author: YOUNG, Justice. NYE, Chief Justice

text:
    Mary Josephine WOOD et al., Appellants, v. Henry S. PAULUS, as Independent Executor and Trustee of and under the Will of Annie C. Paulus, Deceased, et al., Appellees.
    No. 878.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 15, 1975.
    Rehearing Denied June 12, 1975.

      Carl L. Ray, Tabor & Ray, Houston, for appellants.
    Armond G. Schwarz, Hallettsville, Clark Murray, Floresville, Mary C. Philley, Houston, Kenneth Oden, Alice, Newton M. Crain, Jr., Crain, Winter, Houser & Deaton, Houston, for appellees.
   OPINION

YOUNG, Justice.

This case primarily concerns the attempt to share under a will by one (Mary Josephine Wood) who claims to be the granddaughter of the testatrix (Annie C. Paulus) where the legitimacy of the purported granddaughter is challenged by the other beneficiaries.

In the trial court, before a jury, Mary contended that she was a daughter of Annie’s son, Claude N. Paulus; that she was qualified to share because of this provision of the will:

“. . .to Henry S. Paulus one-fourth (¼) of my estate to be held in trust by him for any lawfully begotten children of my son Claude N. Paulus, born after my death, but in case he should die without leaving any living children begotten in lawful wedlock after my death, then in that event such one-fourth part of my estate is herein bequeathed [to a child and other grandchildren] . . ., but the income thereof is to be paid to Claude

At the conclusion of all the evidence, the trial court granted the motion of the opponents of Mary to withdraw the ease from consideration of the jury; the court thereafter rendered judgment for the opponents. A similar motion by Mary was denied by the trial court. She and her assignee-attor-neys appeal.

Annie C. Paulus, testatrix, died July 2, 1947. Thereafter, Mary was born September 12,1947. Subsequently, Claude N. Pau-lus, Mary’s purported father, died June 2, 1971. From the time of Mary’s birth until the summer of 1971, no one raised any questions about Mary’s qualification to take under Annie’s will. During the time after Claude’s death and a few days before July 12, 1971, Henry S. Paulus, independent executor of Annie’s will, received information which caused him to doubt Mary’s qualification to take. This information was furnished by Lilia Connor Paulus, the mother of Mary and the purported last wife of Claude.

Henry S. Paulus, as independent executor and trustee under the will of Annie C. Paulus, deceased, filed suit in Lavaca County, Texas for an order enjoining Mary Josephine Wood and her assignees, Carl L. Ray, M. Jack Tabor, and Tabor & Ray, from prosecuting certain suits previously filed in the courts of Harris County, Texas; for a construction of the will of Annie C. Paulus, deceased; for removal of cloud from title to certain real property; and for a declaratory judgment.

Mary answered that suit and filed a cross-action alleging that she is the devisee of one-fourth of the estate of Annie and requesting that Henry be ordered to pay over to her that portion of the estate.

Elton B. Hale, individually and as independent executor of the estate of Edwin Hale; Velma Hale Schneider; Rose Cyrene Crain; Dawn Paulus Hoffman; Annie Cy-rene Smith; David A. Paulus; Elizabeth Paulus McKenzie; Catherine Q. Hightower; Andrew H. Paulus; Joe Vaughn Hotchkiss; Marjorie Paulus Murray; and Lilia Conner Paulus, individually and as temporary ad-ministratrix of the estate of Claude N. Pau-lus, deceased, were named as party defendants in the petition of Henry. It is apparent that they are similarly aligned with Henry.

Appellants contend that Mary qualifies under the will of Annie.

Appellees contend that, as a matter of law, Mary is not qualified to take under Annie’s will for the following reasons:

1. The term “begotten” means conceived. The undisputed evidence shows that Mary was conceived before the death of Annie. The will requires that Mary be conceived after Annie’s death.
2. There is no evidence of a marriage between Claude N. Paulus and Lilia Conner Paulus because:
A. It is undisputed that Lilia was pregnant with Mary before she ever met Claude.
B. The purported marriage license introduced into evidence was irregular and invalid on its face.
C. Such license was inadmissible because it does not comply with Vernon’s Tex.Rev.Civ.Stat.Ann. art. 3731a (Supp. 1974).
D. There is an impediment to any purported marriage between Claude and Lilia because Claude is still married to Mildred Paulus. Thus, Mary could not have been begotten in lawful wedlock.

Appellants’ first and second points of error argue different phases of the same issue: validity of the marriage of Claude and Lilia.

Since we are dealing with a directed verdict granted in favor of appellees, we will look only to that evidence which supports appellants’ position and accept such as true. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859 (1956); Walter E. Heller & Company, Inc. v. Allen, 412 S.W.2d 712 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). The issue before us is whether appellees are entitled to judgment as a matter of law. Walter E. Heller & Company, Inc. v. Allen, supra; Harvey v. Elder, 191 S.W.2d 686 (Tex.Civ.App.—San Antonio 1945, writ ref’d).

It is appellants’ contention that Lilia, the natural mother of appellant Mary, was lawfully married to Claude on November 10, 1946; that they were lawful husband and wife when Mary was born; and that Claude was the biological father of Mary. Appel-lees contend to the contrary. In support of their contention, appellees introduced various documents into evidence in an attempt to show that a prior marriage between Claude Paulus and Mildred Gore had never been terminated. Some of the documents are these:

1. Appellees’ exhibit # 9 is the petition of Claude N. Paulus seeking a divorce from Mildred Paulus. It was filed March 18, 1926.
2. Appellees’ exhibit # 12 is a record of the filing fees in the 1926 divorce action. This document indicates that some of the fees were paid. It contains a rubber stamp marking which indicates the action was dismissed for want of prosecution “10-29-27”. The document also bears a handwritten notation that judgment for divorce was entered nunc pro tunc as of December 6, 1926. This notation was dated “10-22-45”. This instrument does not bear the signature or initials of the judge.
3. Appellees’ exhibit # 8 is the docket sheet for the court of the 55th Judicial District. This docket sheet bears a rubber stamp marking on it that indicates that the cause was dismissed for want of prosecution, 10-29-1927. A second handwritten entry, dated 10-22-45, states “Dismissal set aside & Judgment nunc pro tunc Dec. 6, 1926 entered”. This docket sheet is not signed by the judge. Exhibit # 8 also contains a list of cases dismissed for want of prosecution. This blanket dismissal is not signed by the judge.
4.Appellees’ exhibit # 7 is a motion for entry of decree of divorce nunc pro tunc and the judgment entered thereon. The judgment recites that, after hearing evidence on the motion and upon examination of the court’s personal records, the court did in fact grant a divorce to Claude N. Paulus on December 6, 1926. The court then entered judgment nunc pro tunc on October 22, 1945. That judgment recites that Mildred Paulus filed written waiver of citation but did not personally appear.

Appellees contend that the judgment nunc pro tunc was void. They contend that the court attempted to modify its judgment of dismissal through the device of a nunc pro tunc judgment.

Generally, there should be no entry of a judgment nunc pro tunc unless evidence is adduced to show that the court did, in fact, announce or render the judgment which the nunc pro tunc judgment purports to evidence. If the court were merely correcting its records to make them accurately reflect the judgment it in fact previously rendered, it was empowered to do so because it had continuing jurisdiction over its records. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Zamora v. Salinas, 422 S.W.2d 249 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.); Truelove v. Truelove, 266 S.W.2d 491 (Tex.Civ.App.—Amarillo 1953, writ ref’d). It has been held that whether the trial judge pronounced the judgment orally from the bench and what the terms of the pronouncement were are questions of fact. Mobley v. Rheem Manufacturing Company, 410 S.W.2d 320 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); Dillon v. Nall, 99 S.W.2d 349 (Tex.Civ.App.—San Antonio 1936, writ dism’d); Reavley, Trial Court’s Power to Amend its Judgments, 25 Baylor L.Rev. 191 at 203 (1973). This same rule applies to this case wherein the nunc pro tunc judgment recites that the trial judge found from his personal records that he did grant a divorce to C. N. Paulus from Mildred Paulus on December 6, 1926.

Tex.Rev.Civ.Stat.Ann. art. 3726a (Supp.1974) provides that final judgments of courts of record of this state are admissible in suits involving title to real estate as evidence of family history. The judgment nunc pro tunc recites that the court upon hearing evidence and upon examination of the court’s personal records, found that it had granted a divorce to Claude N. Paulus and Mildred Paulus on December 6, 1926. An entry nunc pro tunc may be made at a subsequent term on the personal recollection of the judge. Such recollection has the dignity and force of evidence. Ft. Worth & D. C. Ry. Co. v. Roberts, 98 Tex. 42, 81 S.W. 25 (1904); Blum v. Neilson, 59 Tex. 378 (Tex.Sup.1883); Kluck v. Spitzer, 54 S.W.2d 1063 (Tex.Civ.App.—Waco 1932, no writ); Parnell v. Barron, 261 S.W. 529 (Tex.Civ.App.—Amarillo 1924, no writ); S. W. Slayden & Co. v. Palmo, 90 S.W. 908 (Tex.Civ.App.—1905 aff’d 100 Tex. 13, 92 S.W. 796).

Since the title to land devised under the will of Annie is in issue, the nunc pro tunc judgment was admissible as evidence of the truth of the recitations contained therein. Thus, there is some evidence that the court did in fact grant Claude Paulus a divorce from Mildred Paulus on December 6, 1926.

Assuming, arguendo, that appellees’ contention that the nunc pro tunc judgment is void is correct, appellees have still failed to meet their burden of proof. There is some evidence that Claude and Lilia entered into a ceremonial marriage relationship. Appellants’ exhibit # 1 purports to be a certified copy of a marriage certificate evidencing the marriage of Claude N. Paulus and Lilia Paulus. Attached to this copy are various certifications of various signatures. The only one of these certificates which is material here is that of Ramon Meade, Consul of Mexico.

