in 1959, when Sec. 22(c) was added, providing for an appeal by a licensee to the ■county court from a final decision of the Department of Public Safety suspending Tiis operator’s license after a hearing and affirmative finding authorizing the suspension. The amendment, among other things, provides:

“Pending final determination of the appeal, the license shall not be deemed suspended and any suspension order by the Department is itself suspended and is hereby set aside pending appeal except as may be hereinafter provided.”

In Texas Department of Public Safety v. King, 366 S.W.2d 215, the Supreme Court of this State in considering the 1959 amendment of Art. 6687b, supra, noted:

“The suspension order of the Department, however, is not nullified by the appeal but is itself suspended and stayed pending the appeal.”

We think a reasonable interpretation of the statute as presently amended is that the suspension order is stayed, pending the appeal in both the county court and Court of Civil Appeals. Under such interpretation the period of suspension in the instant case began to run on the date the judgment of the Court of Civil Appeals became final. Texas Department of Public Safety v. Perlman, Tcx.Civ.App., 340 S.W.2d 522, ref. n. r. e. The judgment was final long before May 10, 1962, when appellant operated his automobile upon a public highway and on such date his operator’s license was suspended.

Appellant further contends that his conviction cannot be sustained because it was not shown that he received the notice addressed to him by certified mail by the Department of Public Safety on February 5, 1962, that his license was suspended. He relies upon Smith v. State, 168 Tex.Cr.R. 185, 324 S.W.2d 207, and Podany v. State, 172 Tex.Cr.R. 451, 358 S.W.2d 118, in which this court reversed the convictions for driving while license was suspended where the proof did not show that the accuseds had received notices of the suspension. These two cases are not here applicable because in those cases no appeals from the orders of suspension were taken and the question was whether the accuseds received the notice of suspension mailed to them by the Department of Public Safety. In the case at bar, appellant prosecuted his appeal from the Department’s order suspending his license to both the County Court and the Court of Civil Appeals and was charged with notice of the court’s final judgment and decision on the appeal. The court’s final judgment was notice to appellant that his license was suspended.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

We remain convinced that the period of suspension of the operator’s license began to run on the date the judgment of the Court of Civil Appeals became final. Milam v. Texas Department of Public Safety, Tex.Civ.App., 359 S.W.2d 623, N.R.E.

The appellant’s motion for rehearing is overruled.

Opinion approved by the Court


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    J. D. HARWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 36901.
    Court of Criminal Appeals of Texas.
    April 22, 1964.
    No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was charged by information in the County Court of Hunt County, Texas, as follows: “did then and there in said County and State, unlawfully and willfully injure a fence gate then and there situated in said County by lifting said gate off its hinges so as to prevent the use of said gate, said gate then and there being the property of Jim Arnold, injuring said gate without the consent of the said Jim Arnold, said gate being of the value of more than five dollars and less than the value of fifty dollars, against the peace and dignity of the state.” The judgment reflects that trial was had before the Court without the aid of a jury upon a plea of guilty. The punishment assessed by the Court was ten (10) days in jail and costs.

No brief has been filed by the appellant, nor has one been filed by the State. There is no statement of facts. We have before us only the transcript which reflects no formal bills of exception.

In drafting the information in this cause the prosecutor evidently proceeded pursuant to the terms of Article 1352 Vernon’s Ann.P.C. which is an article of the penal code prescribing punishment for breaking, pulling down or injuring the fence of another without his consent, or willfully and without the consent of the owner thereof open and leave open any gate leading into the enclosure of another * * *. This statute prescribes the following penalty: “[Hje shall be fined not less than ten nor more than one hundred dollars, and in addition thereto may be imprisoned in jail not exceeding one year.” We observe that Article 1350 V.A.P.C. is the general statute prescribing a penalty for willfully injuring or destroying any property belonging to another, hut this statute shall not be applicable when the law provides a particular punishment for the willful injury or destruction of a certain type of property such as a fence. This article prescribes punishment based upon the value of the property destroyed or the extent of the injury inflicted; so the state evidently borrowed from this statute in making the allegation as to the value of the gate. This allegation as to value would, of course, be unnecessary in tracking the terms of Article 1352, supra, which it is apparent to us that the state did.

We observe that the judgment assessing appellant punishment at ten days confinement in jail without the imposition of a fine was unauthorized and calls for a reversal of the conviction. Pizzitola v. State, Tex.Cr.App., 372 S.W.2d 676; Persall v. State, 145 Tex.Cr.R. 476, 169 S.W.2d 488.

For the reasons stated the judgment is reversed and the cause remanded for another trial.


text:
    Leroy CRANFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 36712.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    Rehearing Denied May 6, 1964.
    Robert O’Donnell, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery; the punishment, eighteen years confinement in the state penitentiary.

Mrs. Mae Moore, a cashier in Wyatt’s Food Store No. 1, and prosecuting witness, testified that on the day in question appellant walked up to the cashier stand, borrowed a pen and then walked off. Appellant was observed by Mrs. Moore in a line at a checking counter a short time later whereupon she requested the checker to get the pen when appellant came through the line.

When Mrs. Moore had returned to the cashier’s booth, appellant walked toward her and dropped a note into the booth which read, “Give me your money.” Mrs. Moore’s testimony concerning the incident is as follows :

“Q : After this defendant Leroy Cran-ford handed you this note which had written on it, 'Give me your money,’ what, if anything, did you say or do?
“A: I said, ‘Are you kidding?’
“Q: And when you said, ‘Are you kidding,’ what did this defendant do ?
“A: He said, ‘No’ and then he pulled his coat back, reaching, as if going for a gun.
* * * * * *
“Q: All right, and when he did that, Mrs. Moore, what did you do?
“A: Well, I was kind of upset.
% i¡c ‡ ifi
“Q: * * * Mrs. Moore, when you gave this defendant over here your money, were you in fear of your life or serious bodily injury?
“A: Yes, Yes I was.
“Q: All right, when he reached for his back pocket, you became in fear, didn’t you?
“A: Yes, I was.
“Q: And you gave him this money then — for technical purposes — -without your consent?
“A: I sure did.”

Mrs. Moore testified that before appellant left the store she told the grocery manager, “You -see this man going there, he has my money.”

Later the same day Mrs. Moore identified appellant in a police line-up. Appellant was also identified in the courtroom by Mrs. Moore.

