author: GRAVES, Justice.

text:
    CHEATHAM et al. v. MANN et al.
    No. 10877.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 2, 1939.
    Rehearing Denied Nov. 23, 1939.

      H. J. Hendrix, of Houston, for plaintiffs in error.
    Stewart & DeLange, Robert P. Beman, Jr., Albert J. DeLange, and Emory T. Carl, all of Houston, for defendants in error.
   GRAVES, Justice.

This much of a statement from the brief of plaintiffs in error, albeit somewhat partisan and advocatory, contains a sort of general resume of both the nature and result of the suit below, and of their contentions as to what should be the disposition of the appeal of it here, to-wit:

“Plaintiffs in error here were the defendants in the trial court below. They are all named in the caption above. All the defendants in error, named in the caption, were the plaintiffs below.
“This is an appeal from the trial court judgment perpetually restraining and enjoining plaintiffs in error from levying an execution, from a judgment in the county court, upon an undivided one-half community interest of Mrs. L. Stepleton in Lot 5, Block 1, Broadmoor Addition in Houston.
“The 61st District Court in granting this injunction, from which this appeal was taken by the defendants below, had the burden of construing the last will of L. Steple-ton, deceased, for the purpose of ascertaining the testator’s intention, with reference to his attempt to dispose of property not owned by him. That is, the half interest of Mrs. L. Stepleton, in Lot 5, levied upon, Mr. Stepleton left his community interest in the lot to his daughter. There is no dispute about that. The daughter, de-visee in her father’s will, conveyed the father’s half, which she owned, to her sister and brother-in-law, the defendant in error H. W. Mann and wife, Ruth Mann, and they own half of it. But for the other half, they must rely upon a construction of the provisions of Mr. Stepleton’s will. And likewise, this burden of construing the Stepleton will now rests upon this Honorable Court of Civil Appeals, upon which the plaintiffs in error must rely, as to whether or not their County Court judgment can be satisfied, and whether they have a legal right to again levy execution against the undivided community interest in Lot 5 which they contend Mrs. Stepleton still owns.
“The District Court’s judgment below was predicated upon the theory of construction that the will of L. Stepleton, deceased, devised the community interest of his surviving wife in Lot 5 to his daughter, Eurah Kate Stepleton, as well as the community interest and estate owned by the testator, in his own right. The Court below construed the will, to the effect that the will called for Mrs. Stepleton to make a legal election, after the death of her husband, as to whether she would give up all the property she owned in her own right, and accept the benefits under the will. And upon this theory of construction of the will, the court found that it would be inconsistent for Mrs. Stepleton to keep what she had, and accept the benefits under the will, in addition thereto. Plaintiffs in error dispute this inconsistency, or that the language used by the testator called for Mrs. Steple-ton to make such legal election. But contend that it would be consistent for Mrs. Stepleton to accept the full benefits under the will, and keep her community property, that she owned before her husband’s death. In other words, from the provisions of the will, it would not be inconsistent to accept the full benefits to her under the will in addition to what she already owned is the theory of construction of plaintiffs in error, and, therefore, the half-interest levied on in Lot 5 did not affect any title or interest of Mann and wife, whatsoever. But Mann and wife claimed that they own it all.
“The District Court’s theory of construction was necessarily also predicated upon the theory that the will could not be so construed, that Mrs. Stepleton could keep her share of the community property, and accept the benefits under the will, in addition thereto. And found that it was impossible to construe the language of the will any other way, other than to call for a legal election, from the plain import and meaning of the words and language used in the will by the testator himself.

And found that, under the terms and provisions of the will that Mrs. Stepleton had no alternative, hut was ‘forced’ to accept the benefits under the will, and give up what she owned in the community property. To which findings of fact and law, defendants duly excepted.

“Plaintiffs in error do not dispute, but on the contrary acknowledge the fact,-that defendant in error, the Occidental Life Insurance Company of California, has a valid and subsisting lien on the half-interest in Lot 5, owned by Mann and wife, the half-interest owned by Mr. Stepleton, and, at his death, that the title passed to his daughter. Plaintiffs in error do not claim a judgment lien on that half-interest, neither did they levy an execution upon that property. * * *'
“On October 25, 1934, plaintiffs in error here were the plaintiffs in cause No. 37,186, in the County Court at Law, and on that date recovered a judgment against Mrs. Stepleton for $502. That judgment is set out in full, in the evidence in this case now on appeal. Which judgment, in cause No. 37,186, against Mrs. Stepleton, upon which execution was levied against Mrs. Steple-ton, and against her community, undivided one-half interest in Lot 5, by plaintiffs in ■error, upon the theory that her husband’s will did not divest her of her said title and interest therein, — was Abstracted, Indexed, and Filed in the Judgment Records of Harris County, in- Volume 61, Page 80, on March 28, 1935, upon which $35.00 was paid.”

The will of L. Stepleton, of date June 16, 1930,. the different constructions of which formed the major basis of the controversy, was this:

“I. It is my desire that all my just debts at the time of my death, including the reasonable expense of my funeral, which shall be of a moderate and simple nature, in accordance with the way I have lived, shall be paid as soon as, my executrix hereinafter named, shall deem practicable.
“II. I will, bequeath and devise unto my beloved daughter, Eurah Kate Stepleton, Jots numbers 5 and 6; in block number 1 of Broadmoor Addition to the City of Houston, in Harris County, Texas, to be held for her and controlled by her mother. This ibequest is made to assure and secure my said daughter in the procuring of a College education, should she desire upon her completion of high school. Should she express a desire or willingness to accept such education, then I advise and direct that her mother, my executrix hereinafter named, shall dispose of said lots at the best obtainable price, either for cash or part cash and part notes, and use such proceeds for the education of our daughter. Should she elect not to accept such education, however, then I direct that said lots be held by her mother until Eurah Kate Stepleton becomes twenty-one years of age, and at that time said lots shall become her property to use, sell or dispose of as she sees fit, but, it is my earnest wish and desire that these lots, or the proceeds therefrom, be used for the education of my said daughter. I also will, bequeath and devise unto my said daughter, Eurah Kate Stepleton, a full size oil painting of my mother, said painting to become her property immediately upon my death.
“III. I will, bequeath and devise unto my beloved wife, May Stepleton, all of the rest and residue of my estate, whether same be real, personal or mixed, and whether same be composed of real estate, improvements thereon, cash in bank, or other things of value, to be hers without limitation or hindrance, to use as she may see fit, without limitation. With reference to the cash in bank, whether same be in the first National Bank, or any other bank, it is my will and desire that same be made available for the use of my wife, immediately upon my death. All of my life insurance policies, I believe, now designate my wife as beneficiary, and I desire to now corroborate and verify this designation, and direct that all such insurance policies be paid to her.
“IV. It is my will, desire and direction that my wife be independent executrix of this my last will and testament, and that as such no bond shall he required of her, and that no further action be had in the probate court of Harris County, Texas, other than the probate of this my last will and testament, and to return an inventory of my estate, after which same shall be dropped from the docket of said Court.”

In support of its judgment, the trial court filed findings of fact and conclusions of law, the more material provisions of which may be thus summarized:

The facts: It was found that the lot in controversy, No. 5 in Block 1, of Broad-moor Addition to Houston, had been the community property of Mr. and Mrs. Stepleton; that on May 31, 1931, Mrs. Stepleton filed her application to probate the quoted will of her deceased husband, and that it was duly probated on June 26 of 1931; that on July 11 of 1931, she filed in the probate court of Harris County an inventory of the property of the estate, which listed all property of the estate as having been the community property of herself and husband, including lots 5 and 6 of such Broadmoor Addition, Block 1, there being, in addition, a number of other real estate holdings in different localities’ in Houston, also household furniture, giving the values of each separate item, together with the total of all; that with full knowledge that all the property' so dealt with by her husband in his will had belonged to the community estate between them, and after having received legal advice to the efifgíít that if she qualified under and administered such will, after herself, accepting the same, she would thereby elect to take under its provisions, rather than at law, she did so accept appointment as independent executrix thereof, expressly declaring her intention to be so bound, took possession of the property bequeathed to herself under the will, and thereafter exercised individual dominion over it; that she not only administered her husband’s will as having undertaken to dispose of the whole of the property here in controversy, but further accepted property bequeathed to herself under it, which was of much greater value than that she would have received, had she taken solely as a statutory distributee.

That the abstract of judgment in such cause No. 37,186, in the Harris County Court at Law, upon which alone the plaintiffs in error predicated their claim for a lien upon such Lot 5 of Broadmoor Addition, Block 1, was fatally defective and entailed no such lien, because (a) it did not correctly recite the balance due and owing upon the purported judgment at the time of the recording of such abstract, and (b) because the name of one of the parties-defendant in that cause — -Port City Barber Supply Company — was neither shown nor indexed in such abstract.

