author: ROBERTSON, Justice.

text:
    Ralph W. CURRIE, Appellant, v. Millard L. DRAKE, Executor of the Estate of Eugene Dixon Duncan, Deceased, Appellee. Elizabeth HOLT, Appellant, v. Millard L. DRAKE, Executor of the Estate of Eugene Dixon Duncan, Deceased, Appellee.
    Nos. 19126, 19127.
    Court of Civil Appeals of Texas, Dallas.
    March 29, 1977.
    Rehearing Denied April 28, 1977.

      Ralph W. Currie, Dallas, for appellants.
    Roy J. True, True & Zable, Dallas, for appellee.
   ROBERTSON, Justice.

Appellant, Elizabeth Holt, appeals in cause No. 19127 from a probate court’s order finding her individually liable in the sum of $12,771.10 paid by the estate of Eugene Dixon Duncan on a claim by her attorneys when she was the administratrix of the estate and from the probate court’s refusal to allow her to claim offsets as administratrix to which she is allegedly entitled. Appellant, Ralph Currie, her attorney when she was administratrix, in cause No. 19126 appeals from the same order finding him individually liable for the same sum and directing that court costs in the amount of $771.10 be assessed against him. We have consolidated the two appeals because of their similarity of issues. Both appellants contend that the probate court erred in construing the mandate previously issued by this court reversing the probate court’s original order directing payment of the claim. Further, appellant Currie argues that the probate court disregarded the supreme court’s opinion in Muse, Currie & Kohen v. Drake, 535 S.W.2d 343 (Tex.1976), when it assessed the court costs against him. Although we do not hold that the probate court erred in the substance of its order, we do hold that the court should have held an evidentiary hearing and that the court entered an improper order in that it should have entered a judgment, assessing the costs against Drake. Consequently, we reverse and remand the cause with instructions.

The background facts of this case are reported in Drake v. Muse, Currie & Kohen, 532 S.W.2d 369 (Tex.Civ.App.—Dallas), writ ref’d n. r. e. per curiam, 535 S.W.2d 343 (Tex.1976). Consequently, we will limit our discussion to those facts pertinent to this appeal. While Holt served as the adminis-tratrix of the estate, the law firm of Muse, Currie & Kohen was employed as her attorney, and they presented a statement for services rendered in regard to a successful contest of an application to probate a foreign will of the decedent, to revoke Holt’s letters of administration, and to issue letters testamentary to Millard L. Drake, the executor named in the will. The statement was for $12,771.10. Holt allowed the claim against the estate and filed an application with the probate court for attorneys’ fees requesting it to approve the claim under Tex.Prob.Code Ann. § 242 (Vernon 1956). Drake, the proponent of the foreign will, objected upon the ground that the fees were personal expenses incurred by Holt to preserve her status as administratrix and, therefore, were not a claim against the estate. A hearing was held and the probate court approved the claim against the estate. After an appeal without supersedeas was filed, Holt presented to the probate court an application for an order directing payment of the claim, and when the order was entered, the moneys were paid to the attorneys. On appeal, we reversed the order of the probate court and denied Holt’s application for an order directing payment. After writ of error was refused by our supreme court, a mandate of this court was returned to the probate court as follows:

This cause came on to be heard on the transcript of the record, and the same being inspected, because it is the opinion of the Court that there was error in the judgment, it is therefore considered, adjudged and ordered that the judgment of the court below be reversed, and judgment is herein rendered that the application of Elizabeth Holt, administratrix of the Estate of Eugene Dixon Duncan, for an order directing the payment of a claim for attorney’s fees to Muse, Currie & Kohen in the amount of $12,771.10 is denied, and that all costs be taxed against appellees Muse, Currie & Kohen, for which execution may issue, and this decision be certified below for observance.

Prior to the return of the mandate, the probate court admitted the foreign will of the decedent to probate, revoked Holt’s letters of administration and issued letters testamentary to Drake. When the mandate was returned, Drake filed an application seeking delivery of the estate’s assets including reimbursement of the $12,771.10 paid to Holt’s attorney under the erroneous order. A show-cause order was issued and served upon Holt and Currie, who filed a written response and appeared for hearing on the day ordered. Subsequently, without hearing any evidence, the probate court entered the order now on appeal, which directs that Holt and Currie, her attorney, make restitution and pay the aggregate sum of $12,771.10 to the estate in observance of our mandate. The order directs both Currie and Holt to return the sum to the estate.

Jurisdiction of Appeals

Before we can address the substantive issues, first we must determine if we have jurisdiction of the appeal. Drake, on behalf of the estate, has filed a motion to dismiss both appeals on the ground that the order appealed from is interlocutory and, therefore, not appealable. The order directs that: (1) Holt file a final accounting with the probate court not later than five days after entry of the order; (2) Holt deliver all assets and property of the estate in her possession no later than five days from the entry of the order; (3) Holt and Currie make restitution and pay the estate the sum of $12,771.10 in compliance with the mandate; and (4) Drake not remove any assets of the estate from the jurisdiction of the probate court until the final accounting or until further orders are rendered. Drake contends that although the pertinent part of the order appealed completely adjudicates the issue now raised on appeal, all additional pronouncements contained in the order are interlocutory and, therefore, the whole order lacks finality. Our supreme court has written that an appeal in a probate matter is authorized if it is taken from a decision, order, decree, or judgment which finally disposes and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213 (1960). Although the probate court’s decision must have conclusively adjudicated the controverted question or right, the decision need not be one which finally and fully disposes of the entire probate proceeding. Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945). We agree with the reasoning of the Houston Court of Civil Appeals when it wrote that when a trial court’s judgment in a probate proceeding effectively disposes of the basic controverted issue between the parties, the judgment is final and appeala-ble. Cherry v. Reed, 512 S.W.2d 705, 707 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.). In this case, the controverted issues are whether: (1) the court properly held Holt and Currie responsible for restitution to the estate without offsets, and (2) the court had jurisdiction to issue any further order binding on Holt and Cur-rie since our reversal was a negative pronouncement with no relief of restitution ordered. These issues have been finally adjudicated by the court and, therefore, the order is appealable.

The estate cites Powell v. Hartnett, 521 S.W.2d 896 (Tex.Civ.App.—Eastland 1975, no writ), to support its contention that this order is not appealable. However, in that case the court held that the order did not dispose of the issue of ownership of money, but instead merely placed the items under the care and control of the probate court until a final determination of ownership. In this case, the probate court has ordered money returned to the estate in compliance with our mandate, and there is no further determination to be made of the issues. Consequently, we overrule the estate’s motion to dismiss the appeal and hold that we have jurisdiction.

Holt’s Individual Liability

Holt contends that the probate court erred in construing our mandate to hold her individually liable to the estate. In our prior opinion, we specifically held that Holt did not have a legal duty as administratrix to resist the application for probate of the foreign will and that the mere fact that the probate of the will might alter or exhaust a share in the estate of an heir does not, in itself, create a legal duty on the part of the administratrix which would allow her to charge the resulting attorneys’ fees to the estate. Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 374 (Tex.Civ.App.—Dallas), writ ref’d n. r. e. per curiam, 535 S.W.2d 343 (Tex.1976). Consequently, any sum charged by her attorneys for contesting the probate of the foreign will was her debt and not chargeable to the estate. Since her debt is personal and not in the capacity as administratrix, the probate court was correct in holding her individually liable for reimbursement.

Although Holt contends that she should not be individually liable because she was acting only under the orders of the court, the record reveals that she actively sought payment of her attorneys claim against the estate. The executor, as current representative of the estate, argues that she was under no duty to pay the money before a final adjudication of the matter on appeal. Our supreme court has long held that a party obtaining any advantage or benefit through a judgment that is later reversed must return the benefit to the other party. Peticolas v. Carpenter, 53 Tex. 23 (1880). When the estate paid Holt’s attorneys’ fees, she directly benefited and, therefore, is personally liable for the restitution to the estate.

Although Holt concedes that there are no cases to support her position directly, she has drawn an analogy to the situation in which the party deposits money in the court’s registry to await a decision. In that case, Holt contends the clerk would not be held personally liable for restitution for money paid under order of the court, should it develop on appeal that the trial court ruling was wrong. To support her position, she cites Zachary v. Overton, 157 S.W.2d 405, 407 (Tex.Civ.App.—Galveston 1941, writ ref’d w. o. m.). However, the facts of that case are distinguishable in that after the money had been deposited in the court’s registry, the appellant voluntarily dismissed his suit, thereby requiring the court to disburse the deposits in its registry prior to a final adjudication on the merits. The court held that under those circumstances the appellant was free to file a new suit to recover the sum, but could not complain of the disbursement out of the registry. Also,Holt cites us to Gonzalez v. Texas Employers Insurance Ass’n, 509 S.W.2d 423, 425 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.), wherein this court discussed the liability of an interpleading stakeholder. However, in that case, although the interpleader offered to pay money into the court, it actually did not do so, but instead paid a sum under a judgment of the court prior to the final adjudication on appeal. The question in that case was whether payment to a party under a judgment pending appeal was equivalent to payment into the court. We held specifically that it was not. Consequently, Holt’s analogy is not persuasive here.

