author: BISSETT, Justice.

text:
    Margaret TINDOL et al., Appellants, v. Ethel Lee Ellis McCOY et al., Appellees.
    No. 1020.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 25, 1976.
    Rehearing Denied April 15, 1976.

      Hillord H. Hinson, Houston, S. Eldon Dyer, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellants.
    Allen Wood, Wood, Burney, Nesbitt & Ryan, Corpus Christi, Robert D. Nogueira, Beeville, for appellees.
   OPINION

BISSETT, Justice.

This is a will construction case. The appeal is from a judgment which denied Margaret Tindol’s motion for summary judgment and granted the motion for summary judgment that was filed by Ethel Lee Ellis McCoy and Ethel Lee Ellis Parrish. Margaret Tindol, the appellant, was plaintiff in the trial court and Ethel Lee Ellis McCoy and Ethel Lee Ellis Parrish, the appellees, were defendants therein.

The take nothing judgment of the trial court, in addition to finding that there “are no disputed issues of material fact”, also found:

“2. The will of John V. Ellis is unambiguous, his intentions are clear, that Ralph V. Ellis, Jr., received a life estate only, that only a natural and legitimate child or children of Ralph V. Ellis, Jr., could have taken the succeeding estate as ‘a child or children of the body,’ that Plaintiff herein does not fall in the class of persons to take the succeeding estate under this provision of the will.”

Plaintiff has perfected an appeal from that judgment.

John V. Ellis, the testator of the will in question, executed the will in 1914 and amended it by a codicil which was executed in 1917. He died in 1917. He had three children, viz.: Wayman D. Ellis, Cyrus C. Ellis and Ralph V. Ellis. Wayman D. Ellis and Cyrus C. Ellis survived the testator; Ralph V. Ellis died in 1906 and was survived by three children, viz.: Ralph V. Ellis, Jr., Wilbur M. Ellis and Ethel Lee Ellis, all of whom survived John V. Ellis.

Wayman D. Ellis and Cyrus C. Ellis were each bequeathed one-third of the testator’s personalty and were each devised certain real property in fee. The properties left to them by John V. Ellis are not involved in this suit.

Ralph V. Ellis, Jr. died in 1969. He was married but one time and no children were born to that marriage. He was survived by Doris Ellis, his wife, and by Margaret Tin-dol, plaintiff, who was adopted by him in 1951.

Wilbur M. Ellis died in 1946. He was survived by Ethel Lee Ellis Parrish, his only child, who was legitimate and a child of his body. She is one of the defendants in the case.

Ethel Lee Ellis (McCoy) was living at the time judgment was rendered. She is also a defendant in the case.

Plaintiff claims that she owns the fee title to certain lands devised by the testator, particularly to all of the real property devised under a section of the will, denominated “Item Seven”. She contends that she is entitled to the land in question under the will of John V. Ellis directly, under the Rule in Shelley’s case, and because: 1) she was not precluded by the will from taking by being an adopted child of Ralph V. Ellis, Jr.; 2) by operation of the doctrine of definite failure of issue; 3) by operation of the doctrine of indefinite failure of issue (points 1, 2, 3 and 4).

The very first part of “Item Seven” devised certain real property to Ralph V. Ellis, Jr. “for the full term of his natural life”, and specifically stated that “the said Ralph V. Ellis, Jr. shall never take any fee-simple title to any part of said land”. Provisions were made in case Ralph V. Ellis, Jr. did not survive the testator. Since he was alive at the time the testator died, those provisions have no bearing on this appeal, the pertinent parts of which are quoted in the footnote, except insofar as they may affect the question of whether Ralph V. Ellis, Jr. took a fee under “Item Seven” by operation of the doctrines of definite failure of issue or indefinite failure of issue, as urged by plaintiff in points 1 and 2.

“Item Seven” of the will further provided:

“If Ralph V. Ellis Jr. should outlive me, thereby really and actually becomming entitled in his own proper person to possession and enjoyment of the life estate herein created for his use and benefit, then upon the ending and termination of his said life estate . . . and in such event, the life estate in the real estate so affected by the ending and termination of the life estate of Ralph V. Ellis Jr., but not the immediate fee-simple legal title to the corpus, or body, of such real estate so affected, shall pass immediately, but only for the specifically limited time of twenty (20) years, in the same succession, to the same persons, and in the same portions, named or designated in this Item (7) to have taken a life interest in said real estate direct from me, had I outlived my grand-son Ralph V. Ellis Jr.”