The law: “1. The Will of L. Stepleton forced his widow to elect whether to reject the bequests and devises to her thereunder, or to take same with the effect that Lots Five (5) and Six (6) above described should pass in fee simple to Eurah Kate Stepleton. Immediately after the death of said L. Stepleton, his widow, Mrs. May Stepleton, elected to take under said Will. Her election was expressly made after legal advice and was evidenced by her express statement, her application to probate said Will, the taking possession of the property devised and bequeathed to her, same being property to which she would not have been entitled as her share of the community, -and same being of value in excess of the property devised to Eurah Kate Stepleton, and her exercise of ownership over such property and her disposing of same. I conclude that the entire fee-simple title to said property, including, any and all community interest that Mrs., May Stepleton ever had, passed into Eurah-Kate Stepleton at the time of the filing by Mrs. May Stepleton of her application to probate the Last Will and Testament of L. Stepleton.

“2. That the judgment of defendants, and abstracts of said judgment, never constituted any lien upon the property in controversy or any of the property devised to Eurah Kate Stepleton, because such property had passed in fee simple to Eurah Kate Stepleton long prior to the rendition of the judgment or the filing of the abstracts thereof, and long prior to the inception of the transactions out of which such judgment arose. The abstracts of judgment were not properly indexed and recorded to constitute a lien upon any property, and did not adequately describe the judgment rendered, hence could constitute no lien upon any property.

“3. At the date of the institution of the suit, to-wit, August 30, 1937, the plaintiffs, H. W. Mann and wife, Ruth Mann, were the owners in fee simple of the property in controversy, free and clear of any claims or liens of the defendants herein, and subject only to the first, paramount, and superior liens of the plaintiff, Occidental Life Insurance Company of California. That the said LI. W. Mann and Occidental Life Insurance Company of California are innocent purchasers for value.”

Despite the great length of the record and the briefs, it is obvious that, if either of the learned trial court’s stated conclusions to the effect that the will required Mrs. Stepleton to elect whether she would take under it or outside, and that the abstract of judgment declared upon by plaintiffs in error did not fasten a lien against the property in question is sound, the judgment should be affirmed; this court, however, after a careful review, is unable to find fault with, either of such conclusions; indeed, the underlying facts are all either undisputed, or at least fully supported as findings, so that the only remaining question is whether or not the court drew sound conclusions of law to the effect that the plaintiffs in error had no interest in the property, both because it had passed out of their alleged debtor before they filed their declared-upon suit against her, and because they had not complied with the statutory prerequisites to the fastening of a lien upon the property anyway.

This court feels indisposed to undertake a review of the conditions under which, in law, one will be held to have elected to take property under a will, as distinguished from his rights in it at law independent of the will; this for the reason that the general reaches of the law on this subject have already been well defined by our courts, and it seems clear that the controversy now at bar presents nothing new, but rather that its facts' bring it clearly within well-settled principles.

In other words, it is thought this will, together with the setting in which it must be examined, plainly classifies it with such cases and other authorities as Lovejoy v. Cockrell, Tex.Com.App., 63 S.W.2d 1009; Dakan v. Dakan, 125 Tex, 305, 83 S.W.2d 620; Farmer v. Zinn, Tex.Com.App., 276 S.W. 191; Smith v. Butler, 85 Tex. 126, 19 S.W. 1083; Rogers v. Trevathan, 67 Tex. 406, 3 S.W. 569; Speer on Marital Rights in Texas, 3d Ed., Sec. 323, page 399.; 44 Tex.Jur., Sec. 285, page 863, and must be construed as having required the surviving widow to elect or choose between so accepting or renouncing its provisions, rather than with such cases as Sailer v. Furche, Tex.Com.App., 22 S.W.2d 1065, and Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, where under dissimilar facts and not any different principle of law, it was determined that such an election was not required.

The cited Sailer and Avery cases are relied upon as the leading ones in their own behalf by the plaintiffs in error as laying down the principle that a will should not be given the construction that the testator intended to dispose of property not owned by him, unless the language he used is fairly susceptible of no other construction; but, true as that is, it is only half the battle, and does not conclude this controversy in their favor, for this reason: the court in the Furche opinion summed the finally-controlling rule up in this way [22 S.W.2d 1068]: “After all is said, each case must depend upon the ascertainment of the intention of the testator as manifested by the language used by him in making the disposition of the property involved. In determining his purpose and intention we must be guided by the well-established rules laid down by our courts for ascertaining the purpose and intention of the testator.”

All the other cases cited hold fast to the rule contended for by plaintiffs in error, as- modified by this final criterion quoted from the Furche opinion; so that the inquiry here is simplified into determining the intention of this testator as manifested by his language in this will in making the disposition of Lot 5, Block 1, of Broadmoor Addition; when that is done, it is seen that he first disposed of two specific lots of their community property by the second paragraph of the will, then devised the residue of his estate (being the remaining community property) to his surviving widow by the third paragraph; thus is clearly manifested his intention to treat and devise this entire lot (of which he only owned a one-half community interest), thereby putting his widow, as the co-owner of it with him, to her election as to whether she would take under it; especially so, since by the other provisions he conferred upon her the whole of the remaining community property as compensation for any loss she might sustain by virtue of this specific devise of the two lots to his daughter — Mrs. Stepleton thereby undisputedly receiving property worth several thousand dollars more than she would have received had her husband died intestate; as already indicated, the attending and resulting facts in this instance being as so found below, when the language of this will is read in the light of them, it becomes to this court plain that this cause is, in consequence, ruled by the Dakan, Lovejoy, Butler, Trevathan, and other like cases cited supra; in other words, this testator plainly expressed his intention that in any event Lots 5 and 6, Block 1 — the whole of -them — should go to his daughter, knowing when he did so, both that he only owned half of them and that his wife had— coincidentally with his — executed her own will to the same effect.

The Trevathan case, cited, is probably more nearly similar to this one in material facts than any of the others, but this one is clearly brought within the principle that is so stated to be common to them all.

Indeed, the added bequest of the “rest and residue of my estate” to his widow, being a like devise of the community property of them both, by which she was given much that she would not otherwise have acquired, itself called for an election by her as to whether she would take under the will, since the words “my estate” did not restrict such bequest solely to the testator’s interest in the community property. Lovejoy v. Cockrell, supra.

Furthermore, since the undisputed showing is that Mrs. Stepleton so elected to take under her husband’s will many years “before the rendition of either of the judgments the plaintiffs in error claimed under herein, the subsequent filing of abstracts thereof could not affect her title.

The stated findings and conclusions of the court to the effect that the abstract of judgment depended upon for the claimed lien was ineffective, because it did not recite the balance due and owing at the time of the recording thereof, because of the absence therefrom of the party-defendant, Port City Barber Supply Company, and because it was not indexed in the name of or against that defendant, are likewise sustained by both the evidence and the law applicable thereto; while some attacks are made against the general sufficiency of the evidence to sustain this and other findings upon which the trial court’s judgment was rested, they are only general and do not furnish sufficient ground for overturning any of them; even could it be said there was a dispute in the evidence affecting any one of these recited deficiencies in the abstract, it was no more Limn such a conflict as came within the trial court’s exclusive province to resolve, hence this court could not disturb it. For this reason, it is not deemed essential that the evidence on this feature be further discussed, it being this court’s determination .that it, in any event, amply supported the .findings so returned.

As concerns the law, it is long since settled that a judgment-lien is purely statutory, and that the statute must be complied with before the lien will attach, which only takes place from and after the date when the recording and indexing of the abstract are correctly done. 26 Tex.Jur., .Sections 518-521, pages 357, 362; Chamlee v. Chamlee, Tex.Civ.App., 113 S.W.2d 290; R.S. Articles 5447, 5448; art. 5449, Vernon’s Ann. Civ. St. art. 5449; Askey v. Power, Tex.Com.App., 36 S.W.2d 446; McGlothlin v. Coody, Tex.Com.App., 59 S.W.2d 819; Ainsworth v. Dorsey, Tex.Civ.App., 191 S.W. 594; Barton v. Parks. Tex.Civ.App. 127 S.W.2d 376, writ of error refused.

It follows from these conclusions that the appealed-from judgment should be affirmed; it will accordingly be so ordered.

Affirmed.


source: Caselaw Access Project

author: DUNKLIN, Chief Justice.

license: Public Domain

text:
    ANDERSON-BERNEY BLDG. CO. v. SWAN et al.
    No. 13965.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 13, 1939.
    Rehearing Denied Nov. 24, 1939.

      Wm. J. Berne, of Fort Worth, for appellant.
    Cantey, Hanger, McMahon, McKnight & Johnson and J. A. Gooch, all of Fort Worth, for appellees.
   DUNKLIN, Chief Justice.

This suit was an action to recover a broker’s commission, for negotiating a loan on certain real estate in the City of Fort Worth; and this, appeal has been prosecuted by the Anderson-Berney Building Company, defendant, owner of the property, from a judgment in favor of plaintiffs, J. H. Swan, J. M. Helton and J. R. Thomas, brokers, for a commission of $5,000, with interest and costs of suit.

