author: SPEER, Justice.

text:
    BOONE v. STONE et al.
    No. 14102.
    Court of Civil Appeals of Texas. Fort Worth.
    June 21, 1940.
    Rehearing Denied Sept. 6, 1940.

      Kearby Peery, of Wichita Falls, for appellant.
    Jos. W. Bailey, Jr., and C. J. Shaeffer, both of Dallas, and McDonald & Anderson, of Wichita Falls, for appellees.
   SPEER, Justice.

T. R. Boone, as plaintiff, instituted this suit to have a .will construed, naming as defendants, Jerome S. Stone, individually, and as Trustee, Helen Stone Anderson, a widow, and her daughter, Helen Louise Anderson, a minor.

In the amended pleadings, upon which this cause was tried, plaintiff alleged that Jerome S. Stone, an unmarried son, and Helen Stone Anderson, were the only children of J. W. Stone, deceased, and that Helen Louise Anderson was the minor daughter of the said Helen Stone Anderson.

It was alleged that in 1930, J. W. Stone executed what' purported to be his last will and testament; he died in 1934, and the will was duly admitted to probate in 1935. The will is set out in the pleadings and, omitting formal parts, it reads:

“Item 2. I give, devise and bequeath, after my death, to Jerome S. Stone, as trustee, upon and for the uses and trusts hereinafter set forth, all of my property, real, personal and mixed, of whatsoever kind and character and wherever situated, and my said trustee, as such, shall have all the powers ordinarily incident to such office, and it shall be his duty to diligently manage said estate for the interests of the beneficiaries herein named, and he shall have power as such trustee, acting as such for said estate, to sell and convey any land, or lands, or to mortgage the same, and to lease the same, and to receive and receipt for, and execute all necessary ac-quittances, discharges and releases, for any moneys coming into said estate, and no purchaser from him as trustee shall be re-_ quired to look to the application of the purchase money, and he may and shall expend from time to time proper and reasonable amounts of the income from said estate, and may, in case of necessity, encroach upon the principal of the same for the upkeep, support and maintenance of the beneficiaries hereunder, and he shall keep accurate and just accounts of his doings in this behalf, ‘and submit the same to the inspection of the beneficiaries at any reasonable time, and shall preserve all vouchers and other papers relating to said estate.’
“Item 3. That said Jerome S. Stone shall hold said property and estate, however, in trust for my daughter, Helen Stone Anderson, beneficiary, and for the education, maintenance and support of any child or children she may have, for and during her natural life.
“In the event of the death of Helen Stone Anderson, leaving a child or children surviving her, then it is my will that one-half (½) of the estate then remaining in the hands of the trustee shall go to and become the property of my son, Jerome S. Stone, he surviving Helen Stone Anderson, and the other one-half (½) to the child or children born of the body of Helen Stone Anderson, and if Helen Stone Anderson shall die before any child or children of herself attains its or their majority, then the trust herein created shall continue as to their half during their minority, and then cease.
“Item 4. If Jerome S. Stone shall not survive Helen Stone Anderson, and shall die without issue, then it is my will and desire that the whole of said estate remaining in the hands of the trustee shall go to and become the property of Helen Stone Anderson.
“Item 5. It is my will, and I do hereby nominate, constitute and appoint my daughter, Flelen Stone Anderson, and my son, Jerome S. Stone, as joint executors of this will and of my estate, and the survivor may act as such, and I direct that no bond .or security be required of them, or either of them as such. I further direct that no bond or security be required of Jerome S. Stone as trustee, but that in the event the courts shall at any time appoint a trustee, upon any contingency whatever, that such trustee shall be required to give bond in the amount required by law of administrators.”

It was further alleged that in 1937, Jerome S. Stone filed a voluntary petition in bankruptcy, in which he declared, under oath, that the accompanying schedules contained a list of all property and interests therein owned by him. Among other property so listed appears: “A possible contingent interest in the estate of J. W. Stone, deceased, $100.” That a trustee was appointed by the Bankruptcy Court for the purpose of receiving and converting into cash the assets of the bankrupt, under orders of the court; that the trustee in bankruptcy duly advertised said assets for sale, as ordered by the court and at said sale plaintiff purchased, for a valuable consideration, certain of said assets, consisting of all of the interest of Jerome S. Stone, the bankrupt, in and to that part of his father’s estate in certain real property in the city of Wichita Falls, Texas, and reference is made to the assignment and conveyance thereof by the trustee in bankruptcy.

Allegations were made to the effect that Jerome S. Stone, as trustee in the will, had previously to the date of the institution of the suit, conveyed the property, in disregard of plaintiff’s rights and interest, to Helen Stone Anderson, and that she was then asserting the fee title thereto and denying plaintiff's rights so acquired from the trustee in bankruptcy.

It was alleged that the will of J. W. Stone, deceased, was void because it violated the rule against perpetuities; that if not void for that reason, then it was void because it was so uncertain and ambiguous that it was not susceptible to a construction of the testator’s intention as to what disposition should be made of a possible contingent remainder existing after the happening, if they should happen, of certain contingencies therein set out, and further; that in any event no disposition or bequest was made in the instrument of the possible contingent remainder of the estate, after the bequests and legacies were satisfied; that such remainder lapsed to the estate of deceased, and was inherited by the son and daughter. Prayer was for a construction of the will and a decree construing the will as alleged and for general and special relief.

Defendants filed pleas in abatement. The substance of the pleas was that since plaintiff’s allegations were that he had purchased from the trustee in bankruptcy “a possible contingent interest in the estate of J. W. Stone, deceased”, and the contingency upon which he relied was shown not to have happened at the time the suit was instituted, the action was prematurely brought, and asked that the suit abate.

A hearing was had on the pleas in abatement. The trial court sustained the pleas and dismissed plaintiff’s suit. This appeal was perfected from that judgment.

There is no controversy about the facts developed upon the trial. They consist in the main of stipulations, certified copies of the probate proceedings, wherein the will of J. W. Stone was admitted to probate, the bankruptcy proceedings in the matter of Jerome S. Stone, bankrupt, and the assignment of conveyance from the trustee in bankruptcy to plaintiff, T. R. Boone.

To avoid repetition, and for the sake of brevity, we shall refer to T. R. Boone as plaintiff, to J. W. Stone as testator, Jerome S. Stone as the son, Helen Stone Anderson as the daughter, and to Helen Louise Anderson as the minor.

The first proposition, among other things, charges that the will of testator was void because it violated the rule against perpetuities, in that the possible remainder estate which could arise because of uncertain contingencies in the will, would not vest in any person then in being nor within 21 years thereafter.

Under Article 1, Section 26; of our State Constitution, Vernon’s Ann. St., it is declared that perpetuities are contrary to the genius of a free government and shall never be allowed.

By the terms of the will, testator’s estate vested in the son, as trustee for the purposes therein named. The trust was for the support and maintenance of the daughter and the education of her children, during her life. If she should die before the demise of her brother and leave issue of her body, one-half of the property then in the hands of the trustee should vest in the son, and the remaining one-half was devised to such surviving child or children of the daughter, and the trust should continue until the youngest of such child or children reached his majority, at which time the trust should cease.

The will became effective at the death of testator. Obviously the daughter was then living and there was one child, she being the minor defendant here. If another child or children should be born to' the daughter at any time in' the future, the-life of the trust would of necessity be extended until the after-born child or children reached their majority. We are unable to see how the trust could continue longer than 21 years after the life of the daughter.

The well, settled rule construing the constitutional provision against per-petuities now seems to be well settled. Our courts recognize the test to be: “Perpetuity is a limitation, taking the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and 21 years thereafter.” If by any possibility a devise violates the above established rule, it cannot stand. Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, 907, writ refused; Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247; Clarke v. Clarke, 121 Tex. 165, 46 S.W.2d 658, and other cases of like kind.

In connection with the first proposition, it is further urged that the will violated the rule against perpetuities because there was no provision made for the vesting of title within the life or lives of persons in being and within 21 years thereafter, or for it to vest at any time, upon the happening of certain named contingencies in the will. This contention is based upon those provisions in the will which, (a) give a life estate to the daughter, and (b) if she should predecease the son and leave a child or children surviving her, one-half of the remainder in the trustee’s hands should vest in the son and the other one-half to continue in trust for the child or children until they reached their majority, and then the trust should cease. It is urged, and properly so, we think, that if the daughter should predecease the son and leave no child or child»',m surviving her, the life estate in her would terminate and there is no provision made, nor saving clause or residuary term found in the will, under which the remainder or reversionary estate would pass.

Much of what we have said regarding the termination of the daughter’s life estate, under conditions mentioned, is’ applicable to Item 4, which pertains to the death of the son. It will be observed that if the son should predecease the daughter, without issue, the whole of the estate remaining in the hands of the trustee should go and pass to the daughter. But it must be noted that if the son should predecease the daughter and leave a child or children, no provision is made for the passing of such interest as the son may have had. The possible contingencies mentioned, under which no attempt is made to devise the property, do not infringe the rule against perpetuities, but are lapsed legacies. [We shall presently discuss this phase of the will. The contention that the will of testator violated the rule of perpetuities is overruled.

The law prefers to give, to a construction of wills, one that will prevent partial intestacy. It will be presumed that a testator did not intend to die intestate as to any portion of his estate, and this presumption will prevail unless the contrary is clearly expressed or necessarily implied from the language used. 44 Tex.Jur., sect. 148, p. 707; Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148. The will in controversy was written in 1930, and the testator died four years later. If the language used by him in the instrument was not as he wished it to be, he no doubt would have changed it in that period of time.

