author: REYNOLDS, Justice.

text:
    ESTATE of Margaret Jane MORRIS, Deceased.
    No. 8959.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 31, 1979.
    Rehearing Denied Feb. 26, 1979.

      Kolander & Hamilton (R. C. Hamilton), Amarillo, for appellee.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson (John Mozola), Amarillo, for appellant.
   REYNOLDS, Justice.

The probate of an earlier will was set aside upon proof of a later, valid will made more than two years afterwards and against the contention that the application to probate the last will is a will contest barred by the two-year statute of limitations, but probate of the last will was denied after the jury found an agreement between the principal beneficiaries not to offer the last will for probate. Absent a concurrent agreement for a division of the estate, the agreement not to offer the last will for probate is ineffective to prevent its probate. Affirmed in part; reversed and remanded in part.

Margaret Jane Morris died 1 April 1975. She had executed a 19 November 1965 will leaving her property to her surviving husband, Henry M. Morris, the named independent executor, who offered the will for probate. A 29 April 1975 order entered in Cause No. 13,132 on the docket of the County Court of Potter County admitted the will to probate and decreed that Henry M. Morris receive letters testamentary.

Two years and five months later on 16 September 1977, Becky Jean Woodward Whitaker, the daughter of Mr. and Mrs. Morris, filed an application for probate of a will not produced in court, seeking the probate of a 22 March 1968 will of Margaret Jane Morris and the issuance to her of letters testamentary. By the provisions of the 1968 document, all previous wills were revoked; Henry M. Morris was bequeathed one dollar and the remainder of the decedent’s estate was devised and bequeathed to her two surviving children, Henry Lee Morris and Becky Jean Woodward, share and share alike; and Becky Jean Woodward was appointed independent executor without bond. In her application, Becky Jean alleged that the 22 March 1968 will was destroyed after the decedent’s funeral by Henry Lee, who stated that the will would upset their father. She further alleged that the 1968 will specifically revoked the 1965 will, the probate of which should be set aside and held for naught.

Henry M. Morris opposed the probate of the 1968 will. He alleged, inter alia, that Becky Jean is foreclosed from making the present application by the Tex.Prob.Code Ann. § 93 (Vernon 1956) two year limitation period for the contest of the probated 1965 will, is estopped by her knowledge and actions from asserting the 1965 will is not the last will and from offering the 1968 will for probate, and is bound by an agreement with her brother, to which Henry M. Morris is a third party beneficiary, to destroy the 1968 will.

Following a jury trial, the court submitted a charge to which no objection was made. Responsive to the special issues submitted, the jury found that Becky Jean and Henry Lee agreed not to offer for probate the 1968 will, and that the agreement was made for the benefit of their father, Henry M. Morris. The jury failed to find that Becky Jean knew her father was relying on the belief that the 1965 will was the last will of the decedent, or that Becky Jean unreasonably delayed in offering the 1968 will for probate, or that Becky Jean waived her right to probate the 1968 will. Accepting the verdict, the trial court found that, as a matter of law, the 1968 will has been proved in a manner required by the Probate Court, and that it revoked all prior wills.

The court then rendered judgment setting aside the probate of the 1965 will, denying the probate of the 1968 will and the grant of letters testamentary to Becky Jean, and decreeing that the estate of Margaret Jane Morris, deceased, pass according to the laws of intestate succession. Both Henry M. Morris and Becky Jean have appealed.

At the outset, the nature of Becky Jean’s action must be considered. Her application was for the probate of the decedent’s later 1968 will which, because of its destruction, could not be produced in court, a procedure authorized by Section 85. The filing was within four years after the testatrix’s death, which is the usual period of time permitted for the filing of an application for the probate of a will. Section 73. Section 83(b) recognizes the situation where, after a will has been admitted to probate, an application may be made for the probate of another will of the decedent, and provides that the court shall determine the matters of probate or intestacy. However, Henry M. Morris contends that Becky Jean’s action is a contest of the validity of the 1965 will and, being filed more than two years after the 1965 will was admitted to probate, is barred by the two-year statute of limitation imposed by Section 93 on will contests. We are not persuaded to that view.

With some exceptions not material here, Section 93 limits the period for contesting the validity of a probated will to two years after the will has been admitted to probate. In the classical sense, a will contest is a direct attack upon a decree admitting a will to probate. A &M College of Texas v. Guinn, 280 S.W.2d 373, 377 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.). A direct attack is an attempt to change the decree in a proceeding brought for that specific purpose. Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 167 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.).

But here, although Becky Jean alleges the probate of the 1965 will should be set aside because the 1965 will was revoked by the later 1968 will she offers for probate, the specific purpose of her application is to secure the probate of the 1968 will. Thus, her action does not meet the standard test of a direct attack upon the decree admitting the 1965 will to probate. Moreover, it has been authoritatively pronounced that the admission of a prior will to probate interposes no obstacle whatever to the timely probate of a later, valid will, which revokes all prior wills, as the last will of the testator. It is not necessary that a separate contest be first instituted to revoke the earlier will admitted to probate, because the probate of the last will, revoking all others, has the incidental effect of revoking the former probate, whether there is any pleading to that effect or not. Vance v. Upson, 64 Tex. 266, 268-71 (1885).

The Vance pronouncements were made, as Henry M. Morris stresses, with reference to an application to probate a later will filed within ten months of the date the earlier will had been admitted to probate, and the question of a limitation period for a contest was not addressed. Still, the Vance pronouncements have been accepted for the principle that the timely probate of the last will is not a contest within the purview of, nor governed by, Section 93, although more than two years have elapsed since the probate of an earlier will. Comment, Procedural Content of Will Contests, 14 Baylor L.Rev. 401, 407-08 (1962); Bradford v. Bradford, 377 S.W.2d 747, 748 (Tex.Civ.App.—Texarkana 1964, writ ref'd n. r. e.); Note, Will Contest — The Probate of a Subsequent Will is Not a Contest, 16 Baylor L.Rev. 293 (1964). Beyond that, to say that the interplay of Sections 73, 83(b) and 93 converts any timely application for the probate of a later will into a contest of the validity of any earlier will admitted to probate more than two years previously and, thereby, bars probate of the last will, would, in that instance, destroy the right and power specifically given one to make disposition of property by a valid last will and testament. Sections 57 and 58.

Because a testatrix has the legal right to devise her property as she sees fit and to prescribe terms upon which her bounty should be enjoyed, Van Hoose v. Moore, 441 S.W.2d 597, 613 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.), the intent of the Probate Code is more accurately reflected by a determination, and we hold, that a timely application for probate of the testator’s last will is neither a contest of the validity nor barred by the probate of an earlier will. If the probate of the last will is to be defeated, it must be for some other reason.

One of the reasons given by Henry M. Morris to defeat the probate of the 1968 will is that, contrary to the court’s finding that the will was proved as a matter of law, the evidence did no more than raise fact issues of the execution and contents of the will. The evidence must be considered in connection with the provisions contained in Sections 84(b)(1), 85 and 88(a) and (b) which, taken together, prescribe the elements that must be proved, and the sources and standards of proof, for the probate of a written will which cannot be produced in court.

Mr. Jerry Kolander, the attorney who prepared the 1968 will and who was one of the subscribing witnesses, identified a conformed copy of the original 1968 will which was taken from his files and received in evidence. He testified to the competency of Margaret Jane Morris to make a will, the contents of the will, its execution under the formalities to make it a valid will, and to its non-revocation. The cross-examination of Mr. Kolander with respect to these matters was limited to his independent recollection of “what the will did,” to which Mr. Kolan-der replied, “In general terms I could remember that she excluded her husband and left it to her children.”

Mr. Kolander’s secretary, the notary who took the acknowledgments of the testatrix and the subscribing witnesses to self-prove the will and conformed the copy introduced in evidence, corroborated Mr. Kolander’s testimony of competency and execution. She was not cross-examined with respect to either of these matters.

Becky Jean said that she had possession of the 1968 will for seven years before her mother’s death. She testified that the conformed copy identified by Mr. Kolander was a true and correct copy of the original will which Henry Lee read and burned after their mother’s funeral. Her testimony of the contents of the will and its destruction was not subjected to cross-examination. It was the testimony of Henry Lee that Becky Jean gave him the will, explained its contents which he did not read, and that he, with Becky Jean’s total agreement that the will would be upsetting to their father, burned the will, which “I feel very sure . was my mother’s will.”

Henry M. Morris does not challenge the accuracy of any part of this evidence other than by his contention that Mr. Ko-lander, an associate of Becky Jean’s attorney of record, and his secretary, are, in the eyes of the law, interested parties with Becky Jean, and their testimony merely raises fact issues. Generally, evidence given by an interested party raises an issue of credibility upon which the jury must pass; however, the rule has its exception. If the testimony of the witness is clear, positive and uncontradicted either by other witnesses or circumstances, including lack of cross-examination, it may be that the jury should not be allowed to speculate as to the veracity of the witness. Collora v. Navarro, 574 S.W.2d 65, 68-70 (Tex.1978).

Our review of the evidence reveals that the cause of non-production of the 1968 will is undisputed. A conformed copy of the will is in evidence without objection. The verity of the sworn testimony given by Mr. Kolander and his secretary as to the testatrix’s competency and the execution of the will was in no way challenged, either through cross-examination or by other testimony. The facts establishing the elements prerequisite for probate stand undisputed, unchallenged and uncontroverted. In this circumstance, there were no disputed facts to resolve, Rolfe v. Swearingen, 241 S.W.2d 236, 239-40 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.), and no alternative to admitting the 1968 will to probate, Nes-bett v. Nesbett, 428 S.W.2d 663, 664 (Tex. 1968), absent some other rational ground.

Another reason advanced by Henry M. Morris to defeat the probate of the 1968 will is estoppel. He pleaded that Becky Jean, with knowledge of the existence of the 1968 will at the time the 1965 will was probated, allowed him to rely to his detriment on the fact that the 1965 will was the last will, and is thereby estopped from asserting that the 1965 will is not the last will of Margaret Jane Morris.