The trial was before the court without a jury, and the trial judge filed the following original findings of fact and conclusions of law, on which the judgment was rendered, which reflect the facts alleged in plaintiffs’ petition as the basis for recovery of the brokers’ commission sought-and recovered:

“Findings of Fact.
“1. On October 20, 1936, Anderson-Berney Building Company, by B. L. Anderson, in writing authorized plaintiff, J. M. Helton, to procure a loan for the Anderson-Bemey Building Company of $300,000.-00, bearing interest at 4½ per cent per an-num, payable semi-annually, to be secured by a first mortgage on real estate in Fort Worth, Texas. The complete authorization was as follows:
“ ‘Fort Worth, Tex., October 20, 1936.
“ ‘J. M. Helton
“ ‘Fort Worth, Texas.
“‘Dear Sir:
“ ‘You are hereby authorized to procure for me a loan of Three Hundred Thousand Dollars ($300,000.00) bearing interest at 4½% per annum, payable semi-annually, to be secured by First Mortgage on the following described real estate, situated in the City of Fort Worth, State of Texas: Lot 5, Block 6, and Lot 4, Block 3, Hir'schfield Addition.
“ ‘The undersigned agrees to furnish you at its own expense, a satisfactory abstract of title as soon as you advise the undersigned of the approval of this application for a loan, and if within sixty days thereafter you shall be ready to complete said loan, the undersigned agrees to pay you for services rendered in that behalf the sum of Six Thousand Dollars ($6,000.00) ; also to pay for recording mortgage and all other instruments required, and also agrees to pay for the expense of examination of title and preparation of papers, by an attorney to be selected by you for that purpose, a sum not to exceed Five Hundred Dollars ($500.00). And also agrees that if the title is defective and said defect is not or cannot be cured, to pay the title examination fee.
“ ‘Anderson Berney Building Company,
“ ‘By: B. L. Anderson, President.’
“The obligation on Helton by virtue of the authorization was to procure $300,000.-00 at 4½%, payable semi-annually and as compensation therefor he was to receive the sum of $6,000.00, which was 2% of the amount sought.
“The authorization on the part of B. L. Anderson for the Anderson-Berney Building Company was with full authority of and bound the Anderson-Berney Building Company.
“2. On October 22, 1936, Anderson-Ber-ney Building Company by its duly authorized president, B. L. Anderson, executed a loan application presented to him by plaintiffs to the Connecticut General Life Insurance Company, which contained the following provision:
“ ‘The principal and interest shall be payable at the place the lender may direct, and the note, mortgage and other papers shall be in a form approved by the mortgagee.’
“The amount sought in the application was $300,000.00 on terms identical with the authorization to Helton.
“3. Thereafter by mutual consent between the Connecticut General Life Insurance Company, the company to which the application of Anderson-Berney Building Company was directed for the loan, and Anderson-Berney Company, the amount in the application was reduced to $250,000.00 in lieu of $300,000.00; and Anderson-Ber-ney Building Company on December 2, 1936, within sixty days of the original authorization of Helton, agreed to accept the loan of $250,000.00, on terms and conditions consistent with those m the authorization to Flelton of October 20, 1936, and the application to the Connecticut General Life Insurance Company of October 22, 1936, ánd furnished the other necessary instruments and things called for in the contract of employment with Helton toward the closing of the loan, including attorneys’ fees, abstract of title, surveyor’s plats, and various other matters relative to the closing of the loan. ,
“4. On December 31, 1936, the board of directors and stockholders of Anderson-Berney Building Company passed a resolution authorizing the borrowing of $250,-000.00 from the Connecticut General Life Insurance Company on the forms prepared and furnished for execution by said Connecticut General Life Insurance Company, and authorized and had properly signed the note and deed of trust as prepared by the Connecticut General Life Insurance Company, for the receipt of the $250,000.00 loan.
“5. Thereafter Anderson-Berney Building Company and the Connecticut General Life Insurance Company entered into discussions relative to objections raised by B. L. Anderson after the note and deed of trust had been signed by Anderson Berney Building Company concerning the form of the deed of trust and other instruments, and after the objections of Anderson-Berney Building Company had been raised, they were met and cured by the Connecticut General Life Insurance Company.
“6. The usual and customary brokerage fee for procuring a loan in Fort Worth, Tarrant County, Texas, is two per cent of the principal borrowed.
“7. Plaintiff Helton agreed to divide his commission into three parts at the time he secured the authorization from Anderson-Berney Building Company with his, Hel-ton’s, associates, and that plaintiffs, Selton, Swan and Thomas, were each to receive one-third of the commission.
“8. The loaner procured by plaintiffs was ready, able and willing to make the loan of $250,000.00 upon the terms set forth in the authorization to Helton and upon the terms embodied in the application to the Connecticut General Life Insurance Company and executed by Anderson-Berney Building Company.
' “9. Anderson-Berney Building Company, without legal excuse, refused to consummate . the $250,000.00 loan with the Connecticut General Life Insurance Company. . “Conclusions of Law.
“1. The obligation incurred by J. M. Hel-ton in the authorization of October 20, 1936, were fully performed on his part within the time required therein.
“2. A 2% commission was chargeable to Anderson-Berney Building Company on the amount they agreed to accept, towit, $250,-000.00, the total commission thereon being $5,000.00.”

Those findings and conclusions of law, which were' filed November 12th, 1936, cover the ultimate issues of fact and law on which the judgment was based.

After the filing of those original findings and conclusions, defendant filed a motion for 22 additional findings of fact and five additional conclusions of law. That motion was granted and on November 18th, 1936, the court filed additional findings and conclusions on the points requested, which are as follows:

“No. 1. The letter dated November 13, 1936, to James R. Thomas was a chain in the negotiations between Anderson Berney Building Company and the loaner, leaving the final acceptance of the loan of $250,000.00 to be made on forms satisfactory to the Connecticut General Life Insurance Company.
, “No. 2. Anderson Berney Building Company accepted the offer from the Connecticut General Life Insurance Company .for a $250,000.00 loan on or about December 1, 1936'.
“No. 3. The acceptance of the loan from Connecticut General Life Insurance Company by Anderson Berney Building Company constituted a loan contract, complete in so far 'as the broker, was concerned.
“No. 4. T.h.e date on which J. M. Helton’s services were complete was December 1, 1936.
“No. 5. It was immáterial whether the directors of the Anderson-Berney Building Company had actual knowledge of the contents of the note and deed of trust mentioned in the resolution passed on that date, for the reason that the note and deed of trust were in their possession when the resoltition was passed.
“No. 6. The reason the Board of Directors of Anderson Berney Building Company passed a resolution at the particular time they passed same is immaterial.
“No. 7. The signatures and the signed resolution on the note and deed of trust support the findings of fact to the effect that the note and deed of trust were signed.
“No. 8. Answered under No. 7.
“No. 9. As to whether or not B. L. Anderson had actual knowledge of the contents of the instrument he signed is immaterial. The instrument was before him at the time he signed it.
“No. 10. The reason B. L. Anderson had for signing on December 31, .1936, is immaterial.
“No. 11. The intent of B. L. Anderson in signing the note and deed of trust is immaterial.
“No. 12. The note and deed of trust signed by- B. L. Anderson as president of Anderson Berney Building Company were never actually delivered to the insurance company or anyone acting for it.
“No. 13. At the time of the acceptance of the loan by Anderson Berney Building Company the insurance company contemplated and intended that the loan would be secured by the form of deed of trust used by the company.
“No. 14. The deed of trust delivered by Sansom to B. L. Anderson on December 31, 1936, did not contain terms additional to and more onerous on the Anderson Berney Building Company than the terms set out in previous negotiations.
“No. 15. The meaning of the word ‘consistent’ as used in the court’s finding of fact No. 3 is used in its ordinary sense.
“No. 16. (a) Anderson Berney Building Company, having executed a loan application which included k willingness on the part of Anderson Berney Building Company to sign papers on the forms presented by Connecticut General Life Insurance Company, agreed to the matters set forth in paragraph (a) of the requested findings.
“(b) The terms of the deed of trust were specifically agreed to in Anderson Berney Building Company’s application to the Connecticut General Life Insurance Company for a loan.
“(c) The terms of the deed of trust were agreed to by Anderson Berney Building Company by virtue of its loan application.
“(d) The terms of the trust deed were agreed to by virtue of Anderson Berney Building Company’s loan application.
“No. 17. The trust deed delivered by Mr. Sansom to Mr. Anderson December 31, 1936, complied with the agreed loan between Anderson Berney Building Company and the insurance company.
“No. 18. The contract for a loan, complete in all of its terms, was agreed upon by Messrs. Anderson and Sansom representing, respectively, the Anderson Berney Building Company and the insurance company.
“No. 19. The contract for a loan, complete in all of its terms, was agreed upon by Anderson Berney Building Company and the insurance company in February or March, 1937.
“No. 20. The date on which Anderson Berney Building Company and the insurance company agreed on all the terms of the loan contract was February S, 1937.
“No. 21. Anderson Berney Building Company furnished the insurance company a satisfactory abstract of title on December 10, 1936.
“No. 22. The date on which B. L. Anderson had actual knowledge of the contents of the trust deed delivered December 31, 1936, by Sansom is immaterial, in that he had the deed of trust before him on said date.
“Findings on Issues of Law Requested by the Defendant.
“No. 1. The counter offer of the loan by the insurance company to Anderson Ber-ney Building Company was a step in the chain after the application of Anderson Berney Building Company to the Connecticut General Life Insurance Company for a loan, and the counter-offer and its acceptance related back to the original application.
“No. 2. Plaintiffs earned their commission by obtaining from the insurance company a $250,000.00 loan.
“No. 3. The agreement to execute the note and deed of trust on forms approved by the Insurance Company was binding on Anderson Berney Building' Company.
“No. 4. The acceptance of the loan, together with the resolution of the board of directors of Anderson Berney Building Company, bound Anderson Berney Building Company to take the loan on the terms of the note and deed of trust mentioned.
“No. 5. The signing by B. L. Anderson as President of Anderson Berney Building Company of the note and deed of trust mentioned in the Court’s findings of fact No. 4 legally bound Anderson Berney Building Company to take the loan, when taken in connection with its acceptance of the loan of $250,000.00 on the terms set out in the note and deed of trust.”