Patrick Gerald Bordens testified that he was parked outside of Wyatt’s store waiting for his mother on the day in question; that appellant parked beside Bordens’ car and went into the store; that he "láter came running down the sidewalk by the side of the store, jumped in the car and “took off” and that he (Bordens) was able to get the license number of the car.

Through Detective George Boyce and Officer F. M. Turner, of the Dallas Police Department, it was ascertained that the car in question was located that same day in the rear of appellant’s apartment and that the officers went into the apartment and placed appellant under arrest.

During the alleged robbery, appellant possessed no arms so far as is disclosed.

Appellant called no witnesses nor did he take the stand in his own behalf.' He did file a motion for an instructed verdict which was overruled. The basis of the motion was that the conduct, acts and language of the defendant were insufficient to put the cashier, Mrs. Mae Moore, in fear of her life or serious bodily injury and that the evidence was insufficient to support a conviction for robbery by assault as a matter of law. Appellant also urged this point in his amended motion for new trial, his Bill of Exception and by brief and oral argument.

It is well settled that to constitute the crime of robbery there must be violence, or intimidation of such character that the injured party is put in fear. The fear must be of such nature as- in reason and common experience is likely to induce a person to part with his property against his will. Easley v. State, 82 Tex.Cr.R. 238, 199 S.W. 476.

In Horn v. State, 89 Tex.Cr.R. 220, 230 S.W. 693, it was stated, If there exists reasonable belief that injury will result from noncompliance with the robber’s demand, the necessary fear is present.

The fear must arise from the conduct of the accused however, rather than the mere temperamental timidity of the victim.

It is also well settled that robbery may be committed where the robber makes his victim believe that he has a weapon. Anderson v. State, 153 Tex.Cr.R. 501, 221 S.W.2d 268; Bartley v. State, 151 Tex.Cr.R. 88, 205 S.W.2d 600; Bryant v. State, 129 Tex.Cr.R. 438, 87 S.W.2d 722.

In the Anderson case, the prosecuting witness was in the office by himself when the defendant came in and by several threatening gestures with his hand in the pocket of a Navy peajacket put his victim in fear of life or bodily injury. He created the impression he had a weapon which he intended to use to force the victim to hand over the money and this court affirmed his conviction for robbery.

In the Bartley case, appellant took the stand and admitted taking the money from the parties by making them believe he had a pistol in his coat pocket. He contended that at the time he was under the influence of narcotics.

In the Bryant case, it was held that evidence that the owner of the slot machine started toward the accused when he saw a companion of the accused put his hand in his coat and told the owner to keep his mouth shut, and testimony of the owner that he was afraid to attempt to stop the robbers was held sufficient to sustain the conviction of robbery as showing fear of injury as required under Art. 1408 of the Penal Code. It was further shown in that case that accused was in the company of two companions.

Appellant relies on Peebles et al. v. State, 138 Tex.Cr.R. 55, 134 S.W.2d 298 in support of his contention. In that case, it was shown that at the time of the alleged robbery, a co-defendant of Peebles stated that if prosecutrix refused to give him her money, “He would ‘leave her like he left a woman the night before.’ ” This was held insufficient to show “putting in fear,” where there was no showing of violence, and prosecutrix claimed to have been robbed on a sidewallk over which hundreds of people were passing.

In the Peebles case the accused made no gesture or act which would cause the prose-cutrix to believe him to be in possession of a weapon. This we find to be the distinguishing feature between Peebles and the case at bar.

In the instant case, appellant moved his hand to his back pocket in such a manner as to cause the prosecuting witness to believe he was in possession of a pistol, and thus her fear was justified. Therefore, relying upon Anderson v. State, Bartley v. State, Bryant v. State and Horn v. State, supra, we find appellant’s contention without merit.

The evidence is sufficient to support the verdict, and no reversible error appears.

The judgment is affirmed.


author: PER CURIAM.

text:
    Clara FLYNN, Administratrix of the Estate of Anna M. Yorger, Deceased, Plaintiff-Respondent, v. UNION NATIONAL BANK OF SPRINGFIELD, Missouri, Defendant-Respondent, and Emma McReynolds, Defendant-Appellant.
    No. 8220.
    Springfield Court of Appeals. Missouri.
    April 14, 1964.
    Motion for Rehearing or to Transfer Overruled May 4, 1964.

      Bussell & Hough, Leland C. Bussell Kelly & Church, W. Clark Kelly, Springfield, for defendant appellant.
    Allen, Woolsey & Fisher, Russell G. Clark, Springfield, Ninian M. Edwards, Clayton, for plaintiff respondent.
   PER CURIAM.

This is an appeal from a judgment declaring that title to a savings account is vested in Clara Flynn, Administratrix of the Estate of Anna M. Yorger, deceased.

We have rendered an opinion in this case, Stone J., not sitting. Motion for rehearing was sustained and Honorable James C. McDowell, former judge of this court and now commissioner, sat with the court for reargument in place of Judge Stone. After hearing such argument and careful consideration we have come to the conclusion that the opinion was correct. Our opinion is as follows:

The original petition charged that Mrs. Yorger had nine thousand dollars in a savings account in her own name at the Union National Bank of Springfield; that on January 18, 1960, she transferred such account to a joint savings account in her name and the name of defendant (now appellant), Emma McReynolds; that at the time of such transfer Anna Yorger was incompetent and was not aware of the consequences of the change in the account. In an amended petition, filed by leave of court after most of the evidence was in, plaintiff also charged that there was a relationship of trust and confidence between Mrs. Yor-ger and defendant, Emma McReynolds, and also a confidential relationship between Mrs. Yorger and one Evans McReynolds (son of Emma McReynolds) ; and that the McReynoldses, mother and son, exercised undue influence over Mrs. Yorger- in order to procure the transfer of such account.

The principal characters and some of the witnesses in this transaction are:

Anna M. Yorger, elderly wife of Gus-tave Yorger. This couple had lived at the same address in Springfield since the latter part of 1942 or early 1943. They were childless. We gather from the whole evidence that Mrs. Yorger was rather a dependent, nervous sort of person, tending toward being a hypochondriac, and that she relied upon her husband to make purchases and to control the financial affairs concerning the household.

