author: KEITH, Justice.

text:
    Patsy Ruth LOGAN et al., Appellants, v. Vara BARGE, Appellee.
    No. 8107.
    Court of Civil Appeals of Texas, Beaumont.
    May 11, 1978.
    Rehearing Denied June 8, 1978.

      Edward T. McFarland, William Drew Perkins, Lufkin, for appellants.
    Kenzy D. Hallmark, Lufkin, for appellee.
   KEITH, Justice.

Defendants below appeal from an adverse judgment based upon jury findings that they conspired with their deceased father (and father-in-law) to defraud the deceased’s widow of her community property rights enmeshed in deceased’s estate. Additional factual statements will be made as necessary to place the questions into proper focus.

However, first, we must dispose of a threshold problem relating to the sufficiency of the brief of the defendants. Plaintiff has twelve counterpoints replying to the forty-nine points of error brought forward by the defendants. All twelve counterpoints challenge the sufficiency of defendants’ points of error contending that each of the points is too general and does not give a page reference where the matter complained of can be found.

Although the brief filed by defendants leaves much to be desired and at least to some extent is subject to the criticisms leveled at it, we are able to ascertain and consider the specific complaint made by following the applicable rules. See, e. g., Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), and its progeny.

In eight of the twelve counterpoints, plaintiff challenges the sufficiency of the underlying assignments of error to support the points brought forward in the brief. The contention is that Tex. Rs. Civ.P. 322, 324, and 374 were not complied with “because the assignment in the amended motion for new trial was couched in general terms and should not be considered.”

Of the three rules cited by plaintiff, only one (Rule 322, relating to generality of objections) is still in effect. Rule 324 has been amended so as to eliminate the requirement for a motion for new trial in most instances, and Rule 374 has been repealed. In an earlier case, Delta Brands, Inc. v. Borden Metal Products Company, 570 S.W.2d 1 (Tex.Civ.App.—Beaumont 1978, writ pending) (our No. 8064, February 23, 1978), we held that the appeal must be considered and treated under the procedural rules in effect at the time of the consideration of the appeal. Defendants’ brief contains points based upon assignments which are sufficient under the rules now in effect. All of plaintiff’s challenges to the points of error are overruled.

General Factual Statement

Jessie Aaron Barge, Sr. (hereinafter referred to as the deceased, or husband, or father), was born in 1890 and died in 1974. He operated a general merchandise store in Zavalla, Texas, from the early 1920s until a few years before his death when it was transferred to his son, Jessie Aaron Barge, Jr., or as he is known in this record: “Snooks.” The deceased had been married four times to three women. He had one child by his first marriage which ended in divorce, and two children by his second marriage, which also ended in divorce. One of his daughters preceded him in death but was survived by two children, Wayne and Charles Oliver, who are involved in this proceeding but not as parties. Snooks and his wife, Maudine, both of whom are parties defendant, lived in Zavalla and both assisted in the operation of the store and in other operations conducted by deceased.

Patsy Ruth Logan, another daughter, was married and lived in Houston. Her daughter, Karen, involved in the proceedings, was not made a party to the suit.

The deceased was married to Vara Barge, plaintiff, in 1937 but the parties were divorced in 1953 and their community property was divided in the decree. They remarried in 1956 and continued as husband and wife until his death. Deceased acquired land variously estimated at 2800 to 3000 acres, but there is no contention made that such land was not the separate property of deceased. He was, according to all of the evidence, one who kept large sums of cash in the safe in his store, a practice he had pursued for many years before his death.

In 1967, deceased began to give away his land to his children and grandchildren so that by the time of his death he owned only a few acres of land. He also began transferring large sums of his cash hoard to his children. While his wife knew of some of the land transactions, by participating in gift tax disclosures and payments, she had no knowledge of the transfers of the cash until at or about the time of his death.

Deceased left a written will wherein he devised the sum of $10,000 to his wife and directed that the remainder of his estate be divided equally between his two surviving children (⅛ each) with his grandsons sharing equally in the remaining third. Patsy was named independent executrix. ' The will was admitted to probate and record, and Patsy received letters testamentary on May 17, 1976.

The next day, May 18, 1976, this suit was filed alleging a conspiracy between the deceased, Patsy, Snooks, and Maudine. The widow sought to recover one-half of the cash gifts, of the gift taxes paid, of the improvements made upon the land transferred to the defendants during the lifetime of the deceased, for exemplary damages, etc.

Upon the trial, all issues were answered favorably to plaintiff and the judgment followed the verdict.

Defendants appeal upon a plethora of points, as indicated earlier, many of which will escape mention in this lengthy opinion.

Opinion

1. The Conspiracy

The jury found that the deceased, Snooks, Maudine, and Patsy Ruth “entered into a conspiracy to convey, transfer or otherwise dispose of property in which Vara Barge may have owned an interest.” The definition of conspiracy, which comes to us without objection, is set out in the margin.

A lengthy review of the evidence sustaining this finding is not deemed necessary. It is sufficient to relate that in each instance the defendants admitted that he or she was alone with the deceased in the store — and in the absence of the widow — when large sums of money were given to them by the deceased. There was no attempt made to establish that the widow had any knowledge of either the existence of the cash hoard or that it was being given to the children and grandchildren in sums amounting to thousands of dollars at a time.

Additionally, the jury found that deceased transferred the store to Snooks and Maudine in 1972 but that they did not pay anything for such transfer although it was of a value of $50,000. In excess of $130,000 was expended upon the deceased’s pasture lands during the years 1968-1975, according to the income tax returns of the parties, these lands being the same tracts transferred to the children and grandchildren by deceased during his lifetime.

Our record further shows that Patsy Ruth, as independent executrix, refused to pay over to the widow her share, of the money received from the sale of cattle (something in excess of $10,000) until compelled to do so by an order issued by the probate court; and, that she had not paid the specific bequest to the widow. Further, counsel representing Patsy Ruth in the trial of this cause, wherein she was sued individually and in her capacity as independent executrix, were paid out of the funds of the estate.

All parties, except Snooks who was physically unable to do so, testified freely at the trial. This abbreviated statement of the record is made so as to bring into play the rule governing defendants’ attacks upon the legal and factual sufficiency of the evidence to support the finding of conspiracy. Testing the record under the applicable standards governing our review of such contentions [e. g., under the rules stated in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)], we find no merit to such points and each is overruled.

2. The Cash as Separate Property

There is no competent evidence in the record tending to show that the admittedly large disbursements of cash to Patsy, Snooks, and Maudine came from the separate estate of the deceased; and, as a matter of fact, the jury refused to find in each instance that such sums so received by the respective defendants “came from funds accumulated by J. A. Barge, Sr., before November 1,1956,” the date of his remarriage to Vara. Thus, defendants are forced into conceding that there was a presumption that such sums constituted community property of the deceased and his widow, our plaintiff. Tex.Family Code Ann. § 5.02 (1975) reads: “Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.”

While the presumption is rebuttable, our Supreme Court has recently held in Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975):

“In order to overcome this presumption, the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage.”

With this hidden and secret hoard of cash, defendants faced an impossible burden and their contentions, however presented contending that the cash was separate property of the deceased, failed to do more than raise a jury issue which was answered unfavorably to their cause. All such points of error are overruled.

3. Testimony of Tommy Barge

(a) As to the retail store

Defendants have several points of error complaining of the court’s rulings upon testimony given by Tommy Barge, the eighty-year-old younger brother of the deceased. Unquestionably, Tommy Barge was the most important witness tendered by the widow, being the only direct evidence offered as to the conspiracy, the value of the improvements upon the lands transferred to Snooks, and the value of the store. Incidentally, the jury, in each instance, accepted Tommy Barge’s testimony as to values he placed upon such items.

We have given careful consideration to the testimony of Tommy Barge relating to these items, bearing in mind the widow’s contention that since her husband, as the manager of the community estate, kept no records, or at least inadequate records, and that she offered the best evidence available. The evidence on the subject is, to say the least, a bare scintilla. Indeed, its weakness appears when we quote from plaintiff’s brief attempting to support the finding of a value of $50,000 for the store. We quote from such brief:

“In trying to arrive at a value of the store, the accountant for Mr. Barge, Jack Wind, was called as a witness and his testimony showed that the ending inventory of 1971 was $13,201.94. [The transfer occurred apparently in January, 1972.] It had a gross profit of $22,062.52 with a labor-hired expense of $13,301.28.”