Appellants’ assignment of error to the findings and conclusions of date November 12th, 1935, was that the court erred in rendering judgment in favor of plaintiffs, Swan and Thomas, jointly with plaintiff Helton, because defendants’ contract of employment was with Helton alone; and that his agreement to divide the commission with them in consideration of their joint efforts to assist him in his undertaking, would not furnish a sufficient basis for their participation with Helton in the recovery.

Defendants filed no plea of mis-joinder of Thomas and Swan as plaintiffs, and since no possible harm to defendants appears by permitting them, with Helton’s consent, to share in the recovery to which Helton alone was entitled under his employment as broker, this assignment is overruled, especially so since the evidence showed that defendants’ negotiations with respect to the loan were in part with Thomas and Swan, as joint undertakers with Helton.

It is apparent that the additional findings and conclusions, filed November 18th, were in part a repetition of facts and conclusions filed November 12th, and in part of evidence in support thereof. Numerous assignments of error are presented attacking those additional findings and conclusions as being without sufficient support in the evidence.

This announcement in 3 Tex.Jur., para. 771, page 1102, is supported by many decisions there cited: “The findings of the trial court in a case tried without a jury have the same force and are entitled to the same weight as the verdict of a jury; and it is well settled that such findings will not be disturbed by an appellate court where there is some evidence to support them, even though the evidence is conflicting and the appellate court might have reached a different conclusion therefrom. It is also well settled that findings of fact by the trial court will be upheld unless they are manifestly erroneous, and that they will be overruled only where they are without any evidence to support them, or where they are so against the great weight and preponderance of the evidence as' to be manifestly wrong.”

We deem it unnecessary to discuss in detail the numerous criticisms of the additional findings and conclusions filed November 18th, on the ground that they were contrary to the evidence adduced, especially in view of this contention presented near the beginning of appellants’ briefs: “The issue in this entire case is whether or not the A. B. Co. ever agreed to take the loan on the terms of the insurance company’s form of trust deed.”

Furthermore, it is our conclusion that many of those criticisms involve matters only incidental to ultimate issues of fact and conclusions of law, on which a recovery was awarded. And the additional findings and conclusions tend to support rather than overcome the court’s findings on those ultimate issues of fact and law; nor do they purport to cover all the evidence bearing thereon. Hence, all assignments presented thereto are overruled.

The following announcements are in accord with a well settled rule of decisions of this state: “There are three instances in which, or three methods by which, a broker may earn a commission under an agency contract for the sale or exchange of real estate: (1) by procuring from a purchaser a valid, enforceable contract for sale or exchange of the properties listed, on the terms proposed by the vendor; (2) by producing a purchaser to whom a sale or exchange is in fact made on terms satisfactory to the vendor; (3) by producing a purchaser ready, able and willing to buy or exchange on terms specified in the contract of employment, and who offers so to do.” 7 Tex.Jur., para. 54, p. 444.

“Again where the owner, who has quoted his property for a cash sale has offered the buyer terms which have been agreed to, the broker is held entitled to recover in case the seller refuses to complete on those terms.” Idem, para. 56, p. 446.

“When the seller enters into a binding contract with the purchaser acceptable to him, the seller assumes the risk' as to whether or not the purchaser will be in position to perform his part of the contract, and when such contract is so entered into by the seller, the agent has performed all the duties that he can perform under his employment.” Idem, para. 69, page 465.

“The broker is none the less the procuring cause of the transaction where the purchaser has been found by his efforts and through his instrumentality, although the terms are other than those on which the property was listed with the broker, the alteration of the terms having been voluntary on the part of the principal. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 297; Hodde v. Malone Real Estate Co., Tex.Civ. App., 196 S.W. 347. This rule applies, regardless of whether the provisions and terms are less or more favorable to the owner than those quoted to the broker.” Idem, para. 84 page 481.

See, also, 7 Tex.Jur., para. 74, page 470; Moss & Raley v. Wren, 102 Tex. 567, 113 S.W. 739, 120 S.W. 847; Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S.W. 561; West Realty & Investment Co. v. Hite, Tex.Com.App., 283 S.W. 481; Harrison Building Co. v. B. F. Dittmar Co., Tex.Civ.App., 4 S.W.2d 1038; Dockery v. Durham, Tex.Civ.App., 3 S.W.2d 514; Curlee v. Phelps, Tex.Civ.App., 242 S.W. 517; Eastland Oil Co. v. Fenoglio, Tex.Civ.App., 102 S.W.2d 1092.

The judgment of the trial court is sustainable on either of two theories: First, by virtue of the finding that plaintiffs procured for defendants an offer by the Connecticut General Life Insurance Company to lend defendants $250,000, in lieu of the $300,000 first authorized, which offer was duly accepted by the defendants, and became a contract binding on both parties; second, at all events, by procuring from the insurance company.its offer to lend to the defendants the sum of $250,000, the amount plaintiff Helton was authorized to borrow, and which loan the insurance company was ready, able and willing to make, but was not made, through no fault of plaintiffs, and that, too, in the absence of any contract by defendants to borrow the money after the loan was offered.

For the reasons noted, the judgment of the trial court is affirmed.


author: SPEER, Justice.

text:
    WILLIAMS et al. v. DAVIS et al.
    No. 13962.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 13, 1939.
    Rehearing Denied Nov. 24, 1939.
    Bonner, King, Dawson & Jones, of Wichita Falls, for appellants.
    Otis E. Nelson and James E. Prothro, both of Wichita Falls, for appellees.
   SPEER, Justice.

By an original petition filed1 March 3, 1938, and amended July 26, 1938, Joe S. Davis, Dora Pirtle and husband, Grady Pirtle, Alice Bledsoe and husband, William Bledsoe, John S. Davis, Alton K. Davis, Minnie Dill and husband, R. L. Dill, William Davis, Nettie Carter and husband, H. N. Carter, Ed Davis, Joe Davis, Howard Davis, a minor, by next friend, Joe Davis, Mamie Muirhead and husband, Buddie Muirhead, as plaintiffs, sued James M. Williams, Oral Jones and C. P. Engelking, as trustees of the Real Estate Trust, a Common Law Trust (shown by the record to be successor to North Texas Building & Loan Association, in liquidation), in statutory form of trespass to try title for an undivided one-half interest in lot 8 in Block 109, Floral Heights Addition to the City of Wichita Falls, Wichita County, Texas.

By plaintiffs’ pleadings, it is disclosed that they are the only children and descendants of a deceased child of the deceased wife of W. L. Davis, to whom the property was deeded during the lifetime of his wife. In addition to the usual .and customary trespass to try title petition, plaintiffs plead their title as one inherited by them from their mother when she died, in November, 1918; that the father, in 1926, gave a deed of trust on the whole of the lot to the North Texas Building & Loan Association, and thereby cast a cloud on plaintiffs’ title to the interest inherited by them from their mother. They prayed for a recovery of one-half interest in the lot, for joint possession and that the cloud from their title be removed.

Insofar as is necessary to state here, defendants plead the general issue of not guilty, and (a) their own title by virtue of ownership by W. L. .Davis when, in May, 1926, he executed a deed of trust on said property, representing himself to be the sole owner, to secure an indebtedness of $2,350 to North Texas Building & Loan Association, for moneys advanced with which to construct a new building on said premises, in addition to those already thereon, and (b) that on April 29, 1929, the said W. L. Davis, representing himself to be the sole owner of the property, executed a second and renewal deed of trust against the property, securing said Association in the payment of $2,500, which included a balance unpaid on the original obligation of. $2,027, and additional amounts theretofore advanced by the Association in upkeep, taxes and repairs on the improvements situated on the lot. That all said improvements were placed on the premises by W. L. Davis, in good faith, under the belief that said property belonged to him and that at his special instance and request the Association had, in good faith, furnished said funds for those purposes; that said improvements enhanced the value of said property to the extent of $2,500; that default was made in payment of the indebtedness to the Association, and in August of 1932 the property was sold out by the trustee and the Association became the purchaser at the sale; that defendants hold under a deed of conveyance from said Association. Prayer was that plaintiffs take nothing but that if they are permitted to recover anything that defendants recover the value of the improvements so made by their grantor, the Association.