To review the will and construe the language used in-its most favorable light to be an intention expressed or necessarily implied, that testator did not intend to die intestate as to any part of his property, we are unable to escape the conclusion that whether he had such intention or not, the uncertain contingencies set out therein of necessity will overcome all legal presumptions ; we must give effect to the intention of testator as expressed in the will.

Briefly analyzing the will, we find that uppermost in testator’s mind was the intention to bestow the objects of his bounty upon his widowed daughter, her child, the minor, and any child or children that should thereafter be born to her, as well also any child or children that should be born to the son. To accomplish this end, a very liberal trust was created, giving to the trustee the power to sell, mortgage, lease and hypothecate the property and to use the proceeds arising from such transactions for the purposes of administering the trust, viz.: “In trust for my daughter, Helen Stone Anderson, beneficiary, and for the education, maintenance and support of any child or children she may have, for and during her natural life.” So intent was the testator that his daughter and her children then born or to be born should be amply provided for, he gave power to the trustee to dispose of the corpus of the estate, if necessary, for such purposes. We may assume that testator was less concerned about providing for his son, perhaps for business reasons best known to him. The only provision found in the will by which a conditional bequest was made to the son is found immediately following the last above quoted expression. It reads: “In the event of the death of Helen Stone Anderson, leaving a child or children surviving her, then it is my will that one-half of the estate then remaining in the hands of the trustee shall go to and become the property of my son, Jerome S. Stone, he surviving Helen Stone Anderson * * The will continues by bequeathing to the child or children which the daughter left surviving her, the other one-half of the estate, and that the trust thereon continued until such child or children should reach their majority and then cease.

By Item 4 of the will, it was provided that if the son should predecease the daughter, “and shall die without issue”, then and in that event the whole of the estate should vest in the daughter. If this contingency should happen the life estate previously created in the daughter was to be enlarged to an estate in fee, and is not repugnant to former provisions creating the life estate. It may be added, however, that it is difficult for us to see what, if any, interest the son may have had in the estate, could vest in the daughter if the contingency mentioned should arise, unless it could be said that the testator knew there was a possible contingent remainder or interest that may revert to his estate and eventually be inherited by the son or his descendants (if any) after all legacies had been satisfied. However, it was only in the event that the son should predecease the daughter without issue, that the whole estate should pass to the daughter. If the son should predecease his sister and leave issue, no disposition was made of the remainder of the estate. Likewise, if the minor should predecease her mother and there was no other child or children born to testator’s daughter, her life estate would terminate and the will is silent as to what disposition would be made of the remainder. This being true, the whole remainder, be it much or little, would be a lapsed estate of the testator and would pass by descent and distribution to the son. The will was not void because of such a situation, nor would it fall within the rule against perpetuities on that account, as we have above indicated. The principle involved here, which produces lapsed legacies, is well recognized by our courts. Such an estate vests -immediately in .the heirs of the testator. Article 3314, R.C.S.; Munger v. Munger, Tex.Civ.App., 298 S.W. 470, writ refused. If, by the plain and unambiguous language used, a portion of a testator’s estate is not devised and there is no language used in the instrument from which it can reasonably be inferred that he intended to devise that residuary interest, it will lapse and revert to the estate of the testator. Hagood v. Hagood, Tex.Civ.App., 186 S.W. 220, writ refused; Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148; Simpson v. United Production Corp., Tex.Civ.App., 128 S.W.2d 99. Propositions one and five raise the point last above discussed, and insofar as it is contended that there was a possible lapsed estate not disposed of by the will, and that it was inherited by the son and daughter, they are sustained.

By propositions two, five and eight, it is contended that plaintiff having acquired from the trustee in bankruptcy, by a bona fide purchase thereof, all of the possible contingent interest of the son in testator’s estate, he was, under the pleadings and evidence, entitled to maintain this suit, and that it was reversible error for the trial court to sustain pleas in abatement and dismiss his suit.

We have concluded that, under the undisputed facts developed in this case, the propositions are w;ell taken. We shall demonstrate why we have reached this conclusion.

Under the terms of the will, we have seen that if certain things should in the future happen, there would be a substantial interest in the estate of testator remaining un-disposed of. Under Article 3314, R.C.S., and Munger v. Munger, supra, that estate lapsed and was reinvested in that of testator upon the happening of those contingencies. Affirmatively stated, if the daughter should predecease the son, leaving no issue of her body, or if the son (having taken a devise) under the will should predecease the daughter, leaving issue, no disposition is made of the property. These are possibilities and either or both of them may happen; nor is it certain that the estate will have been absorbed at that time by a satisfaction of the estates created by the testamentary document.

In 1937, Jerome S. Stone was adjudicated a voluntary bankrupt, and the schedules required by law were filed by him, in which it was disclosed that he had assets of a possible contingent interest in the estate of J. W. Stone, deceased. To the extent stated, the son recognized that a possible interest in the estate would lapse and revert to his father’s estate. All of the bankrupt’s property, of every kind and character, vested then and there in the trustee in bankruptcy. Sections 110 and 75, 11 U.S. ■C.A. The proceedings in bankruptcy are disclosed in the statement of facts and are in no way assailed by either party to this suit, and no useful purpose would be served to discuss them in detail. Under order of the bankruptcy court, the trustee was instructed to sell at public out-cry all property of Jerome S. Stone. This was done and plaintiff became the purchaser, in good faith, for a, cash consideration of $200 paid to the trustee. A conveyance, termed an assignment in the record, was made to plaintiff by the trustee. The assignment recited that for the consideration paid, the trustee conveyed, “All my (the trustee’s) right, title and interest in and to a possible contingent interest in the estate of J. W. Stone, deceased, belonging to the estate of Jerome S. Stone, bankrupt, wherever situated.” The sale and conveyance were confirmed by the court, and it being made to appear that there were no other assets to be disposed of, the trustee in bankruptcy was, by the court, discharged.

It was stipulated substantially, that certain property situated in the City of Wichita Falls, Texas (in which plaintiff claims an interest), was at the time the will was drawn and at the death of J. W. Stone, his homestead, and that Helen Stone Anderson, a widowed daughter, and her minor daughter, lived with J. W. Stone in the home, and were living there at the time of the trial. In short, at the time of the trial, the son, the daughter and the minor were all living; that since the probate of the will, the property had been conveyed to Helen Stone Anderson.

The'pleadings of plaintiff admitted that the property had been conveyed to Helen Stone Anderson, and that she was asserting the fee simple title thereto, in disregard of the rights and interest of plaintiff. Insofar as was necessary for defendants to discharge their burden in the pleas in abatement, no proof was necessary to establish the rights of Helen Stone Anderson, insofar as they were conferred by the deed to her.

This brings us to consider whether or not plaintiff’s suit for construction of the will was prematurely brought. If this had been an action by plaintiff for a recovery of title and possession of an interest in the property, we think the pleas would have been well taken. But such is not the case before us. Plaintiff may never receive anything as a result of'his purchase, while upon the other hand, he may, depending upon uncertain contingencies made to appear in the will.

It will be observed that testator provided a trust in the son for the management of the property, and the scheme or plan thus provided was perhaps based upon the theory that the son was better equipped to thus discharge the trust and by the means provided, support and maintain the daughter during her lifetime. There is no provision in the will from which it may be inferred that testator ever intended for the daughter to be vested with a fee simple title to the estate so long as the son lived and could perform the trust created. Yet, as shown above, this is what was attempted to be done. If the fee simple title passed to the daughter under the conveyance since the will was probated and the trust began functioning, then a scheme was devised, by which the son, who was executor and trustee, could reap a profit to himself. The conveyance to the daughter had the effect to destroy the trust created by the testator in that property, insofar as the daughter’s life estate therein was concerned, and the remainder interest of any child or children that may survive her. Again, if after acquiring a fee simple title, as was attempted in the conveyance, the daughter should predecease the son without issue, the son would inherit from his sister the whole estate. He could not thus promote his own personal interest, nor defeat the trust reposed in him by testator. Loewenstein v. Watts, Tex.Civ.App., 119 S.W.2d 176, reversed by Supreme Court on other grounds, Loewenstein v. United States, 134 Tex. 660, 137 S.W.2d 2, 128 A.L.R. 910.

It is not contended by plaintiff that he is entitled to possession of any part of the estate and thus defeat the estates created by the will, but only that the will be construed in such way as to establish and fix such interest as he has. It is true that the contingencies have not as yet happened that would entitle plaintiff to a definite interest; yet, to deny plaintiff at this time a right to assert his “possible contingent interest” so purchased by him, and require him to delay having that interest declared while the statute of limitations would perhaps ripen Helen Stone Anderson's title into a perfect one by prescription, would be to deny plaintiff of an equitable relief in the protection of such property right as he may have in the estate’. See Clark v. Cattron, 23 Tex.Civ.App. 51, 56 S.W. 99, writ refused. In the case last cited, it was held that where a tenant for life, under will, claims title in fee, a remainder-man may maintain a suit to construe the will and fix the status of the title, but that such an action, if successful, would not give the right of present possession, nor was it necessary to allege that right in order to establish the remainder-man’s equities. The court cites in support of the holding: Tevis’ Heirs v. Armstrong, 71 Tex. 59, 62, 9 S.W. 134; Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S.W. 865; Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324. It is said by the text writer in 21 C.J., p. 967, that the equitable rights, in such circumstances mentioned, will be allowed to either a vested or contingent remainder-man. See, also, 16 Cyc. p. 643; Kollock v. Webb, 113 Ga. 762, 39 S.E. 339. Insofar as propositions 2, 5 and 8, and the assignments upon which they are based, raise the point that the court erred in sustaining the pleas in abatement because the suit was prematurely brought, they are sustained.