Probate Court’s Jurisdiction

Also, Holt contends that the probate court was not authorized to enter the order because the final judgment pronounced by us and our mandate was a negative pronouncement and did not give affirmative relief to Drake. This contention is also urged by Currie in his appeal, and, therefore, we will deal with this issue in relation to both parties.

The basic thrust of Currie and Holt is that in Salgo v. Hoffman, 521 S.W.2d 922 (Tex.Civ.App.—Dallas 1975, no writ). This court held that when an erroneous judgment has not been suspended pending appeal and the relief granted has already been obtained, the successful appellant may reclaim what he has been deprived of, but he must do so by a proper pleading, have citations served on his opponent and anyone else whose rights will be affected, establish by evidence the denial of his rights, and obtain the necessary relief in the normal course of judicial process. Both Holt and Currie interpret this to mean that in order to acquire restitution of property transferred under an erroneous judgment, the party must file a second and separate law suit and cannot merely file a motion for restitution before the court which rendered the erroneous order. We cannot agree. In Salgo, the successful defendant sought an immediate order of restitution without any further hearing or evidence. This court held that such summary relief was properly denied, but did not pass on the question of whether restitution should be ordered in the same or different suit. We now hold that it would be unreasonable to impose technical formalities on a party attempting to recover wrongfully taken property to which he is entitled so long as basic requirements of notice and hearing are met. The right of restitution of what one has lost by the enforcement of a judgment subsequently reversed has long been recognized. A party may have restitution upon its own motion after an evidentiary hearing establishing with certainty what he has lost. Nortwestern Fuel Co. v. Brock, 139 U.S. 216, 220, 11 S.Ct. 523, 35 L.Ed. 151 (1891). Where a judgment for debt is reversed after it has been enforced by execution and the case is finally decided in favor of the defendant, he is entitled to restitution, and the relief to which he is entitled may be obtained in the same case without resorting to a new suit. Peticolas v. Carpenter, 53 Tex. 23, 29 (1880). In Texas Land & Irrigation Co. v. Sanders, 101 Tex. 616, 111 S.W. 648, 649 (1908), the court specifically stated that even when a court had no jurisdiction to try the original suit; yet, having entered an order in that suit whereby the plaintiff acquired possession of property which belonged to the defendant, the court that committed the error had jurisdiction to restore the property wrongfully taken. Finally, in Cleveland v. Tufts, 69 Tex. 580, 7 S.W. 72, 74 (1888), the court stated that the cause of action was germane to the subject matter of the controversy, and there was no necessity for subjecting the parties to the cost and trouble of another action to remedy a wrong inflicted by the institution of the suit then before the court. In view of this long line of authorities, we cannot agree with Holt and Currie that Drake improperly filed a motion before the probate court.

Lack of Evidentiary Hearing

Holt and Currie contend that they were denied the right during the hearing held by the probate court to present evidence of offsets against the estate. We have found no evidence in the record to show that an evidentiary hearing was held prior to the entry of the probate court’s order wherein Holt and Currie were allowed to present evidence. Consequently, we hold that on remand of this cause the probate court should hear evidence for the purpose of determining the amount to be paid. Northwest Fuel Co. v. Brock, 139 U.S. 216, 220, 11 S.Ct. 523, 35 L.Ed. 151 (1891).

Improper Remedy

At the conclusion of the hearing the court entered an order directing that actions be taken. A portion of that order directed that Holt and Currie return moneys which were owed to the estate. The order does not direct appellants to deliver to the executor a specific identified fund in being, but only to repay the amount of money previously received. Consequently, this portion of the order is a direction for payment of a debt, and if the parties do not comply, it would not be enforceable by contempt. Tex.Const, art. I, § 18. The proper remedy would have been a judgment on which execution might be levied. Northwestern Fuel Co. v. Brock, supra, and Salgo v. Hoffman, 521 S.W.2d 922, 925 (Tex.Civ.App.—Dallas 1975, no writ). Accordingly, we reverse the order and remand the cause to the probate court with instructions to conduct a hearing wherein testimony may be taken concerning the payment of the claim and offsets, if any, and render a judgment accordingly.

Cost of Appeal

Currie alone complains that costs in the amount of $771.10 were assessed against him in contradiction to the supreme court’s direction in Muse, Currie & Kohen v. Drake, 535 S.W.2d 343, 345 (Tex.1976). In that opinion, the supreme court stated that in a separate appeal (Holt v. Drake, 505 S.W.2d 650 (Tex.Civ.App.—Eastland 1973, no writ), the mandate of that court taxed the costs of appeal in the amount of $771.10 against Drake. These costs were advanced by Cur-rie on Holt’s behalf previously. According to Currie’s application for writ of error, the costs taxed against Drake were paid by him to the estate, rather than to Holt. Accordingly, Currie contended that he was entitled to reimbursement from the estate. Although the supreme court left these matters to be sorted out by the parties in accordance with the mandate of the East-land Court of Civil Appeals, it stated that if costs of the appeal were taxed against the losing party in accordance with Tex.R. Civ.P. 448, then Holt, as the winning party, should be entitled to reimbursement. Accordingly, we hold that the probate court erred in taxing these costs of appeal against Currie. We are unable to ascertain from the record whether Drake has tendered the amount into the estate, and, accordingly, we must leave these matters to be sorted out by the parties during the evidentiary hearing to be conducted on remand of this cause. The above holding should not be interpreted to contradict our mandate which taxed costs of the appeal before this court against Currie.

Accordingly, we reverse the cause and remand with instructions to the probate court to conduct an evidentiary hearing and then to enter judgment determining the amount to be returned to the estate after allowing any offsets and to tax costs accordingly.

Reversed and remanded.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Heleberto OLIVEREZ, Appellee.
    No. 19112.
    Court of Civil Appeals of Texas, Dallas.
    March 30, 1977.
    Rehearing Denied April 28, 1977.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellant.
    Frederick M. Baron, Dallas, for appellee.
   AKIN, Justice.

This is a suit to set aside a workmen’s compensation settlement agreement because of false representations made by the insurer’s doctor upon which the plaintiff allegedly relied in settling his claim for an inadequate amount. Since the jury found that the plaintiff had relied on the false representations in settling the claim, the trial court rendered judgment setting aside the settlement. Appellant, TEIA, attacks only the jury findings relating to reliance and inducement to settle the claim on the grounds of no evidence and insufficient evidence. Because we hold that the jury’s findings on these issues are supported by sufficient evidence, we affirm.

Appellee Oliverez suffered an injury to his left knee while acting in the course and scope of his employment. His employer sent him for treatment to Dr. Blackburn, who advised Oliverez that there was no serious injury and that he would be able to return to work in a few weeks. Despite continued pain in his knee, Oliverez did not seek treatment by another physician prior to the settlement of the claim approximately one year after the injury. However, after the settlement, Oliverez consulted another physician who performed surgery on the knee. Oliverez then brought this suit to set aside the settlement and to grant additional compensation. In accord with plaintiff’s position, the jury found that Dr. Blackburn made each representation; that each was false; that Oliverez relied on each representation; that each representation was a material factor in inducing Oliverez to settle the claim; and that Dr. Blackburn was acting in behalf of TEIA in making each representation. On this appeal, TEIA asserts that there is no evidence or, alternatively, insufficient evidence to support the issues concerning reliance and inducement to settle the claim.

Regarding reliance, TEIA contends that the evidence shows that Oliverez did not believe Dr. Blackburn and that he could not, therefore, have relied on the doctor’s representations in settling his claim. The basis of this contention is Oliverez’s testimony, which included certain inconsistent and contradictory statements. Oliverez testified on direct examination that he believed Dr. Blackburn and would not have settled had he known the true facts; however, TEIA points to testimony elicited on cross-examination that Oliverez did not believe what Dr. Blackburn told him at the time he was released. From this testimony, appellant urges us to conclude that, as a matter of law, Oliverez did not rely on the doctor’s representations in settling his injury claim.

In support of this contention, TEIA cites two cases, United States Fidelity & Guaranty Co. v. McCollum, 70 S.W.2d 751 (Tex.Civ.App.—El Paso 1934, no writ) and Alvarez v. Employers' Fire Ins. Co., 531 S.W.2d 218 (Tex.Civ.App.—Amarillo 1975, no writ). Alvarez is distinguishable because the claimant did not testify that she believed or relied on statements made by the insurer’s doctor. Oliverez, on the other hand, did testify that he believed Dr. Blackburn and relied on his representation that his knee was “all right.” In McCollum, the claimant testified on direct examination that he believed and relied on statements made by the insurer’s doctor when he signed the settlement. However, on cross-examination, he testified that he did not believe the doctor’s statement. The court noted the general rule that it is the jury’s province to resolve inconsistencies and contradictions in testimony, but went on to say that the testimony on cross-examination was so positive that it robbed the contrary statement of all probative force. In the case here, Oliverez is an illiterate manual laborer who exhibited great difficulty in understanding the English language at both the trial and the deposition. This is apparent from reading his testimony as a whole, and his testimony on cross-examination was not so positive and clear as to rob his contrary statement of all probative value. The determination of which portion of his inconsistent and contradictory testimony should be believed was for the jury. Lynch Oil Co. v. Shepard, 242 S.W.2d 217, 218 (Tex.Civ.App.—Eastland 1951, writ ref’d); see Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1973). Merely because he had some reservations about the truth of the doctor’s statement does not preclude a finding that he believed and relied on that statement. Associated Employers Lloyds v. Aiken, 201 S.W.2d 856, 860 (Tex.Civ.App.—Dallas 1947, writ ref’d n. r. e.). Since the jury observed and heard the witness and resolved the inconsistencies in favor of the plaintiff, we cannot say that there was insufficient evidence to support that finding.