The species of estoppel indicated by the pleading is equitable estoppel or estoppel in pais. To show its applicability here, Henry M. Morris had the burden to plead and prove the facts that Becky Jean (1) made a false representation to him or concealed material facts from him, (2) with knowledge, actual or constructive, of those facts, (3) while he was without knowledge, or the means of knowledge, of those facts, (4) with the intention that it should be acted on, and (5) that he relied on or acted on it to his prejudice. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952).

The testimony bearing an estoppel is summarized. Becky Jean testified that it was her intentions and desires to have the 1968 will probated; she never agreed with Henry Lee to destroy it, and she could think of nothing to do to keep him from destroying it; Henry Lee told her “to keep my mouth shut and not to say anything to anybody about it;” she searched for, but could not find, a copy of the destroyed will; she had no experience with legal matters and did not know she could apply for a lost will until her uncle found a copy in September 1977; and she never gave up her rights under the last will or elected to be bound by the 1965 will. She acknowledged that she knew of the 1965 will both before and after she knew Henry M. Morris was going to probate it; she did not tell her father there was a later will which left him nothing; she did not object to his sale of the home; she received some items of property out of her mother’s estate; and, after her mother’s death, checks drawn on her father’s account were paid to or for her benefit.

Henry M. Morris was told about the 1968 will by Henry Lee in September of 1977. Before that time, Henry M. Morris testified, he had never heard of the 1968 will; the majority of the items inventoried in the estate of Margaret Jane Morris had been sold or changed in form; and that since Mrs. Morris’s death, he had given to or paid for Becky Jean over $8,500 in cash.

Henry M. Morris argues that his foregoing testimony and Becky Jean’s acknowledgments conclusively establish estop-pel. The isolated testimony to which he refers comes from interested parties and is not without contradiction; but, even given its verity without regard to the other evidence, it fails to establish all of the essential elements of estoppel as a matter of law. For example, the testimony on which Henry M. Morris relies is mute with respect to whether Becky Jean intended that her father should act upon her conduct. A consideration of all of the evidence bearing on estoppel shows that it does no more than create fact issues concerning the elements of estoppel.

Given the pleadings and evidence, the court submitted, without objection to the manner of submission or request for other issues, three issues referable to estoppel. The issues, and the jury’s response thereto, are:

SPECIAL ISSUE 2
2(a) Do you find that Becky Jean Woodward knew that her father, Henry M. Morris, was relying on the belief that the will of Margaret Jane Morris which he offered for probate was the last will and testament of Margaret Jane Morris?
Answer “yes” or “no”.
ANSWER: NO
If, and only if, you have answered Special Issue 2(a) “yes”, then, and only then, answer Special Issue 2(b).
2(b) Do you find that Henry M. Morris had neither the knowledge, nor reasonable means of obtaining the knowledge, that the will of Margaret Jane Morris which he offered for probate was not the last will of Margaret Jane Morris?
Answer “yes” or “no”.
ANSWER: _
If, and only if, you have answered Special Issue 2(b) “yes”, then, and only then, answer Special Issue 2(c).
2(c) Do you find that Henry M. Morris relied to his detriment on the belief that the will of Margaret Jane Morris which he offered for probate was the last will of Margaret Jane Morris?
Answer “yes” or “no”.
ANSWER: _

Henry M. Morris contends that the jury’s negative answer to special issue no. 2(a) is against the great weight and preponderance of the evidence. Even granting the correctness of the contention, it does not vitiate the portion of the judgment which negates the defense of estoppel.

To estop Becky Jean from asserting that the 1965 will is not the last will, it was incumbent upon Henry M. Morris to obtain a favorable finding on each of the elements essential to establish estoppel. See Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834, 838 (Tex.1968). While the court did submit three issues, two of which were conditionally submitted, the court did not submit all of the factual issues essential to the establishment of the defense of estoppel. Henry M. Morris did not request the submission of the omitted issues or object to the conditional submission, and Becky Jean made no objection. Thus, the parties acquiesced in the manner of submission, waiving a jury finding on special issues 2(b) and 2(c) if the jury returned, as it did, a negative answer to issue no. 2(a), as well as on the omitted issues. The jury, obeying the court’s instruction, did not answer the issues conditionally submitted. The consequence is that there is a deemed finding by the court from the conflicting evidence on one or more of the jury waived issues in support of the court’s judgment that there is no estoppel. Rule 279, Texas Rules of Civil Procedure; Bay Petroleum Corporation v. Crumpler, 372 S.W.2d 318, 320 (Tex.1963); Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 990—91 (1949); Bankers Standard Life Ins. Co. v. Atwood, 205 S.W.2d 74, 77 (Tex.Civ. App.—Austin 1947, no writ).

The remaining reason urged by Henry M. Morris to defeat the effect of the 1968 will is the jury-found agreement that Becky Jean and Henry Lee made for the benefit of their father not to offer the 1968 will for probate. It seems apparent that these findings are the basis of the portion of the judgment which denies probate of the 1968 will and decrees that the decedent’s estate shall pass according to the laws of intestate succession.

Henry M. Morris contends that the agreement not to offer the 1968 will for probate, coupled with the knowledge by Becky Jean and Henry Lee of the existence of the 1965 will, is sufficient in law to deny probate to the 1968 will and cause the decedent’s estate to pass by the 1965 will. Becky Jean argues, without challenging the jury findings, that the agreement itself is insufficient as a matter of law to prevent probate of the 1968 will because there is no accompanying agreement to dispose of the estate. To this extent, both parties attack the portion of the judgment decreeing that the decedent’s estate shall pass according to the laws of intestacy.

More than eighty years ago it was determined that the beneficiaries of a will may agree among themselves as to the distribution of the property devised and bequeathed to them, and the agreement may be effected by an agreement not to probate the will. Stringfellow v. Early, 15 Tex.Civ. App. 597, 40 S.W. 871, 874 (1897, no writ). This is the family settlement doctrine, supported by the general principle that the property belongs to the beneficiaries under the will and since they may, by transfers made immediately after the distribution, divide the property as they wish, there is no reason why they may not divide it by agreement before they receive it in the regular course of judicial administration of the estate. Fore v. McFadden, 276 S.W. 327, 329 (Tex.Civ.App.—Texarkana 1925, writ dism’d). For this reason and because such agreements tend to put an end to family controversies by way of compromise, family settlement agreements are favored in law. Wedegartner v. Reichert, 218 S.W.2d 304, 309 (Tex.Civ.App.—Waco 1948, writ ref’d n. r. e.). And it remains our law that a family settlement in which all of the heirs and beneficiaries agree that a purported will shall not be probated is valid and enforceable. Salmon v. Salmon, 395 S.W.2d 29, 32 (Tex.1965).

Those cases, and their progeny, were concerned with an agreement not to probate a will coupled with an express agreement for the disposition of the estate. Here, however, there was no agreement for any disposition of the estate. Becky Jean denied any agreement at all; and Henry Lee testified, “We did not agree as to where the estate was going. We agreed as to what to do with the will.” The destruction of the will, Henry Lee stated, was to prevent “shock” to and the “upsetting” of their father.

None of the cases cited by the parties or discovered in our independent research speak only to an agreement not to probate a will. The initial inquiry, then, is whether the agreement not to offer the 1968 will for probate, standing alone, is effective to bar probate.

Every person who meets the requirements prescribed in Section 57 of the Probate Code “shall have the right and power to make a last will and testament, under the rules and limitations prescribed by law.” When one meets the legal requirements, properly executes a will and provides for a disposition of his property not violative of public policy, his testamentary disposition should be respected. Taylor v. Taylor, 281 S.W.2d 232, 237 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.). The right of testamentary disposition conferred by statute is as absolute as the right to convey property during life. In re Ca-ruthers’ Estate, 151 S.W.2d 946, 948 (Tex.Civ.App.—Amarillo 1941, writ dism’d judgmt cor.). Because one has the legal right to devise his property as he sees fit, State v. Rubion, 158 Tex. 43, 308 S.W.2d 4, 8 (1957), neither courts, juries, relatives nor friends of a testator may say how property should be passed by a will or rewrite a will because they do not like the distribution of the property. Farmer v. Dodson, 326 S.W.2d 57, 61 (Tex.Civ.App.—Dallas 1959, no writ). Indeed, it has been held that any contract which would modify established law or deprive the courts of their power to protect private rights and liabilities is contrary to public policy and void. Wampler v. Harrington, 261 S.W.2d 883, 891 (Tex.Civ.App.—Texarkana 1953, writ ref’d n. r. e.). It logically follows that an agreement not to probate a will unaccompanied by any agreement for distribution of the property would, if upheld, destroy the statutory right of testamentary disposition and the right of the courts to enforce that right.

Moreover, an agreement merely not to probate a will fails to invoke the principle which imparts vitality to the family settlement doctrine. The principle is that all of the decedent’s heirs and beneficiaries have the right to contract with reference to the property in lieu of probating the will, Stringfellow v. Early, supra, 15 Tex.Civ.App. 597, 40 S.W. at 874; Fore v. McFadden, supra, at 329, i. e., the right to make a family settlement. Salmon v. Salmon, supra, at 32. Consequently, the agreement found to exist here is ineffective to deny probate of the 1968 will unless it can be said, as Henry M. Morris argues, that there was an implied agreement for distribution of the estate.

The argument for an implied agreement is premised on the fact that Becky Jean and Henry Lee had knowledge of an alternative vehicle — the 1965 will— for disposing of the property, and the conclusion that, even though they might not have known of the prior will’s contents, they knew the property would pass under it if the 1968 will was destroyed. Yet, courts cannot make contracts for the parties; and, under the general law of contracts, before an implied agreement for disposition of the estate can be said to exist in the agreement not to offer the 1968 will for probate, it must appear that an agreement for the disposition of the property was so clearly within the contemplation of Becky Jean and Henry Lee that they deemed it unnecessary to express it and, therefore, omitted to do so, or that it is necessary to imply the agreement to effectuate the purpose of the agreement made. See, e. g., Hilbum v. Herrin Transp. Co., 197 S.W.2d 149, 152 (Tex.Civ.App.—Dallas 1946, no writ). But, here, the undisputed evidence is that there was no agreement at all for the disposition of the estate, and that the destruction of the will was not for the purpose of making some other particular disposition of the estate. Under these circumstances, we are not authorized to write a contract for the parties contrary to their expressed intentions.