The certified copy of the marriage license was attested to by Carmen Baez Duran, Officer of the Civil Registry of the City of Atizapan de Zaragoza, Republic of Mexico. Mr. Duran attested that the original marriage certificate was under his care. This attestation comports with the requirement of article 3731a, § 4, supra, that the copy be attested “by the officer having legal custody of the record . . . .”

Accompanying the certified copy is a certification by Mr. Ramon Meade, Consul of Mexico at Houston, that the certified copy of the marriage certificate bears the signature of the Officer of the Civil Registry of the City of Atizapan. Mr. Meade further certified that said officer has legal custody of the original of the marriage certificate.

Appellees contend that the certificate by Mr. Meade does not comply with article 3731a § 4. They insist that the officer making the certificate must be an officer of the United States of America. We do not agree. The sentence in question states:

“If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States, or by any officer of a United States military government, stationed in a foreign state or country in which the record is kept, and authenticated by the seal of his office.” (Emphasis supplied.)

At the outset, we recognize that every word in a statute is presumed to have been used for a particular purpose. Perkins v. State, 367 S.W.2d 140 (Tex.Sup.1963); Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S.W.2d 93 (1957). The sentence in question permits a certificate to be made by a “secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States. . ” The word “or” is disjunctive. It expresses an alternative. Gilbert v. Gilbert, 145 Tex. 114, 195 S.W.2d 936 (1946), Board of Insurance Commissioners of Texas v. Guardian Life Insurance Company of Texas, 142 Tex. 630, 180 S.W.2d 906 (1944); American National Insurance Company v. Wilson State Bank, 480 S.W.2d 296 (Tex.Civ.App.—Amarillo 1972, no writ). Certification “by any officer in the foreign service of the United States” is an alternative method of certification. It is apparent that the legislature of this state intended that the required certificate could be made by Mr. Meade who is consul of the Republic of Mexico, where the original marriage certificate is kept. The purpose of article 3731a is to give credence to official documents so that they may have value as competent evidence and may be relied upon. Moody v. Moody, 465 S.W.2d 836 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.; cert. den. 406 U.S. 911, 92 S.Ct. 1605, 31 L.Ed.2d 823). There is nothing in the certification of a Mexican document by the Consul of Mexico in Houston, Texas, which detracts from the credibility of the document. Indeed, Fed.R.Civ.P. 44(a)(2) permits such a certification.

To adopt appellees’ construction of article 3731a, we would be forced to disregard the disjunctive “or” in the sentence in question. We will not so do.

Appellees also attack the validity of the marriage certificate on the ground that it was issued on a Sunday. The certificate does not state the date of issuance. It recites that the ceremony was performed on November 10, 1946. Claude and Lilia were, therefore, married on a Sunday; not issued a certificate of marriage on Sunday. The trial court properly admitted the certified copy of the marriage certificate. We hold that this marriage certificate is some evidence of a ceremonial marriage entered into between Claude N. Paulus and Lilia Seay on November 10, 1946.

Further evidence of a valid marriage between Claude and Lilia Paulus on November 10, 1946, is appellants’ exhibit # 25. This document is a certified copy of a joint affidavit of Henry S. Paulus (who took a contra position at the trial) and J. F. Bozka. The affidavit states that both affiants had known Claude Paulus for 40 years and each knew that Claude and Lilia Paulus were married on or about November 10, 1946, and that Mary is the only child of that marriage. There were no objections to the admission of this document into evidence.

This affidavit was admissible under article 3726a, supra, which provides that in suits involving title to real estate an affidavit which concerns the family history, genealogy, marital status, or heirship of a decedent is admissible in evidence if, for five or more years, it has been filed or recorded in the office of a district or county clerk located in the county in which the suit is pending or in which the land is located.

As previously noted, this suit involves title to certain real estate and the suit is pending in Lavaca County. The affidavit refers to matters of the family history of Annie: the marriage of her son, Claude, and the birth of a grandchild of Annie. Therefore, the affidavit, having been filed for record September 18, 1948, with the County Clerk of Lavaca County, Texas, was properly admitted in evidence.

There is also evidence of an informal marriage between Claude and Lilia. Lilia admitted at the trial that she claimed to be Claude’s wife when she consulted a Dr. Johnson on February 16,1947. She also testified that she and Claude started living together as husband and wife in June of 1947; that they held themselves out to the public as husband and wife as early as June 1947. This testimony is some evidence of the existence of an informal marriage before Mary was born. Tex. Family Code Ann. § 1.91, V.T.C.A. (1975).

It is well settled that where two or more marriages of a person are alleged, the most recent marriage is presumed to be valid as against each marriage which precedes it until one who asserts the validity of a prior marriage proves the continuing validity of the prior marriage. Tex. Family Code Ann. § 2.01 (1975); Texas Employers’ Insurance Association v. Elder, 155 Tex. 27, 282 S.W.2d 371 (1955); O. Speer, Marital Rights in Texas § 20 (4th Ed. 1962).

This presumption is one of the strongest known to the law. The Supreme Court, in Texas Employers Insurance Association v. Elder, supra, held:

“. . . ‘The presumption is, in itself, evidence, and may even outweigh positive evidence to the contrary. The strength of the presumption increases with the lapse of time, acknowledgments by the parties to the marriage, and the birth of children; and the fact that the legitimacy of a child may be involved is a factor in sustaining the validity of the marriage.’ 55 C.J.S. Marriage § 43, pages 892—893.”

See also Watson v. Todd, 322 S.W.2d 422 (Tex.Civ.App.—Fort Worth 1959, no writ).

It is significant that more than 25 years have passed since the parties agreed to be married. Two children were born during this period of time, of which only one (Mary) survives. Lilia lived as the wife of Claude until his death. Until Claude died none of the Paulus family questioned the legitimacy of Mary or that Claude was her natural father. The presumption is strengthened by these factors.

The party attacking the validity of the marriage must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. Simpson v. Simpson, 380 S.W.2d 855 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.); Dockery v. Brown, 209 S.W.2d 801 (Tex.Civ.App.—El Paso 1947, no writ). When the party alleging the invalidity of the latter marriage has introduced evidence which of itself negatives a prior dissolution of the marriage, the weight of such evidence is a question for the jury. Simpson v. Simpson, supra.

Assuming, arguendo, that the marriage between Claude Paulus and Mildred Paulus was not terminated as of December 6, 1926, we believe appellees have failed to show that Claude did not obtain a divorce in some other proceeding in Harris County or elsewhere before his marriage to Lilia. Having failed in this, appellees have not rebutted, as a matter of law, the presumption of validity which has attached to the marriage of Claude and Lilia Paulus. Davis v. Davis, 521 S.W.2d 603 (Tex.1975); Caruso v. Lucius, 448 S.W.2d 711 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.). Appellants’ first and second points of error are sustained.

By their third point of error, appellants complain that the trial court erred in finding as a matter of law that Mary was not entitled to take anything under Annie’s will, because there were issues of fact which must be resolved. This point is vague. The argument under this point of error does not explain the point which appellants seek to put before this Court.

When we look at appellees’ reply to appellants’ third point of error, it appears to us that the only remaining aspect of the case not ruled upon in our discussion of appellants’ first and second points of error is the assertion that Mary was not a “lawfully begotten” child of Claude “born after” the death of Annie. The pertinent paragraph of Annie’s will has been set out in part by us in the forepart of this opinion. Appellants contend that “begotten” means “born”. To the contrary, appellees contend that the term “begotten” means “conceived”. Appellees further contend that the will requires that Mary be conceived after the death of Annie.

The primary concern of this Court is the determination of the testatrix’s intent and the effectuation of that intent as far as is legally possible. Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968); Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967).

Obviously born does not mean begotten, but begotten or beget may mean born. See 10 C.J.S. Beget (1938). Webster’s New International Dictionary (1968) describes beget as “b: to give birth to.” To adopt appellees’ interpretation of this term “begotten” would require us to place a strained and unreasonable meaning upon that term. It would inject great uncertainty upon the rights of parties to take under the will due to the uncertainty of determining the date of conception. We, therefore, hold that the term “begotten” as used by Annie C. Paulus, deceased, means “born”. The term “lawful” necessarily implies that which is sanctioned by law. Thus, the will requires that the children of Claude Paulus be born in wedlock sanctioned by law. This necessarily includes informal marriages sanctioned by the Family Code. In this respect, appellants’ third point of error is sustained.

Appellants’ fourth point complains that the trial court erroneously permitted appellee-Lilla to give testimony which contradicted her prior admission of a fact. We need not discuss this point. Since this is an appeal from an instructed verdict, we do not consider evidence contrary to appellants’ position in disposing of this case.

Appellants’ fifth point complains that the trial court erred in refusing to admit appellants’ exhibits # 5 through # 12 and # 14 into evidence. These documents are pleadings and orders of courts of record of this state. It is appellants’ contention that these documents are prima facie evidence that Mary Josephine Wood is a lawfully begotten child of Claude N. Paulus, born after the death of Annie C. Paulus, begotten in lawful wedlock.

Appellants’ exhibits numbered 5, 7, 9, 10 and 12 are pleadings and a final accounting in prior legal proceedings. These proceedings deal with the guardianship of Mary Josephine Paulus (Wood). Pleadings in prior actions are not evidence of the facts stated therein. Neblett & Norman v. Goukas, 40 S.W.2d 1113 (Tex.Civ.App.—Austin 1931, no writ). See also 23 Tex.Jur.2d, Evidence § 146 (1961). These documents are clearly not admissible under articles 3726a nor are these documents admissible under articles 3731a, supra. They were not “made by any officer of this State or any governmental subdivision thereof. . .".

Appellants’ exhibit # 6 is an order of Harris County Court appointing Claude N. Paulus Guardian of the estate of Mary Josephine Paulus (Wood). The judgment does not recite the relationship of Claude or Lilia to Mary, nor does it recite the nature of the estate of Mary. This document is neither relevant nor material to the issues of this case and was properly excluded by the trial court.