The case was tried to a jury on special issues. The verdict of the jury on the issues submitted found (1) that the value of the property in November, 1918, when Mrs. Davis died, was $1,000; (2) the reasonable rental value of the property since March 3, 1936, was $833; (3) the defendants necessarily expended, since March 3, 1936, in the upkeep of the property, $275, and (4) the reasonable cash value of the use and occupation of the premises from July 5, 1932, to date of trial, in the condition it was in before the Association furnished any money for its improvement, was $396. On this verdict, the court entered judgment for plaintiffs for an undivided one-half interest in the lot in controversy and for $169.34, being the balance of one-half its reasonable rental value, less one-half of the sum paid by defendants for taxes and upkeep.

Defendants moved for new trial; which motion was overruled, and they have perfected this appeal. For convenience we shall continue to give the parties the same designation as that carried by them in the trial court.

Floral Heights Realty Company is the common source of title. That company conveyed the lot in controversy to W. L. Davis, by deed dated January 18, 1915. At the time of the above conveyance, W. L. Davis was married to N. V. Davis. Immediately after the purchase, W. L. Davis and wife erected a small house on the lot, at an expense of about $100, and moved into it with their family. It was thereafter at all times used as the homestead of the family until the wife died in November, 1918. In May, 1916, Davis and wife created a materialman’s lien on the lot to secure payment of $384, used in connection with tearing down the smaller house and constructing a larger and better one. This lien was released in June, 1918, before the death of the wife.

When the wife died, on about November 11, 1918, she left surviving her husband, W. L. Davis, and ten children. One of them died after the death of the mother and left certain children. The surviving children of Mrs. Davis and those of the deceased son are the plaintiffs here. No administration was had on the estate of Mrs. Davis; her husband, W. L. Davis, did not qualify as community administrator. The community estate owed $700 when Mrs. Davis died. There were no community assets in the surviving husband’s possession, except the house and lot in controversy. At the time of the wife’s death, the house .and lot were worth $1,000, and the jury so found. Shortly after his wife’s death, W. L. Davis collected $999 on an insurance -policy in his favor on the life of his wife, and paid the $700 of community debts out of those funds which belonged to him. W. L. Davis continued to use and occupy the premises as a homestead, until he was dispossessed by a foreclosure proceeding in 1932.

May 1, 1926, W. L. Davis executed a deed of trust on the lot to secure North Texas Building & Loan Association in the payment of $2,350. The fund so secured was used by Davis to erect another house or set of improvements upon the same lot and to make some minor repairs on the house previously built. In the deed of trust mentioned, grantor was recited to be a widower and the instrument contained this provision: “For the purpose of obtaining the line of credit represented by the within described note and this deed, I represent that I am a widower and that the above described property has been purchased since the date of the death of my last wife, and that said above described property is my separate property and estate, paid for out of my earnings, which were earned by me ,subsequent to the death of my said last 'wife, and that I have no minor children and there is no impediment for my mortgage of the same.”

On April 29, 1929, W. L. Davis, recited to be a single man, executed another deed of trust to secure North Texas Building & Loan Association in the sum of $2,500, evidenced by a new note of that date, shown to be a renewal and extension of $2,027.85 of the unpaid balance of the first mentioned note and deed of trust lien; $85.53 in payment of accrued taxes; $237.36 balance due and unpaid on a paving lien against the property, and $149.26 in cash to Davis; the instrument subrogates to all the previous liens mentioned in the first deed of trust, the tax and paving liens.

Default was made in payment of the last mentioned note and on July 5, 1932, the trustee sold the property under terms of the deed of trust and North Texas Building & Loan Association became the purchaser. W. L. Davis moved off the premises, the Association went into possession and thereafter retained possession until it conveyed the lot to the Real Estate Trust, some time in 1935, for the purpose of liquidating the Association.

It will be observed that W. L. Davis was the record owner of the property and such interest as plaintiffs had was an equitable one created by statute. They plead their title as being one inherited from their mother in the lot, it being community property between W. L. Davis and his wife. This would be an equitable title. Having so pleaded, they could not recover under their general allegations of trespass to try title. 41 Tex.Jur., sect. 79, p. 559, and sect. 83, p. 562. They could only recover such title as they proved. The undisputed testimony shows that the lot in controversy was community and was the homestead at the time the wife died. The uncontroverted evidence also shows that there were $700 in community debts owing, and no community funds with which to pay them, and that the father, W. L. Davis, paid these debts out of his separate property.

Under Vernon’s Ann. St. Constitution Art. 16, sect. 52, and Art. 3501, R.C.S. it is provided that upon the death of the husband or wife, or both, the homestead shall descend and vest in the same manner as other real property of the deceased. These articles contain other provisions relating to partition, but this is not a partition suit, and with this we are not here concerned.

When Mrs. Davis, mother of plaintiffs, died, they inherited her community interest in the lot in controversy, subject to one-half of the community debts, and W. L. Davis, the father, retained his one-half interest, together with the right of use and occupancy of the property for homestead purposes. The father had the right to either sell the community property and pay the community debts, in which event the interest in the property inherited by plaintiffs would have been wiped out, or to pay those debts out of his separate funds and appropriate the property, or so much of it as was necessary for that purpose, to reimburse himself for the advancement made. He could not under either option act in such a way as would be a fraud upon the heirs of his deceased wife. Stone v. Jackson, 109 Tex. 385, 210 S.W. 953; Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L.R.A. 585; Jones’ Adm’r v. Jones, 15 Tex. 143. Case of Martin v. McAllister, supra, involved a suit by a surviving father against the children of his deceased wife, to remove cloud from title to the former homestead by reason of claims by the children through their mother. The father had, subsequent to the death of his wife, paid community debts out of his separate funds, in excess of the value of the property, and it was held that the title should be quieted in the father.

In the case at bar, if there had been no community debts, the plaintiffs inherited from their mother an equal interest in the property with their father (not to consider the father’s homestead right). But upon payment by the father of the community debts, one-half, or $350, of which were owing by the estate of the mother, the father became possessed of and entitled to an interest (to that extent) greater than his original one-half, and it follows that the plaintiffs’ inherited interest would be reduced to that extent. Thus it will be seen that after the community debts were paid, the property shown to be worth $1,000 contained only a net equity of $300, one-half of which was inherited by plaintiffs. The equitable interest of plaintiffs in the property, after the community debts were paid, was $150. This amount is 15% of the total established value.

In this case, the defendants stand in the shoes of W. L. Davis, the father of plaintiffs, they having acquired all the interest in the property owned by Davis. Certainly plaintiffs should not recover a greater equity in the property from defendants than they could have recovered from their father. Yet, in this case they were awarded an undivided one-half of the property as it now stands (present value not shown), after another separate and independent set of improvements had been placed upon it at the expense of the father and his grantees. These new improvements cost from $2,000 to $2,350; the exact amount is not made plain by the testimony. Plaintiffs have been out nothing save the use of the $150 equity they inherited from their mother, and this use was given by law to the father so long as he lived or elected to use it as a homestead. Defendants acquired all of the rights and interest in the property that the father could sell and dispose of. It would appear from these indisputable facts that the recovery was a most inequitable one.

This brings us to a consideration of the point whether or not plaintiffs could recover an interest in the permanent improvements placed on the lot by the father with funds procured from North Texas Building & Loan Association, for which the lien was given to secure. After the death of the wife, W. L. Davis, the father, was entitled in his separate right to the use of the property, and if he chose to rent it out and use the rentals in lieu of using it for living purposes, the rentals would belong to him; he was obligated to pay taxes and maintain the improvements at his own expense, and neither he nor his grantees would be entitled to reimbursement by plaintiffs in proportion to their equity therein for such items. Sargeant v. Sargeant, 118 Tex. 343, 15 S.W. 2d 589 (adopted by Supreme Court). In the case cited it is also held that the father (and this would apply to his grantees in this case) was not entitled to reimbursement for permanent improvements voluntarily placed by him on the premises during the time he held and used it, citing as authority for the statement, Elam & Stewart v. Parkhill, 60 Tex. 581; Clift v. Clift, 72 Tex. 144, 10 S.W. 338. A reading of the authorities pointed out leads us to conclude that by the expression “voluntarily made” by the survivor, as used by the court, is meant that the permanent improvements were made without reasonable grounds to believe that he was possessed of full title. The Sargeant v. Sar-geant case, supra, does not attempt to announce a different rule to that so well established in this State, which entitles litigants to recover for improvements made in good faith, under the belief that they own title. In the Elam & Stewart v. Parkhill case, above cited, decided in 1884, the rule for recovery of improvements made in good faith was announced in this language: “To entitle a party to a recovery for the value of improvements it is essential that he be a possessor in good faith. That is, he must believe that he is the true owner of the land, and be ignorant of the fact that.his right is contested by some person claiming a superior title; and notwithstanding he may have notice of an adverse claim, yet if he has reasonable and strong ground, for believing such claim to be destitute of any just or legal foundation, other requisites concurring, he may be a possessor in good faith.” See also 23 Tex.Jur., sect. 14, p. 388, and the many authorities there cited.