The validity of the 1968 will, which revoked all prior wills, having been established and no legal reason being shown why its admission to probate should be denied, the probate of the 1965 will must be set aside and the 1968 will admitted to probate. The 1968 will appoints Becky Jean the independent executrix without bond. She sought letters testamentary, but the court, pursuant to its judgment, did not determine her entitlement to letters; however, because the 1968 will is entitled to probate, the court must, under the provisions of Sections 78 and 88(c), determine whether she is entitled to receive letters testamentary. See Reynolds v. Park, 485 S.W.2d 807, 819 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.). To this extent indicated, the points of error presented by the parties are granted; otherwise, the points and the cross-points are overruled.

Accordingly, the portion of the trial court’s judgment setting aside the probate of the 1965 will is affirmed, and the remaining portions of the court’s judgment are reversed. The cause is remanded to the trial court for the entry of judgment admitting the 22 March 1968 will of Margaret Jane Morris to probate and providing for, after a hearing to determine, a representative of the estate.

      . Sections subsequently cited refer to the sections of the Texas Probate Code.

      . It is of no concern here that Henry M. Morris, one of the beneficiaries under the 1968 will, was not a party to the agreement found to exist between Becky Jean and Henry Lee. The parties do not raise the issue, and it is apparent that by his reliance on the agreement, Henry M. Morris has affirmed and ratified it. See Stringfellow v. Early, 15 Tex.Civ.App. 597, 40 S.W. 871, 874 (1897, no writ).


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    Benjamin HAVARD et al., Appellants, v. Robert A. BROWN et ux., Appellees.
    No. 16127.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 31, 1979.
    Rehearing Denied March 14, 1979.

      John M. O’Quinn, Riddle, Murphrey, O’Quinn & Cannon, Houston, for appellants.
    Petry & Petry, Eugene D. Stewart, Carri-zo Springs, for appellees.
   OPINION

MURRAY, Justice.

Robert A. Brown and wife, Naomi Brown, owned a 526.34-acre tract of land located in Maverick County, Texas. On May 24, 1963, appellees conveyed this tract to C. Arleigh King and wife, Mildred Nutt King, by warranty deed. This deed contains a reservation, which reads as follows: “Grantors reserve unto themselves, their heirs and assigns in perpetuity an undivided one-half non-participating royalty (Being equal to, not less than an undivided Vwth) of all the oil, gas and other minerals, in, to and under or that may be produced from said land. . . . ” This suit was brought to settle a controversy between appellants and appellees over the interpretation of this reservation.

On February 23, 1950, appellees executed an oil, gas, and mineral lease covering this tract. The ten-year primary term on this lease was maintained by the discovery of a gas well prior to 1960 and by the payment of shut-in royalties until April 29, 1965, at which time the lease expired. This lease provided for a royalty payment to lessor of ⅛⅛ of all the oil, gas, and other minerals produced on said land. In the interim, ap-pellees conveyed by royalty deed on May 17, 1957, one-half of the royalties to John A. Wuensche, Sr., for a term of five years and as long thereafter as production continued in paying quantities. This interest expired on May 17, 1962.

This property changed hands twice before it was conveyed by warranty deed to Benjamin Havard, Fred A. Benson, and A. T. Gill, appellants, on December 15, 1972. In 1973, appellants executed an oil and gas lease with M-Tex, Inc., covering all the premises except the land surrounding the previously drilled and shut-in well, designated as Gill No. 1, which appellants reserved to themselves. The lease to M-Tex, Inc., provided for a royalty payment to lessors of %ths of all the oil, gas, and other minerals produced from said lands. Four wells were drilled and are being operated by M-Tex, Inc. The Gill No. 1 well is being operated and produced by appellants.

In 1975, M-Tex, Inc., sent to appellees and appellants division orders to approve the payment and distribution of royalties from the production of the four M-Tex wells. These division orders stipulated that appellants were to receive 6/wths of the proceeds, and appellees were to receive ½6⅛. Appellees refused to sign the division orders contending that they are entitled to ½ of the %ths royalty. Appellees further contend that the royalty on the Gill No. 1 well is 8/8ths; therefore, they are entitled to ½ of the production from this well.

Appellees base these contentions on the language of the reservation that they say is unambiguous and reserves to them ½ of any royalties paid on the production of oil, gas, and other minerals from the land in question. On the other hand, appellants contend that the reservation reserves to appellees only a ¼6⅛ royalty interest. In the alternative, appellants maintain that if the reservation should be interpreted as reserving V2 of any royalties, it was a mutual mistake, and the deed should be reformed. In response to this latter contention, appel-lees insist that reformation is barred by limitations. Furthermore, appellants alternatively maintain that the reservation in question is ambiguous, and the true intention of the parties from all the evidence was that appellees reserve only a ½6⅛ royalty.

The jury found as follows:

1. Robert Brown agreed to sell and convey to C. Arleigh King the land in question, including all the mineral and royalty rights, except for an undivided Vw th then outstanding non-participating royalty.
2. Any language in the deed from the Browns to Mr. King attempting to reserve to the Browns more than a Vwth royalty would be contrary to the mutual agreement of the Browns and Mr. King and would be the result of an accident or mistake.
3. At the time of the deed, the intention of the parties was that the Browns reserved by the terms of that deed a royalty equal to Vieth.
4. The Bowns and the Kings did not intend that the deed reserve an undivided ½ non-participating royalty interest.
5. King did not know nor should he have known that the Browns reserved a ½ non-participating royalty interest.

The trial court disregarded these findings and granted appellees’ motion for judgment n. 0. v. As a result, appellees were awarded a Vieth royalty on the M-Tex wells and V2 of the production from the Gill No. 1 well free and clear of any expenses and costs.

We believe that the reservation in controversy is ambiguous because the language used is subject to two or more interpretations. Smith v. Liddell, 367 S.W.2d 662 (Tex.1963). The ambiguity arises from the inclusion of the parenthetical phrase in the reservation. If the phrase were omitted, the reservation would read, “Grantors reserve unto themselves, their heirs and assigns in perpetuity an undivided one-half non-participating royalty of all the oil, gas and other minerals, in, to and under or that may be produced from said land . . . ” This language would reserve a ½ royalty, which gives the grantor ½ of all the oil, gas, and other minerals produced, and not ½ of any outstanding or future royalty. Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699 (1945); Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543 (1937); Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818 (Tex.Civ.App.—Houston 1957, writ ref’d n. r. e.).

It is apparent that by the insertion of the parenthetical phrase “(Being equal to, not less than an undivided Vwth)” the parties meant something other than a ½ royalty. We believe that it does not plainly and clearly appear from the terms of the reservation that the appellees reserved ½ of the royalties. The phrase “Being equal to” supports appellants’ interpretation that the reservation retained a ½6⅛ royalty. Appellants argue that the additional phrase “not less than” emphasizes that appellees were to receive a ½6⅛ royalty even if grantees entered into a lease that provided for less than a ½6⅛ royalty or no royalty. The parenthetical phrase equally supports appel-lees’ interpretation that the reservation retained ½ of the royalties and set a minimum royalty of an undivided ½6⅛.

Being ambiguous, extrinsic evidence is admissible to show the true intention of the parties. Home Indemnity Company v. Draper, 504 S.W.2d 570 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); See Moore v. Wimberley, 304 S.W.2d 709 (Tex.Civ.App.—Eastland 1957, no writ) and Outlaw v. Bowen, 285 S.W.2d 280 (Tex.Civ.App.—Amarillo 1955, writ ref’d n. r. e.). When extrinsic evidence is admitted and controverted, as it was in this case, the matter of resolving the conflict in the evidence is properly left to the jury. Noble v. Hunter, 441 S.W.2d 580 (Tex.Civ.App.—Amarillo 1969, no writ). Here, the jury found that when the deed was executed, the parties intended to reserve a Visth royalty interest. Appellees have attacked this jury finding on the grounds that there is no evidence to support the same. We disagree.

In deciding a no evidence point, we must view the evidence in the light most favorable to the verdict and disregard all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Slenderbolic Health Industries, Inc. v. Boridy, 560 S.W.2d 509 (Tex.Civ.App.—Beaumont 1977, no writ). Mr. King, appellants’ predecessor in title, testified that he became interested in buying the property in question and talked to appellees about the terms. Thereafter, they prepared and executed a written contract of sale, which was admitted into evidence as plaintiff’s exhibit no. 1. This contract of sale clearly reserves a Vi6th royalty for appellees. The contract further stipulated that if the outstanding ½6⅛ royalty in Mr. Wuensche reverted, then it would be retained by appellees. The deed was prepared by appellees’ attorney, and Mr. King did not have anything to do with its preparation or execution. Mr. King, who had no financial interest in the outcome of this case, also testified that during the time between the execution of the contract and the deed, Mr. Brown and he never changed their agreement, and the consideration stated in the contract of sale is the exact consideration that King paid for the property. He thought the deed was in accordance with the contract of sale, and the first time he learned of any contention otherwise was after the filing of this lawsuit. In light of this evidence, we believe that there is sufficient evidence of probative force to support the finding of the jury, and this finding is conclusive and binding on both the trial court and this court. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In view of the above holding, we do not deem it necessary to pass upon appellants’ other points.