However, this same income tax return — and particularly Exhibit C relating to the store operation — disclosed that the store sustained a net loss of $2,231.09 during the year 1971 of which only $1,273.23 was attributable to depreciation.

Other than the information supplied by the income tax return for the year 1971, we find no evidence in our record as to the value of the store at the time it was transferred to Snooks and Maudine. Over appropriate objections that the evidence was hearsay, the trial court permitted this evidence to be elicited from Tommy Barge by plaintiff’s counsel:

“Q. What kind of arrangement did Mr. Barge [deceased] tell you that he was going to make with them [Snooks and Maudine] about conveying the store?
“A. He told me he was going to have Maudine and J. A. [Snooks] to sign him a $50,000 note.
“Q. Going to just sign a $50,000 note for it?
“A. That’s right.”

Defendants invoke the rule enunciated in Texas Company v. Lee, 138 Tex. 167, 157 S.W .2d 628, 631 (1941), that hearsay evidence “can never form the basis of a finding of fact or of .the judgment of a court; and this is so whether it be objected to or not.” Plaintiff, on the other hand, invokes the relaxed rule relating to acts and declarations of co-conspirators. As stated in Harang v. Aetna Life Ins. Co., 400 5.W.2d 810, 818 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.):

“[E]ach conspirator is responsible for the acts of his co-conspirators done in pursuance of the conspiracy and during its existence. Hence when a conspiracy has been proved, the acts and declarations of each conspirator during the pendency of the conspiracy and in furtherance of the common design are receivable against his co-conspirators as admissions.”

The rule is modified by this language taken from Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964):

“But an act done or a declaration made by one conspirator not in pursuant of the common object is not evidence against his co-conspirators. Blum v. Jones, 86 Tex. 492, 25 S.W. 694-696.”

Footnote three appended to this quotation cites numerous cases in support of the rule enunciated and we quote this footnote in the margin.

It is obvious that the statement attributed to the deceased by Tommy Barge was not “in pursuance of the common object” of the co-conspirators — that is, the fleecing of Vara Barge. Instead, the only fair interpretation which may be placed thereon is that the conspiracy had ended and that the deceased had become disenchanted with the transaction and was attempting to recoup — for the community estate — some of the assets which he had theretofore disposed of pursuant to the conspiracy.

Under these circumstances, the evidence was clearly hearsay and constituted no evidence of value of the store. A jury verdict finding the value to be $50,000, based as it is solely upon such testimony, cannot stand. Error is apparent on the record and we sustain points of error two and three and, if we were to reach them, would also sustain points four and five.

(b) Improvements on Snook’s land

Tommy Barge, and no one else, testified to improvements made upon land deeded to Snooks by his father after his remarriage to Vara and before his death. It is true, as pointed out by plaintiff, that the income tax returns showed that more than $130,000 was spent upon pasture improvements during the years 1968-1975; but where and when such improvements were made and the amount thereof was not shown by the returns. That came from Tommy Barge and, again, it was most general in nature and generally unsatisfactory as to probative value.

Even if we should consider the income tax returns and the amount shown thereby as having been spent on the land improvement, we would be without probative evidence to support the finding. It has long been the rule in Texas that the measure of recovery where community expenditures have been made on separate property is not the amount expended but the amount that such expenditures have enhanced the value of the separate property. Burton v. Bell, 380 S.W.2d 561, 565 (Tex.1964); In re Marriage of Greer, 483 S.W.2d 490, 497 (Tex.Civ.App.—Amarillo 1972, writ dism’d). See also R. Bartke, “Yours, Mine and Ours—Separate Title and Community Funds,” 21 Baylor L.Rev. 137, 153 (1969), and Texas cases cited in footnote 73 thereof.

Defendants, citing Younger v. Younger, 315 S.W.2d 449 (Tex.Civ.App.—Waco 1958, no writ), contend that there is a presumption that improvements made on separate property were made with separate funds and, there being no showing to the contrary, such a presumption operates to preclude a recovery for improvements made to the land conveyed by the deceased to Snooks. Assuming, arguendo, the original existence of such a presumption, we agree with Professor Bartke wherein he writes in the Baylor Law Review cited earlier (21 Baylor L.Rev. at 154):

“In the past, the Texas courts took a very strict view of such claims. Unless there was proof both of the amount of community funds spent and of the increased value of the property, there could be no possibility for reimbursement. However, in the more recent cases, a change in emphasis appears. Thus the Court of Civil Appeals said in Fulwiler v. Fulwiler [419 S.W.2d 251, 252 (Tex.Civ. App. — Eastland 1965, no writ)]: ‘The right to reimbursement is an equity and mathematical certainty in its determination is not required.’ ”

Even so, we find that Tommy Barge’s testimony was so vague, inconclusive, and lacking in specificity as to time, place, cost, and value that it cannot serve to support the jury finding that the deceased expended $21,000 in community funds upon lands deeded to Snooks. It would extend this opinion unduly to recount the evidence (or rather lack of probative evidence) found on pages 396-415 of the statement of facts. The parties can read such testimony in the statement of facts and its publication would serve no useful purpose. From our review under the appropriate standards (e. g., Garza v. Alviar, supra), we find that the evidence is legally insufficient to support the jury’s answer to Special Issue No. 9 and sustain point of error number twenty.

(c) Attempted impeachment

Tommy Barge’s son, Roy Barge, purchased some land from the deceased during the latter’s lifetime but the debt had not been fully discharged at the time of his death. From the bill of exception, it appears that Roy Barge contends that the balance of the debt was to be forgiven upon the death of the grantor but Patsy Logan, the independent executrix, and Maudine did not agree. Defendants sought to interrogate the witness as to his bias against them because of the existence of the dispute between his son and the defendants but plaintiff’s objections prevented such proof from being made to the jury. As we have indicated earlier, Tommy Barge was probably the most important witness for the plaintiff and the only witness as to several facets of her case. Taken as a whole, his testimony was damaging to the defendants.

It has long been the rule in Texas that a party may cross-examine an adverse witness to develop any fact which tends to show that the witness might have reason to be biased or interested. Wentworth v. Crawford, 11 Tex. 127, 132 (1853); Trinity County Lumber Co. v. Denham, 88 Tex. 203, 30 S.W. 856, 857 (1895). In Aguilera v. Reynolds Well Service, 234 S.W.2d 282, 283 (Tex.Civ.App.—San Antonio 1950, writ ref’d), the Court said:

“The exact nature of the business relationship between a witness and a party is generally a matter for the jury to consider in passing upon the possible existence of bias or prejudice on the part of the witness . . . .”

See also Walker v. Missouri Pacific Railroad Company, 425 S.W.2d 462, 464 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.), where this broad language is used:

“On cross examination of an adverse witness, anything may be shown which might affect the witness’ credibility, such as bias, interest and prejudice, and a wide latitude is allowed in such matters.”

Defendants’ attack upon the testimony of Tommy Barge is not to his competency but to his credibility. As stated in Smith v. State, 490 S.W.2d 902, 907 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.) [and followed by the same court in the same case on a subsequent appeal reported in 523 S.W .2d 1, 5 (1975, writ ref’d n. r. e.)]:

“Whether a witness is competent to testify is a question of law to be decided by the trial judge. Whether a witness is credible is a fact question that goes to the-weight of the witness’s testimony.”

We are of the opinion that the trial court erred in refusing to permit further cross-examination of Tommy Barge concerning the dispute between his son and Patsy Logan as independent executrix. Wide latitude must be given in the cross-examination of damaging factual witnesses to show their possible bias and prejudice. However, from our consideration of the record as a whole, we do not find that such error amounted to “such a denial of the rights of the [defendants] as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case . . . Tex.R.Civ.P. 434; McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62, 67 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Point eleven is overruled.

4. The Damage Issues

(a) As to Patsy Logan

In a general way, we have stated the basic complaint of the plaintiff against Patsy Logan. In her own testimony, Patsy admitted having received large sums of money from her father and readily admitted that plaintiff had no means of knowing of the clandestine gifts.