Appellants’ exhibit # 14 is an order by the county court of Lavaca County. This order decrees that Mary qualifies under Annie’s will and it allowed funds belonging to the estate of Annie to be expended in medical expenses of Mary. Ap-pellees contend that this order is void because the county court had no authority over the independent executor of the estate of Annie. This contention appears to be correct. The county court sitting in probate has only that jurisdiction conferred upon it by the Texas Probate Code. State of Texas v. Traylor, 374 S.W.2d 203 (Tex.Sup.1963); also Tex.Pro.Code Ann. § 145, V.A.T.S. (1956). The purpose of section 145 of the Probate Code is to free the independent executor from the control of the court, except where the Code specifically and explicitly provides otherwise. Bunting v. Pearson, 430 S.W.2d 470 (Tex.Sup.1968). Appellants have shown no statutory authority of the Lavaca County Court to issue the order exemplified by their exhibit # 14.

Appellants’ exhibit # 8 is an order granting Claude N. Paulus as guardian of the estate of Mary Josephine Paulus (Wood), authority to execute an oil and gas lease upon the undivided ¼ interest of Mary in certain land. The order does not recite the origin of appellant-Mary’s title. The land, however, is apparently part of the estate of Annie C. Paulus, deceased, which was devised under her will. This document is not admissible under article 3726a because it does not contain statements relating to the “family history, genealogy, marital status, or heirship of a decedent . .” Nevertheless it is admissible under the terms of article 3731a. It was made by an officer of this state and is relevant in that the court found that Mary had ¾ undivided interest in the property. The county court would necessarily have jurisdiction to determine the extent of the property held by the child, Mary.

Appellants’ exhibit # 11 is an order of the probate court of Harris County, Texas. In this order the court found that Claude N. Paulus was the natural father of Mary Josephine Paulus.

The probate court further found that Mary owned a undivided interest in certain lands. The order did not define the origin of her title. It is apparent that the land is that which was devised under the will of Annie. The court’s finding that Claude was the natural father of Mary is certainly admissible under article 3726a. This statement clearly reflects an aspect of the family history of Annie C. Paulus, deceased, and is some evidence that Claude was the father of Mary.

About the finding that Mary owned an undivided interest in certain real estate, such finding is admissible because it is evidence of the court’s finding that Mary was a taker under the will of Annie. Because that evidence is relevant, this part of the probate court’s order is admissible under article 3731a. Appellants’ fifth point is overruled in regard to their exhibits numbered 5, 6, 7, 9, 10, 12 and 14. This point is sustained regarding exhibits numbered 8 and 11.

By their sixth point of error, appellants argue that Mary qualifies under Annie’s will as a matter of law. This contention is in error. Even if we assume that appellants have established a valid marriage between Claude and Lilla as a matter of law, there still remains a fact issue regarding the identity of Mary’s father. Lilia testified (on a bill of exceptions) that Claude was not the father of Mary. This testimony was improperly excluded because it was admissible on the issue of Mary’s qualification under the will. Davis v. Davis, supra. Appellants’ sixth point is overruled.

For the reason stated in our discussion of appellants’ sixth point, their seventh point is overruled.

Appellants’ eighth point of error asserts that the trial court erred in failing to hold, as a matter of law, that Mary Paulus Wood was entitled to 5/m interest in the estate of Annie C. Paulus, deceased. This contention is based upon the failure of some of the beneficiaries to answer appellants’ request for admission of facts and genuineness of documents under Texas Rules of Civil Procedure, 169. Because those parties failed to answer the requests, the trial court granted appellants’ motion to deem those requests admitted. Therefore, the appellants argue, the deemed admissions entitle Mary to the interest in the estate of Annie to which the defaulting parties would succeed if Mary should be shown to be unqualified as a devisee under the will in question.

Because we are reversing this case and remanding it for trial for the reasons set out in our discussion of appellants’ first, second, third and fifth points, we deem it unnecessary to resolve appellants’ eighth (the last) point.

The judgment of the trial court is reversed and the cause is remanded for trial.

NYE, Chief Justice

(concurring).

I agree that this case should be reversed and remanded for trial because there was some evidence that Mary Josephine was a lawfully begotten child of the testatrix’s son, Claude N. Paulus. Such evidence required the trial court to submit the disputed fact issues to the jury.

I disagree with the majority opinion in two (2) major areas. First, because the marriage license was improperly admitted into evidence and second the interpretation that the majority gives to the testatrix’s will.

It is fundamental that the primary concern of the courts in will construction is the determination of the testator’s (testatrix’s) intent and the effectuation of that intent as far as is legally possible. Philleo v. Holliday, 24 Tex. 38 (Tex.Sup.1859); Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968). To this end, resort may be made to the provisions of the will as a whole and the surrounding circumstances, rather than a particular word or isolated provision, if the intention is not clearly expressed. Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967).

The primary question before the Court is what meaning should be given to the word “begotten” in the will of Annie C. Paulus. In order to give effect to her testamentary intent, it is our duty to attempt to determine such intent by the particular language used as nearly as possible. The majority would construe the word “begotten” to mean “born”. This would place a strange and improper interpretation on the testatrix’s will. This interpretation would make one ask two questions: What is meant by lawfully born children? and second, Did the mother (testatrix) want to give her estate to any child; regardless of whether it was her son’s child or not, so long as it was “born in lawful wedlock”?

In order to properly determine the testatrix’s intent the particular paragraph in question can be broken down into two clauses: a granting clause and a subsequent clause — divided they read as follows:

GRANTING CLAUSE
“I give to Henry S. Paulus one-fourth (Vi) of my estate to be held in trust by him for any lawfully begotten children of my son, Claude N. Paulus, born after my death,
SUBSEQUENT CLAUSE
But in case he should die without leaving any living children begotten in lawful wedlock after my death, then in that event . . . ” — etc.

Construction of a will must be based on the language of the instrument. Where its language is free from doubt, a will is construed according to its legal import. But if the terms of the instrument create an ambiguity, the will is to be construed in the most reasonable manner possible. 61 Tex.Jur.2d Wills § 151 (1964). Each provision in a will must be interpreted as meaning something, and where possible, each provision will be harmonized with all other provisions. Stephens v. Dennis, 72 S.W.2d 630 (Tex.Civ.App.—Eastland 1934, writ ref’d). The words in each paragraph of a will should be given such force and effect so as to harmonize with the whole instrument, thereby permitting all its parts to stand together.

The appellants would have us construe the term “begotten” so that such word would be synonymous with “born”. The appellees on the other hand contend that the term “begotten” when considering the testatrix’s intent could only mean “conceived”.

First, we look to the ordinary meaning of the word begotten. Almost all of the dictionary definitions of begotten construe the word to mean conceive. In Webster’s Seventh New Collegiate Dictionary, the term begotten is defined as: 1) to procreate as to father; sire; 2) cause. In Black’s Law Dictionary (4th Ed. 1968), begotten is defined as “ ‘to be begotten’ means the same as ‘begotten’, embracing all those whom the parent shall have begotten during his life, quos pro creaverit.” There is no mention of the word born. However, when the word born is defined, its meaning is: 1) brought into existence by or as by birth; 2) having from birth specified qualities; or being in specified circumstances from birth. Webster’s Seventh New Collegiate Dictionary. In Black’s Law Dictionary, the word “born” is described thus: “if an infant is born dead or at such an early stage of pregnancy as to be unable to live, it is to be considered as never born”. In each instance the word “born” does not refer to the word begotten thereby leaving us with the inescapable conclusion that born and begotten are not synonymous. They do in fact have different meanings. The testatrix knew of both words and used both words in the same sentence. Had she intended “born” to mean “begotten”, undoubtedly she would have used such word. Again, why would the testatrix say lawfully “born” child of my son? The words “child of my son” nearly tells it all. Lawfully born has no particular meaning, but lawfully conceived does. It is the duty of this Court then to determine the intention of the testatrix, as far as possible from the particular language used.

To be born in lawful wedlock is not important under this will. Annie C. Paulus wanted a direct lineal descendant of Claude Paulus to take the Vith share of her estate. If you use the word “born” in the place of “begotten” in the subsequent part of the subject paragraph, a legally conceived child of Claude could be born after the testatrix’s death and not born in lawful wedlock, i. e. (if Claude’s purported marriage had been terminated by death or divorce). This could deprive Claude’s legally conceived (begotten) child the right to take under the will. Where as here, there has been an absolute grant (“for any lawfully begotten children of my son”) such estate, absolutely given, should not be reduced by a subsequent provision of the will, in absence of a clear intent of the testatrix. If we followed the majority’s construction of the will, this is what would happen. Nor would the subsequent clause as interpreted by the majority manifest the testatrix’s intent to give her estate to the “children of my son” when the clause as interpreted could permit a child to take her estate that was not the son’s child so long as he was married at the time the child was born.

The testatrix used born and begotten in her will, to-wit: “. . . For any lawfully begotten children of my son Claude N. Paulus, born after my death. . . .”. By using the two different words, it is clear that the testatrix used begotten in the sense of “conception” and the word “born” in the sense of an actual birth. Otherwise she would have used born in both instances.

There appears to be an additional sound reason for the two different terms being used in the will. The testatrix devised other interest in her estate to her other children. She did not require that her children’s children be conceived in lawful wedlock nor were they required to be born after her death as she required of her son, Claude. The evidence showed, however, that Claude Paulus, her youngest son, was a special case and was treated as such in the will. The evidence shows that Claude was a gambler and was in trouble many times. He had forged his mother’s name to many checks. Henry Paulus testified he had to go to Houston 75 to 100 times to help Claude out. You could reason then, that Annie Paulus was motivated to set out specific conditions that only those children of Claude that were both lawfully begotten and born after her death would take under the will.