We hold that the trial court erred in granting judgment n. o. v. and should have entered judgment on the jury verdict that appellees were entitled to a Vieth royalty of all the oil, gas, and other minerals produced from said land. Judgment of the trial court is hereby reversed and rendered that the appellees are the owners of a Vmth royalty on the four wells being operated by M-Tex, Inc., and the Gill No. 1 well.


author: JAMES, Justice.

text:
    L. G. WILDER, Jr., et ux., Appellants, v. FIRST MORTGAGE OF TEXAS, R. E. I. T., et al., Appellees.
    No. 5977.
    Court of Civil Appeals of Texas, Waco.
    Feb. 1, 1979.

      Don McManus and George F. Manning, San Antonio, for appellants.
    Robert E. Wehmeyer, Darden & Weh-meyer, Bandera, for appellees.
   OPINION

JAMES, Justice.

This is a trespass to try title suit. Plaintiff-Appellants L. G. Wilder, Jr. and wife Madeline Wilder sued Defendant-Appellees First Mortgage of Texas, R.E.I.T., and Enchanted River Estates, Inc., for title to and possession of a 2.80 acre tract located in Bandera County, Texas, and for damages. The Plaintiffs Wilder sought to establish title to the disputed tract by adverse possession under the ten year statute of limitations, Article 5510, Vernon’s Texas Civil Statutes. Plaintiffs and Defendants own respective tracts of land in Bandera County which are contiguous to the disputed tract, said disputed area being situated along Plaintiffs’ south or southwest line. The following is a map or plat reproduced from Exhibit “B” attached to the trial court’s judgment, showing the respective locations of Plaintiffs’ land, Defendants’ land, and the 2.80 acre tract in dispute. This plat as shown in this opinion is a true copy of said Exhibit “B”, except that we have added the words, “Plaintiffs’ Land,” “Defendants’ Land,” and “2.80 acre tract in dispute” for clarity. The disputed tract is the shaded area.

As shown, the 2.80 acre tract lies between a fence line on the westerly side thereof and two creeks, to wit, Doe Creek and Bandera Creek, on the easterly side.

The Defendants filed a pleading of “not guilty.” Trial was had to the court without a jury, after which the trial court entered judgment that Plaintiffs take nothing, from which Plaintiffs appeal. We affirm.

The trial court filed findings of fact and conclusions of law. Said “Findings of Fact” are as follows:

“A. In August, 1962, Plaintiffs purchased 165 acres of land, more or less, in Bandera County from the ‘Atkins family’. Prior to the purchase, no survey of the property was made, but one of the sellers showed Plaintiff L. G. Wilder, Jr. the fence lines and Plaintiff L. G. Wilder, Jr. understood that the fences marked the boundary lines of the property.
“B. On July 18, 1964, Plaintiffs caused the County Surveyor of Bandera County to make a ‘fence-line’ survey of their property. Such survey was made on the basis of the fences that enclosed Plaintiffs’ property at the time of their purchase of same in August, 1962. The property included in such survey contains 161.806 acres.
“C. According to the description of the property contained in the Deed to Plaintiffs, the southwest boundary line of the property lies along the bottom of Doe Creek and Bandera Creek. These creeks are subject to flooding and it is not practical to maintain a fence in the creek bottom. A ledge or bluff exists along the south-west side of Doe Creek and Bandera Creek. The fence enclosing the south-west side of Plaintiffs’ property, as shown by the ‘fence-line’ survey, is located on top of such ledge or bluff. The tract in dispute, containing 2.80 acres, lies between the boundary line along the creek bottom and the fence line along the top of the creek bank.
“D. Since 1962, Plaintiffs and their tenant have made minor repairs to the fence enclosing the disputed tract. The fence was in its present location prior to Plaintiffs’ purchase of the property to which they hold record title. Plaintiffs did not build, rebuild or substantially repair such fence and have not changed its location.
“E. The disputed tract is not separately fenced from the property to which Plaintiffs hold record title.
“F. Since 1963, Plaintiffs and their tenant have run cattle and sheep on the property within the fences, including the disputed tract. The livestock are free to roam and graze on the property to which Plaintiffs hold record title and on the disputed tract. The best grass is on the disputed tract.
“G. Plaintiffs have not made or placed any improvements on the disputed tract.
“H. Plaintiffs have affixed ‘no trespassing’ signs on their exterior fences, including the fence along the south-west side of the property which encloses the disputed tract. Such signs have been replaced every two or three years. The fence enclosing the disputed tract is not visible from a public road.
“I. Since their purchase of the property to which they hold record title, Plaintiffs have paid annually property taxes on 165 or 167 acres in Bandera County. They have never rendered the property on which they have paid taxes, but have paid the taxes by mail upon receipt of a statement from the Tax Assessor-Collector.
“J. In 1964, Plaintiffs obtained a loan from San Antonio Savings Association and executed a Deed of Trust securing the payment thereof on the property described in the ‘fence-line’ survey mentioned in B above.
“K. Plaintiffs believed that they owned the property within the fences, but never told anyone that they claimed the tract in dispute.
“L. In April, 1977, unknown persons removed a portion of the fence which encloses the tract in dispute. Plaintiffs and other persons have replaced the portions which were taken down, but Plaintiffs have not permitted any livestock to run on the disputed tract since the fence was replaced.”

The pertinent parts of the “Conclusions of Law” made by the trial court may be summarized as follows:

A. Plaintiffs had a “claim of right” to the tract in dispute.

B. Plaintiffs did not make “an actual and visible appropriation” of the tract in dispute, commenced and continued under their claim of right “inconsistent with and hostile to” the claim of Defendants for a period of 10 years prior to instituting suit, as required by Arts. 5510 and 5515, V.A. C.S., because:

1. - Plaintiffs did not build the fence which encloses the disputed tract;

2. Plaintiffs did not, personally or by their tenant, rebuild, substantially repair or change the character or location of the fence which encloses the disputed tract;

3. There is no evidence that the fence which encloses the disputed tract was considered to belong to Plaintiffs;

4. There is no evidence that, by general community reputation, Plaintiffs owned the property to the fence enclosing the disputed tract;

5. The disputed tract is not separately fenced from the land to which Plaintiffs hold record title;

6. There is no evidence of the purpose for which the fence which encloses the disputed tract was built;

7. The fence which encloses the disputed tract is in a practical or “common sense” location;

8. Plaintiffs neither made nor placed any improvements on the disputed tract;

9. There is no evidence that Plaintiffs planted any crops or grass, or removed any timber from the disputed tract;

10. Plaintiffs’ and their tenant’s livestock grazed on the disputed tract by straying from the property to which Plaintiffs hold record title;

11. There is no evidence that Plaintiffs made any change in the use of the disputed tract;

12. Plaintiffs never made any verbal declaration of ownership of the disputed tract;

13. There is no evidence that Defendants or their predecessors recognized the fence enclosing the disputed tract as constituting Plaintiffs’ boundary or that they acquiesced in Plaintiffs’ claim to the disputed tract;

14. Plaintiffs’ placing “no trespassing” signs on the fence enclosing the disputed tract, which were not visible to the public, is not sufficient to constitute an actual and visible appropriation of the disputed tract;

15. Plaintiffs’ paying taxes on 165 or 167 acres is not sufficient to give Defendants notice that Plaintiffs were asserting an adverse and hostile claim to the property in dispute. Although it is not required that the adverse claimant under the 10-year statute of limitations pay taxes on the property in dispute, the payment of taxes may furnish “some evidence” of an adverse claim. There is no evidence that Defendants had any notice, actual or constructive, that the acreage on which Plaintiffs paid taxes included the tract in dispute; and

16. Plaintiffs’ executing a Deed of Trust on the property described by the “fence-line” survey, which included the tract in dispute, is not sufficient to place Defendants on notice of Plaintiffs’ adverse claim or to constitute an actual and visible appropriation of the disputed tract by Plaintiffs. There is no evidence that Defendants had any actual notice of such Deed of Trust or that it was ever recorded. Assuming that such Deed of Trust was placed of record in Bandera County, there is no evidence that Defendants acquired their interest in or claim to the disputed tract subsequent to such recording. There is no evidence that Defendants are subsequent purchasers or creditors of the disputed tract.

C. Plaintiffs’ possession of the disputed tract consists of incidental or casual fencing and occasional grazing which is insufficient to constitute adverse possession and mature limitation title.

D. Plaintiffs failed to discharge their burden of proving that their possession of the disputed tract gave Defendants notice of their adverse claim.

Plaintiffs in five points of error assert that “the trial court erred in holding” (1) that Plaintiffs did not acquire title by adverse possession of the 2.80 acre tract; (2) that Plaintiffs’ claim to the disputed tract was not adverse to Defendants’ claim; (3) that Plaintiffs did not make an actual and visible appropriation of the tract in dispute, commenced and continued under their claim of right, “inconsistent with and hostile to” the Defendants’ claim for a period of ten years prior to instituting suit; (4) that Plaintiffs’ possession of the disputed tract consisted only of incidental or casual fencing and occasional grazing; and (5) that Defendants did not have notice of Plaintiffs’ adverse claim to the 2.80 acres in dispute.

Since Plaintiffs had the burden in the trial court, to establish their title to the disputed tract under the ten year statute of limitation, and failed to establish said title in the trial court, on appeal we must construe Plaintiffs’ points of error as contending either that (1) the evidence conclusively establishes as a matter of law the contrary of the trial court’s holdings which are attacked, or (2) that the trial court’s attacked findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, under the rule announced in In re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660. This is giving the broadest interpretation possible to Plaintiff-Appellants’ points of error. We overrule all of Plaintiffs’ points of error and affirm the trial court’s judgment.

We believe the trial court’s findings of fact as hereinabove set out constitute an accurate summary of the pertinent facts reflected by the record. Considering these facts in the light of well-settled rules of law pertinent thereto, we cannot say that the evidence conclusively establishes the contrary of the trial court’s findings in question, or that said findings are against the great weight and preponderance of the evidence. On the contrary, we are of the opinion that the court’s findings attacked by Plaintiffs have strong support in the evidence. See McDonold v. Weinacht (Tex.1971) 465 S.W.2d 136; Orsbom v. Deep Bock Oil Corp. (1954) 153 Tex. 281, 267 S.W.2d 781; Harmon v. Overton Refining Co. (Com.App.1937) 130 Tex. 365, 109 S.W.2d 457, opinion adopted; Sims v. Cage (Tex.Civ.App., Houston 1st 1975) 523 S.W.2d 486, NRE; Chapa v. Garcia (Tex.Civ.App., San Antonio 1974) 513 S.W.2d 953, NRE; Georgetown Builders, Inc. v. Heirs of Tanksley (Tex.Civ.App., Austin 1973) 498 S.W.2d 222, NRE; and Cox v. Olivará (Tex.Civ.App., Dallas 1972) 482 S.W.2d 682, NRE.