TEIA also argues that the evidence conclusively shows that Oliverez settled his claim due to his immediate need for cash and that this negates the possibility of inducement by the doctor’s statement. In support of this contention, TEIA quotes the following testimony by Oliverez:

Question: Mr. Oliverez, when you settled the case, you settled the case to get money, not because your knee was well, is that right?
Answer: Well, I settled it because I need the money. I need the money. If I don’t need the money then I got no problem.
Question: Okay, it was not because you thought your knee was well?
Answer: It was because it hurt and I can’t work.
Question: All right, and you knew that your knee was bothering you?
Answer: Yes.
Question: But you took the money anyway?
Answer: Yeah. I needed the money. I took the money anyway.

At best, this evidence establishes a desire on Oliverez’s part to settle the claim at a certain time and that he needed the money. See Texas State Highway Dept. v. Kinsler, 230 S.W.2d 364, 367 (Tex.Civ.App.—Beaumont 1950, writ ref’d). It does not negate reliance on the misrepresentation in agreeing to the amount of the settlement. It is entirely possible that Oliverez would have declined the settlement, despite his financial condition, had he realized the full extent of his injury and the treatment which would be necessary. It is this incorrect information which the insurer is responsible for supplying to Oliverez. Consequently, on this record, we cannot say that the jury was not justified in drawing the inference that Oliverez was materially induced to make the settlement by the misrepresentations.

Affirmed.


author: GUITTARD, Chief Justice.

text:
    A. D. DOWNER, Appellant, v. AMALGAMATED MEATCUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA et al., Appellees.
    No. 19118.
    Court of Civil Appeals of Texas, Dallas.
    April 1, 1977.
    Rehearing Denied April 28, 1977.

      Tom W. Foster, Houston, for appellant.
    L. N. D. Wells, Jr., Mullinax, Wells, Mau-zy & Baab, Inc., Patrick F. McGowan, Strasburger & Price, Dallas, for appellees.
   GUITTARD, Chief Justice.

In this libel suit, summary judgment was rendered for defendants, and plaintiff appeals. Plaintiff A. D. Downer was formerly secretary-treasurer of a local union affiliated with defendant Amalgamated Meat-cutters and Butcher Workmen of North America (the international union). Defendant Maryland Casualty Company (the bonding company) had issued a fidelity bond covering plaintiff’s handling of funds for the local union. Plaintiff alleged that the international union made a claim on the bond falsely accusing him of misappropriating union funds and that the bonding company also libeled him by approving and paying the claim. He further alleged that defendant George Elwood, an agent of the international union, made similar false accusations. We hold that the defense of truth of the alleged libelous statements is established by the summary-judgment proof as a matter of law. Consequently, we affirm the summary judgment.

The accusation of misappropriation arose out of plaintiff’s admitted use of union funds for personal expenses. Plaintiff contends that the evidence raises a fact issue as to whether these circumstances establish only a debt from him to the union which he fully intended to repay, as evidenced by his entry of the amounts in question on the union’s books as “advances.” We hold that regardless of the entries on the books and his subjective intention to repay, the funds were nevertheless “misappropriated” within the coverage of the bond, and, consequently, the defense of truth is established as a matter of law.

The alleged libelous statement by the international union is contained in a proof of loss filed by the union with the bonding company. The printed form on which the proof is made contains instructions to the claimant to include an itemized account “of money or property misappropriated, stolen, or embezzled.” On this form the union listed a number of items charged to Downer as “advances.” Some of the items are marked, “No substantiation.” Other items give amounts advanced with “Verified Expenses” deducted. One of these items shows an advance of $800, less “Verified Expenses” of $491, leaving a balance of $309 marked “Charged to A. D. Downer as expenses for wife and two children on vacation.” The total shown on the proof of loss is $2,187.77.

Plaintiff’s claim of libel against the bonding company is based on the theory that by approving the union’s claim and paying the amount in full, it made libelous statements which further damaged his reputation. The only writings by the bonding company alleged to be defamatory are its draft for $2,187.77 and a transmittal letter from the bonding company to the international union stating that the draft is enclosed in the amount set out in the proof of loss.

Plaintiff joined as a defendant George Elwood, an agent of the international union, who, plaintiff alleged, slandered him in the course of a hearing called by the international union to determine whether a trusteeship should be imposed on the local union. Plaintiff alleged also that Elwood libeled him in a letter addressed to the president of the international union. This letter referred to plaintiff and another official of the local union and stated: “This has become a serious matter, because, as you know, we removed these two men from office because of their misuse of the members’ money.”

The “advances” listed in the proof of loss were, in large part, admitted by plaintiff in his deposition, which was before the court on the motion for summary judgment. He admitted also that some of the funds advanced were used for his personal expenses. He asserts, however, that there is a fact issue as to whether these funds were intentionally and fraudulently misappropriated, since the evidence is consistent with an intention on his part to repay the advances.

We conclude that his subjective intent to repay, even if accepted by the finder of fact, would not establish that the charges in the proof of loss were false. Under any interpretation of the summary-judgment proof, plaintiff’s use of union’s funds was wrongful, whether or not it was in violation of the penal code. Plaintiff does not contend that any of the officers of the union advanced the money to him for his personal expenses or consented to his use of it for that purpose — if, indeed, the officers would have had authority to do so. When he “advanced” the union funds to himself and used them for purposes unrelated to union business, he was guilty of “misappropriation,” for which the union was justified in making a claim under the bond, regardless of any entries he may have made in the union books evidencing his liability. Consequently, we hold that the summary-judgment proof establishes the defense of truth as a matter of law.

This holding is supported by decisions in analogous cases. In Western Union Telegraph Co. v. Buchanan, 248 S.W. 68, 69 (Tex.Civ.App.—San Antonio 1923, no writ), a charge that an employee had “misappropriated” funds of her employer was held not to amount to a charge of a crime per se. In suits on fidelity bonds, coverage for an employee’s unauthorized use of his employer’s funds has been held not limited to violations of the criminal law. Citizens’ Trust & Guaranty Co. v. Globe & Rutgers Fire Ins. Co., 229 F. 326, 330 (4th Cir. 1915) (“fraud or dishonesty”); Massachusetts Bonding and Ins. Co. v. Texas Finance Corp., 258 S.W. 250, 253 (Tex.Civ.App.—Dallas 1924, writ dism’d) (“larceny, embezzlement, conversion, or criminal misappropriation”); American Surety Co. v. Meadville Lodge, 114 Pa.Super. 451, 174 A. 591, 594 (1934) (“wrongful abstraction”); and see Great American Ins. Co. v. Langdeau, 379 S.W.2d 62, 65 (Tex.1964) (dictum). In Bell v. Clinton Oil Mill, 129 S.C 242, 124 S.E. 7, 11 (1924), an action for slander was held not to be supported by proof of statements that an employee’s use of funds would be reported to a bonding company which had issued a bond covering losses caused “by any act of personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion, abstraction, or misapplication” since the language of the bond did not limit coverage to criminal acts.

Plaintiff relies on Great American Ins. Co. v. Langdeau, 379 S.W.2d 62 (Tex.1964) for its holding that recovery on a bond covering losses from acts of fraud or dishonesty requires a showing that the employee “must have some degree of intent to perform the wrongful act.” The supreme court held that a bonded employee who signed checks in blank on the instructions of his superior was not guilty of fraud or dishonesty, since there was no evidence that he actually knew that the money was misappropriated. The opinion recognizes, however, that the intent required for recovery on such a bond “need not be of the degree required for criminal conduct.” Id. at 65. In the present case we hold that to the extent wrongful intent is required by the terms of the bond, such intent is shown because the evidence is undisputed that plaintiff intended to use union funds for his personal expenses. This intent is not negated by his assertions that he intended to repay the money he had wrongfully taken, or even by the book entries showing how much of the union’s funds he had used for personal expenses.

Plaintiff further contends that even though he may have used some of the funds in question for his personal use, the truth of the charge that he misappropriated a total of $2,187.77 is not established as a matter of law, and, consequently, a fact issue is presented for determination by a jury. In this connection he insists that a number of the items marked on the proof of loss as “no substantiation” were, in fact, proper expenditures for union purposes, for which he had receipts that the auditor for the international union refused to recognize. He testified in his deposition that after the auditor had examined the books, the claim was reduced to $840.73, which plaintiff then agreed to pay if the union would release him from any further claim, but the president of the international union refused to do so and insisted that a claim be made against the bonding company for the full amount of the claimed deficiency.