Additionally, Patsy Logan adopted a course of conduct toward plaintiff after the death of her father which was calculated to exacerbate an already strained relationship, of which the following are a few incidents: She sold the cattle only after having been required to do so by the probate court and then refused to pay over the plaintiff’s share until required by that court’s order. She purchased a headstone for deceased’s grave from estate funds and omitted plaintiff’s name therefrom although the names of her brother and sister-in-law were placed on the stone. She has yet to pay to plaintiff any part of the specific cash bequest mentioned in the will — $10,000 in cash. Admittedly, Patsy’s complaints that she has been the object of a continuing legal battle since the death of her father may have some basis in fact. But, from our review of the evidence under the appropriate standards, noted earlier, we find that all of the actual damage findings are supported both factually and legally by competent evidence of a probative nature.

(b) As to Snooks and Maudine

The jury’s answers as to the money on deposit in the Lufkin Federal Savings and Loan Association are supported by competent evidence in our record and we do not disturb such answers. As to the sums awarded to plaintiff for her share in the store and for improvement upon land granted to Snooks and Maudine, our earlier language will serve to support the rendition of the judgment in their favor. The other complaints of Snooks and Maudine, relating to the excessiveness of the award of exemplary damages, are treated hereinafter.

5. The Exemplary Damage Award

The jury awarded plaintiff exemplary damages in the sum of $100,000 and the instruction, quoted in the margin, comes to us without objection. In passing upon this claim of excessiveness in the amount of exemplary damages awarded to plaintiff, we do so by considering simultaneously the question of constructive fraud in connection with the gifts of money to Patsy by her father. We do so because, as pointed out in Horlock v. Horlock, 533 S.W.2d 52, 55 (Tex. Civ.App.—Houston [14th Dist.] 1975, writ dism’d), “a gift of one spouse’s share of the community property will be set aside where the gift is unfair to that spouse.”

Prom our review of the record, we are convinced that plaintiff’s claim of constructive fraud as to the gifts of money met the three “primary factors” mentioned in Horlock, supra. The jury’s answers to such issues so finding have not been disturbed and our holding will require reimbursement of plaintiff’s community property portion of such gifts.

However, to say that a daughter should respond in a six-figure exemplary damage judgment because she accepted gifts from her aged father is an entirely different matter. She was, after all, the natural object of his bounty and there was nothing inherently wrong in his giving of his property to his only living daughter and son. This is especially true since our record shows that the plaintiff was also possessed of a separate estate which was kept equally well hidden from her adversaries in this suit.

From our review of the record, we are of the opinion that the amount of exemplary damages assessed against the defendants is excessive by the amounts set opposite their respective names: (1) As to Patsy Logan, said damages are excessive by the sum of $85,000.00; (2) as to J. A. Barge, Jr., said damages are excessive by the sum of $7,500.00; and (3) as to Maudine Barge, said damages are excessive by the sum of $7,500.00. Plaintiff is granted ten days from the date of this opinion in which to file remittiturs of the sums mentioned in this paragraph as being excessive. If such remittiturs are filed, the judgment of the trial court will be modified and affirmed as shown in Section Six of this opinion; otherwise, the judgment will be reversed and the cause remanded to the trial court. See K-Mart No. 4195 v. Judge, 515 S.W.2d 148, 155 (Tex.Civ.App.—Beaumont 1974, writ dism’d).

6. Disposition of Cause

(a) As to Patsy Logan, individually, the judgment of the trial court is affirmed conditionally as set out in this section: If the plaintiff shall file a remittitur of $85,000.00 of the exemplary damages within ten (10) days of the date of this opinion, said judgment as to Patsy Logan, individually, will be reformed and affirmed; otherwise, it will be reversed and the cause remanded for a new trial.

(b) As to J. A. Barge, Jr. (Snooks), if the plaintiff shall file the remittitur of $7,500.00 in exemplary damages as suggested in the preceding section, the judgment of the trial court will be reformed in this respect: (1) the portion of the money judgment awarding plaintiff a recovery for the value of the store (Special Issue No. 7) and for the improvements upon the land (Special Issue No. 9) will be reversed and the judgment will be reformed so as to deny plaintiff any recovery for such items; and (2) the remainder of the judgment as to J. A. Barge, Jr., will be affirmed. Should plaintiff fail or refuse to file such remitti-tur as suggested, the judgment of the cause will be reversed and the cause remanded for a new trial.

(c) The joint and several judgment against J. A. Barge, Jr., and Maudine Barge in the amount of $12,198.80, being one-half of the deposit in the Lufkin Federal Savings and Loan Association, is affirmed.

(d) As to Maudine Barge, wife of J. A. Barge, Jr., if the plaintiff shall file the remittitur of $7,500.00 in exemplary damages as suggested in the preceding section the judgment of the trial court as to Mau-dine Barge will be reformed and affirmed; otherwise, the judgment of the trial court will be reversed and the cause remanded for a new trial.

(e) The judgment against Patsy Logan as Independent Executrix of the Estate of J. A. Barge, Sr., Deceased, is affirmed.

(f) All costs in all courts are assessed in three equal portions, one being assessed against the plaintiff, one against Patsy Logan, individually, and the third portion against J. A. Barge, Jr., and wife, Maudine Barge, jointly.

Affirmed in part conditionally, reformed and affirmed in part.

      . “ ‘Conspiracy’ as that term is used above, means two or more persons, acting in concert, set about in a course of conduct to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means, or- where such persons propose wrongfully to violate some right of the public or an individual. Actual knowledge of the unlawful purpose of an agreement is not required.
      “You are further instructed that an element of conspiracy is ‘malice’. ‘Malice’ means the intentional doing of a wrongful act without just cause or excuse and with an element of wantonness or bad motive.”

      . Patsy received in excess of $140,000 in cash, most of which was placed in savings and loan associations in Houston. The jury found that $120,000 of such gifts of community property to be capricious, excessive and arbitrary. The jury also found that a savings certifícate in Lufkin Federal Savings Association in the name of Snooks and Maudine for a sum in excess of $24,000 was originally community funds. Plaintiff’s counsel, without challenge by defendants, states that “[t]he total amount of fund admitted and/or found by the jury to have been transferred out of the community estate totals $245,820.72.”

      . The “deadman’s statute,” Tex.Rev.Civ.Stat. Ann. art. 3716 (1926), was not mentioned by any party during the trial of the cause.

      . Improvements on land since remarriage of deceased and Vara Barge: $21,000; reasonable cash value of the store, excluding the land and building: $50,000.

      .A similar contention was rejected in Edsall v. Edsall, 240 S.W.2d 424, 430 (Tex.Civ.App.— Eastland 1951, no writ).

      . 377 S.W.2d at 635, fn. 3: “See State of Texas v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937); American Rio Grande Land & Irrigation Co. v. Barker, 268 S.W. 506 (Tex.Civ. App.1925); State v. Racine Sattley Co., 63 Tex. Civ.App. 663, 134 S.W. 400; Griffin v. Palatine Ins. Co., 238 S.W. 637 (Tex.Comm.App.); Texas Public Utilities Corp. v. Edwards, 99 S.W.2d 420 (Tex.Civ.App., 1936, error dism’d); Oliver v. Huckins, 244 S.W. 625 (Tex.Civ.App., 1922, error dism’d).”

      . “Where used in this charge, exemplary damages means compensation allowed by law in addition to actual damages by way of punishment, and as an example for the good of the public and may also include compensation for inconvenience, reasonable attorney’s fees, and other losses too remote to be considered under actual damages.”


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Patsy Ruth LOGAN, Independent Executrix of the Estate of Jessie Aaron Barge, Sr., Deceased, Appellant, v. Vara BARGE, Appellee.
    No. 8121.
    Court of Civil Appeals of Texas, Beaumont.
    May 18, 1978.
    See also Tex.Civ.App., 568 S.W.2d 863.
    William Drew Perkins, Lufkin, for appellant.
    Kenzy D. Hallmark, Lufkin, for appellee.
   CLAYTON, Justice.

Appellant, as Independent Executrix of the Estate of J. A. Barge, Sr., Deceased, appeals from an order of the probate court requiring her to file a $20,'000.00 bond in her capacity as Independent Executrix of the Estate of the deceased. Appellee, Vara Barge, widow of the deceased instituted this action by filing a complaint alleging mismanagement of the estate on the part of appellant.

Trial was to the court which found that appellant mismanaged the estate in certain particulars, and for such reason entered an order of the 6th day of December 1977, requiring appellant to file a bond. Appellant did not file the bond so required, and the court, on December 19,1977, entered an order removing appellant as Independent Executrix of the Estate of J. A. Barge, Sr., Deceased, and appointed First Bank and Trust of Lufkin, Texas, as Administrator with the will annexed. Appellant appeals only from the order requiring her to post bond. She did not in any manner stay or supersede the order requiring the posting of bond. Appellant has not perfected an appeal from the order of her removal.