There are other propositions brought forward by plaintiff, which we think unnecessary to pass upon, since they are dependent upon a determination by us of those questions hereinabove discussed. The record before us discloses that there are other questions that will be involved when the court shall hear the case on its merits, and for that reason we have refrained from approaching those matters in a discussion of the action of the trial court in sustaining the pleas in abatement and dismissing plaintiff’s suit.

For the reasons shown, the court should have overruled the pleas and heard the case on the merits, as pleaded by all parties. Reversible error was committed when the right of the contested issues was denied to plaintiff. The judgment of the trial court is therefore reversed and the cause remanded for further proceedings conforming with these conclusions. Reversed and remanded.


source: Caselaw Access Project

author: MOORE, Chief Justice.

license: Public Domain

text:
    TRI-CITY FRESH WATER SUPPLY DIST. NO. 2 OF HARRIS COUNTY v. MANN, Atty. Gen.
    Motion No. 14568.
    Supreme Court of Texas.
    Sept. 11, 1940.

      R. R. Lewis, Geo. D. Neal, and A. T. Carleton, all of Houston, for relator.
    Gerald C. Mann, Atty. Gen., and C. E. Crowe, Jr., Claud O. Boothman, and George W. Barcus, Asst. Attys. Gen., for respondent.
   MOORE, Chief Justice.

This is a mandamus proceeding instituted in the Supreme Court by Tri-City Fresh Water Supply District No. 2 of Harris County, as relator, against Gerald C. Mann, Attorney General, as respondent, praying that writ of mandamus issue, requiring the Attorney General to approve the transcript showing the proceedings relating to the issuance of bonds of relator in the aggregate amount of $60,000, and that he be required to certify to the Comptroller of the State of Texas that such bonds are valid, legal, and binding obligations of the Tri-City Fresh Water Supply District No. 2 of Harris County, Texas.

The Attorney General admits that the District has been duly and legally incorporated as a Fresh Water Supply District under Title 128, Chapter 4, Articles 7881 to 7959a, inclusive of the Revised Civil Statutes of Texas, 1925, and amendments thereto as shown in Vernon’s Texas Revised Civil Statutes (1936 Ed.), and that it has all the powers and is subject to all the limitations under the Constitution and statutes appertaining to the organization of such a district.

The Attorney General resists the issuance of the mandamus on the grounds that the notices given for the voting of the bonds and the bonds themselves show that the money proposed to be raised by the sale of the bonds is to be used, in part, for “the construction of a sewage system and a sewage disposal plant and the laying of mains for fire protection and the erection of fire hydrants and the buying of fire equipment * * ; and that such purposes are neither authorized by the Constitution nor by the statutes.

The notices which were posted for voting these bonds stated, in substance, that they were, to be issued to raise money to construct, equip, and complete a “Fresh Water Supply System” for the inhabitants of the district, to consist of water wells, inundated tanks for storage, with the right to acquire necessary land upon which to drill such wells, and the necessary pump lines for distribution, power, equipment, and all other equipment necessary or convenient to furnish water for all domestic and commercial purposes; to purchase physical properties consisting of any well or wells, tanks, pumps, land and easements and distributing systems now being operated in said district, and for the purpose of constructing, equipping necessary main line, fire plugs and connections, “and all equipment necessary to furnish fire protection for the said district; for the purpose of constructing, equipping, connecting lines and main pump Hires, including man-holes, and other appit-rtenances necessary to collect and transport sewerage from residences and commercial establishments in the district or for lift stations and disposal plant or plants■ and outfall to tide water, with necessary lands and easements for the construction of all of same, * * (Italics ours.)

Substantially the same provisions are set forth in the order directing the issuance of the bonds, and in the purpose clause recited in the face of each of the bonds.

The people of this District do not have the power to determine for themselves such corporate functions as they may wish to inaugurate, such as are granted to cities and.towns operating under home-rule charters. This District may exercise only such powers as have been expressly delegated to it by the Legislature, or which exist by clear and unquestioned implication. Therefore, the right to issue these bonds for all the purposes named in this bond record must be sought for in the words of the statute which authorized the creation of the District.

We have given careful consideration to all the articles of this statute, but we shall refer only to such of its provisions as are deemed material in the consideration of this case. Article 7881 sets forth the purposes of the law, and Articles 7917 and 7918 define the pertinent specific powers with which a Fresh Water Supply District may be invested when organized, and these articles are here copied verbatim.

“Art. 7881. There may be created within this State conservation districts to be known as Fresh Water Supply Districts for the purpose of conserving, transporting and distributing fresh water from lakes, pools, reservoirs, wells, springs, creeks, and rivers for domestic and commercial purposes, as contemplated by Section 59, Article 16 of the State Constitution. Said districts shall have and may exercise all the rights, privileges and powers given by this chapter and in accordance with its directions, limitations and provisions. Such districts may or may not include cities and towns.”

“Art. 7917. All such districts have such powers of government, and with authority to exercise such rights, privileges and functions concerning the purposes for which they are created, as may be conferred by this chapter, or any other law in this State, to the benefit of which they may become entitled. All such districts shall -have full authority and right to acquire -water fights and privileges in any way that any individual. or corporation may acquire same, and to hold the same either by gift, purchase, devise, appropriation or otherwise. No enumeration of specific powers herein shall be held a limitation upon the general powers conferred by this chapter, unless distinctly so expressed.”

“Art. 7918. All districts shall have full power and authority to build, construct, complete, carry out, maintain, and in case of necessity add to and re-build, all works and improvements within and without such districts necessary to accomplish any plan of conservation, transportation and distribution of fresh water adopted for or on behalf of such districts, and may make all necessary and proper contracts, and employ all persons' and means necessary to that end; and such districts are authorized, if the governing bodies thereof shall deem it necessary, to take over in whole or in part by purchase or otherwise, any water plants or systems within such districts.”

There is nothing contained in any other article of the statutes which purports to confer on Fresh Water Supply Districts any different powers than those named in the foregoing sections.

Looking therefore to these provisions, we have reached the conclusion that this District has no authority to issue bonds and levy taxes to raise money either to purchase and install equipment for fire protection, or to construct, equip, and operate a sewerage system. No such powers are expressly delegated to the District, as is plainly evident from the language of the statute, and under well-established principles of law we are of the opinion that these distinct corporate functions cannot be implied from the powers specifically named in the statute.

It is a general rule of judicial construction that even a normal municipal corporation has only such implied powers as are reasonably necessary to make effective the powers expressly granted. That is to say, such as are indispensable to the declared objects of the corporation and the accomplishment of the purposes of its creation. Powers which are not expressed and which are merely convenient or useful may not be included and cannot be maintained. Furthermore, where powers are granted to a municipality by specific provisions, such powers are not enlarged by general language found elsewhere in the act, such as is found in Article 7917, supra. City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829; Dallas Consol. Electric. St. R. Co. v. City of Dallas, Tex.Com.App., 260 S.W. 1034. In discussing this subject this court in the case of Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104, 1106, speaking through the late Chief Justice Cureton, said: “Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void.”

Additional discussion of authorities would seem to be unnecessary, but because of the pertinency of the facts, we direct attention to the case of Dallas Consol. Electric St. R. Co. v. City of Dallas, supra. In that case it was claimed by the city that by clear implication it had the power to assess a tax against the Street Railway Company in order to pay, in part, the cost of digging a storm sewer in connection with the construction of other improvements along a certain street. The court held that the city had no such implied power, in that the construction of a storm sewer was not a necessary incident to the contraction of surface improvements along said street, for which the city was expressly authorized by charter to make an assessment against contiguous property owners, and reversed the decision of the Court of Civil Appeals, which had held to the contrary. In so doing the court quoted with approval from 19 Corpus Juris, p. 715, where it is stated: “The power to levy assessments for the construction of drains can be exercised only when granted in clear and unmistakable terms, and statutes purporting to grant such power must be strictly construed as against those asserting the right to exercise it.” See, also, Anderson v. City of San Antonio, 123 Tex. 163, 67 S.W.2d 1036; City of South Houston v. Dabney, 132 Tex. 96, 120 S.W.2d 436; City of Arlington v. Dillard, supra; Texas-Louisiana Power Co. v. City of Farmersville, Tex.Com.App., 67 S.W.2d 235, 236; McQuillin on Municipal Corporations, 2d Ed., vol. 1, p. 926; Dillon on Municipal Corporations, 5th Ed., vol. 1, p. 448 et seq.

What has been said relates primarily to municipal corporations, proper, because what is applicable to them is usually applicable to districts such as that of relator, but with some limitations. For one thing these districts do not possess, at least the relator does not possess, broad police powers to do those things which are necessary to promote the public health and general welfare, which are ordinarily expressly delegated by statute to cities and towns, and by virtue of which the governing bodies of such municipalities are permitted to make rules and regulations and enact ordinances, which if not expressly authorized, are very generally upheld by the courts as being in the interest' of the health and safety of the inhabitants of the municipalities.