The last set of improvements were placed on the lot by W. L. Davis about eight years after the death of his wife and at a time when he was continuing to use and occupy the premises, either by virtue of the statutory provisions or under a claim of ownership because he had paid the community debts, which with his right of occupancy were of greater value than the community estate.

If W. L. Davis placed the permanent improvements upon the lot in 1926, under the bona fide belief that he was owner of the fee title, he (and his grantees without notice to the contrary) would be entitled to be reimbursed for their value before the equitable interest of plaintiffs could be determined. The bona fide belief of Davis, under all the facts and circumstances, were questions of fact to be determined by the jury. We find some evidence of probative force in the record, which is susceptible to a construction of supporting either theory, and we express no opinion upon its force and effect.

If upon another trial it should be found that W. L. Davis placed the second set of permanent improvements on the lot in good faith, with reasonable grounds of belief that he was the fee owner of the land at that time, defendants, having acquired the rights of W. L. Davis, would be entitled to reimbursement for their value before the interests of plaintiffs would be obtainable in the residue. Upon the other hand, if it be found that said improvements were not placed there under conditions entitling W. L. Davis to reimbursement then, in our judgment, plaintiffs would be entitled to share in them upon the theory that 'their father voluntarily placed them there, as held in the case of Sargeant v. Sargeant, supra.

We further hold that the interests of plaintiffs to be established in the property as it now stands, giving effect to what we have said about the second set of improvements placed there by the father, will be 15% thereof, that being the equitable interest acquired by them in the property by inheritance from their mother, after payment by the father of community debts In addition to this, the equities which grow ■out of rental values and necessary expenses incurred during the time defendants have had exclusive control should be adjusted by the court, as the facts may be found to justify.

We have not discussed defendants’ assignments of error seriatim for the reason that by the nineteen assignments they present in different forms four points, they being, (1) the court erred in overruling their general demurrer; (2) the court should have given defendants’ requested peremptory instruction; (3) the recovery was for a greater interest than plaintiffs were entitled to, and similar to No. 3, (4) plaintiffs were not entitled to recover an interest in the permanent improvements placed on the property under and by virtue of the loan procured from North Texas Building & Loan Association. Based upon the conclusions herein expressed, we overrule assignments grouped in (1) and (2) above, and sustain those included in group (3), and hold that the question raised in group (4) was not fully developed, and that upon another trial that issue should be decided as hereinabove pointed out.

The conclusions reached by us require a reversal of the judgment of the trial court, and it is accordingly so ordered.


text:
    CHAMBERS et al. v. WINN et al.
    No. 13948.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 22, 1939.
    Rehearing Denied Nov. 24, 1939.

      T. H. Yarbrough, of Bowie, and Berry, Warlick & Bunnenberg, of Vernon, for appellants.
    Donald & Donald and Benson & Benson, all of Bowie, for appellees.
   DUNKLIN, Chief Justice.

J. B. Turner, a resident citizen of Montague County, Texas, departed this life on September 2, 1934, leaving a last will and testament, dated June 13, 1933, in which all his estate was devised to Mrs. Della Winn. The will was admitted to probate in the County Court of Montague County, on the 18th day of September, 1934, and Mrs. Della Winn was appointed independent executrix, without bond, in accordance with the provisions of the will. On the 21st day of September, 1934, she and the appraisers theretofore appointed filed in the court an inventory and ap-praisement of the estate, which was approved by the county judge on the same day.

In the inventory and appraisement there were listed three tracts of land, situated in Montague County, of the aggregate appraised value of $1,200; also a one-half interest in four lots in the town of Bowie, Montague County, of the appraised aggregate value of $800; also personal property, of the aggregate appraised value of $914. There were also listed items of indebtedness owing by the estate, aggregating $796.

Turner’s wife died some two years before his decease. They left no children, and the only lawful heirs of J. B. Turner were Lawrence Turner, a brother, Mrs. Florence Chambers, a sister, and Mrs. Dora Jones, a half sister. Those three were the only lawful heirs of J. B. Turner.

About one year prior to the death of J. B. Turner, Mrs. Della Winn and her husband began living with him in his home, and continued to live with him until his death. Neither Mrs. Winn nor her husband was in any way related to him.

On February 17, 1937, which was twe years and five months (lacking one day) after the will was admitted to probate, Mrs. Florence Chambers and Mrs. Dora Jones, both widows, filed in the county-court of Montague County their petition to set aside the order probating the will, on two grounds; first, because of lack of testamentary capacity of the testator to make a valid will, and, second, on the ground of undue influence exercised by the beneficiary upon the testator. Prior to the institution of the suit, Lawrence Turner assigned to Mrs. Florence Chambers all his right, title and interest in the estate, and her claim of right to the relief prayed for was asserted as an heir of J. B. Turner in her own right, and as as-signee of her brother, Lawrence Turner. Mrs. Dora Jones’ claim was by virtue of heirship' as a half sister to the deceased. The defendants named in the petition were Mrs. Della Winn and her husband, Boyd Winn, both of whom were sued as individuals, and Mrs. Della Winn also as independent executrix of the estate of J. B. Turner.

The case was tried before a jury and at the conclusion of the evidence introduced, the court instructed a verdict for the defendants, and plaintiffs have appealed from a judgment rendered upon a verdict returned in accordance with that instruction.

Several assignments of error presented here relate to the admissibility of the opinions of non expert witnesses, to prove that J. B. Turner lacked testamentary capacity to make a valid will at the time he made it; no contention being presented that the will was not duly executed in accordance with the requirements of the statutes.

The will having been theretofore admitted to probate, the burden was upon the plaintiffs to sustain by a preponderance of the evidence the grounds upon which they sought a cancellation of the order probating the will. Howley v. Sweeney, Tex.Civ.App., 288 S.W. 602; 44 Tex.Jur. 574; Arts. 3433, 5534, Rev.St.

Article 8281, Revised Vernon’s Texas Civil Statutes, reads as follows: “Every person aged twenty-one years or upward, or who may be or may have been lawfully married, being of sound mind, shall have power to make a last will and testament, under the rules and limitations prescribed by law.”

As pointed out in 44 Tex.Jur., para. IS, p. 556, there is no statutory definition of what would constitute a “sound mind”, within the meaning of that article of the statutes, and therefore a definition of that term is to he sought in the decisions of the courts; with the further observation that the term “sound mind” is used in the decisions as synonymous with “capacity,” “competency” and “testamentary capacity,” and on page 558 this is said: “While the definitions of ‘sound mind,’ ‘competency’ and ‘capacity’ vary not a little in phraseology, an analysis of the language employed shows that the determination of the issue as to testamentary responsibility invariably depends upon the showing as to whether the decedent understood or appreciated the consequences of executing the propounded script.” Citing numerous cases, including Brown v. Mitchell, 75 Tex. 9, 12 S.W. 606.

And in paragraph 17 of the same page, this is said: “To have appreciated the consequences of executing the propounded instrument, the decedent must have taken cognizance of certain facts or conditions; and he must have understood the effect of the provisions of the script in respect of these facts. More precisely, the decedent must have had in mind (1) his property, and (2) the persons who had claims upon his bounty and whose interests are affected by the provisions of the instrument.” With citations of numerous cases, including Morris v. Morris, Tex.Com.App., 279 S.W. 806, which was adopted by the Supreme Court, with an express approval of the reasonings advanced. In that case it was announced that one of the essential elements necessary to show testamentary capacity of the testator is that he must have been cognizant of the claims of persons to whom the estate would pass by inheritance in the absence of a will devising the property to one who is not his heir.

In 44 Tex.Jur., par. 35, page 576, this is said: “The right to dispose of property by will ‘is not to be defeated by adverse findings of juries upon the issue of testamentary capacity based upon evidence which does not fairly support such findings.’ ” Citing Stell v. Salters, Tev.Civ.App., 83 S.W.2d 742.

And, further: “ ‘The trend of appellate courts of our state, as well as those of others, is to hold that the tendency to assail last wills of the aged and enfeebled upon the grounds of mental incapacity, and by frivolous and inconclusive evidence, chiefly of a speculative character, has grown to such an alarming extent in late years that it should be checked.’ ” Citing McCannon v. McCannon, Tex.Civ.App., 2 S.W.2d 942, 949, error dismissed.

Numerous authorities might be cited holding that lack of testamentary capacity may be proved by the opinions of non expert witnesses, based upon their observations or knowledge of the habits, con•duct, expressions, peculiarities, disposition, temper or character of the testator, and who have had sufficient opportunity to acquire such knowledge, and after stating the facts of their own knowledge upon which they base their opinion. 44 Tex.Jur., par. 41, page 583, and many authorities there cited, including Applegate v. McFadin, Tex.Civ.App., 20 S.W.2d 396, 398; King v. King, Tex.Civ.App., 91 S.W.2d 511, error dismissed; Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64.