In this respect plaintiff relies on a statement in W. Prosser, Torts (4th Ed.) § 116, at 798, to the effect that the defense of truth must extend to the full scope of the alleged defamatory statement and does not preclude recovery of damages if the statement is only partly true. We recognize that if an alleged defamatory statement makes several charges, some of which are true and some of which are false, it is nevertheless an actionable libel. On the other hand, the defense of truth does not require proof that the alleged libelous statement is literally true in every detail; substantial truth is sufficient. For example, a charge that plaintiff had wasted $80,000 of the taxpayers’ money was held to be substantially true, even though the actual amount was only $17,500. The court observed that no more opprobrium would be attached to a charge of embezzling the larger sum of money than to a charge of embezzling the smaller sum. Fort Worth Press Co. v. Davis, 96 S.W.2d 416, 419 (Tex.Civ.App.—Fort Worth 1936, writ ref’d). Accord Putnam v. Browne, 162 Wis. 524, 155 N.W. 910 (1916). In the present case, the damage to plaintiff’s reputation is alleged to have resulted from the charge that plaintiff had misappropriated union funds. We do not think that each and every item listed on the proof of loss must be treated as a separate charge, requiring defendants to show the complete accuracy of each item in order to establish the defense of truth. All the items were part of a single claim. We hold that regardless of the existence of a dispute concerning some of the items, the summary-judgment proof shows as a matter of law that the charge that plaintiff had misappropriated union funds was substantially true. Consequently, the summary judgment was proper.

Affirmed.


author: PER CURIAM.

text:
    CINEMAS SOUTHWEST, INC., et al., Appellants, v. Katherine J. JEFFRIES et al., Appellees.
    No. 1221.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 14, 1977.

      F. Edward Barker, Harris, Cook, Browning & Barker, Corpus Christi, for appellants.
    Asa V. Bland, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellees.
   OPINION

PER CURIAM.

This is an attempted appeal from a judgment rendered in the 139th District Court of Hidalgo County, Texas, on November 8, 1976. Appellants’ timely-filed motion for new trial was overruled by operation of law on January 3, 1977, making the record due in this Court on March 4, 1977. Rule 386, T.R.C.P. The transcript and statement of facts were received in this Court on April 1, 1977. Appellant Cinemas Southwest, Inc. filed a motion to extend time to file the transcript and statement of facts on April 5, 1977.

In the motion to extend time, appellant described a series of communications with the office of the District Clerk of Hidalgo County in which he requested the preparation of the record and inquired on several occasions whether or not it had been sent to the Court of Civil Appeals. Information provided by various personnel in the District Clerk’s office indicated the record was no longer in the Clerk’s office, and probably had been sent. When no confirmation of receipt was received from the Clerk of this Court, appellant again inquired into the whereabouts of the record. On March 28, 1977, appellant telephoned the District Clerk of Hidalgo County, who made a diligent search and discovered that the papers had been misplaced and had never been prepared for filing in the Court of Civil Appeals. The District Clerk promptly prepared the transcript and mailed it, along with the statement of facts, to the Court of Civil Appeals. The record was received in this Court on April 1, 1977.

In his motion, appellant described making this series of inquiries with the District Clerk’s office and his reliance on statements by office employees indicating the record had probably been sent. However, at no time did he communicate in any way with this Court to ascertain if the record had been received. Rather than calling the Clerk of this Court to inquire why he had not received confirmation of the filing of the record, he directed his inquiries solely to the Hidalgo County District Clerk’s office.

Rule 386, T.R.C.P., requires the record to be filed within 60 days of judgment or the overruling of a motion for new trial. Extensions of time are governed by Rule 21c, T.R.C.P., which requires a motion to be filed no later than 15 days after the record is due. Rule 21c is a new rule which became effective January 1, 1976. The Supreme Court recently held that the 15-day period during which the motion to extend time must be filed is mandatory, and a motion filed thereafter cannot be considered. The Court stated, “. . . The fifteen-day time limit is mandatory; and unless a motion is filed within fifteen days, the court of civil appeals cannot grant leave to file the instruments.” Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.1977). While the Supreme Court in Meshwert v. Meshwert, supra, gave the Courts of Civil Appeals wide discretion in determining whether an ■ appellant’s explanation for missing a due date is reasonable, it gave the Courts of Civil Appeals no discretion to make any determination when a motion to extend time if filed later than 15 days after the due date.

The record was due in this appeal on March 4, 1977, and the 15th day thereafter which did not fall on a Saturday, Sunday, or legal holiday, was March 21, 1977. Appellant’s motion filed April 5, 1977, is not timely. This Court lost jurisdiction at the expiration of 75 days following the overruling of appellants’ motion for new trial.

Appellant urges that Rule 21c does not deprive this Court of discretion to grant his motion because the rule permits the Court to act upon a motion at a date after the expiration of the 15-day grace period. This point has no merit. While Rule 21c permits the Court to act upon a timely-filed motion after the 15th day, it does not permit the Court to act upon a late-filed motion. Meshwert v. Meshwert, supra, so holds.

Due to the late receipt of the motion and of the record, this Court has no jurisdiction to entertain the appeal.

APPEAL DISMISSED.


author: PEDEN, Justice.

text:
    In the Interest of E. S. M.
    No. 16812.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 21, 1977.
    Rehearing Denied May 19, 1977.

      Martin J. Grimm, Houston, for appellant.
    Bray & Watson, Robert V. Holland, Jr., Houston, for appellee; W. B. Irwin, Jr., Houston, of counsel.
   PEDEN, Justice.

Wendy Golden appeals from a decree terminating her parental rights in favor of the petitioners, Lydia and William Baxter. Appellant contends that later decrees entered in this case ineffectively attempted to correct judicial errors and that the termination was unsupported by any evidence or was contrary to the great weight of the evidence.

Mr. and Mrs. Baxter, the appel-lees, brought this suit to terminate the parental rights of the appellant and of Lawrence Hue McClain to E.S.M., the child in question, so they could adopt him. By the time of the hearing they had kept him at the mother’s request for more than two years. The trial judge announced his decision of termination of parental rights after a trial on the merits and appointed the appellees as managing conservators of the child. The written judgment subsequently entered, however, mistakenly decreed that “the parent-child relationship between Lawrence Hue McClain and Wendy Celeste Golden, a/k/a Angelina McClain be and is hereby terminated . . . .” It also failed to recite that the defendant-appellant had been cited and had appeared. The appellant asserts that these two errors made the judgment invalid. We hold that the omission of a recital that the defendant had been cited and had appeared did not constitute error. It is clear that she did appear and participate fully in the hearing. The appellees filed a motion to enter a judgment nunc pro tunc reciting that the parent-child relationship between Lawrence Hue McClain and the appellant as parents and E.S.M., the child, was terminated; the trial court granted this motion on May 17, 1976, and the appellant perfected this appeal from that date under Rule 306b, Texas Rules of Civil Procedure. That purported nunc pro tunc decree was defective, however, because it contained no indication that it was being entered nunc pro tunc or that the first judgment was being vacated, reformed, corrected, or amended. See City of West Lake Hills v. State ex rel City of Austin, 466 S.W.2d 722 at p. 726 (Tex.1971). A third decree has been signed while this case was on appeal; it contains recitals that the previous two judgments are vacated, and it corrects the errors noted in the first one. We base our review of this case on the third decree.

The appellant contests the validity of the original termination decree and the subsequent decrees in her first and second points of error. She also complains that the judgment was based on unverified pleadings, citing Tex.Pam.Code § 11.08(b). We hold that she waived this defect by not pointing it out by special exception or by filing a plea in abatement. Hays v. Old, 385 S.W.2d 464, 465 (Tex.Civ.App.1964, writ ref. n. r. e.); Rule 90, T.R.C.P.

Appellant argues that the mistakes in the original judgment constituted judicial errors, so they could not be corrected by a nunc pro tunc judgment entered more than 30 days after the entry of the original judgment.

A judicial error is one made in the rendition of the judgment, whereby an improper judgment is rendered; a clerical error occurs where the minutes of the court do not correctly recite the judgment actually rendered. A clerical error may be corrected at a subsequent term of court. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819 (1936); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). When the rendition of judgment is valid, the court has the power to correct any mistake or omission in the record of the judgment by entering a judgment nunc pro tunc. Rules 316 and 317, T.R.C.P.; Reavley & Orr, Trial Court’s Power To Amend Its Judgments, 25 Baylor L.Rev. 191, 194 (1973).

In our case the trial judge rendered judgment at the close of. the termination hearing when he said: “The parent-child relationship is terminated. The Petitioners are appointed managing conservators of the child.” The failure of the original decree to correctly recite this was simply a clerical error made in the entry of the decree on the minutes of the court. It is clear that the parent-child relationship was terminated by the court’s oral rendition at the end of the trial. We overrule the appellant’s first two points of error.

In her third and fourth points the appellant complains that the trial court erred in terminating her parent-child relationship with E.S.M. because there is no evidence and insufficient evidence to sustain the trial court’s findings in support of the order. These points are multifarious, but we will consider them. In deciding no evidence points, we view the evidence in a light most favorable to support the trial court’s findings. Fisher Constr. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). Great weight points require a consideration of all the evidence.

The trial court made findings (under the numbers shown) that the appellant and the child’s father had:

5. voluntarily left the child alone or in the possession of another, not the parent, without expressing an intent to return.
6. voluntarily left the child alone or in possession of another not the parent without expressing an intent to return, without providing for adequate support of the child and remained away for a period of at least three months.
7. knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.
8. engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.
9. failed to support the child in accordance with their ability during a period of at least one year.
10.and that the termination would be in the best interest of the child.