To recapitulate, the particular provision of the will provides without dispute that one-fourth of the estate was to be held in trust by Henry Paulus with the income to go to Claude. Those amounts held in trust were for the benefit of “any lawfully begotten children of my son Claude N. Paulus”. Said lawfully begotten children of Claude had to be born after the testatrix’s death. Thus, the testatrix set up two requirements for the children of Claude to take, to-wit: 1) only those children born after her death; and 2) only those children that were lawfully begotten children.

It is undisputed that “lawfully” means legitimate. The term “begotten” means to procreate as the father; sire; or cause. There appear to be numerous other instances in which the word begotten is construed to mean conceive or sire. For instance in the Bible in the first chapter of Matthew, the term “begot” is extensively used in the context of meaning conceived or sired. Begotten is a biblical word and is used many times in the Bible to mean conceived or sired. The testatrix’s intent inescapably was, that any lawfully sired, procreated or caused children conceived during the lawful marriage of her son Claude, born after her death should take, such constituting the granting clause of this paragraph of the will.

The second part of the particular provision of the will in question reads: “but in case he should die without leaving any living children begotten in lawful wedlock after my death” is inconsistent with the granting clause in that it would seem to require that the child be conceived after her death. To be consistent with the granting clause, that phrase should include the word “BORN” prior to the words “after my death” the same as it is used in the granting clause of the will. Said clause then would read: “but in case he should die without leaving any living children begotten in lawful wedlock (BORN) after my death then in that event,” etc. This would make both provisions of the will consistent throughout. It is a well recognized rule in will construction cases that words, or clauses or sentences, or even whole paragraphs, may be transposed, supplied or rejected in arriving at the real intention of the testator. Mercantile National Bank at Dallas v. National Cancer Research Foundation, 488 S.W.2d 605 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); McClure v. Bailey, 209 S.W.2d 671, 675 (Tex.Civ.App.—Waco 1948, writ ref’d n. r. e.); Jackson v. Evans, 305 S.W.2d 236, 240 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.). Thus, in order to arrive at the real intention of the testatrix, in order to give the words “born” and “begotten” their proper and usual meaning, in order to make both the granting and subsequent phrases of the will consistent throughout, and in order to not arrive at a strained construction of the testatrix’s will, the word “born ” should be supplied. The testatrix’s intent follows: that only children of her son conceived in lawful wedlock and only children of her son born after her death would take under the will.

Included in the record is a purported marriage certificate stating that Claude and Lilia were married November 10, 1946. However, there is a serious question as to its admissibility. Appellant introduced the document under the authority of article 3731a § 4.

The question before us is whether the appellants in offering the documents evidencing a marriage between Claude and Lilia Paulus properly complied with the statutory method of authentication of foreign official documents under article 3731a, Tex.Rev.Civ.Stat.Ann. Article 3731a reads in pertinent part as follows:

“Federal, Out of State, and Foreign Records
“Sec. 2. Any written instrument which is permitted or required by law to be made, filed, kept or recorded (including but not limited to certificate, written statement, contract, deed, conveyance, lease, concession, covenant, grant, record, return, report or recorded event) by an officer or clerk of the United States or of another state or nation or of any governmental subdivision of any of the foregoing, or by his deputy or employee; or by any Notary Public of a foreign country in a protocol or similar book in the performance of the functions of his office, shall, so far as relevant, be admitted in the courts of this State as evidence of the matter stated therein, subject to the provisions in Section 3. .
“Notice to Adverse Party
“Sec. 3. Such writing shall be admissible only if the party offering it has delivered a copy thereof, or so much of it as may relate to the controversy, to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copy.
“Authentication of Copy
“Sec. 4. Such writings may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. Except in the case of a copy of an official writing from a public office of this State or a subdivision thereof, the attestation shall be accompanied with a certificate that the attesting officer has the legal custody of such writing. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States, or by any officer of a United States military government, stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office. . . .” (Emphasis supplied.)

The above quoted sections of Article 3731a § 4 requires in each instance that the copy of the document is to be attested to by the officer having the legal custody of the record. The first instance requires that a copy be attested by the officer having the legal custody of the record. In the second instance, except in the case of a copy of an official writing from a public office of this State or a subdivision thereof, the attestation is to be accompanied with a certificate that the attesting officer has the legal custody of such writing. The third instance, in which the office in which the record is kept is in the United States or within a territory or consular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of his office. Here again, the requirement is that the certification is to be made by a particular named person, where such record is kept. (Emphasis supplied.)

The fourth instance concerns an instrument that is kept in a foreign country. In this case, the certificate may be made by a secretary of embassy or legation, consul general, vice counsul, or consular agent or by any officer in the foreign service of the United States, or by any officer of a United States Military government, stationed in the foreign state or country in which the record is kept. This last part of the sentence “stationed in the foreign state or country in which the record is kept” modifies or attaches to all those officials named therein. This construction would be consistent with the other provisions in Section 4 requiring that the certification be made by a particular named person who is stationed where the record is kept. (Emphasis supplied.)

Also by the terms secretary of embassy or legation, consul general, vice consul, or consular agent or by any officer in the foreign service of the United States, the legislature intended to name a person which would be a United States citizen stationed in that foreign country or State. The instrument would have more credence, in my opinion, if its certification came from the named officials if they were United States citizens stationed in the foreign country where the record was kept. This is consistent with the Texas cases. In State v. Balli, 173 S.W.2d 522 (Tex.Civ.App.—San Antonio 1943, aff’d 144 Tex. 195, 190 S.W.2d 71, 328 U.S. 852, 66 S.Ct. 1341, 1363, 90 L.Ed. 1624), the appellees undertook to establish the validity of the alleged grant from the State of Tamaulipas by introducing four purported copies of the expedient. The original expedient was properly archived at Matamoros. The court in admitting the copies stated:

“. . . Both are photostatic copies of the protocol, certified to as correct by El Presidente Municipal (Mayor) of the City of Matamoros and attested by the secretary. Both copies also bear the certificate of the Consul of the United States of America at Matamoros, Mexico, to the effect that the signatures of the Mayor and Secretary are genuine and that such persons are in truth the Mayor and Secretary of the Municipality of Matamoros to whose official acts faith and credit are due. The Consul further certified that the copies had ‘been issued by the lawful custodian of the original document extant in the archives of the Municipality of Matamoros for the years 1827-1830’.” (Emphasis added).

Again, in Williams v. Conger, 49 Tex. 582 (Tex.Sup.1878, 125 U.S. 397, 8 S.Ct. 933, 31 L.Ed. 778), the United States Supreme Court in admitting certain instruments, held said copy of a deed taken from the public archives of Mexico, with the certificate of the proper custodian to the effect that it is a true copy, to be delivered to the United States Consul, by virtue of a judicial mandate, and the authority of the custodian being authenticated by the certificates of three other officers of the foreign government, and the proper United States officers in Mexico, together with the testimony of the custodian and others to the same effect, was sufficient authentication and thus properly admitted into evidence.

In both of the above cases, a United States official located in Mexico, where the record was kept, certified them. I have been unable to find a single case which required less. I believe Article 3731a adopted this requirement that a U. S. official in the foreign country must certify the record. A Mexican citizen with the title of Consul located in the United States (Houston, Texas) attempting to certify records which were not kept in Houston, but were kept in Atizapan, Mexico, could not satisfy the requirements of Article 3731a § 4. The Mexican Consul was not located where the writing was kept and was not a U. S. citizen. If you followed the reasoning of the majority, then any consul of any country residing in any country other than where the records are kept could make such certification. This is not what the statute says nor how the courts of Texas have approved such certification in the past. The marriage certificate not being properly certified should not have been introduced into evidence.

The appellants contend that Claude and Lilia had a valid common law marriage. The evidence shows that Lilia met Claude for the first time in 1947. She testified that she was pregnant at the time she met Claude. She stated that Claude was not the father of Mary Josephine. Such testimony was admissible. See Davis v. Davis, 521 S.W.2d 603 (Tex.1975). It was against her interest to so testify. As such, it is considered cogent and binding upon her. Mary Josephine was born September 12, 1947. Dr. Harvey Renger, M. D., testified that assuming a normal period of gestation and delivery, a child born on this date was conceived in the month of December, 1946, around the 15th or 17th day of that month. Since Mary Josephine could not have been “begotten in lawful wedlock” (if the jury believed this testimony), this would of itself preclude appellant from taking under the will.

There was compelling evidence discounting any legal marriage. The record reflects that Claude and Lilia went to Mexico City in 1948. This was Lilia’s first trip to Mexico. The purpose of said trip, according to Lilia, was to obtain and backdate a marriage license, showing that she and Claude were married in November 1946. This latter evidence was admitted without objection. The year 1948 was corroborated by Gillermo Garcia, a disinterested witness. He testified among other things that he was in the tourist guide business when he first met Claude and Lilia in Mexico which was in 1948. He testified to putting Claude and Lilia in contact with a lawyer and taking all of the parties with him to Atiza-pan de Zaragoza where the documents were issued in connection with the alleged marriage. Lilia testified that she saw Claude put $500 in an envelope and give the same envelope to Garcia. According to the testimony of Gillermo Garcia, his job for Claude was to arrange a marriage for Claude and Lilia. He testified that he was personally present at the purported marriage ceremony. Lilia testified that her parents kept Mary Josephine while she and Claude went to Mexico. It is clear from such undisputed evidence that Claude and Lilia were not married in December 1946 when the child was conceived. Lilia testified that the date on the marriage certificate was November 10, 1946, which was on a Sunday. Gillermo Garcia, the disinterested witness testified that all official government offices in the Republic of Mexico and at Atizapan de Zar-agoza which could have performed this transaction were closed on Sundays.

It thus appears that the appellant Mary Josephine Wood may have difficulty in proving up a valid ceremonial marriage. If the jury chose to believe that Mary Josephine’s mother was pregnant at the time she first met Claude and that Claude Paulus was not in fact the father of Mary Josephine, then I do not believe that she should take under the will of Annie Paulus. The majority would rely upon a legal common law marriage and the interpretation that so long as Mary Josephine was born during a lawful marriage (common law), she could take even if she was not in fact the child of Claude Paulus. This was not the testatrix’s intent!