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED.


text:
    Delia GARZA, Appellant, v. TEXAS EMPLOYMENT COMMISSION and Miller Curtain Co., Appellee.
    No. 16139.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 7, 1979.

      Joseph B. De Mott, Stephen G. Cochran, Charles G. Childress (Legal Aid Association), San Antonio, for appellant.
    John L. Hill, Atty. Gen. of Texas, Diane Van Helden, Asst. Atty. Gen., Austin, for appellee.
   OPINION

MURRAY, Justice.

This is an appeal from a judgment which affirms the decision of the Texas Employment Commission and dismisses claimant’s appeal for want of jurisdiction.

On July 15, 1977, Delia Garza, appellant, was terminated as an employee of the Miller Curtain Company. She then filed her initial claim for unemployment benefits on September 6,1977. On September 22,1977, a notice of claim determination was mailed to appellant at her address as reflected by Commission records. This notice of claim determination disqualified appellant from receiving benefits because of misconduct connected with work for the four benefit periods beginning September 6, 1977, and extending through October 3, 1977. This action reduced her benefits by $188 and left her a balance of $829. The notice of claim determination was removed from appellant’s mailbox by a neighbor and given to appellant’s sister, who did not give it to appellant until approximately two weeks later on October 11, 1977. The next day appellant brought the notice of claim determination to her attorney, who filed an appeal of the initial determination by letter dated October 19, 1977. An appeal hearing was held on November 29, 1977, by the appeals referee, and the appeal was dismissed for want of jurisdiction. Appellant appealed the November 30,1977, decision of the appeal tribunal, which was affirmed by the Texas Employment Commission.

Texas law provides for the appeal of decisions of the Texas Employment Commission on claims for benefits.

The Commission shall determine whether such initial claim is valid. If such initial claim is valid, the Commission shall determine the benefit year, the benefit amount for total unemployment and the duration of benefits. A notice of the determination of the initial claim shall be mailed to the claimant at his last known address as reflected by Commission records. The claimant may within twelve (12) calendar days from the date such notice was mailed request a redetermination or appeal in the manner provided in this Section.
Unless the claimant or the individual or organization or branch thereof to which the copy of the determination was mailed files an appeal from such determination within twelve (12) calendar days after such copy of the determination is mailed to his or its last known address as re-fleeted by Commission records, such determination shall be final for all purposes and benefits shall be paid or denied in accordance therewith; .

Tex.Rev.Civ.Stat.Ann. art. 5221b — 4(b) (Vernon Supp.1978 — 1979).

Appellant contends by two points of error that the trial court erred by not finding that the Texas Employment Commission’s interpretation of Article 5221b-4(b) is unconstitutional and violates the Federal Social Security Act, 42 U.S.C. § 503(a)(3) (1974), which requires that the Texas Employment Commission provide unemployed workers an opportunity for a fair hearing. We disagree.

Appellant was afforded a hearing before the appeals referee in which evidence was introduced relating to the circumstances of delivery of the notice of claim determination. In addition, similar evidence was presented to and considered by the trial court. Appellant testified that arrangements were made with her neighbor to take the mail out of her mailbox and give it to her sister, her mother, or herself. Appellant made this arrangement because mail had been stolen from her mailbox. She further testified that her sister was given the letter by the neighbor, and two weeks later appellant’s sister gave the claim determination to her. Appellant also testified that she knew that during this period of time she would be receiving important documents from appellee. Under these facts, appellant’s contention that she did not receive the letter in time cannot be sustained. It is a basic principle of agency that one who acts through another acts for himself. Thus, receipt of the letter by the neighbor, appellant’s agent, is receipt by appellant. Central Freight Lines, Inc. v. Clarke & Courts, Inc., 413 S.W.2d 927 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.); 2A C.J.S. Agency § 2 (1972).

Appellant contends that the Texas Employment Commission has interpreted Article 5221b-4(b) to create an irrebuttable presumption of receipt of notice by merely showing that notice was mailed. We find no such interpretation in the decision by the Texas Employment Commission. The order of the appeals referee, which was sustained by the Texas Employment Commission, contains a decision, case history, findings of fact, and conclusions. The findings of fact, conclusions, and decision of the referee are as follows:

FINDINGS OF FACT: Prior to filing her initial claim on September 6, 1977, the claimant worked for the employer as a service girl and machine operator from April 29,1976 until July 15,1977, with an ending pay rate of $2.64 per hour. The claimant was disqualified four weeks of benefits under Section 5(b) of the Act by a determination mailed to her by the Commission on September 22, 1977. The claimant did not file an appeal to this determination until October 19, 1977, twenty seven days after said determination was mailed. The claimant has been having some problems receiving her mail because she lives in a housing project. There have been instances when her mail was taken out of her box. The claimant’s sister took the Notice of Claim Determination out of her mailbox because she was afraid someone would steal it and forgot to give it to the claimant until October 12, 1977.
CONCLUSIONS: Section 6(b) of the Texas Unemployment Compensation Act provides, in part, that unless the claimant or the individual or organization to which the copy of the determination was mailed files an appeal from such determination within twelve calendar days after such copy of the determination was mailed to his or its last known address as reflected by Commission records, such determination shall be final for all purposes and benefits shall be paid or denied in accordance therewith.
In precedent case No. 8351 — AT-68, the Commission ruled that the Appeal Tribunal does not have jurisdiction to consider the merits of a case when the appeal was not filed within the twelve-day time limit if the determination was correctly mailed and delivered by the Post Office Department to the claimant’s correct address even though delivery to the claimant was deliberately prevented by a third party. Inasmuch as the Notice of Claim Determination was mailed to the claimant’s correct address, and was delivered to that address by the Post Office Department, [sic] It is concluded that the claimant did not file a timely protest to the determination dated September 22, 1974 [sic]. Therefore, the Appeal Tribunal is without jurisdiction in this case.
DECISION: The Claimant’s Appeal dated October 19,1977, is dismissed for want of jurisdiction, leaving in full force and effect the decision in Appeal No. 31239-AT — 77.

Once the notice is timely delivered, the jurisdiction of the Texas Employment Commission to hear an appeal cannot be extended by the fact that appellant failed to remove the letter from the mailbox, failed to open the letter, or failed to receive it from her sister, appellant’s agent.

Appellant’s reliance on Miami Dolphins, Ltd. v. Florida Department of Commerce, 252 So.2d 396 (Fla.Dist.Ct.App.1971), is misplaced. The Florida District Court of Appeal ordered that petitioner, Miami Dolphins, be given an opportunity to show that notice was not delivered within the time period prescribed by the Florida Unemployment Benefits Law. The evidence indicated that the failure to receive the notice in time was due to the Christmas-New Year’s mail glut; thus, the notice was not timely delivered. In our case, appellant’s testimony shows that the letter was timely delivered, and the evidence indicates that a hearing was afforded appellant by the Texas Employment Commission.

We believe that Florida State University v. Jenkins, 323 So.2d 597 (Fla.Dist.Ct.App.1975), states the applicable law. Here, the court held that the decision in Miami Dolphins did not apply because the decision of the appeals referee was delivered in a timely manner. Florida State University did not receive this notice until after the ten-day period for filing an application for review because it closed its doors for the holiday recess and did not arrange for anyone of responsibility or authority to receive and examine its mail. Thus, the court affirmed the decision of the appeals referee that the agency lacked jurisdiction.

By a third point of error appellant contends that the trial court erred in using the substantial evidence rule to review the decision of the Texas Employment Commission. We disagree.

In order for an appealing party to prevail, it has the burden to show that the decision of the Commission was not reasonably supported by substantial evidence. Circuitronics v. Texas Employment Commission, 561 S.W.2d 555 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.). The delivery of the notice in this case is supported not only by substantial evidence but also by appellant’s uncontradicted testimony.

We hold that proper notice was mailed and timely received by appellant. Nevertheless, she failed to properly utilize clearly established appeal procedures. Thus, appellant has not been treated unfairly or arbitrarily in violation of due process and applicable federal law.

The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    James BLACK, Appellant, v. Leonel SALAZAR et ux., Appellees.
    No. 1422.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 8, 1979.

      Brinkley L. Oxford, Oxford & Oxford, Edinburg, for appellant.
    R. A. Vidaurri, Rafael H. Flores, McAl-len, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from an order overruling appellant’s plea of privilege. Leonel Salazar and Emma Salazar, appellees, filed suit in Hidalgo County against James Black, appellant, seeking specific perform-anee of two contracts to deliver deeds to real property located in Hidalgo County. Appellant Black filed a plea of privilege to be sued in the county of his residence, Harris County. Appellee answered with a controverting affidavit claiming that Subdivisions 5 and 14 of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964) would maintain venue in Hi-dalgo County. At a hearing on the plea of privilege the trial court denied the plea. Black brings this appeal.

Findings of fact and conclusions of law were not and need not be filed in a plea of privilege case. See Rule 385(e) T.R.C.P. Where they are not filed, the judgment may be affirmed if there is sufficient evidence to support it upon any lawful theory. Every issue sufficiently raised by the evidence must be resolved in support of the judgment. Atlantic Richfield Co. v. Trull, 559 S.W.2d 676, 679 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d).