The threshold question before this court is whether the order, entered by the probate court, requiring appellant to post bond in this instance is an appealable order.

In order to authorize an appeal in a probate matter, it must be an appeal from a decision, order, decree, or judgment which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. See Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213-14 (1960); In re Estate of D. M. Cogdeil, 426 S.W.2d 586, 587-88 (Tex.Civ.App.—Eastland 1968, writ ref’d n. r. e.).

The order complained of required appellant, as independent executrix to post a bond in the sum of $20,000.00 within ten days after entry of the order, which was December 6, 1977. This order did not remove appellant as independent executrix of the estate. This order, in and of itself, did not in any way interfere with appellant’s right to continue in such capacity. She could continue acting and serving in the capacity of independent executrix until such time as she was actually removed. Such order did not finally dispose of and was not conclusive of the issue or controverted question for which that particular part of the proceeding was brought. Appellant having the right to continue to act in her capacity as independent executrix, until such time as the probate court entered an order interfering with her right to so act, then the only final order interfering with her right to so act would be the order of the probate court removing her and thereby preventing her from acting in the capacity of independent executrix. This order of removal would be the final order or judgment from which an appeal could be properly taken. Appellant did not appeal from this order of removal, and such order has become final.

Since the order requiring appellant to post bond failed to finally dispose of the controverted issue, it therefore amounts to no more than an interlocutory order, inconclusive in its nature and is, therefore, not appealable. Moreover, any action we could take in considering this appeal, other than dismissing same, will have no practical effect. The order removing appellant as independent executrix has become a final judgment against appellant. If we reversed the trial court’s judgment, we could not reinstate appellant because she did not appeal from the order of removal and has not, in this appeal, asked for reinstatement.

This appeal is dismissed.

DISMISSED.


author: CADENA, Chief Justice.

text:
    Mary Dale GERHARDT, Appellant, v. William C. WELSCH, Appellee.
    No. 15864.
    Court of Civil Appeals of Texas, San Antonio.
    May 31, 1978.
    Rehearing Denied July 19, 1978.

      James R. Bass, San Antonio, for appellant.
    Dan A. Naranjo, San Antonio, for appel-lee.
   CADENA, Chief Justice.

Plaintiff, Mary Dale Gerhardt, appeals from a judgment dismissing her suit in which she sought partition of military retirement benefits being received by her former husband, William C. Welsch, defendant, and an accounting of, and recovery of, retirement benefits received by defendant in the past.

The parties were divorced in the State of Washington, where defendant, then a member of the military forces of the United States, was stationed at the time. The divorce decree rendered by the Washington court on October 30, 1970, adopted and approved a property settlement agreement executed by plaintiff and defendant. Neither the agreement nor the decree mentioned the military retirement benefits involved in this litigation.

Defendant became a member of the armed forces in October, 1952, and he and plaintiff were married in Texas on February 4, 1956. On the date of the Washington divorce decree, defendant had been a member of the armed forces for 18 years, having served 14 years, 8 months and 26 days while married to plaintiff. Defendant retired from the service, holding the rank of major, on November 1, 1972, and received his first retirement check on November 30, 1972.

The judgment below recites that defendant’s “Plea in Bar. and Abatement” are sustained and the plaintiff’s cause of action is dismissed.

That portion of defendant’s answer captioned “Plea in Bar and Abatement” prays that plaintiff’s cause of action be dismissed or abated. Essentially, this portion of defendant’s answer alleged:

1. At the time the divorce was granted, defendant had served in the armed forces only 18 years and was not, at that time, entitled to receive retirement benefits, since the applicable federal law requires at least 20 years’ service as a condition precedent to eligibility for retirement benefits.

2. At the time the Washington divorce decree was rendered, the parties had no property rights or property interest in the retirement plan or retirement benefits.

3. Under Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.—Dallas 1973, writ dism’d), and Busby v. Busby, 457 S.W.2d 551 (Tex.1970), the interest of a service man in his military retirement benefits becomes a vested property right and subject to division as part of the community estate in a divorce action only when the person in the military service has, at or before the date of the divorce, served for the required period of time to entitle him to retire.

4. Under the terms of the property settlement agreement executed by the parties, plaintiff has no interest in the retirement benefits.

We do not comment on the propriety of an order which purports to sustain both a plea in bar, which would require a take-nothing judgment, and a plea in abatement, which would require abatement of plaintiff’s suit, and follows such rulings with an order of dismissal. It should, perhaps, be pointed out that if a plea in abatement is sustained, questions reached by a plea in bar are not reached.

Neither party questions the jurisdiction of the Washington court to entertain the divorce action. Both parties concede that under applicable Washington statutes it was the duty of the court rendering the divorce decree to make a division of the property, both community and separate, of the parties. R.C.W. 26.09.080 (1973). Neither party questions the fact that under well settled principles of law and in obedience to the full faith and credit clause of the United States Constitution (U.S.C.A. art. IV, § 1) and the statute implementing that constitutional provision, Texas .courts must give to the Washington decree that faith and credit which would be accorded to it by the courts of the State of Washington. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). In order to do this, we must give to the Washington decree that conclusive effect given by Washington courts to the final judgments of courts of that state.

Since we must give to the Washington decree that force and effect which it would have in that state, the disposition of this case is controlled by the law of the State of Washington.

Under Washington law, the parties to a divorce action become tenants in common of community property concerning which no disposition is made by the divorce decree. Sears v. Rusden, 39 Wash.2d 412, 235 P.2d 819, 822 (1951).

We first consider whether the interest in the retirement plan constituted, under Washington law, community property. If, under the law of Washington, such interest was the separate property of defendant, it is clear that the judgment below must be affirmed, since, as pointed out in Sears, separate property not disposed of by a decree of divorce remains the individual property of the party who owned it, as separate property, prior to the divorce. 235 P.2d at 822.

Defendant insists that under Washington law, as it existed on the date the divorce decree was entered, “unmatured” pension or retirement rights were not regarded as property capable of division upon dissolution of a marriage. In advancing this theory, defendant relies principally on Roach v. Roach, 72 Wash.2d 144, 432 P.2d 579 (1967), where, on appeal, the wife complained that the trial court, in dividing the property of the parties, failed to take into consideration the value of the pension earned by the husband while in the military service. The Washington Supreme Court, relying on Morris v. Morris, 69 Wash.Dec.2d 508, 419 P.2d 129 (1966), said that a military pension, which is subject to certain contingencies set out in the applicable federal statutes, “is not a fixed asset but is an emolument or economic advantage of office,” characterizing it as “an income resource which should be considered by the court in fixing the amount of the alimony award.” 432 P.2d at 579.

In Morris, the wife’s principal contention was that the trial court had erred in characterizing the husband’s retirement benefits as a gratuity from the government and, as such, the separate property of the husband. The Supreme Court of Washington said (419 P.2d at 130):

We are inclined to agree with the [wife] as to characterization or legal classification respecting the pension. In Loomis v. Loomis, 47 Wash.2d 468, 479, 288 P.2d 235,241 (1955), we noted in passing that a military pension ‘is not in the nature of “future earnings” but is an asset acquired during coverture.’

The Morris opinion, after noting, “it is not necessary at the present time to reach and dispose of the problem as to the appropriate legal characterization or classification which should be accorded military pensions,” points out that under Washington law all of the property of divorce litigants, whether it be separate or community in nature, is subject to division by the divorce court, and awarded the wife an interest in the military retirement pension. 419 P.2d at 131.

It is clear that Morris does not hold that a military pension is not regarded as property subject to division upon dissolution of the marriage and that the Morris opinion, while declaring it unnecessary to classify a military pension as community or separate property, clearly expresses the inclination of the Washington Supreme Court to agree with the wife’s contention that the trial court erred in characterizing a retirement pension as separate property.

Subsequent to Roach, but prior to the time the divorce in this case was granted, the Washington Supreme Court, in Edwards v. Edwards, 74 Wash.2d 286, 444 P.2d 703 (1968), said:

The husband, reluctantly conceding, as he must, that the pension having been earned during the marriage is community property, or, in any event is an asset which the court can consider in making a division of the property or in [awarding] alimony, argues that . . . any semblance of fairness demands that he be awarded the full amount of the pension, [footnotes omitted].