Governmental agencies, or bodies corporate such as Fresh Water Supply Districts, under our statute, are commonly referred to by courts as quasi municipal corporations, for the reason that they are constituted by the legislature to exercise, in a prescribed area, a very limited number of corporate functions, and they are said to be “low down in the scale or grade of corporate existence.” The powers of such districts are measured by the terms' of the statutes which authorized their creation, and they can exercise no authority that has not been clearly granted by the legislature. As expressed by the court in Stratton v. Commissioners’ Court of Kinney County, Tex.Civ.App., 137 S.W. 1170, 1177, writ of error denied, the powers of such governmental agencies as counties, townships, and school districts “are generally more strictly construed than those of incorporated municipalities.” See, also, Grand Lodge, etc., v. Curry et al., Tex.Civ.App., 108 S.W.2d 574, writ of error denied; McQuillin on Municipal Corporations, 2d Ed., vol. 1, p. 391, sec. 135; 17 American Jurisprudence, page 789; O’Brien v. Wheelock, 184 U.S. 450, 22 S.Ct. 354, 46 L.Ed. 636; Board of Improvement of Sewer District No. 2 of Fort Smith v. Moreland, 94 Ark. 380, 381, 127 S.W. 469, 21 Ann.Cas. 957; Eastern Illinois State Normal School v. City of Charleston, 271 Ill. 602, 101 N.E. 573, L.R.A.1916D, 991. Numerous cases of similar import from other jurisdictions might be cited.

Had the legislature intended to invest Fresh Water Supply Districts with corporate powers to purchase and install apparatus for fire prevention and fire protection and to construct and operate a sewerage system within a given territory, it doubtless would have so enacted in plain language. Not having done so, and this District having no such delegated legislative powers, it becomes unnecessary to discuss the constitutional question suggested by the Attorney General.

It is axiomatic that if the TriCity Fresh Water Supply District No. 2 of Harris County has no power to construct the aforementioned improvements, it has no right to levy taxes against the inhabitants of the District to raise money to construct such improvements. The power to tax belongs to the sovereignty. It can only be exercised by a subordinate corporate body when delegated to it either by the Constitution or by the legislature, and when so delegated, it must be exercised for those purposes, only, which are distinctly included in the constitutional or legislative provision. As stated by this court in Frosh v. City of Galveston, 73 Tex. 401, 11 S.W. 402, 404, such power, when so conferred, “is to be strictly construed, and must be closely- followed.” To the same effect are the following cases; Wood v. City of Galveston, 76 Tex. 126, 13 S.W. 227; City of Tyler v. Coker, 58 Tex.Civ.App. 605, 124 S.W. 729; Ripley v. Trinity River Canal & Conservancy Dist., Tex.Civ.App., 88 S.W.2d 752, writ of error denied; State v. Houston & T. C. R. Co., Tex.Civ.App., 209 S.W. 820; Stratton v. Commissioners’ Court of Kinney County, supra.

It appears from the record in the instant action that the petition for the election to determine whether or not this District should be incorporated indicated that the signers contemplated that the District, if incorporated, would have authority or power to do and perform all of the functions and things for which these bonds are contemplated to be issued. We assume that the order for the election and the notice thereof indicated the same thing. Ptacek et al. appeared before the Commissioners’ Court and contested the order of the election as petitioned for. In spite of the contest the Commissioners’ Court entered and sustained the order just indicated. Thereafter Ptacek et al. filed suit in the district court to annul or cancel such election order. This suit was filed before the election was held, but tried after such event had transpired. On final trial in the district court judgment was entered refusing cancellation of the above-mentioned election order. On appeal by Ptacek et al. the judgment of the district court was affirmed by the Court of Civil Appeals. Ptacek v. Hofheinz, 128 S.W.2d 872. This court refused writ of error.

If we properly interpret their brief and argument, counsel for relator in this action contend that the judgment of the Court of Civil Appeals in the former action above mentioned is res adjudicata of the right or power of this District to issue these bonds. It is our opinion that the former judgment only adjudicated that the election •order under attack was sufficient in form .and substance to order an election to determine whether this District should be incorporated with powers conferred by law. It ,can hardly be said that a district like this, .or for that matter any district, can be given •powers not authorized by law by the simple ..expedient of indicating such unauthorized •powers in the preliminary steps incident to incorporation. Simply stated, we are of •the opinion that the fact that the prelimi-nary steps incident to the incorporation of •this District indicated that it was contemplated that it might exercise powers not authorized by law would neither invalidate •the District nor invest it with such unau.thorized powers.

This proceeding has been heard upon the •.motion to file relator’s petition for mandamus, and the court being of the opinion that the mandamus should be refused, it is ordered that the motion to file said petition be and the same is hereby overruled.


author: FOLLEY, Justice.

text:
    JACOBSON et al. v. WOOD.
    No. 5183.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1940.
    Rehearing Denied Sept. 9, 1940.

      W. S. Birge, of Amarillo, for appellants.
    W. A. Culwell, of Amarillo, for appel-lee.
   FOLLEY, Justice.

This is an appeal from the county court of Potter County, Texas, in a cause which originated in the justice court of Precinct No. 1 of Potter County. The suit was filed in the justice court on November 20, 1935, by Phillips Schneider Brewing Company of Trinidad, Colorado, against Jo Jacobson, one of the appellants, seeking recovery for $155.48 alleged to have been due such company upon Jacobson’s account with the brewery in his purchase of beer in wholesale lots. Jacobson filed his answer and cross-action impleading.C. C. Wood, the appellee as a cross-defendant, seeking recovery against Wood for any judgment rendered against Jacobson and alleging that the debt, if any, due the brewery was by reason of Wood’s failure to return to the brewery some empty containers which he had agreed to return in a purchase of some of the beer from Jacobson.

Wood filed an answer and cross^action against Jacobson seeking judgment against him for $190.40 for 718 empty, cases of beer bottles at 30¾⅛ per case, less $25 expenses incurred by Jacobson in delivering the bottles to the brewery at Trinidad. Jacobson and Morris Spicer, the other appellant, thereafter filed an answer in which permission was asked and granted that Spicer be made a party defendant with Jacobson alleging that Jacobson and Spicer, were partners in the wholesale beer business at all times material to this controversy. In this pleading Jacobson and Spic-er sought judgment against Wood for $40 alleged to have been expended by them in delivering empty bottles to the brewery and further sought judgment over against Wood for any recovery allowed against them in favor of the brewery. In this pleading the request was also made that W. E. Darnell be made a party defendant with Wood, alleging that he was Wood’s partner in the cafe business at Amarillo, Texas. 'This permission was also granted by the court but from the record before us Darnell was not made a party, however, this matter becomes immaterial since the testimony shows that Darnell sold his interest in the cafe business to Wood in 1934 and thereafter had no interest in the subject matter of this suit.

Other pleadings were filed by Jacobson and Spicer and the transcript from the justice court also shows that the brewery company pleaded orally. The judgment in such transcript also indicates that after Spicer was made a party Wood filed a cross-action against Jacobson and Spicer. The transcript also shows that the cause proceeded to judgment on February 16, 1939, wherein the brewery company recovered nothing and C. C. Wood recovered judgment against Jacobson and Spicer, jointly and severally, in the sum of $175.

Thereafter on February 27, 1939, Jacobson and Spicer filed their appeal bond in favor of Wood seeking to appeal the cause to the county court of Potter County. Upon a trial de novo in the county court judgment was rendered in Wood’s favor and against Jacobson and Spicer for the sum of $175.40. It is from this judgment that this appeal is prosecuted.

It is our opinion that fundamental error is apparent in the record before us in that no appeal was successfully prosecuted from the justice court to the county court. It will be noted from what we have said above that the date of the justice court judgment as shown from the transcript of the justice of the peace was February 16, 1939. In the absence of any showing to the contrary we must presume this to be the exact date of the entry of the judgment on the docket of the justice of the peace, and this is true in the face of the fact that the appeal bond recites on its face that the judgment was rendered February 27, 1939, the day the appeal bond was filed; The transcript over the signature of the justice of the peace must necessarily be presumed to correctly state the date of the judgment and must be given precedence over the ex parte statement of the parties in the appeal bond. No motion for a new trial appears to have been filed in the justice court. The appeal bond of Jacobson and Spicer attempting to remove the cause to' the county court was neither approved nor filed until February 27, 1939, which,exclusive of the day of the date of the judgment shown in the transcript, was not within ten days from the date of the judgment. To have been within the ten-day period prescribed by the statute (article 2456, R.C.S.), this bond should have been approved and filed on or before February 26, 1939. Bach, Meiss & Co. v. Ginacchio, 1 White & W.Civ.Cas.Ct.App., § 1315; 26 Tex.Jur. 883, para. 87; McIver v. McIntosh et al., 10 Tex.Civ.App. 581, 30 S.W. 1086; Kyle et al. v. Richardson, 31 Tex.Civ.App. 101, 71 S.W. 399, writ denied. Therefore the record before us affirmatively shows that the county court failed to obtain jurisdiction of the cause and therefore this court is without jurisdiction of the appeal. McMahon et al. v. City Bank of Sherman, Tex.Civ.App., 61 S.W. 952.