Except for the introduction without objection of the affidavit of heirship (see footnote 1) which was some evidence of a valid marriage prior to the time Mary Josephine was conceived, I would affirm the judgment of the trial court..

      . A certified copy of a joint affidavit of Henry S. Paulus and J. F. Bozka which was recorded in the office of the county clerk in the county where the suit was pending and the land was located setting out the heirship of the decedent and the marriage between Claude and Lilia on November 10, 1946.

      . Dorland’s Medical Dictionary (21st ed. 1948); Funk & Wagnalls Desk Standard Dictionary (1928); Webster’s Third Intema-tional Dictionary (1968); Webster’s Seventh New Collegiate Dictionary (1961).


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Baldomar S. RAMIREZ, Appellant, v. Maria Luisa Vasquez RAMIREZ, Appellee.
    No. 971.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.
    Raul A. Gonzalez, Jr., Brownsville, for appellant.
    Tony Martinez, Joe W. Walsh & Associates, Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from the judgment entered in a divorce action. Appellee, Maria Luisa Vasquez Ramirez, instituted this suit against appellant Baldomar S. Ramirez, seeking a divorce, custody of their minor child and a division of the estate of the parties. After a trial before the Court, sitting without a jury, judgment was entered dissolving the marriage, granting custody of the child to the appellee and dividing the property. Appellant Baldomar Ramirez has duly perfected his appeal to this Court limiting his complaint on appeal to the Court’s action in the division of the property.

The parties herein, Maria Ramirez and Baldomar Ramirez, were married on or about December 16, 1951. During the pendency of the marriage, the parties adopted a child in 1963. The parties subsequently ceased living together on May 3, 1974. The wife filed her petition for divorce on May 6, 1974. The trial court granted the wife the divorce, named her as managing conservator, and divided the property.

The property division made by the trial court was as follows: Maria Ramirez was awarded (a) the 1972 Ford LTD automobile; (b) the household furniture; (c) the color T.V.; (d) the house and a lot located on Farm Road 803, Cameron County, Texas, being 1.61 acres of land out of 50 acres.

Baldomar Ramirez was awarded: (a) the 1965 Ford Fairlane automobile; (b) a 16' aluminum boat and a 90 horsepower motor; (c) an International Scout automobile; (d) the Farmall tractor-equipment; (e) 1 share in Farmers Gin Association; and (f) the balance of the 50-acre tract of land. The properties awarded were subject to any indebtedness charged against them.

The court ordered that all other debts and financial obligations were to be paid by the husband. Finally, the court awarded to the minor child certain stock shares and certificates of deposit of which there is no complaint. The record reveals that the house and land (a 50 acre tract) was property inherited by the husband prior to his marriage, and as such, constituted his separate property. After the marriage the parties moved into the house and made various improvements on the house, enhancing its value by some $2,500.00 from its original state. There is no dispute by the wife that the 50 acre tract upon which the house was located was the husband’s separate property-

The husband limits his appeal to that portion of the judgment divesting him of title to his separate real property, that being the house and the 1.61 acres on which the house is located. In his two points of error, he complains that the trial court erred and abused its discretion in divesting him of title to his separate real property.

The statutory provision governing the court’s action in dividing the property of the parties is Section 3.63 of the Texas Family Code, Vernon’s Tex.Rev.Civ.Stat. Ann. (formerly article 4638), which reads: “In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” This relatively new provision has raised the issue as to whether the law has changed so that the Courts now have the power to divest a person of his separate real property in a divorce proceeding. We think they do not.

In deciding such question, we believe the legislative history should be considered. The predecessor of Section 3.63 was article 4638, Vernon’s Tex.Rev.Civ.Stat.Ann., which reads:

“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate,” (Emphasis added.)

A great deal of confusion arose concerning the last sentence in the above article, that being whether such restriction was limited to the separate real property of a party, or the community real property, or both. However, in 1960, the Texas Supreme Court in Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960), laid the question to rest. It stated that: “That part of Art. 4638 contained in the last sentence, which prohibits the divestiture of title by either party to real estate, has no application to the community real estate but applies only to the separate property of each party.” The Supreme Court again in McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961) reaffirmed their prior holding in Hailey by stating that a Texas Court is not authorized to divest either spouse of his or her title to separate property, citing the Hailey case.

After such holdings, there seemed to be no question that a court was without authority to divest either spouse of their separate real property. See also, Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329 (1962); Grant v. Grant, 351 S.W.2d 897 (Tex.Civ.App.—Waco 1961, writ dism’d); Harrison v. Harrison, 365 S.W.2d 698 (Tex.Civ.App.—San Antonio 1963, writ dism’d); Alexander v. Alexander, 373 S.W.2d 800 (Tex.Civ.App.—Corpus Christi 1963, no writ); Holmes v. Holmes, 447 S.W.2d 423 (Tex.Civ.App.—Waco 1969, no writ); Hearn v. Hearn, 449 S.W.2d 141 (Tex.Civ.App.— Tyler 1969, no writ).

It should be noted that the restriction the Supreme Court put on the courts with respect to either spouse’s separate property related only to their separate real property. Whereas as to personalty, the courts are vested with wide discretion in disposing of any and all property of parties, separate or community. Fitts v. Fitts, 14 Tex. 443 (Tex.Sup.1855); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23 (1923); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Bryant v. Bryant, 478 S.W.2d 602 (Tex.Civ.App.—Waco 1972, no writ); Dorfman v. Dorfman, 457 S.W.2d 91 (Tex.Civ.App.—Waco 1970, no writ); Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App.—Fort Worth 1968, writ dism’d); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.—Dallas 1969, writ dism’d); Tullis v. Tullis, 456 S.W.2d 172 (Tex.Civ.App.—El Paso 1970, writ dism’d). The court may even go to the extent of decreeing a trust upon the separate estate of the husband for the benefit of the wife. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306 (1939); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.—Dallas 1969, writ dism’d).

When Section 3.63 of the Family Code was enacted into law and became effective January 1, 1970, it was obvious that the draftsmen omitted the latter provision with respect to divestiture of title to land. The omission of the last sentence of former article 4638 from the present statute (Section 3.63) again created doubt as to its meaning, this time with respect to whether a court now has the authority to divest a spouse of his separate real property. The wife argues that it is clear that the specific deletion of that language, appearing in the last sentence in article 4638, was done for the purpose of relieving the courts of any such limitation. We disagree. Professor Joseph W. McKnight in his commentary on Section 3.63, found in 5 Tex.Tech.L.Rev. 337, 338, states:

“In formulating section 3.63 the draftsman omitted the proviso with respect to divestiture of title to land. But the commentary on the section which was presented to the Legislature, stated that: ‘This is a codification of present law.’ The misrepresentation was recognized soon after the Family Code was passed but no effective action has been taken to clarify the meaning of this section.”

See also, Huie, Commentary on The Community Property Law of Texas, Vol. 13, Tex.Rev.Civ.Stat.Ann. pp. 45-48; McKnight, Matrimonial Property—Annual Survey of Texas Law, 27 S.W.L.J. 27, 38-39 (1973).

In Bryant v. Bryant, 478 S.W.2d 602, 605 (Tex.Civ.App.—Waco 1972, no writ), the court stated there that: “Although as a general rule separate property will be restored to its owner . . . , (but) as to personalty, the court is invested with wide discretion in disposing of any and all property of the parties, separate or community.” The court continued by stating: “We recognize that in Hailey, our Supreme Court was construing old Article 4638, V.A.T.S.; however, the similarity in the wording of old Article 4638, V.A.T.S., and the present Article 3.63 of the Family Code as hereinabove quoted is sufficient to cause this rule of law to be the same.” See also Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); DePuy v. DePuy, 483 S.W.2d 883 (Tex.Civ.App.—Corpus Christi 1972, no writ) (concurring opinion). We have found no Texas case to the contrary.

As further authority, with respect to the legislative intent, Section 3.63 (as well as former article 4638) states “. . . the court shall order a division of the estate of the parties in a manner that the court deems just and right . . . .” There can only be one “estate of the parties”, which belongs to both, that being the community estate. Had the legislature intended the courts to have the authority to divest spouses of their separate real property, they would have used “estates ” of the parties or the legislature would have specifically so stated.

The wife cites as her authority for the proposition that the courts now, under Section 3.63, have the authority to divest a spouse of his separate real property in a divorce proceeding, the following cases: Medearis v. Medearis, 487 S.W.2d 198 (Tex.Civ.App.—Austin 1972, no writ); In Re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.—Amarillo 1973, writ dism’d); Schreiner v. Schreiner, 502 S.W.2d 840 (Tex.Civ.App.—San Antonio 1973, writ dism’d); and Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.—Tyler 1974, no writ). Since the wife relies heavily on these cases as authority for her proposition, each should be critically reviewed so as to determine if they actually do support her contentions.

In the Medearis case, the question of whether a court in a divorce proceeding could divest either spouse of his or her separate real property was not present, nor was it discussed. In fact there was no mention of any separate real property upon which the parties had a dispute. There was no divestiture of either party’s separate real property and as such Medearis provides no support for the wife’s contentions. The court in Medearis based its opinion upon Balander v. Balander, 299 S.W.2d 957 (Tex. Civ.App.—Austin 1957, no writ) and Berdoll v. Berdoll, 398 S.W.2d 397 (Tex.Civ.App.—Austin 1966, no writ), where again no separate real property was involved — but only separate personalty.

The case of Schreiner again provides no basis or support for petitioner’s contentions. In that case, the appellant wife complained that the trial court erred in designating some 66,000 acres of land separate property of the husband and awarding the same to him, because there was no evidence as to the “separate character” of the property. The major question presented there was whether there was evidence to support the trial court’s finding of separate property rather than community, without raising any question as to the court’s authority to divest a spouse of his separate real property. It should be noted that the court in Schreiner, after once determining the separate character of the property, awarded it to the husband, its owner, while awarding the wife virtually all the net community estate. Again, petitioner’s contentions find no support in this case.