Findings 7, 8, and 10 correspond with provisions (1) D, E, and (2), respectively, of the involuntary termination statute of the Texas Family Code, § 15.02 (1974). We review all of the evidence pertaining to these findings.

The termination hearing began on July 31, 1975. The first witness was the appellant, Wendy Golden, age 24. She is also known as Wendy Doherty and Angelina McClain. She identified Lawrence Hue McClain as father of her child, E.S.M. She describes her relationship with McClain as a common law marriage but says she also had a previous common law marriage to Henry Golden and has never been divorced. She has lived alone for the past four months after having lived with one Thomas Cox. Before that she was in the county jail for three months on a charge of criminal trespassing in a store; the charge was burglary, but she pleaded guilty to the reduced charge of trespassing. She has also been in jail twice for prostitution, once for carrying a pistol, once for theft, once for possession of marijuana, and once for possession of narcotics paraphernalia. Before her last jail sentence she lived a couple of places with Thomas Cox, and before that she was in jail for two months on the theft charge. She thinks she has been in jail seven to ten times. The child in question, E.S.M., was born on November 18, 1972. In that year she lived in the Kingston Apartments with Lawrence McClain. She doesn’t recall that anyone else lived with them, but Johnny Price stayed there occasionally. When E.S.M. was born he lived there, as did a dog and a cat.

She voluntarily allowed Mr. and Mrs. Baxter to take E.S.M. because she was going to jail on one case and had other charges against her. She is now in sales work for Super Pretzel of Texas. She says she has worked sporadically as a prostitute and was doing so before her son’s birth. She can give no estimate as to the number of times she has wo^ed as a prostitute, and does not know whether it was more than 50. She can’t explain how the child has blue eyes and blond hair when McClain is black. She has had two children besides E.S.M. Both of them died in their cradles within 48 hours after birth.

She has used amphetamines, L.S.D., marijuana, and has tried heroin. She said she believed the term “supercharging” meant the inhaling of marijuana smoke, then blowing it into the face of another. This testimony was elicited from her:

“Q Have you ever supercharged your son when you had him, seven months or younger, to put him to sleep so that he would stop crying?
A Possibly. I mean, he was in a room full of smoke, and I did smoke marijuana, yes.
Q Smoked marijuana almost continuously when you had him in your possession, did you not?
A Yes, sir, I did.
Q And used other drugs almost continuously while you had your son in your possession, did you not?
A Yes, sir, I did. I told the reasons why I gave him up at the time because I could not handle him.
Q Well, didn’t you just previously testify that one of the reasons that you gave him up, or at least implied one of the reasons you gave up was because you were afraid of his welfare?
A Yes, sir. That is another reason. There are many reasons that I was afraid for him. There are many reasons why his birth certificate is not in my real name. There are many reasons why he was placed out of town, not with dope fiends and not with any people that I was around, so that he would not end up with the welfare. I thought that I placed him in good hands with an oral agreement that once all of my cases, and all of my problems, should they be drugs, should they be illegal, until I was stable enough to take my son back, which I am now, that then I could come back and get him. That was the oral agreement.
Q When was the last time that you were at the Baxters’ home and visited with the child?
A Approximately, two weeks ago.
Q Had you been using any drugs before you arrived?
A I believe I had smoked some marijuana, one joint of marijuana, before I arrived.
Q Just previous to arriving and visiting with your son?
A Yes, sir.”

She placed E.S.M. with the Baxters when he was six or seven months old. In the two years he has been with them she has visited with him very few times — about five. Since he has been with the Baxters he has never appeared mistreated. He is well fed and appears to be receiving all the love and affection of any normal home. She once tried to give him a $100 bill, but the Bax-ters told her she could not do so. She explained that her never having given him any Christmas or birthday presents was because she was in jail on both those occasions. She knows how to take care of a child; “I think any mother knows.” She denied having let her child become so dirty that others had to change him. She admitted that she never actually provided the Baxters with any money for support of her child in the two years he had been with them. She offered money on one occasion —“Yes, only when I could afford it.”

She said when she had her son with her she placed him in the best conditions she could afford, but she admitted that she was not required to give him conditions under which she and her visitors were continuously using different kinds of dope. She also admitted that she didn’t think those conditions were conducive to the best interests of a child six months old.

She placed her son with the Baxters because McClain was with the Bandidos, there was a battle between bike clubs, and a contract “had been pulled on me;” McClain had almost been shot a few times, Heather, her babysitter, had her face eaten up with acid as a part of the battle between the bike clubs, and the appellant’s apartment had been shot up. Further, she had some charges pending against her, and she saw no way she could fairly take care of her child. She searched and found the Baxters to take care of him properly. She says her life is now straightened out except for not having her son. Her life was changed by an incident that occurred while she was in jail. She had someone call the Baxters to explain why she couldn’t visit her son on his birthday and to say that when she got out she could begin to readjust to society, but they sent a lawyer to ask her to give him up. When she got out she tried to start making her life right.

She doesn’t believe her son recognized her when she walked into the courtroom. She said she doesn’t use or need drugs now but admitted having smoked marijuana before visiting her child two weeks ago. Her explanation of this inconsistency was that when the word “drugs” is used, she thinks of hard drugs. She now makes about $200 per week in commission from Super Pretzel of Texas. She said she has cirrhosis of the liver and is on the verge of having liver cancer.

We review the testimony of Mr. Baxter. He lives with his wife and E.S.M. in Richmond, Texas. E.S.M. has his own bedroom, a playroom, a rabbit, and a pony. Baxter has two jobs but is always at home by 5 P.M. His wife does not work outside their home. E.S.M. came with them on June 20, 1973. He has neighborhood children to play with. Baxter and his wife love the child and want to adopt him. He has learned to crawl, walk, and talk while living with them. They do not drink or use drugs. Baxter has seen the appellant visit only three times in the 26 months E.S.M. has been with them. E.S.M. seemed afraid of McClain. When E.S.M. came to them he seemed to be afraid of black people, of policemen, and of sirens.

Mrs. Baxter testified that when the appellant came to visit E.S.M. on Thanksgiving something was wrong with her. She said she would have the baby back by 3 P.M., but didn’t call until 7:30 P.M. Mrs. Baxter went into town to meet them, and when she took the baby she could smell beer. One of the boys told the appellant she shouldn’t have picked the baby up in that shape, and she replied that she wanted to see him and “just had to do this.” She had on such a tiny costume that you could see everything. Mrs. Baxter had called her many times to come spend weekends, but she refused, saying that she didn’t have time because weekends were her busiest time. “And I just kept calling her and asking her, and she would never come.” She gave them no money to support the child.

Mrs. Baxter described one apartment where E.S.M. had lived with the appellant. It had one big room with a kitchen adjoining it. There were no beds, just mattresses on the floor in each corner. The baby slept in a small playpen with one small cloth blanket. There was a dog and three eats, and the place was “run over with dirt.” E.S.M. lived there with the appellant and with McClain, Price, and another boy.

When asked whether the appellant ever paid or offered any money, Mrs. Baxter replied:

A. No, sir. We didn’t ask her. She never offered. No, sir. I wasn’t hired as a babysitter. She wanted to place him in my home because she said she couldn’t make a home, you know, for him or be a real mother to him. She wanted someone to have him to take good care of him and that she would maybe someday be back to take him as her own baby, but she wasn’t sure. And she kept not wanting to come over, she said she would rather stay away because it was upsetting to the baby, that he didn’t know her anyway, and it was upsetting me. Well, it wasn’t upsetting to me for her to come see him. Even if we were granted adoption, sir, she can still come see him, but he doesn’t know her.

Mrs. Baxter also expressed love for the child and a strong hope to adopt him.

John Shields, a son of Mrs. Baxter, testified next. He has known the appellant about 2⅜ or 3 years. While he was living at the Kingston Apartments, the appellant and her son moved in with him and his brother when McClain went to a hospital. She told him she was then engaged in prostitution. They slept with guns nearby because they were afraid a member of a rival motorcycle gang would break in and kill them. E.S.M. was neglected, was living in squalor, and was generally dirty and hungry. The worst he ever saw E.S.M. was one day when he came home from school, while the appellant was out working as a prostitute, and saw E.S.M. in his bed, covered with dung while the babysitter was watching TV and eating peaches. The bed was full of dung, the baby was crying and was filthy. Generally, he and his brother (John Price) were the only ones who cleaned E.S.M. up.

Shields disputed the appellant’s claim that she has completely straightened out her life for the last four months. Two or 2V2 months ago, she was living with a man named Tom. She got Shields to go with her to see E.S.M. about a month ago, and she tried to get him to give E.S.M. a $100 bill that she said she had gotten through prostitution.

Shields said the appellant and he had smoked marijuana during the last four months, and every time he has seen her she appeared to be high. He has frequently seen the appellant put E.S.M. to sleep by “supercharging.” Drugs were frequently used around E.S.M., and he was in the presence of people that were using them. Shields said he was the one whose efforts led to the Baxters taking E.S.M. for the appellant, who didn’t want him sent to a county home. He seems well adjusted with the Baxters except when the appellant comes out to see him. She cries and carries on that she wants him and has straightened her life out. Shields says he knows from what she has told him that she hasn’t straightened it out and that the child has no life with a woman like her.