Plaintiff’s witness, Dr. Fitch, who was engaged in the general practice of medicine, had been Mrs. Yorger’s physician off and on (with two years out) since 1951. ' He said he had treated Mrs. Yorger for symptoms of insomnia, restlessness, various aches and pains, and that she demanded new and different sedatives for sleep. For years, “Well, this poor old fellow, her husband, she had many imaginary ideas about his infidelity, and his mistreatment of her, and, actually, he was a very kind old person.” How the doctor acquired possession of the knowledge that her ideas concerning her husband’s infidelity were “imaginary” we do not know.

Next-door neighbor for twenty odd years was defendant, Emma McReynolds. Mrs. Yorger and Mrs. McReynolds had been “bosom friends” for a long time.

Evans McReynolds is the son of Emma McReynolds and was a friend of the Yorgers. He was a vice-president of the Union National Bank and was in charge of public relations, loans, investments, and advertising.

Clara Flynn, also elderly, was half-sister and nearest kin of Anna Yorger. Mrs. Flynn lived in St. Louis and, according to her testimony, had visited Anna Yorger every year.

Gus Wesley Flynn, son of Clara Flynn, lived in St. Clair. In former years he had visited Mrs. Yorger practically every year; but prior to the death of Gustave Yorger (he attended the funeral) he had not visited with her for two and one-half years. He had four children by his second marriage. Mrs. Yorger had never seen the three youngest.

On September 5, 1959, Gustave Yorger, Anna’s husband, committed suicide by shooting himself. Clara, the half-sister, came down for the funeral and stayed with Anna for approximately three or four weeks. Some friction developed between the two half-sisters, and Clara went back to St. Louis. Produced in evidence was an envelope and an enclosed paper ■writing’, in ink, written by obviously shaky fingers. The envelope was entitled: “My Will Mrs Anna Yorger.” The same writing on the paper inside the envelope was:

“Sunday Novembre 8/19S9
“if any thing should happen to me sud-enly dont dont let my half sister Clara Flyn take possession of my property give it to the probate court and Mrs Emma McRenold She has been very kind to me and all so my Church Cam-bell Av Methodis Church I am very nerves I can scarcely writ my hand trembles
“Mrs Anna Yorger”

At sometime after the death of her husband, Mrs. Yorger engaged a realtor and sold her home. So far as the record shows, she handled this transaction herself. Evans McReynolds testified that she asked him to stop by her home and that she delivered the proceeds of the sale to him for deposit in the Union National Bank. He deposited it in her checking account.

About November 12, 1959, Emma Mc-Reynolds went to the office of Mercy Villa, an establishment devoted to the care of elderly people, and made inquiry concerning possible admittance of Mrs. Yorger. The next day, Mrs. Yorger, accompanied by Mrs. McReynolds, went to Mercy Villa and inspected a room which Mrs. Yorger would have. The following day, November 14, 1959, Mrs. Yorger, accompanied by Mrs. McReynolds, registered in at Mercy Villa. Mrs. Yorger herself furnished the information necessary for admission. Inquiry was made of her concerning her relatives. She informed the Sister in charge that she had a half-sister but she did not want the name of the half-sister placed on the admission sheet. Listed on the admission sheet record following name, address, and doctor, was “Age 79 — May 13th” (we do not know whether “Age” was calculated at the nearest birthday) ; “Religion Methodist”; “Responsible Self. (Neighbor: Mrs. S. L. Uhr. Phone UN 6-5146 Mrs. McReynolds, Phone UN 4 — 4267” She was placed in the domiciliary or residence section, which is that portion where patients “pretty well take care of their own needs” and are free to come and go. Sometime in November, about the 26th, Dr. Fitch saw Mrs. Yorger at Mercy Villa. His report of physical examination was: head, ears, nose, throat, mouth, and lungs, “clear”; vision, “poor, cataracts”; heart and blood vessels, “Heart tones are clear and regular. Arteries are sclerotic”; mentality, “nervous, emotional, orientated”; tentative diagnosis, “arteriosclerosis, neuro dermatitis.”

From November 14, 1959, until the early part of January 1960, Mrs. Yorger visited in the office of Mercy Villa every day. She frequently made trips outside the Villa. During this period she went to the office of Dr. Fitch on three different occasions. She made several trips to the Union National Bank. These trips were made by cab. On November 23, 1959, she deposited nine thousand dollars in a savings account at Union National. Presumably this comprised the principal proceeds which had been derived from the sale of her home.

On or near January 9, 1960, Mrs. Yorger was transferred to the infirmary hospital section on the third floor of Mercy Villa. Sister Mary Phillipine, the administrator, testified, “I had thought for some time that she should be in the hospital section. And we suspected at the time she was taking more medicine than necessary, and we called Dr. Fitch, and between the two us, we agreed to transfer her to the hospital section.”

On or about January 17, or 18, 1960, the transfer of the savings account was made. This is the transaction here in question. The transfer was accomplished by the execution of a joint account depositors’ contract card wherein “the undersigned, joint depositors,” agreed that the account would be owned jointly and with right of survivor-ship. It was signed by Anna M. Yorger and Mrs. Emma McReynolds. Further reference will be made to this card.

In the latter part of January I960, Mrs. Yorger’s nephew, Gus Flynn, came to the infirmary to see her. On January 28, 1960, Betty Jane Flynn (wife of Gus Flynn) filed petition in probate court for appointment of guardian of the person and estate of Anna Yorger, age seventy-nine. Hearing was set for February 3, 1960, and notice was served on Mrs. Yorger on January 29. On February 10, Evans McReynolds was appointed guardian. Mrs. Yorger died September 5, 1960, exactly one year from the day her husband killed himself.