In support of the statement that a military pension is community property, the Edwards opinion cites the Morris decision.

It is clear that at the time the divorce in question was granted in 1970 the Washington decisions did not support defendant’s contention that an unmatured pension right was not considered to be property capable of division in a divorce proceeding. The Roach decision cannot be accorded persuasive weight in view of the later decision in Edwards and particularly in view of the fact that in Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736, 737-38 (1973), the Washington Supreme Court characterized the statement in Roach on which defendant relies as “dicta” and added that in such dicta the Roach opinion “incorrectly construes the Morris holding.” The Payne opinion continues (512 P.2d at 738):

The statement in Roach that a military pension ‘is not a fixed asset but is an emolument or economic advantage of office’ does not preclude the court from treating certain aspects of that pension as property, regardless of the fact that there are inherent limitations that make it different from fixed assets. Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968).
This construction of our cases is consistent with the interpretation given by other community property states. Courts today regard military retirement plans and retirement pay as a mode of employee compensation.

Nor do the Washington decisions involving “potential” retirement benefits support defendant’s contention. In DeRevere v. DeRevere, 5 Wash.App. 741, 491 P.2d 249 (1971), it was held that a husband’s noncontributory retirement plan interest which would not mature into a “vested” right to payment of benefits unless and until he remained in the employment of his employer until he reached age 60 (an event which could occur only after the divorce was granted), constituted “[property to be divided upon dissolution of the marriage.] Hence, in the case at bar, even though it might appear that Mr. DeRevere’s interest in the company retirement plan had not yet fully vested, such rights as he — and the community composed of himself and wife —did have at the time of the divorce were properly divisible as property by the court.” 491 P.2d at 252 (emphasis added). While DeRevere was decided about a year after the divorce in question here had been granted, all of the cases cited in support of the conclusion were decided prior to 1970.

In Wilder v. Wilder, 85 Wash.2d 364, 534 P.2d 1355, 1357 (1975), the Supreme Court of Washington said:

Thus it is settled in this jurisdiction that a military pension is community property to the extent that community funds have been invested in it and that it is before the court for consideration in a dissolution proceeding. The defendant acknowledges this. He contends however that the court cannot consider such a pension unless the right to receive it has matured. He cites no Washington case to support this proposition but relies upon two cases decided in Texas. These are Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973) (holding that a wife could not be awarded an interest in the pension rights of an Air Force officer who had served only 11 years because they had not vested), and Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971) (holding that an enlisted man who had served 18½ years had a vested right in the pension he would be eligible to receive after 20 years). An examination of the Texas cases will show that the courts in that state adopt a conservative view regarding the nature of pension rights and tend to take the position that pension rights do not vest and cannot be considered by a divorce court unless it is certain that they will mature. [Emphasis added.]
This court has not subscribed to the doctrine that a pension right does not vest until it is certain that benefits will be paid. Rather, we have said that an employee has a vested right with respect to pension benefits from the date of his employment, where a pension plan is in effect and is part of the compensation which he earns, . . . . Bakenhus v. Seattle, 48 Wash.2d 695, 296 P.2d 536 (1956), Tembruell v. Seattle, 64 Wash.2d 503, 392 P.2d 453 (1964).

The Washington court in Wilder has stated in clear and precise language that the courts of that state have not subscribed to the doctrine that “potential” or “unmatured” pension rights are not “vested rights.” Significantly, the statement to the effect that an employee has a vested right in a retirement plan from the date of his employment is supported by citation of cases decided prior to 1970. These circumstances, together with the fact that the Washington court refused to follow the Texas decision applied in Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.—Dallas 1973, writ dism’d), clearly demonstrate that the law of Washington prior to 1970 was to the effect that a right to retirement benefits is a vested right prior to the time that the employee is entitled to payment of benefits.

Defendant points to the fact that at the time of the divorce an officer, who, unlike an enlisted man, was not bound to remain in the service for any period of time. This theory formed the basis for the decision by the Dallas Court of Civil Appeals in Davis. As already pointed out, the Washington Supreme Court criticized Davis as an example of the “conservative” approach which it said Texas courts were following at that time, and in Cearley, the Supreme Court of Texas referred to the distinction “as to retirement rights and procedures” applicable to officers and enlisted men as “an immaterial distinction.” 544 S.W.2d at 665, n. 5.

It is true, as defendant says, that in Wilder the husband had only a little over a year to serve in order to complete the 20 years of service required for retirement. Here, defendant had about two years to serve. We do not believe the Washington courts would consider this difference significant in view of their clear commitment to the view that the right to retirement benefits becomes “vested on the date of employment.” It is significant that the Wilder court, speaking of the possibility that the husband might leave the service before completing the required minimum period of service, thus abandoning his rights to a pension, said that the court “must take account of the community’s investment in the pension system and determine whether, in the event the party entitled to the pension decides to abandon his rights, the community’s contribution should nevertheless be considered an asset under his control and be balanced against other assets awarded to the other party.”

Since we have concluded that at the time plaintiff and defendant were divorced the Washington law considered the unaccrued pension right to be community property, we need not discuss defendant’s theory that plaintiff can prevail only if Payne and Wilder are given “retroactive” effect.

Defendant’s argument that a decision declaring that the pension rights in this case are a part of the community assets would, in effect, allow plaintiff to attack collaterally the divorce decree rendered in 1970, is without merit. Under Washington law, the parties to a divorce action become tenants in common of community property not disposed of by the divorce decree. Sears v. Rusden, 39 Wash.2d 412, 235 P.2d 819, 822 (1951). If we have correctly determined that, under Washington law, the pension rights in question constituted community property, we must conclude that plaintiff and defendant became tenants in common of the community interest in such rights unless the Washington divorce decree in 1970 disposed of the interest of the parties in such rights. If the divorce decree did not dispose of the parties’ interest in such community property, then we must accept the Washington law to the effect that the parties became tenants in common in such community interest, thus giving to the Washington divorce decree the same effect which would be given it by the courts of the State of Washington. If the interest in question was not disposed of by the decree of 1970, a subsequent judgment making disposition of such interest would in no way affect the validity of the 1970 judgment.

It is impossible to reach the conclusion that the property agreement and the judgment approving and adopting such agreement disposed of the community interest in the pension plan. Neither the agreement nor the decree mentions the pension plan. Assuming that the agreement and decree dispose of the community interest in the pension plan, to whom was it awarded? Neither the decree nor the agreement awards it to the plaintiff or to the defendant. Defendant’s reliance on Sears is misplaced. In Sears, the agreement contained a provision to the effect that the wife relinquished all “claims of any nature whatsoever to all community property acquired by the parties” except “that which has been specifically set off as awarded to her by this” agreement. The property settlement agreement in this case contains no such provision, and there is, therefore, no basis for holding that the agreement constitutes a relinquishment of plaintiff’s interest in the pension plan. The inescapable conclusion is that neither the agreement nor the divorce decree awarded the community interest in the retirement benefits to either party. Under Washington law, then, the parties, as to such community interest, became tenants in common, with the right to subsequent partition.

Despite our conclusion that plaintiff is entitled to partition of the joint interest in the retirement benefits, we cannot here render the judgment which the trial court should have rendered. The record affirmatively discloses that defendant had been receiving the entire retirement benefit for approximately 4 years prior to the filing of this suit. The only indication of the amount received by defendant during those 4 years is that the amount received by defendant during such period varied from $600 per month to $760 per month. Plaintiff sought an accounting as to the amount of the money received by defendant, and the record before us furnishes no basis for a finding concerning the amount received by defendant during such 4-year period. It is, therefore, necessary to remand the case to the trial court so that a proper judgment may be entered.

The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with our holding to the effect that the interest in the retirement plan was, at the time of the divorce, community property not disposed of by the Washington decree.

      . The parties have experienced some difficulty maintaining a consistent position on the question of applicable law. In the trial court plaintiff filed a motion that the court take judicial notice of Washington law. Defendant opposed this motion, insisting that Texas law was applicable. Perhaps because of the decisions in Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977) and Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), defendant in this court states that after further consideration he realizes that Washington law should be applied, while plaintiff, although maintaining she was entitled to judgment under either Washington or Texas law, has presented a brief which clearly leaves the impression that she would be more than happy if we decided this case according to the law of Texas.