Shields admitted on cross-examination to an arrest at age 16. He invoked the fifth amendment when asked about his use of drugs. He said he had not been convicted of any felony or misdemeanor involving moral turpitude.

Two of the Baxter’s neighbors testified to their good home life and to E.S.M.’s good emotional growth.

Frank Pultar testified that within the last four months he had gone with John Shields to where the appellant was staying with some man. He was nervous there because it was a rough atmosphere and the people were smoking marijuana. He heard her say she had been involved in prostitution within the last four months. He has not been convicted in the last five years of any crime involving moral turpitude.

Stuart Kauftheil related that the appellant has worked for him in sales for 16 weeks at Super Pretzel of Texas. She is definitely an asset to his business and earns about $200 to $250 per week in commissions.

Mrs. Patricia Calkins, adoptive sister of the appellant, lives in New Jersey. Her mother boarded children, and the appellant was left with them for eighteen years. She hasn’t been in contact with the appellant in the past four months except that she got a letter and came to Houston the morning of this hearing. She didn’t know whether the appellant was married at age 15. She sent money to her for a lawyer when the appellant needed help.

The appellant later testified that she wants her baby back because she loves him and thinks he needs her. She doesn’t want him to think she didn’t want him. During the last two years she has worked towards getting him back, and she now feels that she is in a position to adequately care for him. She still knows the same men she knew before, but she does not “frequent” them. She has left the past behind and wants to take her son and go back to New Jersey with her adoptive sister. She explained: “I would take him to my sister’s home, the home I was raised in, and it would be in the east where there would be no social pressures, and no one would call his father a nigger, and no one would call his mother a whore, and he would not be raised to believe that. He would not be raised to think his parents didn’t want him.”

She loved her son or she couldn’t have left him. She knows it upsets him to see her and it upsets her to see him. She admitted that at any time during the past few years she could have straightened out her life.

We sustain the appellant’s point that there is no evidence to support the trial court’s finding 5 and agree that the wording of that finding is materially different from the provision of § 15.02(1)(A).

We also agree with the appellant that finding 6 is not supported by sufficient evidence. The proceedings in an action which permanently breaks the ties between a parent and child should be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). The appellant’s expression of intent to return was equivocal, and we cannot say from a preponderance of the evidence that she remained away from him for a period of at least three months when she was free to be with him.

We hold, however, that the trial judge was entitled to conclude, from the evidence in support of his finding of fact 7, that the appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered his physical or emotional well-being. We also hold that the evidence supports the court’s eighth finding of fact, that the appellant engaged in conduct which endangers the child’s physical or emotional well-being.

We need not review the trial court’s ninth finding of fact.

Finding of fact 10 states that the termination would be in the best interest of the child. A number of factors have been considered by the courts in ascertaining the best interest of the child, including these: “(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent. . . .” Holley v. Adams, 544 S.W.2d 367 (Tex.1976).

At the time of the trial the child had lived with the Baxters for two years, and their neighbors report that they maintain an emotionally stable and physically healthy atmosphere. The trial judge had an opportunity to observe the parties. The Baxters encouraged the appellant to visit with her son, but she rarely came. When she did visit, she often arrived late at night, appeared “high” or intoxicated, and upset her child because “she cries and carries on that she wants him back and has straightened out her life.” An opinion was expressed that the appellant had not changed and that the child should not be returned to her.

The appellant apparently held a job during the 16 weeks immediately preceding the. trial and asserted that she had dramatically altered her life, but the trial court was not required to accept the truth of her testimony as to her past actions or future intentions. The evidence in the record authorized the trial court to measure the appellant’s future conduct by her recent deliberate past conduct as it may be related to the same or a similar situation. DeLlano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (1960). During the first 6 months of the child’s life, she placed him in a dangerous atmosphere and admitted that she possibly used marijuana smoke as a tranquilizer. She then placed the entire parental responsibility and financial burden of her child on the Baxters for two years and did not ask for his return until they asked to keep him. They provided the physical necessities and emotional stability that he seemed to desperately need. They are the only family he has ever known, and he has now been with them for nearly four years.

There is a strong presumption that a minor’s best interest is usually served by keeping custody in the natural parents. It is based on a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral, and emotional development of the child. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976), citing Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963).

We consider that the evidence in this case was sufficient to overcome that strong presumption and that the evidence supports the trial judge’s decision that the best opportunities for the child’s care and development would be provided if he thus made it possible for the Baxters to proceed with their adoption petition rather than returning the child to the appellant or continuing his status as a foster child.

Trial Court decisions in two related cases were also appealed by the appellant in our case: the Baxter's adoption proceeding has been transferred to the Court of Civil Appeals for the Eleventh District, at Eastland, and we are today issuing an unpublished opinion in the appellant’s habeas corpus proceeding, styled “Ex parte E.S.M.”

The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Ulrich OTTEN, Appellant, v. Maxine SNOWDEN, Appellee.
    No. 15741.
    Court of Civil Appeals of Texas, San Antonio.
    April 27, 1977.
    R. Norvell Graham, Jr., San Antonio, for appellant.
    John Carl Stromberger, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellee brought this suit seeking to recover damages under Art. 5236d, § 7, and Art. 5236e, § 4, Tex.Rev.Civ.Stat.Ann. (Supp.1977), after appellant allegedly seized exempt personal property belonging to appellee, who had rented an apartment from appellant on a month to month tenancy. A general denial was filed on behalf of appellant.

On January 26, 1976, appellant’s attorney was permitted to withdraw from the case. Appellee then waived her demand for a jury and set the case on the non-jury docket for March 8, 1976. Appellant delivered all his papers concerning this proceeding to his new attorney. This attorney overlooked the notice of the setting and neither appellant nor his attorney was present on March 8, 1976. However, the case was not tried at this time. On May 5, 1976, without any notice to appellant, appellee proved up her “default” judgment by a written narrative statement which was sworn to by appellee and her attorney. Judgment was entered on May 5, 1976 for the sum of $10,360.00 plus reasonable attorney’s fees of $1,250.00 as prayed for by appellee. Appellant timely filed a motion and amended motion for new trial. On July 1, 1976, the trial court overruled the amended motion for new trial on the condition that appellee filed a remit-titur of $6,000.00. This was done and an appeal has been perfected from the modified judgment of $4,360.00 plus attorney’s fees of $1,250.00.

It must be recognized at the outset that although both parties refer to the judgment of May 5, 1976 as a “default judgment,” it is not a true default in that an answer was timely filed; nor is it a nihil dicit judgment. It is now settled that where the defendant has filed an answer placing in issue the merits of plaintiff’s cause of action, his failure to appear at the trial is neither an abandonment of his answer nor is it an implied confession of any issues thus joined by such answer. In such a situation, the plaintiff is required to prove her case even though the defendant fails to appear at the trial. Frymire Engineering Co. v. Grantham, 524 S.W.2d 680 (Tex.1975).

Appellant urges on this appeal that the damages found by the trial court are not supported by the pleadings or proof. The modified judgment awarded appellee damages of $4,360.00 plus $1,250.00 attorney’s fees. The trial court found statutory damages of $360.00 and “actual damages” of $4,000.00. Art. 5236d permits a tenant to recover damages from his landlord for wrongful seizure of personal property. § 7 thereof authorizes recovery for one month’s rent, plus actual damages, plus reasonable attorney’s fees, less any delinquent rentals or other sums for which the tenant is liable. Art. 5236e relates to security deposits and requires the landlord to account for all deductions and to return the unused portion of the security deposit to the tenant. § 4(a) provides that a landlord who in bad faith retains a security deposit in violation of this statute is liable to the tenant for $100.00 plus treble the amount of that portion of the deposit which was wrongfully withheld from the tenant and for reasonable attorney’s fees.

Assuming, without deciding, that the affidavits of appellee and her attorney are competent evidence, there is not sufficient evidence to support the finding of damages. Although appellee pleaded that the rent was $110.00 per month, there is no evidence as to the amount of the rental. Appellee did swear that she had posted a security deposit of $50.00 and that appellant had refused to return the deposit or furnish her with an accounting. The personal property seized by appellant was not identified and there was no evidence to support a recovery for loss of its use during the time this property remained in the possession of appellant. Appellee swore that she had been forced to resign her job, but did not state what job she held or the amount of income that she had lost.

Appellee averred that she sustained serious pain, suffering, and mental anguish as a result of the seizure of her personal items. As a general rule, mental anguish does not constitute an element of damages that may be recovered in an action either for breach of contract or for a tort founded on a right growing out of a breach of contract. Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); White Sewing Mach. Co. v. Lindsay, 14 S.W.2d 311 (Tex.Civ.App.—Galveston 1929, writ dism’d); Dunn v. Wilkerson, 203 S.W. 59 (Tex.Civ.App.—San Antonio 1918, no writ); 14 Tex.Jur.2d Conversion § 36 (1960). No exception to this general rule has been shown in this case.