Turning to the negotiations concerning a will: On December 15, 1959, Mrs. Yorger phoned Mr. Powell, an attorney in Springfield, and requested that he come to Mercy Villa to talk about a will. He went there, but he does not recall how many days thereafter. He met her in a private visitors’ room on the first floor, and they talked about an hour. She discussed with him various items of her assets which she wanted to dispose of in her will. She mentioned her church and that she had given a ring to Mrs. McReynolds. She stated that she did not want Clara Flynn to have any of her money. She mentioned the desire to leave some money to the children of Gus Flynn but was afraid their father, or Clara Flynn, would control it. Powell advised that she could leave the money for the children in charge of a trustee, and “she was pleased about this, because it changed her mind about what she was going to do about some of her property.” Powell left. He prepared a will sometime later. He does not know how many days thereafter he took a draft of the will to her. On this occasion they discussed the will and she was satisfied with it. Powell then went to a Sister in charge of the ward for witnesses and told her he was going to have Mrs. Yorger execute a will. The Sister inquired as to whether or not the Union National Bank knew about it. “I told her that so far as — that they did not. And she said that she would prefer that I contact the Union National Bank and let them know about it before Mrs. Yorger should sign.” Powell went back to his office and on some later date (he does not recall when), he called the bank and contacted Evans McReynolds and told him what the Sister had said. He testified that Mc-Reynolds said, “ * * * ‘Well, we have no control — ’ * * *. ‘It is none of our business, but,’ he said, ‘if it will help you out I will go with you or call them.’ * But they were unable to arrange a time and Powell apparently did not get back to Mercy Villa until in the evening of January 27, or 28. On that occasion Mrs. Yorger was in bed and not feeling well. He testified it was his opinion that on the previous visits and consultations with her she had testamentary capacity, but on this last occasion he thought she was different and did not have testamentary capacity, and he did not ask her to sign the will. The unexecuted will, so prepared by Powell, is too long to set forth here, but the substance is as follows: to Clara Flynn, one dollar; to the Campbell Avenue Methodist Church, five hundred dollars; “to Mrs. D. E. Mc-Reynolds, my diamond ring and any other personal effects that I may have left in her care. Actually, these items were given to her by me, but I desire that no question arise in this regard”; the balance of her estate to the Union National Bank in trust for the children of Gustave J. Yorger Flynn, with certain directions as to use of the funds for education and a provision for termination of the trust and for final distribution when the youngest of the beneficiaries reaches the age of twenty-one.

During the whole of the period with which we are concerned, Mrs. Yorger had visits from neighbors and ex-neighbors, but the most consistent visitor was Mrs. Mc-Reynolds. She was at the infirmary from three to four times a week. On these occasions she would usually bring some little article, knickknack, or special article of food. She also carried out and attended to Mrs. Yorger’s personal laundry. Upon occasions Mrs. Yorger would have a nurse phone Mrs. McReynolds simply to come over and talk with her.

There is no contention here that the transfer was not actually effected. The questions presented are: (a) whether or not Mrs. Yorger had sufficient mental capacity to make the gift, and (b) whether it was procured by the exercise of undue influence.

Did Mrs. Yorger have sufficient mental capacity? Dr. Fitch, her personal physician, saw her at Mercy Villa on November 26, 1959, at his office on November 30, 1959, December 8, 1959, and January 4, 1960, and again at Mercy, Villa on January 9 and January 26, 1960. He testified that there was no time between November 30, 1959, and February 4, 1960, when Anna Yorger was not “incompetent.” She “needed somebody to manage her business.” He said she was nervous, an “emotional problem — mental problem.” She had cerebral arteriosclerosis, commonly referred to as senility, which was a progressive condition. She was suffering from simple senile deterioration. In the beginning of this deterioration, there are long periods of lucidity. Terminally there are not. She was not devoid of memory. She was oriented and always recognized him and could always give her complaints. Nevertheless, she was incompetent. He related one instance, when being in her room, of seeing some money on her bed and some in a shoe.

We have some difficulty in interpreting the doctor’s testimony in respect to just what he meant by “incompetency.” Mental capacity to make a gift is a mixed question of law and fact. The mental capacity required by the law to make a gift and the capacity which distinguishes the competent from the incompetent in a medical sense is not always the same. It is held that the capacity required to make a gift is not as high or acute as the capacity to engage in a business or arm’s length transaction where each party thereto is engaged in getting an advantage to himself, instead of the simple satisfaction in having benefited one who is near and dear. Usually it is said that the requirements for making a gift inter vivos are the same as those required to make a will. McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 703; Nicholson v. Duff, 189 Mo.App. 47, 174 S.W. 451, 454. The requirements generally listed are: the capacity to know and understand, in a reasonable manner, the nature and effect or consequences of the act involved; a reasonable understanding of the nature and extent of the giver’s property and effects; and an understanding as to who are the natural objects of the giver’s bounty. 38 C.J.S. Gifts § 13, p. 789; Walton v. Van Camp, supra; Ahmann v. Elmore, supra; Jeude v. Eiben, 338 Mo. 373, 89 S.W.2d 960, 969; Lastofka v. Lastofka, supra.

The doctor did not say that in his opinion Mrs. Yorger had no understanding concerning business affairs or transactions. He did say that he thought “she needed somebody to direct her business,” “primarily, to look after her money.” He did say that she was oriented as to time and place and that she always knew him. His testimony indicates that he never saw her except when she was having some “undue trouble or symptom.” Perhaps it should be interpreted to mean that she was incapable of looking after her business. Yet there are many people who for one reason or another are not able to, even capable of, looking after their business affairs in some respects, and yet they are not of such unsound mind as renders them legally incapable of making a gift. (See cases under footnotes numbered 4,’ 5, and 6.)

Our evaluation of the doctor’s testimony is further complicated by the fact that, upon cross-examination, he gave some indication that his decision that she was incompetent was based not only upon what he saw hut also upon what the Sisters and nurses told him.

“Q. Dr. Fitch, the opinion that you are about to state, if you decide to state an opinion, is that based on your conversations with Sister Philippine and your conversations with the nurses, and their reports that they made on Mrs. Yorger while she was in the hospital, and your personal observations, all three of those things combined?
“A. I think that all three of them fit in, yes.”

Of course, any opinion the doctor had which was based upon his observation was competent, as would also be an opinion in answer to a hypothetical question based on facts in evidence. But an opinion of the doctor based upon things others told him and facts not in evidence would he of no probative value. To hold otherwise would delegate the orderly procedures and investigative process of our judicial system to a determination made on unsworn, hearsay statements. We will, however, from the doctor’s whole testimony, consider its probative effect as being his opinion, as her physician, that the donor was “incompetent” in the sense that she was mentally incapable of managing her business affairs.

Gus Flynn, the nephew, testified that he had not received any word from Mrs. Yorger at Christmas nor an answer to his letters. He called a neighbor who informed him that she was in Mercy Villa. He came to Springfield in December 1959. He said that she didn’t recognize him at first when he went to her room. “She says, ‘Who is that?’ And she had a scarf tied around her head and everything, I says, ‘It is Gus, Aunt Anna.’ And then she recognized me.” She asked him, “ ‘Oh, when did you get up here ?’ ” Then she told him about her husband’s suicide and about the funeral, which he had attended. Her conversation was “generally all muddled up; she didn’t stay with any particular trend of thought.” She inquired concerning his children and their ages. She asked him about his business. Then she went back to her husband’s death. . Then she “related back to” other times and then she went back to inquiry concerning his wife and children, although his wife was present. He saw Mrs. Yorger again sometime in late January, shortly before the guardianship proceedings were instituted, and he said his conversation with her was relatively a repetition of the conversation in December. He testified he believed, that she was incompetent at the times he saw her.