We next consider the McCurdy case. There was no mention or dispute over separate real property, nor was the issue raised as to the court’s authority to divest a spouse of his or her separate real property. The wife herein is evidently relying on a portion of the court’s language set out as follows:

“The trial judge is not required to divide community property equally and a substantial portion of the husband’s separate property may be awarded to the wife when the circumstances make such action necessary in connection with bringing about a fair and just division of the property. See Dobbs v. Dobbs, 449 S.W.2d 119 (Tex.Civ.App.—Tyler 1969, no writ); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.—Dallas 1969, writ dism’d); Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.—Tyler 1966, no writ); Dillard v. Dillard, 341 S.W.2d 668 (Tex.Civ.App.—Austin 1960, writ ref’d n. r. e.).”

However, upon reviewing the above cited cases, supporting such language, we find that these cases had nothing to do with divestiture of either spouses’ separate real property, nor did they even discuss it. The cases stand for the proposition that a court may award the wife a substantial portion of the husband’s separate personal property where the circumstances make such action necessary to effect a fair and just division of all of the property. There was no divestiture by the courts of either spouses’ separate real property in the McCurdy case nor any of the cases cited therein and as such provides no support for the wife’s contentions.

Finally, we come to the wife’s last cited authority, that being Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.—Tyler 1974, no writ). In this case, the wife’s separate estate was vested with an equitable interest in a certain tract of land designated by the trial court as community property. In the property division, the court granted this tract of land to the husband. The wife had paid the sum of $20,-092.00 of her separate funds in the purchase of the land costing $26,115.00 and, therefore, claimed she should have been awarded a 20/26 undivided interest in the title as her separate real estate. The wife argued that since it was real property, the trial court had no authority to divest her of title to her separate property. The Tyler court rejected this argument and held that the trial court had authority to divest her of her equitable interest in the farm land, citing the following language found in Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935):

“The cases recognizing the general right of reimbursement between estates will disclose that the right of the estate claiming and entitled to reimbursement is not a fixed right or title in the property sought to be charged, but is an equity. What is that equity, and how and when is it to be enforced? These are the questions presented here for decision. We admit they are not free of difficulty. The decisions have correctly classified the right of the one making such advancement as an equity, and the final determination of the rights of the respective parties is to be determined upon equitable principles as to the amount of reimbursement, as well as the means of enforcing the same.” (Emphasis supplied.)

The Wilkerson case is limited to its particular facts. The courts have long considered the community or separate character of each asset, the reasons for the parties’ separation, the disparity in earning powers and business opportunities, capacities and abilities, the relative conditions of the parties, the size of the community assets, and the separate estate of each in determining an equitable division to be made of the estate of the parties. In determining an equitable division of the parties’ property, either spouse’s separate real property can be considered. When the circumstances of the case reveal that one spouse will retain considerable separate property with the community estate being not so large, the facts and equities of the case may support an unequal division of the community estate in favor of that spouse not having much separate property. See Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d); Schreiner v. Schreiner, supra.

The trial court, in the case at bar, did divest the husband of a portion of his separate real property (i. e., 1.61 acres) and in doing so, exceeded its authority. The husband’s points of error are sustained.

Judgment of the trial court is reversed and the cause remanded.


author: TUNKS, Chief Justice.

text:
    WINDWARD SHIPPING (LONDON) LIMITED et al., Appellants, v. AMERICAN RADIO ASSOCIATION, AFL-CIO, et al., Appellees.
    No. 635.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 28, 1975.
    W. D. Deakins, Jr., John H. Smither, Vin-son, Elkins, Searls, Connally & Smith, Houston, Ben L. Reynolds, Royston, Rayzor, Cook & Vickery, Houston, for appellants.
    Herman Wright, Mandell & Wright, W. Arthur Combs, Combs & Archer, Houston, Bertram Perkel, Schulman, Abarbanel, Perkel & MeEvoy, New York City, Robert A. Feltner, Houston, Frank L. Wiswall, Jr., Breck P. McAllister, Law Offices of Donovan, Leisure, Newton & Irvine, New York City, for appellees.
   TUNKS, Chief Justice.

In 1971, the appellees, labor unions, were engaged in the peaceful picketing of vessels owned and operated by the appellants. Appellants filed suit in the district court of Harris County seeking an injunction against such picketing. The trial court, after hearing evidence, held that it was without jurisdiction and dismissed the case. This court affirmed. Windward Ship. (London) Ltd. v. American Radio Ass’n, 482 S.W.2d 675 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). Writ of certiorari was granted by the United States Supreme Court and that Court reversed and remanded the case to this Court “for further proceedings not inconsistent with the opinion of this Court.” Windward Shipping (London) Ltd. v. American Radio Ass’n, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974).

After the case was so remanded to this Court, the parties jointly notified the Court that they were negotiating for an agreed disposition of the issues involved in the case and requested that we keep the case pending during such negotiations. We have done so.

There has now been filed in this Court a joint “Motion and Stipulation” of the appellants and appellees in the following language:

MOTION AND STIPULATION

It is stipulated and agreed that this case may now be dismissed with prejudice to the Appellees and to each of them, all taxable costs of court to be assessed against Appel-lees. It is further stipulated and agreed, however, that if the Appellees or any of them engage in picketing or other conduct complained of by the Appellants in the amended complaints herein against the MV “NORTHWIND” or any vessels owned by, or chartered to Westwind Africa Line Limited or the SS “THEOMANA” or any vessels owned by or chartered to SPS Bulk Carriers Corporation, then, and in such event, a permanent injunction may be entered in the District Court of Harris County, 164th Judicial District of Texas, in favor of Appellants and against Appellees upon twenty-four hours notice to either W. Arthur Combs or Herman Wright, attorneys for Appellees, enjoining such picketing or conduct against Appellants and the said vessels.

(s) W. Arthur Combs W. Arthur Combs

(s) Herman Wright Herman Wright Attorneys for the Appellees

(s) W. D. Deakins, Jr. W. D. Deakins, Jr. Attorney for the Appellants

In view of the stipulation of the parties, we hold that the case has become moot. The case is therefore dismissed in accordance with the parties’ joint motion and stipulation.


author: YOUNG, Justice.

text:
    Larry Joel BORAK, Appellant, v. Mr. and Mrs. Robert BRIDGE, Appellees.
    No. 908.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 29, 1975.
    Rehearing Denied June 26, 1975.

      James A. Smith, Allison, Maddin, White & Brin, Inc., Port Lavaca, for appellant.
    Terry L. Scarborough, Gibbins & Spivey, Austin, for appellees.
   OPINION

YOUNG, Justice.

In this wrongful death action, Mr. and Mrs. Robert B. Bridge sued Larry J. Borak because of an automobile-pedestrian collision which resulted in the death of their 21-year-old son, Terry Bridge, on March 31, 1973. The case was tried to a jury which found, in response to special issues, several acts of negligence of Borak that proximately caused the collision. The trial court entered judgment for $26,954.00 in favor of the plaintiffs on the jury verdict. Defendant-Borak appeals.

On the evening of March 31, Terry with four friends drove from Refugio to Sun Valley, a dance hall near Victoria, Texas. They left Sun Valley about midnight proceeding toward Victoria on a state highway when a flat developed on the left rear wheel of their automobile. Terry was driving at the time. He stopped the car on an improved shoulder of the two lane highway near the traveled portion of the highway. While changing the tire, Terry and one of his friends were struck by a pickup truck driven by Borak. Terry never regained consciousness and was dead on arrival at the hospital.

Larry Borak had gone to work that day as usual as a welder in Wharton, Texas. He had started to drink beer that afternoon and was legally intoxicated at the time of the accident. Larry had left the dance a few minutes after Terry and was traveling the same direction on the highway as Terry had. Soon thereafter he struck and killed Terry with his right front fender at about the headlight on his side of the road.

Terry Bridge was a student at Texas Tech, on the spring break, when he was killed. He was single, had never been married, had no children, and was survived by only his mother and father, Mr. and Mrs. Robert B. Bridge. They brought this action for damages as a result of Terry’s death.

In his nine points of error, appellant’s attack on the judgment is addressed primarily to five alleged defects. Appellant contends that “advice and counsel” are not proper elements of damage in a wrongful death action; that the testimony of Dave Peyton regarding future earning capacity of a banker, as related to Terry Bridge, was inadmissible; that the court erred in admitting portions of a college theme, allegedly written by Terry, into evidence; that the jury award of $25,000 for pecuniary loss was excessive, not supported by any evidence, and motivated by bias and prejudice of the jury; finally, that the jury finding that Terry was not negligent in being on the traveled portion of the highway is contrary to the overwhelming weight and preponderance of the evidence.

By his first three points of error, appellant complains that the trial court erred in the following respects:

1. In allowing appellees’ attorney to argue to the jury that they could consider the value of advice and counseling to be given by Terry to appellees.
2. In failing to instruct the jury that they could not consider the value of advice and counseling to be given by Terry.
3. In failing to grant appellant’s motion for mistrial made in connection with appellees’ closing argument that the jury could consider advice and counseling to be given by Terry.

These points of error raise one issue: Is appellees’ loss of advice and counsel from their adult son a compensable loss? We hold that such loss is compensable.

The measure of damages in an action by a parent for the death of an adult child is the pecuniary loss actually sustained by the parent. Peek v. Parker, 210 S.W.2d 619 (Tex.Civ.App.—Fort Worth 1948, no writ); Dixon v. Samartino, 163 S.W.2d 739 (Tex.Civ.App.—Galveston 1942, writ ref’d w. o. m.).