Appellant brings one point complaining that the trial court erred in overruling his plea of privilege. While this point is too general and does not meet the requirements of Rule 418, T.R.C.P., we shall discuss appellant’s grounds as we understand them as disclosed in his statement and argument to determine whether reversible error is shown. Bookout v. Pugh, 513 S.W.2d 281, 283 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Appellant’s first argument asserts that venue cannot be maintained in Hidalgo County under Section 14 of Article 1995 because the suit is one for specific performance of a contract for the sale of land and thus does not come within the Section 14 venue exception. See Madeley v. Oualline, 449 S.W.2d 352 (Tex.Civ.App. — Beaumont 1969, no writ). In their brief, appellees agree with the above assertion and abandon all their contentions based upon Section 14 of Article 1995. We are also in agreement with the parties. Appellant’s first contention asserting the inapplicability of Section 14 to this case is sustained.

Appellant also contends that Section 5 of Article 1995 will not maintain venue in Hidalgo County because the contracts for sale of the land herein do not expressly denote a place for performance of the appellant’s obligation to deliver the deeds as is required by Section 5 of Article 1995. See Harkness v. Employers National Insurance Company, 502 S.W.2d 670 (Tex. Sup.1973). We agree. In a suit on a written contract the trial court in determining place of performance must look only to the written contract and may not consider parol evidence. Conner v. Prescon Corporation, 500 S.W.2d 713 (Tex.Civ.App.—Corpus Christi 1973, no writ); Owens v. Sherrard Motor Company, Inc., 496 S.W.2d 113 (Tex.Civ.App.—Tyler 1973, no writ). The written contracts herein do not specify where the deeds are to be delivered, but each merely states:

“Seller hereby binds and obligates himself to deliver to Buyer a sufficient warranty deed.”

Appellees argue, however, that because their address was placed in the blanks at the beginning of the contract that this necessarily implies that the seller-appellant was obligated to perform in Hidalgo County. An identical argument was used by a plaintiff-buyer in Johnston v. Personius, 242 S.W.2d 471 (Tex.Civ.App.—San Antonio 1951, no writ). The court in Johnston, at page 472, rejected this contention by stating:

“. . . The mere designation by name of the promisee and statement of the town and state in which he resides cannot be construed as promising performance at that address rather than elsewhere.”

In addition, and contrary to appellees’ contention, the mere fact that the land to be sold is located in Hidalgo County is not sufficient by itself to maintain venue in Hidalgo County. Traweek v. Ake, 280 S.W.2d 297 (Tex.Civ.App.—El Paso 1955, no writ). Further, venue may not be fixed under Section 5 by implication. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 611 (1948); Conner v. Prescon Corporation, supra. Thus, we sustain appellant’s second contention and find that neither of the two exceptions that the appellees relied upon in the trial court will support the trial court’s judgment. No other theories for maintaining venue in Hidalgo County were presented in the trial court and thus those not so presented may not serve as a basis to maintain venue on appeal. Wallace Co. v. Rockwell Intern., 568 S.W.2d 404, 407 (Tex.Civ.App.—Corpus Christi 1978, no writ).

Appellee contends, however, that there can be no reversal of the trial court’s order because the appellant presented no evidence in the trial court that he was a resident of Harris County at the institution of this suit. This same argument was expressly rejected in Meurer v. Wheeler, 509 S.W.2d 645 (Tex.Civ.App.—Amarillo 1974, writ dism’d) because the filing of a plea of privilege is prima facie proof of a defendant’s right to a change of venue. Consequently, in this case the plea of privilege itself was sufficient proof of the appellant’s residence in Harris County. Rule 86, T.R. C.P.

Accordingly, the- judgment of the trial court is reversed, and judgment sustaining James Black’s plea of privilege is here rendered.

Reversed and rendered.

      . “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:

      5. Contract in writing. — (a) . ., if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

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


author: MOORE, Justice.

text:
    Mary Maude DUSSETSCHLEGER et al., Appellants, v. Sandra Faye SMITH, Appellee.
    No. 1231.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 8, 1979.

      Ralph A. Rash, Kuhn, Collins & Rash, Austin, for appellants.
    A. D. Downer, Houston, for appellee.
   MOORE, Justice.

This is an appeal from a judgment granting a bill of review under sec. 31, Tex.Prob. Code Ann. (1956). In 1973, plaintiff, Sandra Faye Smith, instituted suit against Mary Maude Dussetschleger and Wanda Jeffries to declare heirship of the estate of Frank Dussetschleger, deceased. She alleged that although she was an illegitimate daughter of the decedent, she was an heir and entitled to share in the decedent’s estate. She further alleged that Mary Maude Dussetschleger and Mrs. Wilbur L. Jeffries were also heirs of the decedent.

The heirship proceedings were set for trial on March 3, 1976. When the matter was called for trial, neither the plaintiff nor her attorney appeared. Thereupon, the trial court entered a judgment on March 27, 1976, denying her application to declare heirship.

In January 1978, plaintiff, Sandra Faye Smith, instituted the present suit in the form of a bill of review under V.A.T.S. sec. 31 of the Probate Code seeking to set aside the judgment dated March 27, 1976. After a hearing on the bill of review phase of the case, the trial court announced that the bill of review was granted and that the previous judgment denying plaintiff’s application to declare heirship was nullified and set aside. After making this announcement, the trial court then proceeded to hear plaintiff’s application to determine heirship. At the conclusion of the trial, the court entered judgment reciting that the bill of review was granted and further recited that the court found that Sandra Faye Smith was the natural daughter of the decedent. The last paragraph of the judgment reads as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that SANDRA FAYE SMITH be judicially declared an heir to the estate of FRANK DUSSETSCHLEGER; that the cause be reinstated for further declaration of heir-ship for the purposes of establishing collateral kindred for such other purposes as may be necessary for the full determination of all other heirs, if any, to the Estate of FRANK DUSSETSCHLEGER.”

Although the judgment shows that the trial court nullified the previous default judgment entered on March 27, 1976, and granted the plaintiff a new trial on her original application to declare heirship, the judgment shows that there has never been a final determination of the action to declare heirship. The application to declare heirship shows on its face that there were heirs other than the plaintiff, Sandra Faye Smith. While the judgment recites that the trial court found the plaintiff to be an heir of the decedent, the judgment did not specify the names and places of residence of all the heirs of the decedent nor did it specify their respective shares and interest in the real and personal property of the decedent as required by V.A.T.S. sec. 54 of the Probate Code. The judgment merely recites that the plaintiff’s application to declare heirship was reinstated for further determination of all other heirs of the decedent. In view of the fact that the judgment did not dispose of all the parties and issues pursuant to sec. 54 and 55 of the Probate Code, the judgment is interlocutory and does not constitute a final judgment.

“It is settled that a judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not ap-pealable unless a severance of that phase of the case is ordered by the trial court.” Stalco, Inc. v. Zero Refrigerated Lines, Inc., 390 S.W.2d 476, 477 (Tex.Civ.App.—San Antonio 1965, writ ref’d); Rodriguez v. Globe Discount City, Inc., 498 S.W.2d 283, 285 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ history).

Two trials, one to vacate the judgment by default and another on the merits of the original action, are not permitted, but every issue raised on both phases of the case must be disposed of in one trial unless the trial court orders a separate trial under the provisions of Rule 174(b), Tex.R.Civ.P.; Palmer v. D.O.K.K. Benevolent & Ins. Assoc., 160 Tex. 513, 334 S.W.2d 149 (1960); Jones, D/B/A Galveston Lumber Company v. Steele, 360 S.W.2d 592 (Tex.Civ.App.—Houston 1962, no writ history) citing cases. The record contains no order of severance. Therefore because of the interlocutory character of the judgment, this court is without jurisdiction.

Although our jurisdiction has not been challenged by a point of error, fundamental error is apparent on the face of the record. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).

We have no power to entertain an appeal until such time as the judgment disposes of all the parties and issues in the suit to declare heirship.

Accordingly, the appeal is dismissed.


text:
    Edgar HOPPE and wife, Marjorie Hoppe, Appellants, v. Paul N. HUGHES, Executor, Appellee.
    No. 8958.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 12, 1979.
    Rehearing Denied March 12, 1979.

      Small, Craig & Werkenthin, Dennis R. Reese, Austin, for appellants.
    Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellee.
   REYNOLDS, Justice.

Survivors of a head-on collision between two automobiles on a two-lane roadway, Edgar Hoppe and wife, Marjorie Hoppe, are aggrieved by a take-nothing judgment rendered in their action to recover damages from the estate of Hershel Hubert Olds, deceased, when the jury failed to find that Olds was negligent, even though his automobile crossed the center line and collided with the Hoppes’ automobile in their lane of traffic. The evidence presented to excuse Olds for his statutory violation amounts to no more than mere speculation that he was incapacitated by a heart attack and is, therefore, insufficient to excuse Olds’s negligence per se. Reversed and remanded.

On 22 July 1974, Hershel Hubert Olds was operating his automobile in an easterly direction along U.S. Highway 82, a two-lane roadway, in King County. Approximately eighteen miles east of Gutherie, Olds’s automobile crossed the center line of the roadway and collided head-on with the oncoming Hoppe automobile occupied by Marjorie Hoppe, as driver, and Edgar Hoppe. Each automobile was severely damaged, the Hoppes sustained serious personal injuries, and Olds was found dead in his automobile.

The Hoppes brought this action against Paul N. Hughes, independent executor of the estate of Hershel Hubert Olds, deceased, seeking damages from the estate for their personal injuries and property loss. They alleged that Olds was guilty of common law negligence and negligence per se for his violation of several sections of Article 6701d, Tex.Rev.Civ.Stat.Ann., including Section 52(a). That statute provides, with stated exceptions, that a vehicle shall be driven upon the right half of the roadway. Hughes answered with a general denial, alleged that the Hoppes were negligent, and interposed the defenses of unavoidable accident and excuse by incapacity. The incapacity asserted was that Olds had sustained an unexpected and disabling heart attack or stroke immediately prior to and at the time of the accident.