All of the evidence indicates that Mrs. Yorger sometimes had “bad” days; that she sometimes was restless, depressed, crying, and reliving the circumstances of her husbands’ death and funeral, which bore heavily upon her. There is some indication that, at least upon occasions, the lady took too much medicine. Among her medicines, chloral hydrate appears on the nurses’ daily records. On one occasion she misplaced her money (by leaving it in the bathroom). On another occasion,, when the doctor attended her, he said “the twenty-dollar bills were laying one in her shoe and one on the side of her bed.”

On the other hand, Mrs. Yorger had the The nurses’ daily records for January 16, liberty to visit other patients and did so. 17, and 18 show as follows:

“1/16/60 Routine AM care given. Up and about at liberty. Goes to bathroom alone. Ate a good breakfast and lunch. Condition appears to be good. Gave Purodigin at 8 AM.
“L. Wright L.P.N.
“1/17/60 Purodigin given at 8 AM. Routine AM care given, up and about at liberty. Ate well today. Goes to bathroom when needed. Condition appears to be good.
“L. Wright L.P.N.
“1/18/60 Purodigin given at 8 AM. Complete AM care given, up and out in hall. Goes back to room at liberty. Ate a good breakfast and lunch. Condition appears to be good.
“L. Wright L.P.N.”

She “had a neat tray,” attended to her own bathroom wants, bought small articles off the hospital cart and paid for them, bought the newspaper from the paper boy, read it, and frequently discussed current events and articles concerning some acquaintance. Nurses, neighbors, and ex-neighbors who visited her during the period involved {up to January 18, the date shown on the card) described her as a “rational,” “cooperative,” “oriented” person, who carried on “intelligent conversations,” was “cognizant of her needs” and “responsive to statements and questions,” and was “never quarrelsome or antagonistic.” These witnesses testified that “she was competent to know what she wanted to do with what belonged to her” and that “she knew what she was doing.” Sister Mary Phillipine said: “I do not claim to be able to say whether she was competent or not; the only thing I can say is, that she consistently knew who she was, where she was, how much money she had and who she wanted to have it.” (This last statement was stricken, by the court.) The same witness testified that when. Mrs. Yorger was in the hospital section “she repeatedly told me, and consistently said so, too, that she had nine thousand dollars and a diamond bracelet she wanted Mrs. McReynolds to have. She also mentioned that she had other monies.” She said that Mrs. Yorger made those statements on several occasions. Louise Wright, a nurse, testified that in the early part of January 1960, Mrs. Yor-ger “had admired a ring of mine, and said she was going to leave a ring to Mrs. Mc-Reynolds and a large sum of money. But she did not say how much money or what the ring was or anything about that.” Mrs. McReynolds was not present.

In order to set aside a transfer upon the ground of mental capacity, it must be shown that the incapacity existed at the time of the act which is in question. “Spotty” occasions of mental incapacity occurring at intervals do not necessarily prove incapacity at the time the act was done. It is true that evidence of the donor’s condition at near times before and after the incident is competent, although the probative value of such evidence is somewhat dependent upon the nature of the illness or incapacity, especially in regard to permanency. But weaknesses and diseases incident to old age are not necessarily inconsistent with sanity. Merely to show that one suffers from senility, confusion, or forgetfulness, or is possessed of a mental weakness, is not enough to avoid a gift, although these are factors to be considered. One must go further and show that the donor did not possess sufficient mind to understand, in a reasonable manner, the nature and effect of the act in which she was engaged, We believe that the evidence is insufficient to show that Anna Yorger was of legally unsound mind at the time the transfer was made. On the other hand, we believe it does show that, with the exception of some periods or occasions, she was capable of understanding in a reasonable manner the nature of the transaction and that she reasonably knew and understood the nature and extent of her property and was cognizant of those who might be expected to be the objects of her bounty, and she did not desire that her nearest kin receive anything from her.

Does the evidence shozv undue influence? In cases such as this, where the lips of the donor are sealed by death and the lips of the donee are sealed by the dead man’s statute and the facts can often be arrived at only by the drawing of inferences from the circumstances, the evidence must necessarily take a wide range. It did so in this case.

The transfer herein questioned was made by signing a printed form joint account depositors’ contract card which contained a provision for joint ownership and survivor-ship. This card bore the stamped legends: “SAVINGS DEPT.” and JAN 18 1960.” First appeared the signature of Anna M. Yorger. Beneath that was the signature of Mrs. Emma McReynolds. Typed on the card was the address, “c/o Mercy Hospital,” and under “INITIAL DEPOSIT” was the figure “$9,000.00.” Under “ACCOUNT OPENED BY” was “EMcR.” On the reverse side was typed at the bottom, “To make Savings Account #16602 Jointt [sic] with Mrs. McReynolds. Account opened Nov. 23, 1959, $9000.00 check 80-8. E McR. Elderly lady, recently sold home.” The only testimony concerning this joint account card was from Evans Mc-Reynolds. He said he was not at the bank when the transfer to joint account was made. He first saw the card in possession of his mother, Emma, at her home. The card at that time bore the signature of Anna Yorger. His mother asked him where she should sign it. She had difficulty in seeing, and he penciled her name at the right of the place for signature on the card, and she then signed it. He was going out of town and the card was mailed to the bank. The typewritten memoranda on the card was not made by him and was not on the card when he saw it in his mother’s possession. He stated that when a new card is “picked up” a notation is made as to the purpose at the bottom of the card, and that part is torn off and put in the bank files (the card in evidence indicates a tear perforation at the bottom) in order to check against the card when it is returned to the bank. Memoranda as to the original savings account, identification, purpose, who opened it, et cetera, are transferred to the new account card from the old account card. None of this was done by him or in his presence. He assumes this was done by the new account clerk.