Whether evidence is relevant and admissible is a question of law to be determined in each case by the trial court, and the test of its admissibility to prove any particular fact is whether it is capable of affording any reasonable presumption or inference as to the matter in dispute, and the rulings of the trial judge in that regard will not be disturbed, in the absence of a showing of abuse of discretion. 17 Tex.Jur., par. 114,. page 348, par. 105, p. 336; 19 Tex.Jur., par. 92, page 135; 3 Tex. Jur., par. 760, p. 1079; 1 Tex.Jur.Supp.1937, p. 310, sect. 760; 22 C.J. par. 700, 701, pp. 607-609. It is also the rule that evidence which is too vague and indefinite to have any probative force, or which is too uncertain to form a basis for any conclusion as to the matter in controversy, should be excluded. 17 Tex.Jur., par. 112, page 344; Kellogg v. McCade, 92 Tex. 199, 47 S.W. 520.

Mrs. Florence Chambers testified that she is a widow, 66 years of age, living in Amarillo, Texas, has five children, has no property, but is supported in part, by a daughter and a son. The deceased, J. B. Turner, was two or three years older than the witness; the deceased knew of her financial circumstances at all times.

Plaintiff Mrs. Dora Jones testified that she was -54 years.of age, a widow, had 14 children, lived on a farm in Randall County', Texas, before and at the time of the death of J. B. Turner, but was in poor financial condition, which was known to the decedent.

Mrs. Cora Estes, a cousin of J. B. Turner, testified that some 35 years ago she lived in Montague County, and knew J. B. Turner all her life; both lived in Bowie, near-neighbors for several years, and each visited in the home of the other quite often; some of his visits to her home would extend over two or three days. Witness had occasion to observe the appearance and demeanor of J. B. Turner, and his mental condition and the condition of his health before and after his wife’s death. After the death of J. B. Turner’s wife and after he had made a will, which was some six months before he died, witness had a conversation with him, in which he told witness: ‘T want to tell you something. I made my will. * * * I made it and I want my two sisters and my brother to have everything I have. I have made my will that way. Of course, if Mrs. Winn takes care of me I am going to pay her for it. I have made my will so my two sisters and brother will have everything I have.” Testator had a spell of illness before his wife died, and one after her death. After his wife’s death, he went to a hospital and had an operation. Witness observed his mental condition from the time his wife died up to the time he made the statement attributed to him, above set out, and his mental condition remained the same during all that period.

Mozine Jones Raten, daughter of Mrs. Jones, eighteen years of age, and married, was introduced by the plaintiff, and testified that she had known the testator all her life, but had not seen him often until the last four years of his life, and about four or five times after his wife’s death. He had frequently visited in the home of witness’ mother, his visits lasting several days, and witness was frequently in his company. Testator took the family from Vernon to Plainview right after his wife died, a distance of about 170 miles. The testator made a statement to witness about the way he was leaving his property, or intended to leave it. That statement was made at witness’ home in Plainview during the latter part of 1932. “Q. Tell us what was said. A. I asked him about a piano that he promised us and I asked him if he was going to give it to Mrs. Winn, and he said, no, Mrs. Winn didn’t get nothing but what she could get off the place, and when his will was made it was made to his brother and sisters.” On cross examination she testified the conversation might have been in the first part of the year 1933, but it was after the Winns had moved into the home of the testator. Witness further testified that when testator visited in the home of the witness she noticed his physical appearance. “He didn’t know us kids apart at all; he didn’t look well; he looked bad; he weighed less; his face was awfully wrinkled; he had an awfully sad expression on his face.” There was a difference in his physical appearance before his wife died and afterwards, although she had not seen him much before his wife died.

“Q. Did you notice any change in his appearance? A. I did.
“Q. Was it for good or for the worse? A. Worse.
“Q. Did you notice any peculiarities about the way he acted or the way he did? A. Yes, the way he would talk to us. He would speak of some old friend and he would break down and cry and almost have a nervous breakdown, it seemed like. That was after his wife died. He didn’t have any memory at all hardly when he was there at our house; he would be doing one thing and he wouldn’t have his mind on it at all. He said he couldn’t keep his mind on things; he couldn’t do the things he wanted to; he couldn’t keep his mind on things; did not recognize the children; would confuse their names; could not talk for any length of time on any particular subj ect.”

From the observations of him and conversations with him while he was around witness, she formed an opinion as to whether or not he was of unsound mind, and in the opinion of the witness he was of unsound mind. After his wife’s death he was not capable of knowing and appreciating the nature and consequences of his acts. The last trip testator made to witness’ home was just before he died; at that time witness was 13 or 14 years old; at that time witness lived in Plainview and testator lived in Bowie. There were 14 children in the witness’ home.

The testimony above is followed by a notation in the statement of facts that the jury then returned into the court, but just how much of it was introduced during the jury’s retirement does not appear. However, the record shows that testimony substantially to the same effect was repeated in the presence of the jury and admitted over the objection of the defendants’ counsel.

Following the introduction of that testimony the witness was further questioned, during another retirement of the jury. After their return into court, the witness was again questioned and testified that the statements of the testator, with reference to what Mrs. Winn was going to get, and that when he died he expected his property to go to his brother and sisters, occurred in June, 1934, after witness was out of school in May and before the testator died in the following September.

The court then sustained the defendants’ motion to strike out the testimony of the witness as to that conversation, with reference to what Mrs. Winn was going to get, because it was 10 or 11 months subsequent to the execution of the will, to which counsel for plaintiffs excepted, stating at the time that that testimony was offered as a circumstance to show the mental condition of the testator at the time of the execution of the will.

W. C. Sauls, another witness for the plaintiffs, testified that he had known J. B. Turner about 25 or 30 years before his death, and lived in Bowie just across the street from where J. B. Turner had lived for six or seven years. He and the testator had visited in each other’s home many times and had many conversations with him, and also many dealings; he had visited with him before and after his wife died.- Testator had high blood pressure pretty bad, but never had any sickness that he knew of. On one occasion testator had a spell of sickness at witness’ house, just before his wife died. At that time testator had a fainting spell and witness and his wife revived him by shaking him and throwing water in his face.

“Q. State what change you noticed. A. Well, I just noticed he wasn’t like he was, because he told me when we was fishing one day, he said, ‘Billy I’m liable to have a spell and I’m going to show you how to stop this car.’
“Q. Did he say what kind of spell? A. Well, after that, he had spells that I would call wasn’t right.
“Q. Did he tell you how it affected him? A. Yes.
“Q. How did he say it affected him? A. Well, just like the spell he had at my house.
• “Q. Did he lose consciousness when he was at your house? A. No, sir, he didn’t know nothing.
“Q. Did he say or do anything, after his wife’s death, in your presence, which was out of the way? A. Yes, sir.
“Q. Tell the jury what he did. A. He came to my house one morning and said, ‘Billy, do you want, to go fishing? And I said, T don’t care.’ I would go, and we went to town and stopped to get some fish 'bait, and, he said, ‘Billy, give me a nickel,’ and I said, ‘Ben, I haven’t got a nickel,’ and I went in there and got some fish bait and he just sung all the way; he never said a word, and when we got to the tank he grabbed up the fishing poles and bait and went right on to the tank and never said a word to me. I had my own fish bait; I had fish bait that I generally used and along that evening about three o’clock he came down there where I was, and cut off a piece of beef and says, ‘Here is a piece of beef. You can try that.’ I knew good and well Mr. Turner never did make no such a break as that and we had been together time and again.
. “Q. How long was that before his death, do you know; about how long? A. It was maybe a month or two.
“Q. Maybe a month or two after his wife’s death? A. Yes, sir.”

Witness further testified that after the death of testator’s wife and before the Winns came to live with him, he borrowed some money from the testator and was dunned frequently for it; that he had borrowed money from him before and was never dunned for the loan. He was not as healthy after his wife’s death as. before. After his wife died he visited witness’ home frequently and witness noticed a change in his mental condition. He further testified that he had occasion to observe the conduct and demeanor of Mr. Turner from the time of his wife’s death until his death.

“Q. Do you know, from your observations and the things you have told us about, and your knowledge of the nature and character, and your acquaintance with the man,, whether or not he was of sound or unbound mind on the 13th day of June, 1933?
“Mr. Benson: We object to that.
“The Court: Sustain the objection.
“Mr. Bunnenberg: Note our exception. We would like to have the bill show what his answer would be.
“Mr. Benson: We will say that he would say that he was of unsound mind.”