      . The term “potential” is used to refer to those situations where the conditions precedent to payment of benefits, such as 20 years’ service, have not been fulfilled at the time of divorce, so that there will be no enforceable right to payment until some time after the dissolution of the marriage.

      . The decision in Davis v. Davis has been expressly disapproved by the Supreme Court of Texas. Cearley v. Cearley, 544 S.W.2d 661, 666 (1976).


author: McCLOUD, Chief Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Velma L. HEYWARD, Appellee.
    No. 5103.
    Court of Civil Appeals of Texas, Eastland.
    June 1, 1978.
    Rehearing Denied and Supplemental Opinion June 29, 1978.

      See also Tex., 536 S.W.2d 549.

      Earle Cobb, Jr., Cobb, Thurmond & Bain, Inc., San Antonio, for appellant.
    Oliver S. Heard, Jr., San Antonio, Thomas Goggan, Goggan & Cain, Austin, for appellee.
   McCLOUD, Chief Justice.

This is a suit for accidental death benefits. The insured was intentionally shot and killed.

Velma L. Heyward, the named beneficiary of a group life insurance policy insuring the life of her husband, Bennie Hey-ward, sued the insurer, Republic National Life Insurance Company, seeking recovery of benefits under an accidental death rider to the policy. The policy provided for life insurance based upon the annual salary of the insured and accidental death benefits of $12,000 under the accidental death rider. The insurer paid the basic $3,000 life insurance proceeds to plaintiff, but refused to pay the additional $12,000 under the accidental death rider. Following a jury trial, judgment was entered for plaintiff for $12,-000, the accidental death benefits, plus interest and penalty. Plaintiff was awarded attorney’s fees of $65,000, but the judgment provided that if defendant did not appeal the cause, the judgment should be credited with $15,000. The judgment further provided that if defendant should appeal to the Court of Civil Appeals, but the case not carried by writ of error to the Supreme Court of Texas, then the judgment should be credited with the sum of $7,500. Defendant, Republic National Life Insurance Company, has appealed.

The instant controversy has heretofore been before our Supreme Court. Heyward v. Republic National Life Insurance Company, 527 S.W.2d 807 (Tex.Civ.App.—San Antonio 1975), aff’d, 536 S.W.2d 549 (Tex.1976).

The controlling issues are whether the insured, Bennie Heyward, died solely and independently of all other causes from accidental means, and whether the insured was participating in or committing a felonious act at the time of his death.

The insured was intentionally shot and killed by Oscar Anderson. The insured and James Etta Anderson, mother of Oscar Anderson, were living together at the time of the killing. They had lived together for several years. During the same period of time, the insured also lived periodically with plaintiff. Both plaintiff and James Etta Anderson testified that they were each married by common law to the insured at the time of his death. Oscar Anderson lived with the insured and James Etta Anderson. On September 23, 1973, while the insured and Oscar Anderson were engaged in a fight at the home of the insured, Oscar Anderson obtained possession of insured’s 357 magnum revolver and shot the insured five times. After shooting insured, Anderson took a knife and administered numerous deep cuts on the insured’s body.

The accidental death rider in issue provides in part:

“If a person, while insured under this Section of the Group Policy, sustains an injury effected solely through external, violent and accidental means and as a result thereof, directly and independently of all other causes, suffers a loss specified below within ninety days following the date of such injury, the Company, subject to all provisions of the Group Policy, will pay
(a) the Principal Sum for loss of life;
Benefits shall not be payable for any loss to which a contributing cause is
(e) participation in or as the result of the commission of a felonious act.” Special Issues 1 and 2 were submitted and answered by the jury as follows:
“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that the death of Bennie Heyward on September 23, 1973 resulted from injuries through accidental means?
You are instructed that the test of whether injuries resulting in death is through ‘accidental means’ within the terms of an insurance policy is not to be determined from the viewpoint of the one who inflicts the injuries resulting in death, but rather from the viewpoint of the insured. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability the other party would kill him, his death was not accidental; if from his viewpoint his conduct was not such as to cause him reasonably to believe that the other party would probably kill him, then his death was accidental.
Answer ‘We do’ or ‘We do not’.
We, the Jury, answer: We do.
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that a contributing cause of the occurrence in question between Bennie Heyward and Oscar Anderson that resulted in the death of Bennie Heyward was not his participation in or result of his commission of a felonious act?
You are instructed that in this case a ‘felonious act’ means committing an offense of assault with intent to commit murder if such person, with the intent to commit murder, attempts the use of unlawful violence upon another person or uses any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit murder. ‘Murder’ means the voluntary killing of a person with malice aforethought, which is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief.
Answer ‘It was’ or ‘It was not’.
We, the Jury, answer: It was not.”

First, we note that defendant’s first and second points of error, that the court erred in overruling its motions for “Instructed Verdict” and “Judgment N.O.V.”, fail to comply with the requirements of Rule 418, T.R.C.P., that points of error “direct the attention of the court to the error relied upon.” The points are too general. Tindall v. Tacconelly, 328 S.W.2d 909 (Tex. Civ.App.—San Antonio 1959, writ ref. n. r. e.). Furthermore, the grounds listed in defendant’s motion for instructed verdict were not carried forward as assignments of error in its amended motion for new trial. The assignment of error merely states that the court erred in overruling defendant’s motion for instructed verdict. Such inadequate assignment of error cannot form the basis for a proper point of error. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Tennell v. Esteve Cotton Company, 546 S.W.2d 346 (Tex.Civ.App.—Amarillo 1976, writ ref. n. r. e.). However, after examining the statement and argument contained in defendant’s brief relating to its first and second points of error, we will consider defendant’s Point of Error No. 2, that the court erred in overruling its motion for judgment non obstante veredicto. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). Defendant argues under its first and second points of error that there is no evidence the death of the insured was caused solely and independently of all other causes by accidental means. We disagree.

The insured’s death might be caused solely by accidental means even though it resulted from injuries intentionally inflicted by another. Our Supreme Court in the prior appeal of the instant case, Republic National Life Insurance Company v. Hey-ward, 536 S.W.2d 549 (Tex.1976), expressly approved the rule to be applied as stated in Releford v. Reserve Life Insurance Co., 154 Tex. 228, 276 S.W.2d 517 (1955), wherein the court said:

“. . . As stated in the Hutcherson case (Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923), the test of whether the killing is accidental within the terms of an insurance policy is not to be determined from the viewpoint of the one who does the killing, but rather from the viewpoint of the insured. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability his wife would kill him, his death was not accidental; if from his viewpoint his conduct was not such as to cause him reasonably to believe that she would probably kill him, then his death was accidental. „ This was the jury question under the facts in this case.”

Oscar Anderson, his mother James Etta Anderson, and Oscar’s sister and brother, Marcilee Anderson and Karl Hammond, testified concerning the events leading up to the shooting. These were interested witnesses and the jury was not bound by their testimony. Praetorian Mutual Life Insurance Company v. Sherman, 455 S.W.2d 201 (Tex.1970); Aetna Life Ins. Co. v. Ha-gemyer, 53 F.2d 636 (5th Cir. 1931). The jury could not, however, find the converse of such testimony in the absence of independent evidence to support such finding. Briscoe v. Laminack Tire Service, Inc., 546 S.W.2d 695 (Tex.Civ.App.—Texarkana 1977, writ ref. n. r. e.); USLIFE Title Insurance Company of Dallas v. Rossco, Incorporated, 550 S.W.2d 419 (Tex.Civ.App.—Eastland 1977, writ ref. n. r. e.).

There is testimony that the insured, Hey-ward, and James Etta Anderson got into an argument at about 10:00 p. m. on September 23, 1973, at their home; Heyward “slapped” James Etta Anderson who had only recently been released from the hospital; Oscar’s sister, Janice Anderson, saw Oscar at the store and told him Heyward had “jumped” on their mother; Oscar came home about midnight; Heyward and James Etta Anderson were in their bedroom; it was quiet at the time; Oscar knocked on the bedroom door; an argument between Oscar and Heyward ensued; Oscar went to his bedroom; Heyward followed with his 357 magnum stuck under his belt; Hey-ward attempted to call the police; the telephone was in Oscar’s room; Heyward swung at Oscar; they began to scuffle; Heyward’s 357 magnum was knocked out of his hand; Oscar and Heyward wrestled on the floor for the gun; Oscar got the gun; Oscar started out the door; Heyward was getting up and coming toward Oscar; Oscar turned and shot Heyward; Oscar continued to shoot until the gun was empty; he then took out his knife and started cutting Hey-ward; the pathologist testified that Hey-ward was hit by five shots; three shots entered Heyward’s back.