Where jurisdiction of the county •court is not affirmatively shown, we think the better practice is not to dismiss this appeal but to reverse and remand the cause with instructions for the county court to dismiss the same unless it is made to appear that its jurisdiction has been properly invoked, and it is so ordered. Perry et al. v. Greer, 110 Tex. 549, 221 S.W. 931; Fruit Dispatch Co. v. Rainey, Chief Justice et al., 111 Tex. 266, 232 S.W. 281; Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441; Nordyke v. James, Tex.Civ.App., 272 S.W. 247; Ballard v. Breigh, Tex.Civ.App., 262 S.W. 886; Johnson et al. v. Gibson Bros., Tex.Civ.App., 240 S.W. 667; 3 Tex.Jur. 403, para. 287.

Reversed and remanded with instructions.


text:
    MANGUM v. TURNER.
    No. 5187.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1940.
    Rehearing Denied Sept. 9, 1940.
    ■ J. D. Thomas, of Farwell, and Ernest Tfbbets, of Plainview, for appellant.
    Aldridge & Aldridge, of Farwell, for ap-pellee.
   FOLLEY, Justice.

This suit was instituted by the appellee, O. G. Turner, against Carrie Lilliard, Carl Mangum and the Campbell Ice Cream Company seeking recovery against Carrie Lilliard and Carl Mangum for house rent alleged to have been due upon a business building belonging to the appellee in the town of Friona, Parmer County, Texas, and seeking foreclosure of an alleged landlord’s lien upon certain property in the building against all the parties, such property including a soda fountain and certain other store fixtures. Carl Mangum answered alleging that he had purchased the personal property from Turner; that he had sold it to Carrie Lilliard; that he had received from her a chattel mortgage upon such property to secure the unpaid purchase price; and asked for a judgment for his debt against Carrie Lilliard and for foreclosure of his lien against her and all other parties to the suit.

Upon a trial before the court without a ■jury the appellee Turner recovered judgment against Carl Mangum and Carrie Lilliard for the sum of $137.50 representing rent on the building from August 1, 1938, to March 1, 1939, but no foreclosure of the alleged landlord’s lien was decreed in his favor. This recovery was allowed as against Mangum upon the theory that he was a partner with Mrs. Lilliard. The court further adjudged and decreed that Carl Mangum recover from Carrie Lilliard the sum of $309.37 and decreed foreclosure of his chattel mortgage lien. From this judgment only the1 appellant, Carl Mangum, has appealed to this court.

The evidence reveals that about May 1, 1938, Mrs. Lilliard rented appellee’s building in Friona for the purpose of conducting a confectionery business. The appellee then owned the fixtures in the building. Mrs. Lilliard, Mangum and Turner entered into a parol agreement whereby Mrs. Lilliard was to purchase these fixtures for $250 with money furnished and to be furnished by Mangum. On May 28, 1938, Turner executed a bill of sale conveying the fixtures to Mangum for the recited consideration of $250. Mangum, in turn, sold the property to Mrs. Lilliard, retaining a chattel mortgage thereon to secure her note to him for $250. Thereupon Mrs. Lilliard began a confectionery business in appellee’s building.

The only issue in this case is whether or not there was sufficient testimony to support the court’s finding that a partnership existed between the appellant and Mrs. Lilliard, upon which finding the judgment against Mangum was based. It is not contended that the appellant made any rental contract with the appellee or that he was liable for the rent unless he was bound as a partner in the rental agreement made between Mrs. Lilliard and the appellee.

The appellant denied both by verified pleadings and by his testimony that any partnership existed between him and Mrs. Lilliard. The only testimony in support of the existence of the partnership comes from Mrs. Lilliard. Her testimony on direct examination in regard to the matter was in part as follows: “I started cleaning up and getting ready for business. I told him that if I had enough money to put in patent medicines and sundries that I could make a whole lot more money out of it. Carl said that he thought so too, • and that if it suited me we would just go in partners on it and he would furnish the money to run it, and I would run it and we would be partners in it. I agreed to this and then he let me have about $150.00 at one time to buy some more merchandise for the store. As to what the terms of our partnership were, well Carl was to furnish the money and I was to run it, if we got a chance to sell it, we were going to sell it and Carl was going to get back what he put in it, and we were to divide what was left. If we didn’t sell it, I was going to do the running of it and we were going to split what we made. I certainly did not get any salary. It was a partnership and I was not supposed to draw a salary. We had a chance a little bit later to sell it for $400.00 profit, and I wanted to sell it but' Carl said that we could make more money by keeping it and we didn’t sell it.. I later had a chance to sell it and pay everything, that is pay off the purchase price of the fixtures and what else he owed* but Carl wouldn’t sign a release of the mortgage that he had unless I paid him all that he claimed I owed him. I had drawn on him for $300.00 in addition to the original $250.00. As to why I gave him a mortgage if it was a partnership. In the first place he said that he was a married man and he didn’t want his wife to know it. He then said that if anything happened to him his heirs could tell what he had in it. He also had to sell the note to the bank to get money to keep on operating the business.”

On cross-examination she further testified that she gave Mangum the note and mortgage because the latter stated that he was a married man and that it would look better for her to do so; that if something happened to him the note would evidence the amount he had in the business; that when the business was “wound up” Mangum was to be paid the sum of $250 and then the two would “split the profits”; that there were no profits to divide; that when she needed to buy some supplies she wrote drafts on Mangum and that he paid them; and that she got as much as $300 from him by his paying her drafts.

The appellant contends that the above-testimony is insufficient to support the court’s finding that a partnership existed between him and Mrs. Lilliard. He asserts, that at most the arrangement between them falls within the rule announced in Strawn Nat. Bank v. Marchbanks, Tex.Civ.App., 74 S.W.2d 447, 450, writ refused, to the effect that a person engaged in business, who looks to interest in profits as a fund affording compensation for services rather than as property to which he has a right by reason of being a part owner of the principal, is not a “partner”. We recognize the rule thus announced as being a correct one, but we think it has no application to the facts of the instant case. In the former case Marchbanks agreed to take care of cattle purchased by another under an agreement that the title to the cattle should remain in the purchaser and that Marchbanks should get one-half of the proceeds to be realized when the cattle were sold. In that case it was held that Marchbanks was an employee and not a partner and hence the purchaser was not liable for the debt incurred by Marchbanks in buying feed for the cattle. In that same case we think the true criterion for determining the status of parties in similar situations is announced in the following language: “If Marchbanks had a property right in profits by virtue of his being a part owner of the principal, he was a partner, but, if he was not a part owner of the principal, and his only right in the profits was to look to them for compensation, he was not a partner.”

A very terse and accurate interpretation of this same rule may be found in Buzard v. First Nat. Bank of Greenville, Texas, 67 Tex. 83, 2 S.W. 54, 56, 60 Am.Rep. 7, as follows: “It is held in numerous cases that one who is to receive a part of the profits of a business as a compensation for his services is a partner; but that, if he is to receive a sum of money equal to a part of the profits, he is not.”

Another very clear and concise statement of the rule applicable to the facts of the instant case will be found in Goode v. McCartney, 10 Tex. 193, 195, wherein it is said: “And it is said, if one person advances funds, and another furnishes his personal services or skill in carrying on the business and is to share in the profits, it amounts to a partnership. It would be a valid partnership, notwithstanding the whole capital was, in the first instance, advanced by one partner, if the other contributed his time and skill to the business, and although his proportion of gain and loss was to be very unequal. It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or in lieu of brokerage, and that he be received into the association as a merchant, and not an agent. (3 Kent, Com. Sec. 43.) But, to constitute a partnership, there must be a community of profits, or a specific interest in the profits, as profits, in contradistinction to a stipulated portion of the profits, as a compensation for services; and this, in this class of cases, is a test of partnership.”

In other words, the true test of a partnership based upon an agreement to divide the profits of the business is whether or not there is a joint ownership in the profits as such or whether the profits are used merely as a measure to determine the amount of compensation due one of the parties. If there is a real ownership in the profits as such, the parties are partners, but if the division of the profits is merely used as a guide to determine the compensation due one of the parties, there is no partnership. Storey on Partnership, para. 33, et seq.; Kelley Island Lime & Transport Co. v. Masterson, 100 Tex. 38, 93 S.W. 427; Goode v. McCartney, supra; Ball v. Britton, 58 Tex. 57.

Under the above authorities we think the evidence in this case was sufficient to support the finding of the court that a partnership existed between the appellant and Mrs. Lilliard, and, in this con.nection, we think it is immaterial that the business yielded no profits and that in consequence Mangum shared in none. Freeman v. Huttig Sash & Door Co. et al., 105 Tex. 560, 153 S.W. 122, Ann.Cas.1916E, 446. By Mrs. Lilliard’s testimony above it may be reasonably inferred that there existed between her and the appellant a community of interests, a common enter-prize to be operated for the benefit of both upon the stipulation that each owned an interest and would share as a principal in its profits as such. We therefore think there was no error in the judgment of the trial court holding the appellant liable as a partner for the rent accruing after the formation of the alleged partnership.

The judgment is affirmed.


author: JACKSON, Chief Justice.

text:
    CLARK et al. v. WOMACK.
    No. 5184.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1940.
    Rehearing Denied Sept. 9, 1940.
    Clark & Stegall, of Fort Worth, for plaintiffs in error.
    John Myers, of Vernon, and Burford, Ryburn, Hincks & Charlton, of Dallas, for defendant in error.
   JACKSON, Chief Justice.