“Pecuniary benefits” encompass those benefits, including money, that can be reasonably estimated in money, such as labor, services, kindness and attention of a child to its parents. Houston Electric Company v. Flattery, 217 S.W. 950 (Tex.Civ.App.—Galveston 1919, no writ). In Rideaux v. Lykes Bros. Steamship Company, Inc., 285 F.Supp. 153 (S.D.Texas—Houston Div.1968), the court noted that pecuniary benefits included advice and counsel that a widow might receive from her husband. Although Flattery involves the death of a minor child, and Rideaux the death of a husband, we note that Vernon’s Tex.Rev. Civ.Stat.Ann. art. 4677 (1940) makes no distinction about the character or the value of services rendered by the deceased based on his age or relationship to the plaintiff. Rio Grande, El Paso & Santa Fe R. Co. v. Dupree, 56 S.W.2d 900 (Tex.Civ.App.—El Paso 1933, writ dism’d). In fact, this court has previously noted that parents may recover for loss of pecuniary benefits on account of their adult child’s “. . . labor and his service and attention in ministering to the wants and necessities of [his] parents.” Montoya v. Nueces Vacuum Service, Inc., 471 S.W.2d 110 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.).

Clearly, advice and counsel which might have been given appellees by their son in areas of business decisions, family financial decisions, and personal dilemmas which they might encounter, have monetary value. Much of appellant’s argument under his first three points is directed to the quantity of evidence which tends to show whether or not Terry Bridge would have given advice and counsel to his parents had he lived. This argument is not material to the issues raised by these points. Appellant’s first three points of error are overruled.

By his fourth point, appellant complains that the trial court erred in admitting the testimony of Mr. Dave Peyton concerning the potential earnings of a person employed as a beginning banker and earnings in advancements above that beginning position.

With one exception, the cases cited by appellant and appellees are not factually in point. Bonnet v. Galveston, H. & S. A. Ry. Co., 33 S.W. 334 (Tex.Sup.1895), cited by appellant, deals with a father’s suit to recover damages for the death of his adult son. The evidence revealed that the deceased, just before his death, was preparing himself to become a machinist and engineer. The trial court excluded evidence about the wages that machinists and engineers ordinarily receive for their services. The Supreme Court held that the probability of the decedent’s becoming an engineer or machinist was too remote, contingent, and speculative to throw any light upon his probable future earnings. In Bonnet, the extent of the decedent’s preparation to become a machinist or engineer is not stated.

In the case before this Court, the uncontradicted evidence is that Terry, although still interested in journalism, wanted to major in business. He wanted to go into banking and was studying business in his third year at Texas Tech; he was seeking a degree in business. He had spoken of plans to get a part time summer job at a bank in Dallas. This evidence tended to show that Terry would pursue a banking career. In light of this evidence, testimony regarding the probable earnings which he could have anticipated, had he lived was relevant. The law does not furnish a precise test for relevancy. The question must be determined on a case by case basis in relation to all the attendant circumstances. Thompson v. Texas Electric Ry. Co., 155 S.W.2d 624 (Tex.Civ.App.—Waco 1941, writ ref’d w. o. m.). The testimony of which appellant complains tends to illuminate the issue of damages due to appellees’ loss of future support from their son. Such damages are in issue in this case. Because it bears on the issue of damages, this testimony by Mr. Peyton is relevant. Thompson v. Texas Electric Ry. Co., supra; Lange Cable Tool Drilling Co. v. Barnett Petroleum Corporation, 142 S.W.2d 833 (Tex.Civ.App.—Galveston 1940, no writ); Pound v. Popular Dry Goods Co., 139 S.W.2d 341 (Tex.Civ.App.—El Paso 1940, no writ).

Appellant’s complaint that Mr. Pey-ton’s testimony was founded upon facts not in evidence is without merit. It has been held that evidence of salary increases due to prospective promotions is proper for the jury to consider. See St. Louis Southwestern Ry. Co. of Texas v. Bounds, 283 S.W. 273 (Tex.Civ.App.—Texarkana 1926, writ dism’d); Schaff v. Ridlehuber, 261 S.W. 523 (Tex.Civ.App.—1923, writ dism’d); Lancaster v. Allen, 231 S.W. 148 (Tex.Civ.App.— Texarkana 1921, writ ref’d); Hines v. Walker, 225 S.W. 837 (Tex.Civ.App.—Fort Worth 1920, writ ref’d). Appellant’s fourth point of error is overruled.

By his fifth point, appellant contends that the trial court erred in admitting portions of plaintiff’s exhibit # 2, a college theme, into evidence. The portions admitted into evidence reflect the religious or philosophical background of Terry Bridge. The document indicates that Terry Bridge derived many of his beliefs from his parents; he respected manual labor, yet he preferred a job “where I would not have to work as hard as my dad, yet make a good living.”

Appellant objected to the admission of those portions of that document into evidence on the grounds that the theme, being a copy, was improperly authenticated; that the statements in the document were hearsay; and that the statements in the document were not material to any issues in controversy.

Generally, a writing, in and of itself, is not evidence. It must be accompanied by proof of some type to show that it is genuine and was executed by the party charged with its execution. Morris v. Ratliff, 291 S.W.2d 418 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.); Bliss v. City of Fort Worth, 288 S.W.2d 558 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n. r. e.); Hinrichs v. Texas & N. O. R. Co., 153 S.W.2d 859 (Tex.Civ.App.—Fort Worth 1941, writ ref’d w. o. m.). Proof of execu tion may be circumstantial. Abeel v. Weil, 115 Tex. 490, 283 S.W. 769 (Tex.Comm’n of Appeals 1926, opinion adopted); Groesbeck v. Wiest, 157 S.W. 258 (Tex.Civ.App.—San Antonio 1913, no writ). We hold that there was sufficient evidence that the author of the original of the document in question was Terry Bridge. The decedent’s father, Mr. Bridge, testified that Dr. Pinder, a pro fessor at Texas Tech University, sent Mr. Bridge the self-concept theme that Terry Bridge had written. Mr. Bridge stated that plaintiffs’ exhibit # 2 was a true and accurate copy of the original theme which had been laminated and is in the possession of Mr. Bridge. Stephen Dale Puckett, a roommate and classmate of Terry Bridge, took the same family relations course for which the self-concept theme was written. Mr. Puckett and Terry had written their required self-concept themes at the same time. Terry had discussed part of his theme about his parents with Mr. Puckett. The portions of the theme admitted into evidence concerning Terry’s religious beliefs, his philosophy of life, his parents, and his background in manual labor, matters which would be known only to Terry Bridge and his parents, all correspond with testimony on the same subjects given by appel-lees. In light of these circumstances, we hold that there was ample proof that Terry Bridge was the author of the self-concept theme and that plaintiffs’ exhibit # 2 was a properly authenticated copy of that theme.

In order to show how much Terry Bridge would have contributed to their support, appellees are permitted to show the character of their son and his affection and disposition toward his father and mother. Peek v. Parker, supra; see also Allen v. Riedel, 425 S.W.2d 665 (Tex.Civ.App.—Eastland 1968, no writ). The portions of the theme admitted into evidence were indicative of the state of mind of Terry. This state of mind is indicative of his character. The complained of evidence was material, therefore, to the issue of future support which appellees properly would have received from their son.

The portions of the theme admitted into evidence were not hearsay. This is so because declarations of persons, since deceased, made prior to the time the cause of action arose, are admissible to show the declarant’s intention to support the mother or father, in an action for wrongful death. Simpson v. Vineyard, 324 S.W.2d 276 (Tex.Civ.App.—El Paso 1959, no writ); Gulf C. & S. F. Ry. Co. v. Hicks, 202 S.W. 778 (Tex.Civ.App.—Amarillo 1918, no writ).

Appellant’s fifth point should be overruled for the further reason that any error committed by the trial court in admitting portions of plaintiffs’ exhibit # 2 was harmless error. The portions of appellees’ exhibit # 2 which were admitted into evidence were substantially the same as testimony offered by several of appellees’ witnesses. These witnesses testified about Terry’s religious beliefs, his background in manual labor, his never-give-up attitude, his desire for a good job, and other similar matters. This testimony was admitted into evidence without objection. Under these circumstances, the error, if any, is harmless. Bolin Oil Company v. Staples, 496 S.W.2d 167 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.); Gulf, Colorado & Santa Fe Railway Company v. De Leon, 373 S.W.2d 886 (Tex.Civ.App.—Eastland 1963, writ ref’d n. r. e.); Texas Rules of Civil Procedure, rule 434. Appellant’s fifth point of error is overruled.

Appellant’s sixth, seventh and eighth points of error will be discussed together. Appellant’s sixth and seventh points assert that the trial court erred in overruling defendant’s motion for new trial because: there is no evidence to support the jury’s answer ($25,000.00) to special issue no. 18; the jury’s answer to that special issue was the result of bias and prejudice against the defendant. Appellant’s eighth point of error argues that the trial court should have ordered a remittitur.

In reviewing appellant’s sixth point of error we examine only that evidence in favor of the jury finding. In re King’s Estate, 244 S.W.2d 660 (Tex.Sup.1951). It was uncontradicted that Terry and his parents were very close. Terry was of the Christian faith and of good moral character. He was industrious, bright, hardworking, and frugal. Terry Bridge was not married. He was interested in pursuing a banking career, and was seeking his bachelor’s degree in Business Administration at Texas Tech University. Mr. Dave Peyton testified that upon beginning his career in banking a young man such as Terry could expect to earn between $600.00 and $700.00 per month. After ten year’s experience, this young man could earn between $18,000 and $20,000 per year; after twenty-five years, in excess of $30,000 per year. Mr. Bridge also received advice and counsel from Terry. All of this evidence is relevant to the issue of how much Terry might have contributed to his parents’ support. Peek v. Parker, supra; Houston Electric Co. v. Flattery, supra; Rideaux v. Lykes Bros. Steamship Company, Inc., supra. Because probative evidence supports the jury’s answer to special issue no. 18, appellant’s sixth point is overruled.