In considering defendant’s “no evidence” point, all evidence must be considered in a light most favorable to plaintiff and every reasonable intendment deducible from the evidence is to be indulged in plaintiff’s favor. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

At the commencement of the fight between Oscar and Heyward, Heyward — not Oscar — had the 357 magnum. Oscar was seventeen years old and had lived with Hey-ward since he was about five years old. Oscar testified he looked upon Heyward as his father. Even if we assume that Hey-ward was getting up and coming after Oscar, we do not feel that this establishes as a matter of law that Heyward, from his viewpoint, should have anticipated that in all reasonable probability Oscar would kill him. Oscar did not verbally warn Heyward that he would shoot him if he continued to advance. He fired no warning shot. The evidence is that as he started through the door he turned and shot the insured. Furthermore, the three shots in Heyward’s back is some evidence from which the jury could reasonably infer that Heyward was not advancing on Oscar at the time of the shooting.

The cases cited by defendant are distinguishable. In Stevenson v. Reliable Life Insurance Co., 427 S.W.2d 945 (Tex.Civ.App.—San Antonio 1968, no writ), the insured continued to advance in a threatening manner toward the muzzle of a pointed pistol even after repeated verbal warnings and warning shots were fired. Likewise, in Perry v. Aetna Life Insurance Company of Connecticut, 380 S.W.2d 868 (Tex.Civ.App.—Tyler 1964, writ ref. n. r. e.), the court held the trial court was justified in concluding that the insured should have anticipated that in all reasonable probability he would be killed, after the deceased broke down two doors and forced his way into the house where his wife, who had filed for divorce, was standing with a gun in her hand, and the deceased continued to advance after being warned verbally and by warning shots. In Spencer v. Southland Life Insurance Company, 340 S.W.2d 335 (Tex.Civ. App.—Fort Worth 1960, writ ref’d), the insured was shot by an officer following a chase, after the insured pointed a shotgun at the officer who had twice warned the insured to put the gun away.

We hold the court did not err in overruling defendant’s motion for judgment notwithstanding the verdict. We also hold the court did not err in submitting Special Issue 1. There is some evidence to support the submission and the jury’s finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). After considering all the evidence as required by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we hold the evidence is factually sufficient to support the jury’s answer to Special Issue 1.

Defendant contends the court erred in submitting Special Issue 1 because the burden of proof is improperly placed on defendant and the issue as submitted constitutes a comment on the weight of the evidence. Defendant also urges the contract provides that accidental means must be the sole cause of death and Special Issue 1 does not limit the issue to sole cause nor does it include the words “solely” and “independently of all other causes”.

The issue as submitted tracks the language approved by our Supreme Court in Releford v. Reserve Life Insurance Company, 154 Tex. 228, 276 S.W.2d 517 (1955). The issue properly places the burden on plaintiff to prove the death resulted from accidental means. It did not constitute a comment on the weight of the evidence. Rule 277, T.R.C.P. It has often been held in cases of this nature that the fact to be determined by the jury is whether the insured, from his viewpoint, should have anticipated that in all reasonable probability he would be killed. See Life & Casualty Insurance Company of Tennessee v. Martinez, 299 S.W.2d 181 (Tex.Civ.App.—San Antonio 1957, no writ).

The evidence conclusively established that the insured died as a result of the wounds received. It was not necessary to include in Special Issue 1 the language “solely” and “independently of all other causes”. The court is not required to submit an issue on an undisputed fact. Rule 272, T.R.C.P.; Sullivan v. Barnett, 471 S.W.2d 39 (Tex.1971).

Defendant next complains of the submission of Special Issue 2 and the related explanatory instruction. Defendant’s objection that “felonious act” is defined incorrectly and contrary to law is too general. Also, we do not deem sufficient defendant’s objection, “that the policy should be interpreted by the common every day meaning of the layman and that technical instructions by the Court should not be indulged.” Rule 274, T.R.C.P. We think the trial court correctly defined felonious act in terms of the only felony raised by the evidence under the 1925 Texas Penal Code which was in effect at the time of the killing. The evidence raised two possible felonies: (1) assault with intent to commit murder pursuant to Article 1160, Vernon’s Annotated Penal Code (1925); and, (2) assault with a prohibited weapon pursuant to Article 1151, Vernon’s Annotated Penal Code (1925). Assault with a prohibited weapon is not applicable. Heyward was residing at 311 Vine Street, San Antonio, where he was killed, at the time in question, and his possession of the revolver on those premises was not unlawful. Article 484, Vernon’s Annotated Penal Code (1925). Evidence that prior to the arrival of Oscar, Heyward was in his bedroom; that it was quiet; and, that Hey-ward attempted to call the police during the controversy, is some evidence to support the jury’s finding that Heyward did not have the intent to murder Oscar Anderson. After considering all the evidence, we hold the evidence is factually sufficient to support the jury’s answer to Special Issue 2. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Plaintiff introduced testimony of Heyward’s character as a peaceable person as circumstantial evidence of his probable conduct at the time and place in question. The mode of proof of this character trait was testimony of the witness, Wilburn, that he was familiar with the reputation of the insured in the community for being a peaceful and law-abiding citizen, and that reputation was good. Having testified as to such reputation, Wilburn could be cross-examined regarding his knowledge of reputation. On cross-examination, the witness could be asked proper “have you heard” questions regarding matters likely to affect the insured’s general reputation in the community. Defendant complains of the exclusion by the trial court of certain tendered cross-examination of Wilburn. The bill of exception shows that in the tendered cross-examination the witness was not asked “have you heard”, but “did you know or had you heard”. On direct examination, the witness did not testify as to his opinion of the character of the insured, nor to his conduct or specific good deeds. He testified only concerning the insured’s general reputation. The questions asked by defendant, “did you know or had you heard”, were improper. Osborne v. State, 518 S.W.2d 805 (Tex.Cr.App.1975); De Grate v. State, 518 S.W.2d 821 (Tex.Cr.App.1975). The appropriate rule was discussed by our Court of Criminal Appeals in Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971) wherein the court said:

“. . . The fact that the appellant had placed his general reputation in issue did not authorize the state in combating proof of good reputation to show specific acts of misconduct on his part nor did it authorize the state to make inquiry in such a manner as to show or assert the truth thereof that the appellant had been guilty of particular offenses of misconduct ...”

2 McCormick and Ray, Texas Law of Evidence § 1495 (1956) states that a “party’s character, where evidence thereof is received, cannot be proved by specific acts.” See also: International Security Life Insurance Company v. Melancon, 463 S.W.2d 762 (Tex.Civ.App.—Beaumont 1971, writ ref. n. r. e.). The court did not err in refusing to admit the tendered cross-examination.

The defendant also complains of the court’s refusal to permit its tendered cross-examination of plaintiff regarding the insured’s reputation for being a peaceful and law-abiding citizen. Plaintiff at no time testified before the jury regarding the reputation of the insured. Defendant, however, in perfecting its bill of exception attempted to convert the plaintiff into a character witness and then impeach her. The cross-examiner may not transform, by his own questions, a witness who is not a character witness, into a character witness, in order to be able to ask “have you heard” questions. Els v. State, 525 S.W.2d 11 (Tex.Cr.App.1975).

Defendant urges that the court erred in excluding tendered testimony given by plaintiff outside the presence of the jury, that plaintiff had at one time entered into an agreement with James Etta Anderson to divide the proceeds of the insurance policy. At the time defendant attempted to show the agreement by the testimony of plaintiff, James Etta Anderson had not testified. As stated in General Motors Corporation v. Simmons, 558 S.W.2d 855 (Tex. 1977), the financial interest of parties and witnesses in the success of a party is a proper subject of disclosure by direct evidence or cross-examination. James Etta Anderson was not a party in the instant suit. Defendant called James Etta Anderson as its witness later in the trial, but did not ask her any questions regarding an agreement to divide the proceeds of the policy. Also, the defendant did not retender the excluded testimony after James Etta Anderson testified. The court correctly refused the tendered testimony at the time it was offered.