The record shows that on October 3(¾ 1937, J. H. Oates, Roy Hart and Sid Taylor, parties of the first part, entered into a contract with Addie Womack a feme sole, party of the second part, the provisions, terms and conditions of which material to a disposition of. this appeal are here quoted or stated in substance:

“1. Parties of the first part, at their own expense, desire to drill an oil and gas well on the South 100 acres of the North 210 acres of the West Half (W1^) of Survey No. 1, in Block No. 7, of the H. & T. C. Ry. Company’s Survey, Wilbarger County, Texas, hereinafter referred to as the Mary L. Womack Tract.
“2. Party of the second part, in consideration of the parties of the first part so drilling the above well and discovering and producing oil or gas therefrom in paying quantities', agrees, in keeping with the terms and conditions of this contract, to execute and deliver an oil and gas lease on the South 100 acres of the North 210 acres of the East Half (E%) of Survey No. 1, in Block 7, of the H. & T. C. Ry. Company’s Survey, in Wilbarger County, Texas. The form of said lease to be executed by Second Party is hereto attached, marked “Exhibit A”, and made a part hereof.”

The third paragraph concerns the furnishing of an abstract, the examination thereof in sixty days and the acceptance or rejection of the title.

“4. Upon the acceptance of the title to said land described in paragraph 2 of this contract within the time above provided, then parties of the first part agree to begin the actual drilling of said well, or cause the actual drilling of said well to be begun, all at their own expense, within ninety (90) days from the acceptance of said title, as aforesaid, upon the tract of land set forth in paragraph 1 of this contract, and to prosecute the same with due diligence until it is completed to a depth of 1500 feet, unless oil or gas is found in paying quantities at a lesser depth.”

The fifth paragraph requires the party of the second part to execute to parties of the first part an oil and gas lease on the land when the contract is. executed, a copy of which with the lease shall be placed in escrow with the Wichita National Bank of Wichita Falls, Texas, to be held until delivered. on the order of the second party when and if the drilling of a well is begun as provided in the contract.

The party of the second part, in compliance with the contract, executed an oil and gas lease, the terms of which necessary for the consideration of the questions presented we here quote or state in substance :

"Agreement made and entered into the 30th day of October, 1937, by and between Addie Womack, a feme sole, of Dallas, Dallas County, Texas, hereinafter called lessor (whether one or more), and J. H. Oates, Roy Hart and Sid Taylor, hereinafter called lessee:
“Witnesseth; That the said lessor, for and in consideration of One & °%oo Dollars cash in hand paid, receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of lessee to be paid, kept and performed, has granted, demised, leased and let, and by these presents do grant, léase and let unto the said lessee for the sole and only purpose of mining and operating for oil and gas and of laying pipe lines and of building tanks, power stations and structures thereon to produce, save and take care of said products, all that certain tract of land situated in the county of Wilbarger, State of Texas, described as follows, to-wit:” (The description of the land is as heretofore given.)
“This lease is to be void unless lessees drill, or cause to be drilled a well producing oil or gas in paying quantities as provided for in contract between lessor and lessees, of even date with this lease, which contract is made a part of this lease.
* * *
“If this lease becomes effective as provided for in said contract, then if no well be commenced on said land on or before the-day of October, 1938, this lease shall terminate as to both parties.” (The date in October is blank but the parties agree that it should be the 30th.)

The lease stipulates that written notice shall be given the lessees if lessor considers that they have not complied with the obligations imposed upon them by the lease stating specifically of what the breach consists and that lessees shall have sixty days thereafter to comply or begin complying with the specified breaches complained of, and — “Title to the minerals vested in grantee under this grant shall not end or revert to grantor until there is a complete, absolute and intentional abandonment by grantee of each' and all of the purposes, expressed or implied, of this grant and every part and parcel of the premises described in this grant.”

The record discloses that the contract and lease were placed in escrow in the Wichita National Bank; that the lessees named in these instruments transferred the contract and lease to H. S. Rose, who within ninety days after the title was accepted began to drill a well on the Mary L. Wom-ack 100 acres; that the lessor, Addie Wom-ack, failed to instruct the Wichita National Bank to deliver, the contract and lease; that suit was filed by the lessees and their assigns to require the lessor to direct the bank to deliver the contract and lease; that the suit was settled out of court, the contract and lease delivered and the time extended until June 1, 1938, for the resumption of drilling the well started on the Mary L. Womack tract or for the beginning of a new well thereon; and that lessees and their assigns agreed that they would proceed with the drilling with due diligence and a failure to so proceed would terminate the lease.

Mary L. Womack was the divorced wife of W. O. Womack, deceased, and owned the West Half of Section 1, Block 7, in Wilbarger County, and leased 100 acres thereof to Oates, Hart and Taylor on which they or their assigns agreed to drill a well. Addie Womack was the surviving wife of W. O. Womack, deceased, and owned the East Half of said Section 1, and by the terms and upon the conditions of the contract and lease under consideration leased and let to Oates, Hart and Taylor the 100 acres in controversy. The lessees of Mary L. Womack and their assigns drilled a well on her 100-acre tract to a depth of 1,500 feet but failed to discover oil or gas. No well was begun on the Addie Womack 100-acre tract prior to October 30, 1938, nor thereafter. On September 27, 1938, Chester F. Clark went to Dallas and consulted Mrs. Addie Wom-ack about paying her to continue the lease or correct the omission of the figures “30” by inserting them in the blanks as heretofore mentioned and secure consent from her to permit him and the parties holding under the provisions of the lease and contract executed by her to begin drilling a well on or before October 30, 1938. He advised Addie Womack that such parties were ready, willing and able to begin drilling a well on her 100 acres before said date but was informed by Mrs. Womack that she claimed such parties had no lease on the property and no right to drill on her land, declined to accept any money for rentals and advised him that so far as she was concerned the matter was closed. Mr. Clark testified that inasmuch as Mrs. Addie Womack denied their right under the contract aiid lease to the title to the oil and gas on the land, the lessees and their assigns could not afford to start a well thereon. He admitted that he never saw the contract or lease until after he acquired his interest and that he, J. M. Stegall, his law partner, and H. S. Rose had filed a suit in the District Court of Wilbarger County on December 9, 1938, against J. H. Oates, Roy Hart, Sid Taylor and E. L. Gilbert in which thej’- alleged they did not have access to the contract and lease which were in escrow at the time they acquired their interest.

On October 8, 1938, H. S. Rose, F. G. Cowden, O. R. Fautenhahn, Chester F. Clark and J. M. Stegall, as plaintiffs, instituted this suit in the District Court of Wilbarger County against Addie Womack to recover title and possession to the leasehold estate in'the land here involved and to obtain a reasonable time after judgment became final to begin drilling a test well for oil and gas on said South 100 acres of the North 210 acres of the East Half of said Section 1.

Mrs. Womack answered by general demurrer, numerous special exceptions, general denial, not guilty, pleaded the terms and provisions of the contract and lease and asked that plaintiffs take nothing by their suit, that her title be quieted and for any other and further relief to which she was entitled in law or equity.

We consider it unnecessary to make a more lengthy and detailed statement of the pleadings, since no complaint is made by either party of the sufficiency thereof.

At the close of the evidence the court directed the jury to return a verdict for the defendant, and upon the verdict so returned judgment was rendered that the plaintiffs rake nothing against the 'defendant, Mrs. Addie Womack, and that all claims asserted by them, jointly or severally, be cancelled and all clouds by reason of such claims be removed from her title, from which judgment, by writ of error, the plaintiffs, who will hereafter be called appellants, prosecute this appeal.

It is agreed that the appellants have' an interest in the leasehold estate if the contract and lease between Addie Womack and Oates, Hart and Taylor are enforceable.

The contract, the lease and the agreement by which the time for drilling was extended constitute one contract and must be considered together.

We note that there is no provision for a primary term and none requiring the payment of rentals.

The appellants challenge as error the action of the court in directing a verdict against them and refusing to peremptorily instruct a verdict in their behalf and in failing to adjudge to them a leasehold estate in the acreage involved and decree to-them a reasonable time to begin drilling a test well thereon. They contend under this proposition that when all the terms, conditions and provisions of the contract are considered together they show as a matter of law that lessees and their assigns were obligated to drill a well on the Mary L. Womack lease, discover and produce oil or gas thereon in paying quantities or drill a well on said tract to a depth of 1,500 feet and as a well was drilled to a depth of 1,500 feet thereon in the time required and the contract and lease were delivered, title to the oil and gas vested in them notwithstanding the well drilled did not produce oil or gas in paying quantities since such requirement was a covenant and not a condition precedent.

In Reinert v. Lawson, Tex.Civ.App., 113 S.W.2d 293, the court distinguishes a “covenant” from a “condition precedent”.

In Burns v. American Nat. Ins. Co., 280 S.W. 762, 765, the Supreme Court, speaking through the Commission, says: “A ‘condition precedent’ is such as must happen or be performed before a right can accrue to enforce an obligation dependent upon the happening or performance thereof against another in favor of one claiming such right.”

In 15 C.J.S., Condition, 811, a condition precedent is defined as follows: “In general, one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed; one which must be performed before the interest affected by it can vest; a fact which must exist before a duty of immediate performance of a promise arises; and a condition which involves anything in the nature of consideration is, in general, a condition precedent, and so usually where the condition is in the naturé of a consideration for the concession, its performance will be regarded as intended to precede the vesting of any right, and so a condition precedent.”

The words “condition precedent” are given the same meaning in 10 Tex.Jur. 343, para. 197, and to the same effect is the definition in 12 Am.Jur. 849, para. 296.