Responding to the special issues submitted, the jury failed to find that Olds was guilty of any negligence inquired about, including traveling on the wrong side of the roadway. The jury also failed to find that Mrs. Hoppe was negligent. Failing to find any negligence, the jury observed the court’s instructions and did not answer the proximate cause issues. Amounts were fixed for some, but not all, of the elements of damages submitted on behalf of the Hoppes.

The Hoppes have appealed from the take-nothing judgment rendered on the verdict. Among other complaints, they contend that as a matter of law Olds was negligent in traveling on the wrong side of the road and that the jury’s failure to find negligence is against the great weight and preponderance of the evidence.

Before reaching the merits of the contentions, notice first must be taken of Hughes’s assertion that the contentions have not been properly preserved for review. It is his position that the contentions were waived because of insufficient assignments in the Hoppes’ amended motion for new trial.

Trial of the cause, rendition of judgment and the filing of the motion for new trial occurred before 1 January 1978. Within that time frame, Rules 320, 324 and 374, Texas Rules of Civil Procedure, required the Hoppes, on penalty of waiver, to distinctly specify each ground of error in a motion for new trial to preserve the assignments of error on appeal.

However, the amended motion for new trial whose assignments are challenged was timely filed after 1 January 1978, on which date Rule 374 was repealed and Rules 320 and 324 were amended. The amendments provide that, although one may be filed, a motion for new trial shall not be a prerequisite to the right to complain on appeal. Rule 324 specifically states: “A complaint that one or more of a jury’s findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact may be presented for the first time on appeal.”

The Hoppes’ appeal was perfected and their brief of the challenged contentions was submitted after 1 January 1978. Within this time frame, the contentions on appeal are viable, for, absent a contrary intent expressed, the rule applies from its effective date to control the subsequent steps taken in the pending litigation, Brooks v. Texas Employers Insurance Association, 358 S.W.2d 412, 414 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.), and this is the application given to the amended Rule 324. Cavitt v. Jetton’s Greenway Plaza Cafeteria, 563 S.W.2d 319, 321 (Tex.Civ. App.—Houston [1st Dist.] 1978, no writ). Indeed, one appellate court, considering the same question, has held that the appeal must be considered and treated under the procedural rules in effect at the time of the consideration of the appeal. Delta Brands, Inc. v. Borden Metal Products Co., 570 S.W.2d 1, 2 (Tex.Civ.App.—Beaumont 1978), writ ref’d n. r. e., 570 S.W.2d 876 (Tex.1978); Logan v. Barge, 568 S.W.2d 863, 865 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.). Hence, even granting the indistinctness of the assignments in the amended motion for new trial, the Hoppes have not waived their appellate contentions.

The Hoppes submit that when Olds’s automobile crossed the center stripe of the highway into their lane of traffic, Olds violated Tex.Rev.Civ.Stat.Ann. art. 6701d, § 52(a) and, thus, was negligent per se. An unexcused violation of Section 52(a) does constitute negligence per se, Moughon v. Wolf, Tex., 576 S.W.2d 603 (1978); so, to establish the pleaded negligence per se, the Hoppes had the burden of proving (1) the statutory violation (2) which is unexcused. Southern Pacific Company v. Castro, 493 S.W.2d 491, 497 (Tex.1973).

The uncontroverted evidence is that Olds’s automobile did, in fact, cross the center line of the two-lane roadway into the path of and collide with the oncoming Hoppe automobile. Nonetheless, the statutory violation will be excused if there is in the record some evidence, which must amount to more than mere speculation or suspicion, Antee v. Sims, 494 S.W.2d 215, 218 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.), of one of the legally acceptable excuses, one of which is incapacity because of a heart attack. Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.1972). Although no autopsy was performed to officially determine the cause of Olds’s death, Hughes asserts that the statutory violation is legally excused because the evidence is factually sufficient to raise the issue that Olds suffered a heart attack before his automobile crossed the center line.

The evidence to which Hughes refers in the beginning is the deposition testimony of Dr. Roy S. Sheffield. The doctor, who specializes in internal medicine and cardiovascular diseases, had treated Olds from 1960 to 1969. The original examination revealed to Dr. Sheffield that some time in the past Olds had had a heart attack and, when he last saw Olds in 1969, Dr. Sheffield’s diagnosis included arteriosclerotic heart disease and coronary insufficiency beginning in 1969.

Prom Dr. Sheffield’s testimony, Hughes selects certain expressions which may be paraphrased thusly: the chances were six to seven out of ten that Olds’s life would end with a heart attack; the doctor, assuming the known facts of the accident, would not say a heart attack is an emphatic probability, but would say it is a reasonable probability; a heart attack would be at least 50 percent of it; the most likely thing of all would be cardiovascular; and a heart attack was at least 50 percent of a “definite possibility,” but expressing any further opinion would be a “toss-up” without more data. This evidence, Hughes urges, sufficiently indicates a probable heart attack.

Before the excerpted expressions can be credited with the force urged, they must meet established criteria. Our law is that only the opinions of medical experts can have any value in forming conclusions as to the cause and effects of a heart attack. The opinions may not rest on possibility, but must be founded on reasonable probability. Combined American Insurance Company v. McCall, 497 S.W.2d 350, 356 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.). Reasonable probability is determinable by consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use of any particular term or phrase used by the witness. Insurance Company of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966).

Tested by the criteria, the excerpts do not truly represent the substance of Dr. Sheffield’s testimony. Instead, the substance is accurately reflected in the responses he made to questions as follows:

A Well that question [whether, based upon reasonable medical probability, Mr. Olds had suffered some type of cardiovascular accident prior to the automobile accident causing him to lose control of his car and cross the center stripe of the highway] is, of course, tremendously difficult to answer with any great accuracy. The possibilities, of course, would include a cardiovascular accident, meaning something had happened in the heart. . Another thing that could have happened, he could have had a stroke. He could have had a transient amnesia. He could have had a convulsion. ... He could have gone to sleep. He could have reached for a match, being a cigarette smoker, and reached for a match that had fallen on the floor and lost control of the car, pulled the car to the left. There are many, many things that cause people to lose control of the car besides a heart attack. He is susceptible to heart attack, but I do not feel that I can say emphatically that on that day that he pulled that car over to the left because he had a heart attack. That supposition I am— would have to be a definite possibility, but I cannot say. I just don’t see how anyone can say that at that moment that he had a heart attack and he pulled the car to the left.
* * * * * *
Q [I]n your opinion then would all of them be equally possible or equally—
A I would say the cardiovascular thing would probably be at least 50 percent of it, the likelihood, and the others add up to another 50 percent. The most likely thing of all of them would be the cardiovascular, and the others would, I would say, add up to another 50 percent. In other words, the cardiovascular may be — No, no, all of this is pure supposition on my part and no — It is all supposition.
* * * * * *
Q And you have said that it is just speculation and supposition?
* * * * * *
A Yes, it is speculation and supposition. Yes, sir, you can put that down emphatically.
******
Q But it [the cardiovascular] does not become a probability, does it?
A You keep coming back to the semantics of the thing, and that gets into something that I would not — I could only say that it is a possibility. I can’t say it is probable. I, personally, think it would be a toss-up, a toss-up. You all can flip a coin and say about as accurately as I could say, and that is really all anyone could say. It is a head or tails.

Clearly, the substantive meaning of Dr. Sheffield’s testimony, as expressed in the very words he chose, is that it is speculation and supposition that Olds had a heart attack before his automobile crossed the center line into the Hoppes’ lane of traffic. The doctor himself refused to make the arbitrary choice between unsupportable possible conclusions. Given the state of his expert testimony, it does not rise to the level of some evidence of the claimed incapacity.

Hughes next argues that if Dr. Sheffield’s testimony alone be insufficient, there was more data favoring a heart attack before the jury. The basis for the data, Hughes claims, is provided by Dr. A. R. Howard, who practices emergency medicine and is experienced in diagnosing and treating heart problems.

By assuming facts in issue — including testimony that Olds’s chest was crushed, there was little or no bleeding, and twelve feet of skid marks were made by Olds’s automobile — Dr. Howard initially expressed two opinions. One was that if Olds’s chest was crushed, “that would be probable cause of immediate death.” Later, the doctor said that if there were either a heart attack or crushed chest there would be little or no bleeding. The other opinion was that, within reasonable medical probability, something other than a heart attack caused Olds’s death. This opinion, the doctor said, was based “mostly on the skid marks” because if there were a sudden, fatal heart attack, one would not have the capacity to apply his brakes. Dr. Howard said that in the absence of skid marks, he would have to consider a heart attack as a cause of death.

Hughes first proposes that Dr. Howard’s testimony means that the absence of blood is consistent with a heart attack and, together with Dr. Sheffield’s testimony, slightly preponderates in favor of Olds’s having suffered a fatal heart attack prior to the collision. Hughes next undertakes to demonstrate from the conflicting testimony of the presence and absence of skid marks made by Olds’s automobile that there was an absence of skid marks which would make Dr. Howard have to consider a heart attack, and then proposes that the evidence makes a heart attack more probable than not.

The immediate bar to accepting the proposals is that neither doctor testified that the absence of blood or skid marks, or both, would lead them to express the opinion that within reasonable probability Olds did suffer a heart attack before the collision. Beyond that, the expert opinions venturing no further than mere speculation of a heart attack cannot be converted into opinions of a heart attack through the laymen’s evaluation of the evidence. With the most favorable expert medical opinion being that a heart attack is just speculation or supposition, the statutory violation is unre-butted by some evidence of the claimed incapacity.

Accordingly, we sustain the contention that the jury’s failure to find that Olds was negligent in traveling on the wrong side of the roadway is against the great weight and preponderance of the evidence. It becomes unnecessary to notice the other contentions of the parties.

The judgment is reversed and the cause is remanded.


author: DODSON, Justice.

text:
    Jack HUDDLESTON, Appellant, v. WESTERN NATIONAL BANK and Roy Whittenburg, Appellees.
    No. 8921.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 13, 1979.
    Rehearing Denied Feb. 13, 1979.