Special Issues 3, 4 and 5 were submitted and answered by the jury as follows:

“SPECIAL ISSUE NO. 3
What sum of money, if any, do you find from a preponderance of the evidence is a reasonable fee for necessary services of the attorneys for Velma Heyward in representing her in this action through completion of the previous trial, the previous appeals, and this trial in the District Court?
Answer in dollars and cents, if any.
We, the Jury, answer: 850.000.00.
SPECIAL ISSUE NO. 4
What sum of money, if any, do you find from a preponderance of the evidence is a reasonable fee for necessary services of the attorneys for Velma Heyward for the preparation and presentation of this case before the Court of Civil Appeals, in the event that an appeal be taken from the judgment of this case by the Defendant?
Answer in dollars and cents, if any.
We, the Jury answer: $7.500.00.
SPECIAL ISSUE NO. 5 What sum of money, if any, do you find from a preponderance of the evidence is a reasonable fee for necessary services of the attorneys for Velma Heyward for the preparation and presentation of this case before the Supreme Court of Texas, in the event that an Application for Writ of Error is made from the decision of the Court of Civil Appeals?
Answer in dollars and cents, if any. We, the Jury, answer: $7.500.00.”

The awards of attorney’s fees in Special Issues 3, 4 and 5 are grossly excessive. The more serious question is whether defendant has properly perfected a complaint that the awards by the jury are excessive, since defendant’s points of error do much violence to Rule 418, T.R.C.P. Points touching upon the amount of attorney’s fees are as follows:

“POINT OF ERROR NO. 5-THE COURT ERRED IN SUBMITTING SPECIAL ISSUE NO. 3 FOR THE FOLLOWING REASONS:

c. There was no evidence of what attorney’s fees were necessary.
d. There was insufficient evidence of what attorney’s fees were necessary.
e. The great weight and preponderance showed that the attorney’s fees above $6,000.00 were unnecessary.
g. The attorney entered into a contingent fee contract with Velma Heyward for one-half (½) of any sum recovered. She did not incur any liability for a reasonable fee.
h. To prove a reasonable fee, burden is on Plaintiff to show time spent. They did not do so.
i. Best evidence shows 159 hours spent by Defendant’s attorneys. In absence of evidence by Plaintiffs as to time, fee should be limited to time proven or $7,900.00, plus 44 hours trial time, $2,200.00 or $10,100.00 TOTAL.
POINT OF ERROR NO. 6-THE COURT ERRED IN SUBMITTING SPECIAL ISSUE NO. 4 IN THAT THE AWARDING OF SUCH FEES IS A DENIAL OF DUE PROCESS. (Germaine to Assignment No. 12 in Amended Motion for New Trial).
POINT OF ERROR NO. 7-THE COURT ERRED IN SUBMITTING SPECIAL ISSUE NO. 5 IN THAT THE AWARDING OF SUCH FEES IS A DENIAL OF DUE PROCESS. (Germaine to Assignment No. 13 in Amended Motion for New Trial).
POINT OF ERROR NO. 8-THE COURT ERRED IN AWARDING JUDGMENT FOR ATTORNEY’S FEES IN APPROXIMATELY SIX (6) TIMES THE AMOUNT INVOLVED IN LITIGATION. (Germaine to Assignment No. 16 in Amended Motion for New Trial).”

We have concluded after reviewing the statement, argument and authorities under defendant’s points that defendant has perfected its complaint that the awards of attorney’s fees in Special Issues 3, 4 and 5 are excessive. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

Special Issue 3 asked the jury to find what would be a reasonable fee for necessary services through completion of the first trial, the previous appeals, and the instant trial in the district court. Five attorneys testified that $50,000, as found by the jury, would be a reasonable fee for such services. We are not bound by such testimony and will suggest a remittitur. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App.1928). There was also expert testimony to support the jury’s findings of $7,500 in Special Issues 4 and 5. We will suggest a remittitur.

Plaintiff’s attorneys testified that they did not keep time records but after reviewing their file they estimated they had “put in” between 750 and 1,000 hours. The first trial was brief. It lasted “part of two days” and ended in a directed verdict for defendant. The San Antonio Court of Civil Appeals reversed and remanded, and the Supreme Court of Texas affirmed the intermediate court.

Article 3.62 of the Insurance Code provides:

“In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.”

The court in Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App.1928) stated:

“The above statute provides for a reasonable attorney fee for the prosecution and collection of such loss. This means such a fee as would be reasonable for a litigant himself to pay his own attorney for prosecuting the case, and not a speculative or contingent fee based upon the uncertainty of the litigation. As applied to the case at bar, it is the purpose and object of the statute to allow the plaintiff a reasonable sum for a competent attorney, or firm of attorneys, to represent him in the case and prosecute the litigation, and the statute does not contemplate a fee for more than one attorney or firm of attorneys. .
. the Court of Civil Appeals has the right to look to the entire record in the case before them, and to view the matter in the light of the testimony, the record before them, the amount in controversy, and their own common knowledge and experience as lawyers and judges.”

Attorney’s fees must be reasonable under the particular circumstances of the case and bear some reasonable relationship to the amount in controversy. Union National Life Insurance Company v. Reese, 476 S.W.2d 928 (Tex.Civ.App.—Houston (14th Dist.) 1972, writ ref. n. r. e.). The amount in controversy in the instant case is $12,000 plus penalty and interest. There can be no doubt but that plaintiff was well represented. The record reflects extremely competent representation at both the trial and appellate level. We must conclude, however, that if plaintiff’s attorneys worked between 750 and 1,000 hours on this $12,000 lawsuit, then they overproduced and defendant should not be held liable for such overproduction. McFadden v. Bresler Malls, Inc., 548 S.W.2d 789 (Tex.Civ.App.— Austin 1977, no writ). As observed by the court in Capitol Life Insurance Company v. Rutherford, 468 S.W.2d 535 (Tex.Civ.App.—Houston (1st Dist.) 1971, no writ), there are “career cases” where the amount in controversy will not justify the fee that would be required to fully compensate the attorneys involved. It is true, as urged by plaintiff, that the court in Union National Life Insurance Company v. Reese, supra, permitted an attorney’s fee which was disproportionate to the amount in controversy, but the court carefully pointed out that the defendant insurance company asserted numerous dubious or spurious defenses which prolonged payment of a claim which obviously should have been paid. This is not true in the instant ease. The defendant raised very legitimate defenses in view of the circumstances surrounding the death of its insured. The policy liability issue is close. We are not confronted with the assertion of a spurious defense.

We hold that the awards of attorney’s fees in Special Issues 3, 4 and 5 are excessive.

Since the only reason for reversal is the excessiveness of the attorney’s fees, we are required to indicate the amount by which we consider the fees excessive and give plaintiff a reasonable time within which to file a remittitur of such excess. Rule 440, T.R.C.P.; Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956). We hold that Special Issue 3 is excessive in the sum of $35,000; Special Issue 4 is excessive in the sum of $4,500; and, Special Issue 5 is excessive in the sum of $5,500.

Defendant’s liability for the policy proceeds, the statutory penalty, interest and costs, other than the attorney’s fees, is separable and has been correctly tried. We affirm that part of the judgment. Rule 434, T.R.C.P.; Huffington v. Upchurch, 532 S.W.2d 576 (Tex.1976). The error affects only the matter of attorney’s fees which is separable. Great American Reserve Insurance Company v. Britton, 406 S.W.2d 901 (Tex.1966). We sever that part of the judgment based upon Special Issues 3, 4 and 5 awarding plaintiff $65,000 in attorney’s fees. If plaintiff files in this court a remittitur of $45,000 in writing within 15 days from the date of this opinion, then this severed portion of the judgment will be reformed and affirmed. The $45,000 remittitur shall reflect remittitur of $35,000 as to Special Issue 3; $4,500 as to Special Issue 4; and $5,500 as to Special Issue 5. If remitti-tur is not so filed, then this severed portion of the judgment awarding attorney’s fees will be reversed and remanded for a new trial.

Defendant’s points of error not specifically discussed have been considered and they are overruled.

The judgment is affirmed in part and conditionally affirmed in part.

SUPPLEMENTAL OPINION

On June 1, 1978, we stated in our opinion in this cause that if plaintiff did not file a remittitur of $45,000 within 15 days from such date, that portion of the judgment of the trial court awarding plaintiff attorney’s fees of $65,000 would be reversed and remanded.

Plaintiff has failed to file the suggested remittitur within the time indicated, therefore, the severed portion of the judgment awarding plaintiff $65,000 attorney’s fees is reversed and such severed cause of action is remanded for a new trial.