The burden of proving- undue influence is upon the party asserting it. But it is frequently stated that when one bestows a gift upon another who stands in the relationship of trust and confidence, then the gift is presumptively void and the burden is on the donee to rebut this by showing absolute fairness and validity of the gift and that such gift is entirely free from the taint of undue influence. Other cases state that, when the confidential relationship exists, a “legal presumption of fact” that the gift was obtained by undue influence arises if there are facts and circumstances from which such undue influence may be inferred. Walton v. Van Camp, supra; Key v. Kilburn, Mo., 228 S.W.2d 731; Lastofka v. Lastofka, supra. But the presumption does not arise solely because a position of trust exists, nor can it be imposed simply because an opportunity for the exercise of undue influence exists, or out of suspicion or forced inference. A majority of the cases narrow the origin of the presumption by stating that such presumption will arise when it can be found or inferred that the person standing in a position of trust and confidence was active in procuring the transfer. In any event the presumption of fact is only such as to make a prima facie case, an issue of fact. It can be rebutted, and the whole facts are to be considered in determining whether undue influence actually existed.

Following the expressions above made, it would necessarily seem that, in order to avoid a gift because of undue influence, the evidence must be such as to justify the inference that influence was actually exercised and operative at the time of the transfer; that the influence was “undue” and not just “reasonable” persuasion, but such an influence as amounts to overpersuasion which wrongly deprived a donor of his or her free will and agency and substituted instead the actual will of the person who has dominance.

As to whether a confidential relationship existed between Emma McReynolds and Anna Yorger sufficient to raise a presumption: A confidential relationship cannot be exactly defined. It is easy to say that it exists in the case of attorney and client, physician and patient, principal and agent, and priest and penitent; but, when we get into the realm of friendship and neighborliness, it begins to shade from black to gray to white. The best we can say is that the confidential relationship must be one where there exists a special trust and reliance which, involves some fiduciary obligation on the part of the person so trusted, although it need not be a strictly technical fiduciary relationship. Usually the trust arises in a reliance upon another in regard to the handling of property and business affairs.

Mental capacity and undue influence are somewhat intertwined. Both involve a state of mind, and for that reason feebleness and infirmity of intellect are facts to be considered in whether or not undue influence exists. Holland v. Anderson, Mo., 196 S.W.2d 175; Klaber v. Unity School of Christianity, supra; Huffnagle v. Pauley, supra; Moll v. Pollack, supra; Hamilton v. Steininger, supra.

It is fairly well settled that a trust, strong affection, or a good feeling which one ordinarily reposes in a close, personal friend or relative, or in gratitude for the kind acts of a good neighbor, is not ordinarily the confidential relationship with which we are dealing. We find nothing in the relationship between Mrs. Yorger and Mrs. McReynolds, prior to the transaction, which speaks any more than kind acts, friendly attention, and good neighborliness. In almost every neighborhood there is a good neighbor who lends his or her assistance to those who are beset and in trouble. If we are to say that these simple acts of neighborly kindness and friendship are to be damned with the suspicion created by a presumption of undue influence, then we are indeed living in a harsh society.

Undue influence can be exercised by a party other than the beneficiary. Curtis v. Alexander, supra. The question of whether a confidential relationship existed between Evans McReynolds and Mrs. Yorger raises a more difficult question. The following facts stand somewhat to justify such an inference: He was the son of a next-door neighbor and obviously a friend. There is some evidence, albeit rather sketchy and insubstantial, that McReynolds helped Mrs. Yorger with filling out the application for her insurance and possibly in settling up the expenses incident to her husband’s funeral. There is also the fact that, at her request, he took the proceeds of the sale of her house to the bank and deposited them for her. (Apparently, however, he had nothing to do with the sale of the house.) These facts alone we think do not establish a confidential relationship which might justify a presumption. There are the additional facts that, after her husband’s death and prior to the time Mrs. Yorger was transferred to the hospital section of Mercy Villa on January 9, 1960, she made several trips to the Union National Bank. Mc-Reynolds frankly says that she always came to his desk and he was her confidant. She did not, so far as he knew, know any-, one else at the bank. She asked him how to apply the money in her checking account so that it would draw interest, and he advised her to put it in a savings account, which she did. He assisted her in opening this original savings account in her own name. He did not advise her on any other financial matters. He said that once she asked him about disposing of her property and “. . .1 told her that if she knew how she wanted to dispose of it, to see an attorney and have a will drawn. I did not name any specific attorney.” Mrs. Yorger was in the habit of withdrawing and carrying with her sums in excess of one hundred dollars; and, on at least one occasion, he talked her out of this. There is the additional fact, if it is to be considered, that when attorney Powell went to have the will executed, at a time when he felt that she had mental capacity to do so (and no one questions that Powell is not a capable, experienced, and ethical lawyer), someone (by what authority and for what purpose we know not) interfered by “suggesting” that the Union National Bank be first contacted.

On the reverse side of the ledger is the fact that McReynolds had no agency, power of attorney, or authority to withdraw or manage any of her funds. It develops that Mrs. Yorger had substantial sums on deposit in two other (savings) institutions in Springfield. Yet, he says (and there is no proof to the contrary) that he did not know enough about her affairs to be aware of this fact. His advice to her was limited to the deposit which was in the Union National Bank, and all that we can find that he did in respect to this deposit was to advise her to put it on interest.

But we think it is not necessary to decide whether a confidential relationship existed between Evans McReynolds and Anna Yorger, because, so far as the evidence shows, there appears to have been no contact between the two from sometime before (how long before is not clear) she was transferred from the “domiciliary” section to the hospital section on January 9 until the time the transfer to the joint account was made on or near to January 18. It appears that Mrs. Yorger. did not leave the hospital after January 9. It could be inferred that McReynolds had visited Mrs. Yorger at sometime prior to the time her nephew came to see her in December, because his card had been left at the office prior to the nephew’s visit, but just when this was we do not know. There is no evidence that McReynolds ever visited her or had any contact with her after she was transferred to the hospital infirmary section on January 9. If the relationship between the two can be construed as a confidential one in the degree which would create the presumption, the evidence does not indicate that'he had .such an overpowering influence as 'would justify the inference of control over Mrs. Yorger’s mind without any contact over that long a period. It is not the existence of the influence but the exercise of it which avoids the transaction. Glover v. Bruce, supra; Walter v. Alt, supra. So far as the evidence shows, the “activity” of Evans McReynolds in helping his mother sign the card was not an “activity” associated with the donor in such a manner as would have any bearing upon Mrs. Yorger’s exercising her own free will in executing the card, but was an “activity” after she had already signed the card.