Lamar Jones, also introduced as a witness for the plaintiff, testified that he lived in Plainview; was a son of plaintiff Mrs. Dora Jones, and lived with her; remembered the time when J. B. Turner’s wife died; he had seen him several times before the death of his wife, and some three times thereafter, during his visits in the home of witness’ mother, in 1932, 1933 and 1934. His visits usually lasted some two or three days. Witness also visited in J. B. Turner’s home before the death of his wife, and once thereafter, in the year 1934. In the year 1934, J. B.Turner told witness he had brought Mr. and Mrs. Winn down to live with him, and that they were to have what the place made as long as he lived, and after his death it would go to witness’ mother and aunt. About the first of May, 1932, he made practically the same statement to the witness, saying that at his death he would will his property to witness’ mother and Aunt Florence and uncle; that was before Mrs. Winn came to live with him. That statement was made about the first of May, 1932; during the visits of J. B. Turner in the home of witness’ mother, witness observed his physical condition; he acted more like a small child; just looked like he was in a strain all the time, like something worried him; it seemed like something was bothering him all the time; he had lost weight at that time; prior to the death of his wife, he seemed to be healthy, but in pretty poor health after his wife died. When he would talk about his old friends he would cry about it, sit around with his shoes off, complaining of his feet burning up, and hold them in water. He would start a conversation on one subject and change; confused the names of the children, calling them by wrong names.

“Q. Based upon the things he said, and the things he did, and your observation of him, and your acquaintance with him, state whether he was of sound or unsound mind on June 13, 1933.
“Mr. Benson: We object to that for the reason it isn’t shown this witness has any knowledge or any means of knowing his mental condition at that time, or anywhere near that time; for the reason, this being a lay witness, he has not. detailed sufficient facts or circumstances tending to show any unsoundness of mind on the part of testator ; for the reason that the question is based not only on matters testified about by the witness but additional matters not testified to by this witness, and therefore not proper as a basis for his answer.
“The Court: I will excuse the jury.”
Thereupon, the court excused the jury and in their absence the witness was permitted to answer as follows:
“A. No, sir.
“Q. Do you mean he was of unsound mind? A. Yes, sir.”

Defendants’ objection to that answer was thereupon sustained and plaintiffs excepted.

Maura Carpenter was also introduced as a witness for plaintiff. According to her testimony she had known J. B. Turner practically all her life, and had lived in Bowie seventeen years, about a block distant from J. B. Turner’s home. Turner had lived in Bowie some ten years before he moved to his farm, which move was about a year before his death. His wife died about six months before he moved to the farm. Mrs. Winn and her husband began living with him before he moved to his farm; they lived with him in his house. Witness had seen J. B. Turner practically every day and had talked to him frequently, after his wife’s death. He came to witness’ house early one morning to listen to a program over the radio, and after listening a while, and while witness had excused herself to wash dishes, he got up and left, apparently offended, which was queer because he had never acted that way before. At the time of his wife’s death he told witness he had to borrow some money to put his wife away, and in about three weeks thereafter he told her that he had enough to live on if he lived to be 100 years old. After his wife’s death he always looked awfully bad to what he did before her death; did not seem happy. After his wife’s death he had high blood pressure or Bright’s disease or kidney trouble; would tell the witness about how he walked the floor and stayed with his feet in the tub all night, because they bothered him so bad. His physical condition grew worse after his wife died; he said he was going to get the Winns to come and live with him, but nothing further on that subject.

“Q. Now, based upon the things you have testified to about Mr. Turner, and your observations of Mr. Turner’s condition after his wife’s death, and before he moved to the farm, and based upon your acquaintance and your observations and your knowledge of the habits and nature of Mr. Turner, would you say that he was of sound or unsound mind at that time ?”

To that question defendants’ counsel objected, on the same grounds urged to the other testimony, already noted, and the objection was sustained. If permitted to do so the witness would have answered that in her opinion J. B. Turner was of unsound mind.

The witness, Mrs. Cora Estes, was then recalled by plaintiff and testified that after his operation and before his wife’s death he cried quite a lot, seemed nervous and could not remember anything, and his wife always had to attend to his business affairs thereafter. Anyone who asked to borrow money from him could get it.

“Q. From all your conversations with him, and from the things you have told us about what he did and said, and from your acquaintance with the man, his nature and habits, and his physical condition, state whether on June 13, 1933, J. B. Turner was of unsound mind.

“Mr. Benson: We object to that for the reasons heretofore set forth. This witness hasn’t detailed any circumstances and we submit this witness hasn’t formed any basis for any such testimony.

“The Court: I will sustain the objection.”

If permitted to answer the question the witness would have answered that J. B. Turner was of unsound mind on June 13,' 1933.

After the court had sustained defendants’ objections to the proffered testimony of the witnesses above shown and plaintiffs had excepted thereto, plaintiffs rested their case. The defendants then moved for an instructed verdict in their favor, without introducing any testimony and that motion was granted.

At the outset it is proper to note that the evidence offered was wholly insufficient to sustain the allegations - in plaintiffs’ petition that the execution of the will was induced by undue influence exercised by either of the defendants. So the only question to be determined here is whether the testimony offered and excluded was admissible to prove lack of testamentary capacity of the testator to execute the will at the time of its execution.

One of the grounds of defendants’ objections to the purported statements of the testator to the different witnesses to the effect that he had not devised or did not intend to devise any of his estate to Mrs. Winn, but intended to pay her for her services to him while in his home, and to will all his property to plaintiffs and his brother, was that they were no part of the res gestae of the execution of the will, and were therefore objectionable as hearsay.

That proof of such statements was not admissible to prove lack of testamentary capacity, we believe is settled by the decision of our Supreme Court, in opinion written by Judge Critz, in Schelb v. Sparenberg, 124 S.W.2d 322.

Nor did those statements, of themselves, tend to show unsoundness of mind. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.

It is well settled that a lay witness may testify to his opinion that a testator was of unsound mind at the time of execution of his will, if he has been in sufficient personal touch with the testator to enable the witness to form such an opinion, provided he testifies to the facts or circumstances on which his opinion is based. Duckels v. Dougherty, Tex.Civ.App., 226 S.W. 720; Campbell v. Campbell, Tex.Civ.App., 215 S.W. 134, error refused; Stell v. Salters, Tex.Civ.App., 83 S.W.2d 742.

That rule necessarily and logically implies that those facts and circumstances on which the opinion is based are relevant and reasonably tend to show mental unsoundness. An announcement of this rule is found in Smith v. Guerre, Tex.Civ.App., 175 S.W. 1093; Stell v. Salters, Tex.Civ.App., 83 S.W.2d 742; Colvard v. Goodwin, Tex.Civ.App., 24 S.W.2d 786; 24 TexJur., par. 45, p. 430, and authorities there cited.

As already stated, the declarations of the testator as to his intention to will his property to his brother and sisters were inadmissible.

The rulings of the trial court, to the effect that the other acts, conduct and statements of the testator, detailed by the several witnesses as further reasons for their conclusions that the testator was of unsound mind, were also inadmissible, have ample support in the authorities last cited.

Those matters have been set out above, and it is unnecessary to repeat them. It is sufficient to say that the statements and conduct attributed to the testator by those witnesses (other than those concerning the devise of his property already held inadmissible), such as failing health, expressions of grief for loss of his wife and old friends; confusion of names of the several children of his sister when he visited in her home; faulty memory, physical appearance, loss of weight, efforts to collect loan, statements of his financial condition, etc., were matters of common experience of persons of normal mentality and did not reasonably tend to support the proffered opinions of any of those witnesses that J. B. Turner was of unsound mind at the time he executed the will in controversy, even if their observations were not too remote from the date the will was executed, contrary to what we are inclined to believe was true of some of them, to say the least. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Those matters being thus eliminated as qualifying those witnesses to testify that in their opinions testator was of unsound mind, such opinions were without a sufficient predicate for their admission. And since the burden was upon plaintiffs to overcome by a preponderance of evidence the previous judgment of the probate court, decreeing that the testator was possessed of testamentary capacity when he executed the will, the trial court did not err in excluding those opinions.

It is hardly necessary to add that unless J. B. Turner was of unsound mind when he executed the will, the absence of his kinship with Mrs. Winn would not of itself be a sufficient ground for annuling it. And in this connection it is to be noted that the 'testimony of plaintiffs’ witnesses suggests that after the death of testator’s wife, he had need of the services of Mrs. Winn to care for him and his home, and which she did render up to the date of his death, thus suggesting a probable motive on his part to compensate her therefor by making her beneficiary of his estate. And in none of the testimony offered by plaintiffs was there any showing or suggestion that testator’s brother or either of his sisters had offered to perform any of the services rendered by Mrs. Winn, or had ever contributed in any manner or at any time towards his. welfare or comfort.

Many authorities are cited by appellants, which announce the general rule that opinions of non expert witnesses on the issue of testamentary capacity are admissible because it is impossible to portray to the jury the mental impressions of the witnesses on which those opinions are based. But those decisions all recognize the rule that the facts and circumstances on which those opinions are predicated must first be testified to in order to qualify the witness to state such opinion. Hence, a review of the facts involved in those cases could serve no useful purpose here, and will not be undertaken.

Accordingly, all assignments of error are overruled, and the judgment of the trial court is affirmed. •