We sustain appellant’s point that the finding of damages is not supported by competent evidence. It is apparent that this lack of evidence was brought about by appellee’s mistaken belief that she was entitled to a default judgment after appellant did not appear for the March 8 setting. We therefore conclude that the cause should be reversed and remanded in the interest of justice. It is unnecessary to consider appellant’s other point that the trial court erred in not granting his motion for a new trial.

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

      . All statutory references are to Tex.Rev.Civ. Stat.Ann,

      . No complaint is made of the lack of notice to appellant of the May 5th hearing.


author: O’QUINN, Justice.

text:
    Harry I. MELCER et ux. et al., Appellants, v. J. Garland WARREN et ux., Appellees.
    No. 12476.
    Court of Civil Appeals of Texas, Austin.
    April 27, 1977.
    Rehearing Denied May 18, 1977.

      William L. Burnett, Wheat, Thornton & Wheat, Houston, for appellants.
    Gene Majors, Fitzgerald & Majors, San Marcos, for appellees.
   O’QUINN, Justice.

The controlling issue in this appeal is whether the automatic stay in Rule 601, Rules of Bankruptcy Procedure, rendered void exercise by appellants of their option to accelerate maturity of a note, secured by vendor’s lien and deed of trust on real property, made by appellees to appellants in connection with sale of real property.

The trial court held that the stay was effective to void exercise of the option to mature, and enjoined appellants from proceeding upon their declaration of maturity. Appellants have appealed from this injunc-tive order and bring seven points of error. We will reverse judgment of the trial court and dissolve the temporary injunction.

The facts giving rise to the issues on this appeal are stated, as drawn from stipulation of facts by the parties.

Melcer and wife conveyed to Warren and wife, in April of 1973, approximately 172 acres of land located in Caldwell County, and as part of the consideration, the Warrens executed a note to the Melcers in the amount of $51,000, secured by vendor’s lien and deed of trust. Subsequently, in November of 1973, the Warrens conveyed the property to Alamo Land and Cattle Corporation, for cash, assumption by Alamo of the indebtedness remaining on the Warren note to the Melcers, and a note payable to Warren in a sum in excess of $46,700.

In July of 1974 Alamo filed its petition in voluntary bankruptcy in the United States District Court in San Antonio. At that time the Warren note to Melcer was current, Warren having made installment payments due in October of 1973 and in April of 1974. After Alamo filed its petition in bankruptcy, Warren did not make installment payments due in October of 1974, nor in April of 1975.

Shortly after the middle of February of 1975 Melcer notified Warren in writing of election to mature the Warren note, and immediately thereafter filed a complaint in the bankruptcy court asking relief from stay against foreclosure of lien on the land, then a part of the estate of Alamo, the bankrupt, and in custody of the Trustee in Bankruptcy. Warren also filed petition for similar relief.

The Melcer complaint was overruled, and the court ordered sale of the property free of liens, after which Warren filed motion to rescind the order of sale, and the court set the motion for hearing early in September of 1975. About three weeks prior to date of hearing the court, on August 12, entered an order rescinding the order of sale and abandoning the property.

Thereafter Warren tendered to Melcer payment of the delinquent installments, together with penalties and interest. Melcer returned the proffered payment and in writing reaffirmed election to accelerate maturity, notice of which had been given in February of 1975.

Both Melcer and Warren sought to foreclose their liens on the property for sales to be held October 7, 1975, the first date permissible following order of the bankruptcy court in August abandoning the property. One day prior to the proposed sales, Warren obtained a restraining order prohibiting Melcer from proceeding to foreclose. At the sale next day Warren obtained foreclosure of his lien, subject to the Melcer lien and indebtedness, and bid in the property, of which Warren is the present owner, subject to the Melcer lien and debt.

Appellants contend that in this appeal only questions of law are presented and that the trial court incorrectly applied the law in granting the temporary injunction restraining Melcer from conducting sale to foreclose liens securing the Warren note, “based on any default in payment of installments” occurring in October of 1974 and April of 1975, after Alamo filed its petition in bankruptcy.

Although ordinarily a trial court is allowed considerable discretion in granting a temporary injunction, and under the general rule an order will not be reversed on appeal except on a showing of abuse of discretion, such discretion “. . . does not extend to the erroneous application of law to conceded facts.” City of Farmers Branch v. Hawnco, Inc., 435 S.W.2d 288, 292 (Tex.Civ.App. Dallas 1968, writ ref’d n. r. e.). The facts in this appeal are undisputed, having been stipulated by the parties, and the rule stated in Hawnco has been approved and applied by the Supreme Court. City of Spring Valley v. Southwestern Bell Telephone Company, 484 S.W.2d 579, 581 (Tex.Sup.1972).

Appellees argue that Rule' 601, Rules of Bankruptcy Procedure, had the effect of staying any act by appellants, including action taken by appellants to accelerate maturity of the Warren note after Warren failed to pay installments due in October of 1973 and April of 1974, following entry of Alamo into bankruptcy proceedings in'July of 1973.

Rule 601 provides in paragraph (a):

“Stay Against Lien Enforcement. The filing of a petition shall operate as a stay of any act or the commencement or continuation of any court proceeding to enforce (1) a lien against property in the custody of the bankruptcy court, or (2) a lien against the property of the bankrupt obtained within 4 months before bankruptcy by attachment, judgment, levy, or other legal or equitable process or proceedings.” (Emphasis added, except heading).

Paragraph (b) of Rule 601 states that duration of the stay shall continue until the bankruptcy case is dismissed or closed, except as modified or annulled by the court under other subdivisions of the Rule, or “until the property subject to the lien is . set apart as exempt, abandoned, or transferred.” In this case, as observed earlier, the bankruptcy court finally abandoned the property, but after the facts giving rise to the issues in this appeal.

Appellants were explicit at trial in district court, and are equally so on appeal, that their position consistently has been that Melcer had a contractual right to accelerate maturity of the Warren note, as a condition precedent either (1) to suing Warren personally on the note or (2) resorting to the realty which secured payment of the note. Prom that position appellants argue that since acceleration of the note was a condition precedent to pursuing either alternative, Rule 601 would not reach any action taken which did not lead to subsequent acts to enforce the lien against property in custody of the bankruptcy court.

We agree with the position taken by appellants that by exercising their contractual right to accelerate the Warren note, they acted beyond the purview of Rule 601. Appellants pursued a proper course in requesting of the bankruptcy court relief from the stay against foreclosure, if in their alternative course foreclosure should be desired over suit alone on the personal obligation of Warren to pay the debt. Such course we do not regard as inconsistent with their claim of alternative rights, and request of the bankruptcy court for relief from stay may not be construed to constitute an act to enforce a lien in violation of the Rule.

In the course of trial below appellants clearly took the position that if Warren was in position “to pay the Melcer note off,” there would be no need for “foreclosure as such,” although by meeting the condition precedent, in accelerating the note, appellants did place themselves in position to pursue either alternative course.

We do not find that the Federal courts have construed Rule 601 with respect to facts under which collection of a secured debt is sought by a creditor against a debt- or who is not the bankrupt but who himself is a creditor of the bankrupt. Nor have the parties to this appeal suggested authorities directly in point.

The Federal courts have recognized that the contractual right to accelerate an obligation is substantive and not merely a remedy, and further that an acceleration provision is a proper matter of contract, not falling within principles upon which equity ordinarily would relieve against forfeiture. Guaranty Trust Co. v. Henwood, 86 F.2d 347, 351 (8th Cir. 1936); 108 A.L.R. 1020, 1030. See also In re Plankinton Building Co., 148 F.2d 119, 126 (7th Cir. 1945); In re Utilities Power and Light Corporation, 91 F.2d 598, 601 (7th Cir. 1937); Matter of Delaney, 534 F.2d 645, 647 (5th Cir. 1976).

The note from Warren to Melcer provided that in event of default in prompt payment of any installment, the whole indebtedness, at the election of Melcer, would become mature and payable, “and the liens securing payment hereof shall become subject to foreclosure proceedings as such payee may elect.” (Emphasis added). Melcer contracted for the right to sue Warren on the note and recover personal judgment without reference to the lien. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380, 382 (1942). Melcer had the right to sue Warren on the note without first exhausting the remedy of foreclosure. 39 Tex.Jur.2d Mortgages and Trust Deeds, 265, sec. 204 (1976).

Appellants’ exercise of their option to declare the entire indebtedness due was prerequisite to the right to judgment for the amount of the debt and to have the deed of trust lien foreclosed on the property. Norwood Homes, Inc. v. Marburger, 404 S.W.2d 687 (Tex.Civ.App. Eastland 1966, writ ref’d n. r. e.). Appellants were entitled to bring separate suits to (1) foreclose the deed of trust lien and (2) to recover personal judgment upon the debt which the mortgage was given to secure. Jackson v. American Central Life Ins. Co., 77 S.W.2d 1064, 1066 (Tex.Civ.App. Amarillo 1935, writ ref’d).

Assuming that Rule 601, during pendency of the bankruptcy proceedings concerning Alamo, provided an automatic stay to prevent appellants from foreclosing the deed of trust lien against the property, the Rule would not operate to stay appellants from taking such steps as were necessary to accelerate the note and bring suit against Warren on the note to recover personal judgment. In enjoining appellants from proceeding to enforce the liens “based on any default in payment of installments,” the triaL court in effect held that appellants’ acceleration of the note was void, as an act stayed by provisions of Rule 601.