The tract of land is granted, demised, leased and let on the covenants and agreements to be kept and performed by the lessees and their assigns “for the sole and only purpose of mining and operating for gas and oil”, etc. The lessor “in consideration” of the lessees “drilling the above well” on the Mary L. Womack tract “and discovering and producing oil or gas therefrom in paying quantities agrees, in keeping with the terms and conditions of this contract, to execute and deliver an oil and gas lease” on her land. The form of the lease to be executed was attached to and made a part of the contract and, as executed, contained this stipulation: “This lease is to be void unless lessees drill, or cause to be drilled a well producing oil or gas in paying quantities as provided for in contract between lessor and lessees, of even date with this lease, which contract is made a part of this lease.”

Appellants admit, in effect, that title to the oil and gas did not vest in the lessees by delivery of the contract and lease since they say they were required to either discover oil or gas in paying quantities on the Mary L. Womack tract or to drill a well thereon to a depth of 1,500 feet. The lessees and their assigns could perform the obligations imposed upon them in the instruments under consideration by discovering and producing oil or gas in paying quantities on the Mary L. Womack tract without drilling to the depth of 1,500 feet, but we find nothing in the instruments considered separately or together and nothing in the record that would warrant the conclusion that the parties intended that drilling a well 1,500 feet would constitute a performance thereof and title thereby for the purpose of exploring for oil and gas vest in the lessees.

A deed may contain one or more conditions which must be performed before the title to the property therein described vests in the grantee by such conveyance and the grantor may require any lawful condition he may elect. The conveyance may require, in order for the title to pass, that the grantee erect certain improvements, build a church, subdivide the property, cultivate and sell to him certain crops, or, may provide that the grantee “begin operations for the production of oil or gas”. 12 Tex.Jur. pages 124 and 125, para. 32; Imperial Sugar Co. v. Cabell et al., Tex.Civ.App., 179 S.W. 83; Co-operative Vineyards Co. v. Ft. Stockton Irrigated Lands Co., Tex.Civ.App., 158 S.W. 1191.

In our opinion the stipulations providing for the production of oil and gas in paying quantities on the Mary L. Wom-ack tract and that the lease was void unless a well producing oil or gas in paying quantities was so drilled constituted the primary consideration and a condition precedent to vesting title in the lessees and their assigns. We are therefore of the opinion that the court did not err in directing a verdict in behalf of Addie Womack and refusing to direct a verdict in favor of appellants.

It is true the lease stipulated that if it became effective as provided for in the contract and no well was commenced on or before October 30, 1938, it should terminate as to both parties and that title to the minerals vested in the grantee under the lease should not end or revert to the grantor until an intentional abandonment by the grantee; nevertheless, in our opinion the lease never became effective and the title to the minerals never vested in the lessees for the reason thát neither they nor their assigns drilled a well on the Mary L. Womack tract which produced oil or gas in paying quantities and the express provision of the lease is that unless they drill or cause to be drilled a well— not to a depth of 1,500 feet, but a well that produces oil or gas in paying quantities — the lease of Addie Womack is to be void. These instruments obviously constituted what is termed in law an “unless” lease, and our decision finds support in the holding of W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Caruthers v. Leonard, Tex.Com.App., 254 S.W. 779; and 31 Tex.Jur. para. 134, pages 746, 747.

If we are correct in the foregoing conclusions the other assignments urged by-appellants do not present error and require no discussion.

For the reasons stated, the judgment is affirmed.


author: SMITH, Chief Justice.

text:
    SCHNITZER v. RICHARDSON. District Clerk, et al.
    Motion No. 13998.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 15, 1940.
    Samuel Peterson and Bonham & Weller, all of San Antonio, for appellant.
    Neel & King, of Corpus Christi, for appel-lees.
   SMITH, Chief Justice.

In the matter in hand, it appears that the district judge heard evidence on relator’s duly contested application for leave to appeal in forma pauperis, but in denying such application granted relator leave to appeal upon condition that he deposit cash for costs in the sum of $500, or file in lieu thereof his appeal bond for costs in the sum of $1,000. Relator now asks leave to file his petition for “judgment setting aside said order” of the court below, and for mandamus requiring the clerk of the trial court to furnish relator with a free transcript of the record, and the court reporter to furnish a free statement of facts for use in this appeal, under the provision of Art. 2266, as amended, and Art. 2278a of Vernon’s Civil Statutes.

This being an original proceeding here, this Court has no jurisdiction to either affirm, set aside or reverse the order of the trial judge requiring relator to deposit a sum in cash or furnish an appeal bond for a stipulated sum; such jurisdiction to review and revise is purely appellate, which cannot be invoked in this original proceeding.

On the other hand, the question of relator’s inability to pay or secure all or a part of the costs of appeal is primarily one of fact to be determined by the trial, judge from evidence adduced upon the hearing of a contested affidavit of inability. On the hearing in this instance relator testified' at length upon that issue. If full favorable effect be given, his testimony and all deducible inferences therefrom, he would be entitled to the right of appeal under the statute. But it is obvious that the trial judge did not give full credence to all relator’s testimony, but, on the contrary, found as a fact therefrom that relator was able to pay or secure at least a part of the costs of appeal. Looking at the record as presented, we cannot say, as a matter of law, that the trial judge (presumably acquainted with the parties and their situations, and seeing and hearing the witnesses testify upon the issue) abused his discretion in holding that the evidence showed relator is able to pay or secure a part of the costs of appeal. This being so, this Court is without authority to require the officers of the trial court to furnish a free record to relator to enable him to prosecute an appeal in the case.

Under the case thus made relator’s previously tendered and rejected petition for mandamus did not show probable cause for that relief, and his motion for rehearing upon his previously denied motion for leave to file said petition must be overruled.


text:
    LYLES v. OHEIM.
    No. 14096.
    Court of Civil Appeals of Texas. Fort Worth.
    May 31, 1940.
    Rehearing Denied Sept. 6, 1940.
    H. M. Muse, of Wichita Falls, for appellant.
    Stine, Bunting & Stine, of Henrietta, for appellee.
   SPEER, Justice.

This action is a consolidated one of two matters originating in the Probate Court of Clay County, Texas, in the administration of the estate of J. L. Huggins, deceased, pending in that court.

J. L. Huggins died testate in 1928. His estate consisted of large property interests, both in and out of the State. His will provided that all property outside the State should be sold promptly and after payment of any debts owing, the proceeds to be divided ratably among twenty-three named beneficiaries. A ranch in Clay County, consisting of more than 13,000 acres, was to be operated for ten years, at the end of which time it was to be sold in a body. There were several hundred head of livestock, and ranch equipment, to be disposed of at about the time the ranch lands were to be sold.

During the time involved in this suit, A. J. Oheim was administrator, de bonis non, of the Huggins estate. C. J. Sherrill was County Judge through the years 1935 to 1938, both inclusive, and John V. Lyles became County Judge of Clay County at the beginning of the year 1939.

In compliance with the terms of the will, the administrator sold the ranch lands, during 1938, subsequent to the date on which he made his annual report, early in June of that year, and received for the estate $225,-005.

There were other items of receipts by the administrator during that period of time, which increased the total receipts coming into his hánds to $299,844.47. On December I, 1938, upon request, the administrator, by check No. 273, paid to Judge Sherfill $1,-499.22, it being one-half of one per cent, as commissions or fees on said receipts.

On the following June 13, 1939, when the annual account of the administrator came on for approval by the then County Judge Lyles, the item of fees paid to Judge Sher-rill by check No. 273, and certain other small items, not necessary to mention, were disallowed; otherwise the account was approved. The administrator appealed from the ruling of the court to the District Court of Clay County.

Judge Lyles filed, in the cause of Estate of J. L. Huggins, deceased, a motion and application for allowance to him of a commission and fees of $1,486.93, it being one-half of one per cent on receipts coming into the administrator’s hands since the last annual report, and prayed that the court order the administrator to pay him that sum out of said estate.

The then County Judge, being claimant, was disqualified as County Judge in said hearing, and Hon. Luther Hoffman was chosen.special judge to hear the controversy. The administrator answered and plead payment to the former County Judge, Sherrill. Judge Sherrill, his official bondsmen and the surety on the administrator’s bond were either interpleaded or intervened upon their own initiative, but we need not go into those details here.

A hearing was had before the special County Judge and an order was entered denying the claim of Judge Lyles, from which ruling he perfected an appeal to the District Court of Clay County.

After consolidating the two causes in which the estate was involved, a trial was had in the District Court, resulting in a judgment favorable to the estate and the administrator. Judge Lyles perfected this appeal from that judgment.

Judge John V. Lyles is the appellant and A. J. Oheim, individually and as administrator, is appellee.

It is conceded by all parties that there is no conflict in the evidence, and, as we see it, there is only one question of law for our determination, under the established facts.

Appellant, in his brief, says there is only one question for this court to answer; it is: “Are the commissions to a County Judge on the receipts of an estate, due to the County Judge, who acts upon and approves the Annual Account of such Administrator, showing the receipts of such estate received by the Administrator, or are they due to the County Judge who was in office'when such estate and such Administrator receive such receipts ?”

It is earnestly contended by appellant that the trial court erred in denying him the relief sought when the undisputed evidence showed that he, as County Judge of Clay County, passed upon, as it was his official duty to do, the annual account of the administrator for the fiscal year of June 8, 1938, to June 8, 1939, and that since the commissions on the receipts of the administrator could only be paid upon the approval of the exhibits and annual account, the administrator improperly and illegally paid said commissions to Judge Sherrill, who preceded appellant in office.