      Thomas Goggan, Austin, Stokes, Carna-han & Fields, Robert N. Carnahan, Amarillo, for appellant.
    Gibson, Ochsner & Adkins, Michael C. Musick, Whittenburg Law Firm, Amarillo, for appellees.
   ON MOTION FOR REHEARING

DODSON, Justice.

We withdraw our December 29, 1978, opinion and, in lieu thereof, substitute this opinion.

Jack Huddleston appeals from an order of the trial court dismissing his stockholder’s derivative suit brought on behalf of Western National Bank of Amarillo and against Roy Whittenburg, the bank’s president and principal stockholder. The court sustained a plea in abatement filed by Whittenburg and the bank (hereinafter appellees), which contained several grounds, one being that Huddleston did not adequately represent the class of bank stockholders. The dismissal resulted when Huddleston failed to sufficiently amend his petition to cure the representation defects within the time prescribed by the trial court. We determine that the trial court did not clearly abuse its discretion in determining that Huddleston was an inadequate class representative and in dismissing the suit after first affording him an opportunity to amend his petition. Affirmed.

On October 15, 1976, Huddleston filed his first amended petition alleging that Roy Whittenburg committed, or caused to be committed, certain acts of misconduct which resulted in financial losses to the bank and its stockholders. Appellees filed their verified first amended original answer on August 1, 1977. This answer contained a plea in abatement, special exceptions, an affirmative defense, and a general denial. The plea in abatement alleged, inter alia, that Huddleston did not adequately represent the class of bank stockholders because at the time of the alleged misconduct Huddleston was the bank president and participated in the acts complained of. Ap-pellees further alleged that Huddleston attempted to remove himself from the class during the pendency of the suit by offering to sell his stock to Whittenburg.

On August 5,1977, a hearing was held on appellees’ plea in abatement and special exceptions. After considering the evidence, pleadings, and arguments of counsel, the trial court entered its order granting the plea in abatement on August 8,1977. Hud-dleston was thereby directed to replead his cause of action on or before September 9, 1977, in a manner which would cure the matters contained in the plea in abatement, or the cause would be dismissed. No ruling was made on the special exceptions.

On September 9, 1977, Huddleston filed his second amended original petition. The trial court determined that Huddleston failed to replead his cause of action in a manner sufficient to cure the matters contained in the plea in abatement. On October 27, 1977, the trial court entered its order dismissing the action. Thereafter, the following findings of fact and conclusions of law were entered:

I. FINDINGS OF FACT
The Court finds that Jack Huddleston does not adequately represent the stockholders of Western National Bank as a class.
II. CONCLUSIONS OF LAW
A. This Court has the discretion to determine whether a party is a proper representative of a class, such that the interests of the other class members will be adequately represented.
B. Because of the findings of this Court that Jack Huddleston is not a proper class representative, this Court can dismiss Plaintiff’s suit.

Huddleston first challenges the trial court’s determination that he was an inadequate class representative with legal and factual sufficiency points of error. Specifically, he maintains that the evidence adduced at the plea in abatement hearing was inadmissible and therefore there is no evidence to support the determination. Appel-lees offered the only evidence at the hearing: the affidavit of Cecil E. Mason, a former vice president of the bank, and a letter from Huddleston’s attorney to appel-lees’ attorney. Huddleston objected to the admissibility of the affidavit on the ground that it was hearsay. The trial court overruled the objection for purposes of identification only. We deem it unnecessary to consider the admissibility of this affidavit and its probative value because the crux of its contents were judicially admitted in Huddleston’s second amended petition, which was received by the trial court prior to the dismissal of the suit. Similar admissions were made regarding the contents of the letter. See Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729 (1941). However, the letter was admitted without objection. In light of the admissions and evidence offered without objection, we overrule Huddleston’s no evidence point.

We next consider Huddleston’s factual sufficiency point of error in context with Rule 42 of the Texas Rules of Civil Procedure. Rule 42 mandates a predictive finding that the parties will fairly and adequately protect the interests of the class as a condition to maintenance of a class action. See 3b Moore’s Federal Practice (Matthew Bender) ¶ 23.07[1] at 23-199 and the authorities cited therein for a discussion of the underlying policy considerations in regard to this principle. This finding is a matter addressed to the sound discretion of the trial judge and will not be reversed on appeal unless there is a clear abuse of discretion. Ford v. Bimbo Corporation, 512 S.W.2d 793, 795 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Hines v. Texas Telephone & Telegraph Company, 490 S.W.2d 953, 955 (Tex.Civ.App.—Tyler 1973, no writ); Group Hospital Service, Inc. v. Barrett, 426 S.W.2d 310, 315 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). We note here that the traditional approach by federal judges in determining adequacy of the representative has been to consider:

(1) whether the interest of the named party is coextensive with the interests of the other members of the class; (2) whether his interests are antagonistic in any way to the interests of those whom he represents; (3) the proportion of those made parties as compared with the total membership of the class; (4) any other facts bearing on the ability of the named party to speak for the rest of the class.

3b Moore’s Federal Practice (Matthew Bender) ¶ 23.07[1] at 23-203 and the authorities cited therein. Rule 42 is patterned after the federal class action rule and the federal decisions and authorities interpreting it are persuasive. Ex parte Odom, 153 Tex. 537, 271 S.W.2d 796, 797 (1954); Ford v. Bimbo Corporation, supra, at 796; 1 R. McDonald, Texas Civil Practice § 3.34.1 (Cumm.Supp.1978).

The evidence before the trial court was twofold. First, Huddleston was president of the bank at the time the alleged misconduct occurred. Secondly, Huddleston attempted to compromise or dismiss the pending derivative suit by offering to sell his bank stock to Roy Whittenburg. In light of this evidence, we are of the opinion that the trial court could have believed that Huddleston’s interests were antagonistic to those of the class. As president of the bank at the time of the alleged misconduct, Huddleston was subject to being individually named in the suit. See Canion v. Texas Cycle Supply, Inc., 537 S.W.2d 510, 513 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). Additionally, Huddleston’s attempted compromise or dismissal of the suit is relevant in light of Rule 42(b) which prohibits the compromise or dismissal of a class action without approval of the court and notice to the class members. Tex.R.Civ.P. 42(b). We conclude that there is some evidence of probative force from which the trial court could have found Huddleston to be an inadequate class representative and that the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. We therefore do not believe that the trial court clearly abused its discretion. Accordingly, Huddle-ston’s factual sufficiency point is overruled.

Huddleston complains in his next point of error that he was denied a jury trial on the fact issue of adequate class representation. The record does not reflect that Huddleston demanded a jury trial or paid a jury fee. Huddleston participated in the evidentiary hearing before the trial court and did not object to the proceeding on the ground that he was being denied a jury trial. Under these circumstances Huddleston waived any right to a jury trial regarding this matter. See Beck v. Winegeart, 471 S.W.2d 422, 425 (Tex.Civ.App.—Amarillo 1971, no writ); Richardson v. Raby, 376 S.W.2d 422, 425 (Tex.Civ.App.—Tyler 1964, no writ); Hernandez v. Light Pub. Co., 245 S.W.2d 553, 553-54 (Tex.Civ.App.—San Antonio 1952, writ ref’d).

Huddleston further alleges that the trial court erred in dismissing his suit based upon the plea in abatement because the verification was defective in that it was made on information and belief. Rule 93(b) requires that a pleading which alleges that a plaintiff has not the legal capacity to sue shall be verified by affidavit unless the truth of such matters appears of record. Tex.R.Civ.P. 93(b). Generally, a verification upon information and belief is insufficient. Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975). However, defects in the verification oath may be waived if not pointed out precisely by motion or exceptions in writing. See Tex.R.Civ.P. 90; see also Texas Osage Co-op. Royalty Pool v. Kemper, 170 S.W.2d 849, 852 (Tex.Civ.App.—Galveston 1943, writ ref’d); Leon Farms Corp. v. Beeman, 240 S.W.2d 433, 436 (Tex.Civ.App.—El Paso 1951, writ ref’d n. r. e.); Smith v. Walters, 468 S.W.2d 889, 891 (Tex.Civ.App.—Dallas 1971, no writ). Huddleston lodged an oral objection alleging that the verification was defective. However, he did not file a written exception to the pleadings on this ground. He also failed to obtain a ruling on the oral objection or to object to the evidence introduced at the hearing on this ground. Under these circumstances, he waived any objection to the alleged defect. See Tex.R.Civ.P. 90 and the cases cited above.

Huddleston’s remaining points of error maintain that the trial court erred in dismissing his suit without further notice, hearing, or opportunity to replead his cause of action, and in dismissing his individual cause of action. We determine that the trial court committed no error in dismissing the suit after first affording Huddleston an opportunity to replead his cause in a manner which would cure the representation defect. The court’s order granting appel-lees’ plea in abatement directed that Hud-dleston sufficiently replead his cause of action to cure the defects or his cause would be dismissed. The decision to dismiss the suit following Huddleston’s failure to sufficiently replead was within the trial court’s discretion. See Ford v. Bimbo Corp., supra, where the court stated: “The trial judge found that appellant was not a proper class representative, and he could have dismissed the suit at that point.”

We have reviewed Huddleston’s second amended original petition and conclude that Huddleston did not state an individual cause of action. The crux of Hud-dleston’s allegations which can be construed as an attempt to recover in his individual capacity state:

Defendant Whittenburg has further deliberately and effectively destroyed the value of the stock held by Jack Huddle-ston by repeatedly stating that he would never buy Huddleston stock or any stock that had ever been Huddleston stock. Inasmuch as Defendant Whittenburg effectively controls approximately eighty percent (80%) of the stock of Western National Bank, these actions had and continue to have the practical effect of destroying the market value of the shares held by Plaintiff Huddleston to his damage, for which this suit is also brought.

Huddleston fails to direct us to any cases or any other authorities which hold under the circumstances plead here that a principal stockholder has a legal obligation to purchase another stockholder’s shares of stock in the corporation.

We overrule Huddleston’s motion for rehearing and affirm the judgment of the trial court.