The judgment of the trial court is reversed, and judgment is rendered dissolving the injunction.

Reversed and Rendered.

      . Appellants, who were defendants below, are Harry I. Melcer and wife of Brazoria County and E. H. Thornton, Jr. of Harris County, as trustee in deed of trust from the Warrens to the Melcers. Appellees, who brought this action in district court, are J. Garland Warren and wife of Hays County.


text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. The CITY NATIONAL BANK OF AUSTIN, as Independent Executor of the Estate of Georgann A. Lyon, Deceased, and of the Estate of Jack H. Lyon, Deceased, and as Trustee of the Jack H. and Georgann Lyon Trust, Appellees.
    No. 12523.
    Court of Civil Appeals of Texas, Austin.
    April 27, 1977.

      John L. Hill, Atty. Gen., Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellants.
    Kevin Holcomb, Watkins, Ledbetter & Ramsey, Austin, for appellees.
   O’QUINN, Justice.

The City National Bank of Austin, as independent executor of two estates and trustee of a trust, brought this suit to recover inheritance taxes paid under protest to the Comptroller of Public Accounts.

Events giving rise to the tax in controversy began in 1971 with creation of certain trusts by Jack H. Lyon, joined by his wife Georgann A. Lyon, and funded by insurance policies on Lyon’s life, with the City National Bank named trustee. Subsequently, on April 22, 1973, Lyon and his wife, together with all their children, died in a common disaster when an airplane in which they were riding crashed, killing all occupants. Lyon was survived by his parents and Mrs. Lyon by her parents.

The Bank filed inheritance tax returns for the two estates and paid taxes. Thereafter the Comptroller assessed additional inheritance taxes, with penalties and interest, in the amount of $13,108.84 in the estate of Georgann A. Lyon and $1,547.20 in the estate of Jack H. Lyon. The Bank paid the additional taxes under protest and, pursuant to Article 1.05, Taxation-General, Title 122A, brought this lawsuit to recover the taxes.

At trial the parties reached settlement of taxes on the estate of Jack H. Lyon, and both parties moved for summary judgment on the issue of additional taxes on the estate of Mrs. Lyon. The trial court overruled motion of the State and granted motion of the Bank awarding recovery of $13,-108.84 inheritance taxes paid under protest.

The State appealed and brings the single point that the trial court as a matter of law erred in holding that none of the proceeds of the community-owned policy on the life of Jack H. Lyon, payable to a third party, was taxable in the estate of Mrs. Lyon, who died in the common disaster with her husband.

We will overrule the point of error and affirm judgment of the trial court.

Under terms of the insurance trust agreement, with Lyon as settlor, it was provided:

(1) If Lyon’s wife should survive him by thirty days, Mrs. Lyon would receive the income for life from Trust A, and would have general power of appointment over the principal of that Trust.

(2) At death of Mrs. Lyon, if she had not exercised her power to appoint by will, the corpus of Trust A would be added to a second, Trust B.

(3) Upon death of Mrs. Lyon, or if she should predecease Lyon, Trust B would be divided into as many shares as there were children or issue of Lyon then living; if none, the Trust estate would be distributed among Lyon’s heirs at law according to the laws of descent and distribution of this State.

(4) The trust agreement was revocable at option of Lyon during his lifetime; at Lyon’s death the trust became irrevocable.

After the death of Lyon, his wife, and all their children in the common accident, proceeds from three life insurance policies in the main funded the trust. Parents of Lyon and Mrs. Lyon agreed to divide the combined estate equally among the four parents.

Assessment of the additional inheritance taxes by the Comptroller was based on a determination (1) that one-half of the proceeds of two policies of insurance on Jack H. Lyon, payable to the trust as beneficiary, should be included in the estate of Georgann A. Lyon for inheritance tax purposes; (2) that Georgann A. Lyon was not entitled to the $40,000 exemption allowed under Article 14.01(A) on either of the life policies; and (3) that for inheritance tax purposes Georgann A. Lyon’s beneficiaries were Jack H. Lyon’s heirs at law.

The position of City National Bank is that as a matter of law the value of Mrs. Lyon’s ownership interest in the community policy for inheritance tax purposes is not one-half of the proceeds of the policies, but is one-half of the interpolated terminal reserve value of the policies. In this contention City National relies on decisions of United States Courts of Appeals and the reasoning of those courts in cases involving fact situations basically indistinguishable from the facts of this cause.

The State concedes that no portion of the proceeds of the policies would be subject to inheritance taxes in the estate of Mrs. Lyon if she had predeceased her husband, who was the insured, by one day, nor would there be a tax if Mrs. Lyon survived her husband by one day. The State insists, however, that one-half of the proceeds of the policies are taxable in Mrs. Lyon’s estate because she and her husband died simultaneously in the plane crash, thereby causing maturity of the policies to coincide with the instant of their deaths.

The Federal decisions relied on by City National would reject the State’s argument that Mrs. Lyon had ownership rights to one-half of the proceeds of the policies, as distinguished from her policy rights. Chown v. Commissioner, 428 F.2d 1395 (9th Cir. 1970); Wien v. Commissioner, 441 F.2d 32 (5th Cir. 1971). In those cases the courts had before them the question of what is the value of ownership interest of the non-insured spouse in an insurance policy on the life of her spouse when both persons in a common disaster die “simultaneously” and the insurance proceeds are paid to third persons.

In those cases the contention that the wife's interest in the policies should be measured by the proceeds was rejected, and the courts instead used the interpolated terminal reserve value method to determine value for tax purposes. The interpolated terminal reserve value is not cash surrender value, but the reserve which the insurance company enters on its books against the company’s liability on the contract, and interpolated indicates adjustment of the reserve to the specific date in question. Com missioner v. Edwards, 135 F.2d 574, 576 (7th Cir. 1943).

The State invokes provisions of the so-called “Texas Simultaneous Death Statute” and contends application of the statute places one-half of the proceeds of the policies in the ownership of Mrs. Lyon, rendering her estate subject to the inheritance tax assessed by the Comptroller. The portion of the statute affecting “Disposal of Community Property” provides:

“When a husband and wife have died, leaving community property, and there is no direct evidence that they have died otherwise than simultaneously, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived. The provisions of this subsection apply to proceeds of life or accident insurance which are community property and become payable to the estate of either the husband or the wife, as well as to other kinds of community property.” Texas Probate Code, Section 47(b), as amended by Acts 1965, 59th Leg., p. 279, ch. 119, sec. 1, eff. August 30, 1965. (Emphasis added).

Under the very words of the statute, it becomes inapplicable to the facts of the present case, since the proceeds were paid, not to the estate of Jack or Georgann Lyon, but to third party beneficiaries named in the policies. Furthermore, as pointed out by City National Bank, Section 47(f) of the Probate Code provides in relevant part:

“When provision has been made in the case of living trusts or contracts of insurance . . . for disposition of property different from the provisions of this Section [47], this Section shall not apply." (Acts 1955, 54th Leg., p. 88, ch. 55). (Emphasis added).

The insurance contracts in this case provide that the proceeds shall be paid to a trust, the primary beneficiary in the policies. Thereafter the trust agreement itself governs disposition of the proceeds, and provisions of the statute are inapplicable under the facts of this case.

The courts in both Chown and Wien refused to speculate, or to accept speculations advanced by the parties, concerning the value of an interest in the insurance policy not yet matured. Rather than attempting to value the ownership interest of the non-insured spouse at zero or proceeds value, both courts used the interpolated terminal reserve value method to reach a value for tax purposes.

In Wien the court spoke of the “burden of calculating such imponderables” as the fluctuating factors involved in arriving at value of a policy, and, like the court in Chown, applied the method established by insurance companies setting up the policies on their books. In accord: Old Kent Bank and Trust Company v. United States, 430 F.2d 392 (6th Cir. 1970); Estate of Meltzer v. Commissioner, 439 F.2d 798 (4th Cir. 1971).

We agree with City National that the interpolated terminal reserve method of valuation was particularly proper in this case because the policies were for term insurance, without cash surrender value, and had to be maintained in force by additional premium payments. The parties stipulated in this case that the interpolated reserve values were zero. It would follow that for inheritance tax purposes no amount properly was part of the estate of Mrs. Lyon.

We are persuaded that the reasoning and result reached in decisions in Wien and Chown ought to be applied in this case. We hold that no part of the proceeds of the policies became a part of the estate of Mrs. Lyon and that whatever interest she had in the policies may not be measured or determined by proceeds from the policies.

The judgment of the trial court is in all things affirmed.

SHANNON, J., not participating.

      . The City National Bank of Austin, plaintiff below, appellee on appeal, is in capacity of Independent Executor of the Estate of Geor-gann A. Lyon, deceased, Independent Executor of the Estate of Jack H. Lyon, deceased, and as trustee of the Jack H. and Georgann Lyon Trust; defendants below, appellants here, are Bob Bullock, Comptroller of Public Accounts; Jesse James, Treasurer of the State; and John L. Hill, Attorney General of Texas, all joined in official capacities in compliance with statute.