We confess some misgivings in respect to the absence of more explicit evidence concerning the joint account card. There is no evidene to indicate whether Mrs. Yor-ger had secured this card before she was transferred to the hospital section or whether someone else secured it for her later; but absence of evidence in a case where some of the witnesses are barred by the dead man’s statute is not necessarily evidence in favor of plaintiff. We also have some misgivings as to the conduct of the person who interfered with the signing of the will, although the will itself, if executed, would not have changed the course of the title to the deposit; but, as stated heretofore, we cannot infer undue influence from mere suspicion or opportunity.

While there are no two cases exactly alike, in our examination of the authorities cited and those found in our independent research, we find a number which are somewhat similar to this case on the facts, some of them apparently more favorable to the respondent than those in the instant case. We are impressed by the reluctance of the courts to interfere with the right of a person to transfer his or her own property.

It appears to us. that on the weight, of the evidence (a) Mrs. Yorger, on her own account, had no desire to leave anything to her half-sister and (b) she, on her own account, really wanted to give to her friend, Mrs. McReynolds. The law does not look sourly on the exclusion of collateral relatives. Curtis v. Alexander, supra.

For the foregoing reasons we believe that we must reverse the judgment of the circuit court and hold that title to the joint savings account is in Emma Mc-Reynolds. The cause is, therefore, reversed and remanded with directions to the circuit court to enter judgment in conformity; with this opinion.

All concur.

STONE, J., not participating.

      . Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381, 385, 386; see Ahmann v. v. Elmore, Mo., 211 S.W.2d 480, 487; Clark v. Leonard, Mo., 232 S.W.2d 474, 480; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664.

      . Cruwell v. Vaughn, Mo., 353 S.W.2d 616, 624; Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69, 74; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Walton v. Van Camp, Mo., 283 S.W.2d 493; Shaw v. Butler, Mo., 78 S.W.2d 420; Curtis v. Alexander, Mo., 257 S.W. 432.

      . Hornberger v. St. Louis Public Service Co., Mo., 353 S.W.2d 635; Hayes v. Equitable Life Assur. Soc. of United States, 235 Mo.App. 1261, 150 S.W.2d 1113, 1118; Baumhoer v. McLaughlin, Mo.App., 205 S.W.2d 274; Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Huffman v. Terminal R. Ass’n. of St. Louis, Mo., 281 S.W.2d 863.

      . 38 C.J.S. Gifts § 13, p. 789; Cruwell v. Vaughn, supra, Mo., 353 S.W.2d 616, 625; Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832, 833; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Forbis v. Forbis, Mo.App., 274 S.W.2d 800; Huffinagle v. Pauley, Mo., 219 S.W. 373; McCoy v. McCoy, supra; Dowling v. Luisetti, supra.

      . Glover v. Bruce, Mo., 265 S.W.2d 346; Detrich v. Mercantile Trust Co., Mo., 292 S.W.2d 300, 303; Gaugh v. Webster, Mo., 297 S.W.2d 444; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459; Schoenhoff v. Haering, supra; Smith v. Fitzjohn, supra.

      . Wright v. Stevens, Mo., 246 S.W.2d 817; In re Nelson’s Estate, Mo.App., 185 S.W.2d 890; Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; see Weakley v. Weakley, 355 Mo. 882, 198 S.W.2d 699; Pickett v. Cooper, 354 Mo. 910, 192 S.W.2d 412; McCoy v. McCoy, supra; Jeude v. Eiben, supra; Ahmann v. Elmore, supra; Hall v. Mercantile Trust Co., supra.

      . Klaber v. Unity School of Christianity, 330 Mo. 854, 51 S.W.2d 30; Sebree v. Rosen, Mo., 349 S.W.2d 865; Early v. Koelbel, Mo., 273 S.W.2d 312; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59.

      . In re Patterson’s Estate, Mo., 348 S.W.2d 6; In re Kaimann’s Estate, 360 Mo. 544, 229 S.W.2d 527, 530; Heflin v. Fullington, Mo., 37 S.W.2d 931; Reed v. Carroll, 82 Mo.App. 102; Hall v. Knappenberger, 97 Mo. 509, 11 S.W. 239; Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38, 45; Klaber v. Unity School of Christianity, supra.

      . Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918; Ulrich v. Zimmerman, 349 Mo. 772, 163 S.W.2d 567; Horn v. Owens, Mo., 171 S.W.2d 585; Sebree v. Rosen, supra;. McCoy v, McCoy, supra; Key v. Kilburn, supra;. Walton v. Tan Camp, supra; Lastofka v. Lastofka, supra.

      . Wilhoit v. Fite, Mo., 341 S.W.2d 806; Cuthbert v. Heidsieck, Mo., 364 S.W.2d 583; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, 846; Been v. Jolly, Mo., 247 S.W.2d 840; Houghton v. West, Mo., 305 S.W.2d 407, 412; Sullivan v. Winer, Mo., 310 S.W.2d 917; Wright v. Stevens, supra; Michaelson v. Wolf, supra.

      . Nelson v. Hammett, Mo., 189 S.W.2d 238; Moll v. Pollack, supra; Been v. Jolly, supra; Klaber v. Unity School of Christianity, supra; Cuthbert v. Heidsieck, supra; Early v. Koelbel, supra.

      . McGirl v. Wiltz, Mo.App., 148 S.W.2d 822; Krummenacher v. Easton-Taylor Trust Co., Mo.App., 306 S.W.2d 593; Huffnagle v. Pauley, supra; Sebree v. Rosen, supra; Ulrich v. Zimmerman, supra; McCoy v. McCoy, supra; Wilhoit v. Fite, supra; Gaugh v. Webster, supra; Horn v. Owens, supra; Shaw v. Butler, supra.

      . Clark v. Leonard, supra; Shaw v. Butler, supra; Jeudo v. Eiben, supra; Hedrick v. Hedrick, supra; Hamilton v. Steininger, supra; Walton v. Van Camp, supra; Klaber v. Unity School of Christianity, supra.

      . 38 C.J.S. Gifts § 34, p. 813; Rich v. Baer, 361 Mo. 1048, 238 S.W.2d 408; Glover v. Bruce, supra; Jeude v. Eiben, supra; McCoy v. McCoy, supra; Nicholson v. Duff, supra; Been v. Jolly, supra; Reed v. Carroll, supra.


author: CULVER, Justice.

text:
    Louis COUDER et al., Petitioners, v. Modesto GOMEZ et al., Respondents.
    No. A-9934.
    Supreme Court of Texas.
    April 15, 1964.
    Edwards, Belk, Hunter & Kerr, El Paso, for petitioners.
    Scott, Hulse, Marshall & Feuille, Taylor Nichols, with above firm, Holvcy Williams, El Paso, for respondents.
   CULVER, Justice.