The statute relied upon by both parties here is Article 3926, R.C.S.1925, which, in part,, reads: “The county judge shall also receive the following fees: 1. A commission of one-half of one per cent upon the actual cash receipts of each executor, administrator or guardian, upon the approval of the exhibits and the final settlement of the account of such executor, administrator or guardian, but no more than one such commission shall be charged on any amount received by any such executor, administrator or guardian.”

We are unable to find any case in this State where this article has been construed relating to the controversy now before us. This being true, it becomes our duty to construe the language of the Legislature as applicable to the instant facts. The aggregate fees prescribed were intended to compensate the officer who performed the official duties, and not for his successor. Where, as in this case, a County Judge does not succeed himself, his successor, in many instances, is called upon to pass upon the annual account of the administrator, covering a period when his predecessor was in office.

It is argued by appellant that by Article 3925, R.C.S., provisions are made for fees to the County Judge for each order of sale and order of confirmation, covering the duties performed by Judge Sherrill. The same article provides a fee of fifty cents for “each order not otherwise provided for”. The last mentioned item would cover an order approving an annual account, the duties performed by Judge Lyles, since there is no specific fee named for the entry of that order. The one-half of one per cent commission on cash receipts by the administrator is by Article 3926, made additional fees to those enumerated in Article 3925.

Appellant relies upon cases of Goodwin, Special County Judge, v. Downs, Tex.Com.App., 280 S.W. 512, and Grice v. Cooley, County Judge, Tex.Civ.App., 179 S.W. 1098. We have devoted much time to a study of those cases and have concluded that they are not controlling here.

In Goodwin v. Downs, supra, the question involved was whether a County Judge was entitled, under Article 3926, to one-half of one per cent commission on a large sum received by the administrator for the performance of a contract which had been entered into by a decedent. In opposition to the claim, it was contended that, since a very large part of the money received had to be promptly disbursed by the administrator for labor and materials, the judge was only entitled to commissions pn the profit derived from the contract. It was held that commissions were due on the whole amount received. While it is true the opinion was based upon a construction of Article 3926, yet there is no analogy between issue in that and the instant case.

In the Grice v. Cooley case, supra, as said by the court: “The issue under the agreed statement of the parties, simply stated, is: When are the commissions provided for by article 3850 [now article 3926] payable?” It seems to us from a reading of that case, that the controversy presented involved only the question of when the County Judge could collect his fees, under Article 3926, supra, more especially the clause which reads: “ * * * upon the approval of the exhibits and the final settlement of such executor, administrator or guardian * * *.” Put another way, was the county judge required to wait until the final settlement of the estate was made or a guardianship closed and the final report filed and approved before collecting the commission due him under the law? The effect of the holding in that case is that the judge may demand and collect his commission, “upon approval of the exhibits”, and is not required to wait until the administration or guardianship is closed. In holding that the fees allowed to the County Judge were collectible “upon approval of the exhibits”, the court further held that “exhibits”, as used in the statute, embraced annual accounts, such as were then under consideration. Appellant argues that the language used supports his contention. Our statutes pertaining to estates of decedents, and guardian and ward, so frequently refer to exhibits in reports that we are led to believe that the reference to that term by the court in the case under discussion lends no more support to appellant’s contention than to those of appellee. It is undisputed that the sale of the real estate was made and the money received by appellee during the administration of Judge Sherrill. The application made by the administrator to sell the real estate was of necessity, under Article 3566, R.C.S., accompanied by an “exhibit” in writing, verified by affidavit, showing the condition of the estate. The application and the exhibit were passed upon by Judge Sherrill before entering an order authorizing the administrator to sell. The record discloses that all the statutory requisites of a valid sale were complied with by the administrator under orders of the court, presided over by Judge Sherrill. We think, as did the court in Grice v. Cooley, supra, that the provisions of Article 3926 were not intended to require the judge to wait until the estate was closed before collecting his commission, but was due and collectible, “upon approval of the exhibits”. The exhibit filed with the application to sell and all subsequent reports were approved by Judge Sherrill until the sale was consummated, the money collected and the administrator made a deed of conveyance to the purchaser. When these things were done, we believe that in fairness, he had earned the commission allowed by law.

Little can be accomplished in this discussion by a comparison of the responsibilities resting upon the respective judges in this case, in regard to the duties performed by each. Those duties are all controlled by statutes, and each should be strictly observed. The acts of Judge Sher-rill in receiving the application to sell, along with the exhibits thereto, their consideration, order to sell, action upon the report of sale, the requirement and approval of a sufficient sale bond by the administrator, the final confirmation of sale and order to make conveyance, are the all important factors which affect the estate being administered under the court’s orders. The ultimate object of our statutory provisions affecting estates, is that the property be protected against waste and dissipation. To our way of thinking, the acts and orders of the court in passing upon applications, exhibits and the confirmation of a sale when found to be fairly made, more effectually protect the estate than the approval or rejection of an annual account with its exhibits, which show the result of a sale made and the funds derived therefrom. The provisions of Article 3537 that the administrator shall make a report and exhibit of the condition of the estate at the end of twelve months after his appointment, and by Article 3320 that he shall thereafter make such a report and exhibit annually during the period of administration, and other provisions that the court shall look into these reports and approve or reject them, cannot supersede the former acts of the judge who likewise approved the application for sale and its exhibits and subsequently ordered the land conveyed and title divested out of the estate. When the administrator, under orders of the court, sells the estate’s land to a bona fide purchaser, who has complied with the provisions of the orders of court under which the sale is made, and receives a conveyance from the administrator, the title vests in such a purchaser, irrespective of whether or not that judge or his successor shall thereafter approve the annual account of the administrator in which he, of necessity, must make an accounting for the monies received at such sale. This is true, “notwithstanding such acts [of the administrator] or the authority under which they were performed may afterward be set aside, annulled and declared invalid.” Article 3323, R.C.S. The, conveyance made by the administrator under these orders of the court vests the title of the estate in the purchaser and constitutes prima facie evidence that all requirements of law have been complied with in making the sale. Article 3586, R.C.S.

It is certain that only one such commission as that provided in Article 3926 can be charged on any amount received by an administrator. It is indisputably true that the funds were in the hands' of the administrator during Judge Sherrill’s term of office. These funds were in the administrator’s hands as a result of the official acts of Judge Sherrill. In obedience to those services performed, the administrator had conveyed the lands of the estate to and vested the title in the purchaser. We believe that a fair construction of the Legislative intent, as reflected by Article 3926, is to compensate the judge who performed the services and caused the administrator to receive the funds during his administration. Under the undisputed facts in this case, we do not believe that the statutory provision was meant to inure to the benefit of his successor, simply because he was called upon to approve the annual account of the administrator in which was reflected the official acts of his predecessor. As above shown, the approval of the annual account of the administrator added nothing to the validity of the orders of the previous judge under which the sale was made. Nor would a disapproval of the account and its exhibits affect the validity of those proceedings. The will of the testator provided for the sale of this ranch land at the end of ten years; that time expired during the last year of Judge Sherrill’s term of office, and if he had not cooperated with the administrator in making the sale, as he did, the intentions and desires of the testator would have been thwarted, or at least delayed longer than expressed by the testator.

In addition to the reasons we have assigned for the construction we have placed upon the language of Section 1, Article 3926, we note that the commission here in controversy is allowed by that article upon the actual cash receipts of each administrator, “* * * ^lpon the approval of the exhibits * * To give that provision the meaning contended for by appellant, we would have to substitute the word “for” for the word “upon”, as used in the statute, and cause it to read, “* * * for the approval of the exhibits * * Sections 2, 3, 4 and 5 of the same Article likewise provide specified fees allowed to the County Judge. Each of those sections begins with “For”, viz: Section 2: “For each case of lunacy”, so much; Section 3: “For presiding over the commissioners court”, so much, and so on.

In the construction of a statute, we must presume that every word was intentionally used by the Legislature for the purpose of making its intention clear. Gulf C. & S. F. Ry. Co. v. Blum Independent School District, Tex.Civ.App., 143 S.W. 353, writ refused. If the Legislature had intended that the commission in controversy was to compensate the county judge for the approval of the exhibits, it would have said so, as it did in subsequent sections of the same article. We think the expression used by the article, * * * %tpon the approval of the exhibits”, etc., denotes the time when the commission can be demanded ; that is, the item may be demanded and collected when the exhibits are approved.

As indicated by us in the outset of this discussion, there were several parties to this suit besides the appellant and appellee. Their respective interests and liabilities were contingent upon the result of the controversy between the parties to this appeal. The judgment entered is lengthy, but it disposes of all the parties and the subject matter in controversy and, as framed, is final and complete. That part of the judgment referable to the parties to this appeal stipulates: “The court having heard the evidence submitted and the argument of counsel is of opinion and finds that said sum of $1,486.93 was properly paid by said administrator (appellee) to C. J. Sherrill, and that the said John V. Lyles (appellant) is not entitled to the same or any part thereof * * * *.” The judgment goes on to dispose of several small items which were included in the annual account of the administrator and disallowed by Judge Lyles as County Judge, but no point is made on this appeal concerning said items and we have not attempted to discuss them.

From what we have said, we believe the trial court properly disposed of the issues involved, and that the judgment should be affirmed. It is so ordered.