Upon a careful review of the entire record, we are unable to find any indication that the jury’s response to special issue no. 18 was motivated by bias and prejudice. Evidence in a case such as this one cannot furnish the measure of damages with such certainty and accuracy as is possible in some other cases. Therefore, the question of damages must be left to the discretion of the jury. Jasper County Lumber Company of Texas v. McMillan, 188 S.W.2d 731 (Tex.Civ.App.—Beaumont 1945, writ ref’d).

In the absence of a clear showing that passion, prejudice or other improper matters influenced the jury, the amount assessed by them will not be set aside as excessive. J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.). Appellant’s seventh and eighth points of error are overruled.

Appellant’s ninth point of error asserts that the jury finding that Terry Bridge was not negligent is against the overwhelming weight and preponderance of the evidence. The jury found that Terry was in the traveled portion of the highway at the time of the accident and that it was not negligence for him to be there. In addressing ourselves to this contention, we consider all the evidence presented to the jury. In re King’s Estate, supra; O’Neill v. Craig, 493 S.W.2d 898 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

Contributory negligence is a question of fact for the jury when the evidence shows that the plaintiff, with knowledge or chargeable with knowledge of the danger, exercised some care. Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948); Loughry v. Hodges, 215 S.W.2d 669 (Tex.Civ.App.—Fort Worth 1948, writ ref’d n. r. e.).

The evidence in favor of appellant’s point of view is as follows: Defendant-appellant did not know whether the flashers on the parked auto were on or not. Terry Bridge was on some portion of the traveled highway. It was dark. Appellant did not see the girls (who had been passengers in Terry’s car) flagging traffic. James Vyvial stated that at the time he passed the parked car the emergency flasher lights were not on, and the trunk was not open. He only saw two men and did not see any girls. There was a driveway fifty or sixty feet from the area where the vehicle driven by Terry was parked. Theoretically, a driver of a vehicle fifty or sixty feet away from the driveway, with his headlights on, should have been able to see the driveway and to park there in safety. A photograph (defendant’s exhibit # 12) seems to show no reason why the disabled automobile could not have been positioned farther off the road.

Briefly stated, the evidence in favor of appellees is as follows: At the time of the accident it was dark. A passenger in the automobile stated that they were unable to see any driveways nearby and did not know of any. Both defendant’s exhibit # 12 and plaintiffs’ exhibit # 9 (both photographs) show that grass along the shoulder of the highway in the area of the accident grows tall at times. The emergency flashers on the auto driven by Terry Bridge were on at the time of the accident. At that time, the trunk was open and the trunk light and headlights were on. Shelly Newman and Jean Johnston (two of Terry’s passengers) stationed themselves on the shoulder of the highway a distance behind the parked car in order to flag on-coming vehicles. Shelly was two to three car lengths behind the car and was using a red vest for a flag. Other automobiles had passed the parked car while Terry and another passenger were removing the flat tire. It was evident to Vance Claybrook, Jr., another passenger, that all the on-coming cars saw the signals and the girls’ flagging. Further, appellant stated that he would not dispute the contention of other witnesses that the emergency flashers were on and working at the time of the collision. If the jury chose to believe the evidence favorable to appellees, it could have reasonably found that Terry Bridge acted as a reasonable prudent man would have acted in the exercise of ordinary care under the same or similar circumstances. We hold that the jury’s finding of no negligence against Terry was not contrary to the great weight and preponderance of the evidence. Appellant’s ninth point of error is overruled.

The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    A. F. FUNKHOUSER et ux., Appellants, v. HURRICANE FENCE COMPANY et al., Appellees.
    No. 16494.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 5, 1975.
    Rehearing Denied July 10, 1975.
    Payne, Benefield & Eaton, James B. Eaton, Houston, for appellants.
    Foster, Wohlt, Lueders & Hope, T. Kent Cochran, David E. Lueders, Houston, for appellees.
   COLEMAN, Chief Justice.

This is a suit for property damage sustained as the result of an automobile collision. The trial court sustained a plea of res adjudicata and subsequently entered a judgment that the plaintiffs take nothing. The judgment is reversed.

On September 8, 1969 an intersectional accident took place between cars driven by Richard F. Barnard and Beatrice Dennis. It was alleged that at the time of the accident Richard F. Barnard was acting within the course and scope of his employment for Hurricane Fence Company and that Beatrice Dennis was acting within the course and scope of her employment for Jerry C. Goodwin. After the cars collided the vehicle driven by Beatrice Dennis ran into an attached garage at the home of the plaintiff, A. F. Funkhouser, causing damage to the garage and, it is alleged, to an automobile parked therein and other personal property.

As a result of the collision a lawsuit styled “Beatrice Dennis v. Richard F. Barnard” was filed on October 30, 1970 in the 164th Judicial District Court of Harris County, Texas, and given Cause No. 851637. In this suit the plaintiff, Beatrice Dennis, sought to recover for personal injuries she suffered in the accident.

On December 17, 1970, under Cause No. 856221, a suit styled “A. F. Funkhouser vs. Richard F. Barnard and Beatrice Dennis” was filed in the 133rd Judicial District Court of Harris County, Texas. In this suit, A. F. Funkhouser sought to recover for property damage to his garage from the defendants, Richard F. Barnard and Beatrice Dennis. These suits were consolidated under Cause No. 851637 in the 164th Judicial District Court of Harris County.

On August 24, 1971, the case at bar was filed in the 189th Judicial District Court of Harris County, Texas. No motion was filed seeking to have this case consolidated with the two prior suits. On March 13, 1973, the consolidated cases under Cause No. 851637 were tried and resulted in a judgment for Beatrice Dennis against Richard F. Barnard and for A. F. Funkhouser against Richard F. Barnard. Long prior to the disposition of Cause No. 851637, the defendants in this case filed an answer consisting of a general denial. In this cause, No. 882306, the plaintiffs sought compensation for the damage to their garage, house and contents, including the automobile parked in the garage, and personal injuries sustained by the plaintiff, Jo. Funkhouser.

After judgment was entered in the consolidated suit, on April 19, 1973 the defendant, Hurricane Fence Company, filed an instrument denominated “Plea of Res Judi-cata” setting up the judgment in the consolidated suit in bar of this suit. In the consolidated suit plaintiff, A. F. Funkhouser, sought compensation for the damage to his garage only, and the judgment awarded only this damage.

On January 29, 1974, the trial court entered a judgment sustaining the plea of res adjudicata insofar as the plaintiffs asserted claims for damage to real and personal property, but not insofar as their suit was based on a claim for damage for personal injuries. On August 20, 1974, the plaintiffs filed their first amended petition whereby they restricted the damages sought to the damage suffered by their automobile, landscaping, contents of garage, damage to the house, and damage to personal property located in the house, as well as the damage suffered by reason of personal injuries. On December 2, 1974, plaintiffs filed a second amended petition in which they omitted the claim for damage by reason of personal injuries. The case was then called for trial and the defendants submitted a motion for directed verdict, prior to the jury selection and presentation of evidence, based on the prior interlocutory judgment striking all property damage from the suit. This motion was granted and the court entered judgment that the plaintiffs take nothing by their suit.

The defendant, appellee in this appeal, relies on the principles of res adjudicata set out in Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971). There the court said that an existing final judgment rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties and all other actions on the points at issue and adjudicated in the first suit. It also stated:

“. . . the rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former action as well as those which were actually tried.”

See also, Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973).

There is an exception to the usual rule of res judicata which is widely recognized. The Restatement of Judgments, Sec. 62, p. 242, reads:

“Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except
“(a) - . .
“(b) • • •
“(c) where the defendant consented to the splitting of the plaintiff’s cause of action.”

In its Comment on clause (c) the Restatement states:

“Where the plaintiff brings separate actions based upon different items included in his claim, and in none of the actions does the defendant make the objection that another action is pending based upon the same claim, a judgment for the plaintiff in one of the actions does not preclude him from obtaining judgment in the other actions. In such a case the failure of the defendant to object to the splitting of the plaintiff’s claim is effective as a consent to the splitting of the claim.”

That this exception is generally recognized is illustrated in the general statement found in an annotation, “Splitting Causes— Waiving Objection”, 40 A.L.R.3rd 108, where it is stated:

“. . . It is generally recognized that an objection to an alleged ‘splitting’ is untimely where two or more suits upon an alleged single demand are instituted against the defendant, and the defendant allows one of the suits to go to judgment before raising the objection against the alleged ‘splitting’ in the remaining suit still pending, the objection usually being in the form of an amended pleading which pleads the judgment as a bar to the pending suits. . . .”

The cases found in this annotation of particular interest are: Cassidy v. Berkovitz, 169 Ky. 785, 185 S.W. 129 (1916); Shaw v. Chell, 176 Ohio St. 375, 199 N.E.2d 869 (1964).

No Texas cases have been found which have decided the question presented here. In Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959), the Supreme Court said:

“The rule against splitting causes of action, which is simply a branch of the broader doctrine of res adjudicata, is not directly involved in this appeal. We note, however, that it is for the benefit of and may be waived by the defendant, and does not in any way limit the power of a court to hear and determine several suits instituted by a plaintiff for the recovery of different parts of a single cause of action, (citations omitted). Whether a judgment in one severed phase of the present case would make a plea of res adjudicata available with respect to the other action is not considered or decided here.”

This case falls clearly into the exception to the rule as set out in Restatement of Judgments above cited. It is clear from the pleadings in the consolidated suit that the only claim presented by the plaintiff Funk-houser was for the damage to his garage. He was not compensated by the judgment in that suit for the damage to the other items of personal property. The suit had been pending for more than a year seeking recovery for these items. By failing to file in either action a plea of another cause pending, or to move for consolidation, or in any manner to bring to the attention of the trial court and the plaintiff the fact that the defendant objected to the splitting of the cause of action, the defendant has consented to the splitting of the cause of action. New Orleans v. Gaines, Admr., 138 U.S. 595, 11 S.Ct. 428, 34 L.Ed. 1102 (1891); James v. Emmco Ins. Co., 71 Ga.App. 196, 30 S.E.2d 361 (1944).

Reversed and remanded.