This suit was filed by Louis Couder, Esperanza Rueda, and her husband, Gilberto Rueda, against Modesto A. Gomez, Albert B. Eger and Yolanda Pedregón, joined by her husband, Roberto Pedregón, seeking to recover their respective interest in the assets of a business that was known as Golf Wholesale Company. The trial court gave an instructed verdict and rendered judgment in favor of the defendants that Couder and the Ruedas take nothing. The Court of Civil Appeals in affirming this judgment considered that the suit was brought solely for conversion of plaintiffs’ property and that plaintiffs had failed to discharge the burden of proving all of the elements of conversion.

The plaintiffs did allege in their petition that the defendants conspired with each other to defraud the plaintiffs by taking over and appropriating to themselves all the assets of the Company. However, in construing the allegations most favorably to the plaintiffs, in our opinion they did plead a suit for an accounting. Staats v. Miller, 150 Tex. 581 (1951), 243 S.W.2d 686.

Originally Couder, Felix De Hoyos and Modesto Gomez were partners in the operation of this concern. The latter two invested a substantial amount of money. Couder made no cash investment but drew a salary as one of the managing partners and was credited with one-third of the profits, none of which he ever withdrew. De Hoyos was also a managing partner and was paid a salary. Later there was a plan to incorporate which was never completed, and several other people paid substantial sums of money into the Company, whether by way of investments or loans is not clear. Couder contends that these people, including Mr. and Mrs. Rueda, own a percentage of the Company proportionate to the money paid in, though it was never incorporated. There is no written evidence on this point. Couder maintains that his share amounts to 8.8% as a result of his share of the profits which remained on hand with the Company.

In 1959 Couder became totally disabled as a result of an automobile collision and two days thereafter the other managing partner, De Hoyos, committed suicide. It was then agreed by all the parties at interest that Gomez should take over the assets of the Company, liquidate the same and distribute the proceeds among those entitled to share.

Gomez accepted this appointment and proceeded to dispose of the assets and liquidate the business. At about the same time he was also appointed and qualified as the temporary administrator of the estate of Felix De Hoyos. Gomez apparently considered that De Hoyos and Couder as partners owned the business subject to claims and debts. He showed on the Golf balance sheet as of December 31, 1959, that the equity of De Hoyos in the business amounted to approximately $16,000.00 and that of Couder amounted to approximately $2500.-00. The balance sheet of September 30, 1960, showed the De Hoyos equity as approximately $23,000.00 and that losses incurred by Gomez in the liquidation of the business had wiped out Couder’s equity. Apparently the increase in the De Hoyos equity comes about by the transfer of the Gomez equity to De Hoyos. Therefore Gomez treated the assets and liabilities of the Golf Company as being a part of the De Hoyos estate and so tabulated them in his official reports. On the 21st of September, 1960, in the inventory and appraisement showing the condition of the estate of Felix De Hoyos as of July 3, 1959, the date when Gomez qualified as administrator, he showed the equity of Felix De Hoyos to be $28,-536.00 and that of Louis Couder $5,099.22. In his report covering the period from July 3, 1959, through September 30, 1960, Gomez reports a net loss of $11,125.00. He then proceeded to charge half of this loss against Felix. De Hoyos and half against Louis Couder which resulted in reducing the equity of De Hoyos to about $23,000.00 and reducing the equity of Louis Couder to a minus $463.00.

Couder contends that the claimed operating loss of $11,125.00 was erroneous in several respects. For instance, he says that the item of $1500.00 shown as legal expense was expended solely in the handling of the probate proceedings of the De Hoyos estate and should not be charged against the business of Golf Wholesale Company. He also contends that the losses should have been prorated between him and the De Hoyos estate on the basis of their respective interests rather than charged one-half to each. We agree with this contention. So long as the business was a going concern and operated by Couder and De Hoyos the agreement to share equally the profits would imply that they would likewise be charged equally with the losses. However, when the affairs and the management of the business were turned over to Gomez as trustee the interest of the parties became fixed and the losses incurred by the trustee in liquidation should he prorated according to the interest each partner owned at the time the trustee took charge.

Gomez filed a general denial and additional pleadings that Mr. and Mrs. Rueda bought from him as trustee of the Golf Company merchandise in the sum of $2,-000.00 for which they agreed to pay at the end of the current month, but that they have refused to pay any part of the same and Gomez has sued them in the District Court of El Paso County where the suit is now pending. The Ruedas admit the purchase and say it should be allowed as an offset to their claim. Other than the general denial the only defense alleged to Couder’s claim is that he and his attorney had actual knowledge of the proceedings in the probate court in connection with the De Hoyos estate, and the property disbursed without any complaint and are now estopped and barred from asserting any claim against the defendants. Of course this at most would raise only a question of fact.

We are of the opinion that Couder was entitled to recover his percentage of the assets of the Company, whatever they may have been, after the losses and debts were satisfied. From the testimony and the exhibits the amount of money and the value of the merchandise that was turned over to the estate of De Hoyos are not shown nor can we tell what disposition was made, if any, of the claims of the investors or lenders among whom were the Ruedas. In' the confused state of the record the take-nothing judgment rendered against the Ruedas and Couder should be reversed and remanded.

There is no proof that the trustee, Gomez, converted any of the property belonging to the plaintiffs to his own use and benefit or that he acted fraudulently. Nor is there any evidence of any conspiracy between these defendants to defraud or mislead the plaintiffs.

The defendant, Eger, was employed both by Golf Wholesale Company and by Gomez after his appointment as trustee to keep the books and accounts and there is no proof of conspiracy or fraud on his part.

Mrs. Pedregón is the daughter of Mrs. De Hoyos. There is no proof as to what property was turned over by the administrator to her or the value of the same. Whatever property she did receive was delivered to her by the temporary administrator under the approval and order of the probate court. Certainly Mrs. Pedregón occupied no fiduciary relationship to Couder and there is no evidence in the record that would support any judgment against her or her husband.

Accordingly, the judgments of the courts below are affirmed in so far as the take-nothing judgments in favor of Eger and Pedregón are concerned and otherwise they are reversed and the cause remanded to the trial court.

      . 373 S.W.2d 345.