Identical devises were made to the testator’s grandson Wilbur M. Ellis in “Item Six” of the will, and to the testator’s granddaughter Ethel Lee Ellis in “Item Five” of the will. The only difference in the language used was the name of the respective devisee and the description of the property therein contained.

It was stated in “Item Fifteen” of the will that “the life estate anywhere in this will . . . shall become effective and operative immediately upon my death”, that the “twenty year-term estate” shall “begin to run” upon the death of the life tenant, and that: ■

. . immediately upon the ending and termination of such twenty year term — estate, the -fee-simple, legal title shall vest . . . absolutely in the persons then living who are using and enjoying, or who are entitled to use and enjoy said twenty years term-estate at the time of its termination . . .

Ralph V. Ellis, Jr., under “Item Twenty” of the will, was devised in fee one-ninth (Vh) of all the rest and residue of the testator’s estate, and “in the event of the prior death” of Ralph V. Ellis, Jr., then “the children born to the body (of Ralph V. Ellis, Jr.)” shall take what he would have taken. The same devise and bequest was made to Wilbur M. Ellis and Ethel Lee Ellis.

It is well settled in this State that the primary consideration to be given the construction of a will is the intent of the testator. Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968); Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (Tex.Com.App.1937, opinion adopted).

The intentions of the testator are clear. He had, first, a plan for disposing of the lands which he gave to his grandchildren, Ralph V. Ellis, Jr., Wilbur M. Ellis and Ethel Lee Ellis, for life, in the event any of them predeceased him, with or without leaving surviving children of their body or children (and a wife) of such a deceased child. He had a second plan for disposing of the lands in the event the grandchildren survived him. However, the estate in remainder, under each plan, became vested within the time provided by the rule against perpetuities. Since Ralph V. Ellis, Jr. outlived John V. Ellis, the testator, we are not here concerned with the first plan provided in the will. Under the second plan, with which we are concerned, in the event Ralph V. Ellis, Jr. survived the testator, which he did, but had no children born to his body, which was the case, then the life estate which was given to Ralph V. Ellis, Jr. passed at his death to his brother and sister for 20 years and vested in them at the end of the 20-year period. The possibility that the estate for years may have merged into the vested remainder is not involved in this appeal and we express no opinion thereon or with respect thereto. The issue to be decided is whether or not Margaret Tindol, the plaintiff, inherited directly from the testator an interest in any of the lands described in Items Five, Six and Seven of the will.

The rule in Shelley’s case is defined in Hancock v. Butler, 21 Tex. 804 (1858):

“ ‘. . . when a person takes an estate of freehold, legally, or equitably, under a deed, will, or other writing, and in the same instrument, there is a limitation, by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate’.”

The rule in Shelley’s case was abolished by Acts of the 58th Legislature, Ch. 199, § 1, effective January 1, 1964. Tex.Rev. Civ.Stat.Ann. Art. 1291a (1964). However, it was therein provided that the Act (abolishing the Rule) does not apply to conveyances or wills which took effect prior to January 1, 1964. The will in this case became effective before that date.

The question for decision is whether the words “children born to his body”, as used by the testator, are words of purchase or of limitation. For the rule in Shelley’s case to have application in this case, the words “children born to his body” must be construed as words of limitation. “In a will, words of limitation are those which do not give the estate imported by them originally to the person described, but only extend the ancestor’s estate to an estate of inheritance descendible to such persons [Wjords of purchase are words designating a particular class, who are to take, not through or from an ancestor, but from the devisor.” 96 C.J.S. Wills § 804.

In order to sustain plaintiff’s contentions that Ralph V. Ellis, Jr. took a fee under the will, we would be required to convert the words “children of his body” into “heirs generally”. To do that, it would be necessary to find that the testator intended to use such words in the technical sense of “heirs” so as to pass the estate devised in “Item Seven” from person to person through successive generations in regular succession. Hancock v. Butler, supra; Robinson v. Glenn, 150 Tex. 169, 238 S.W.2d 169 (1951); Crist v. Morgan, 245 S.W. 659 (Tex. Com.App.1922, jdgmt. adopted).

In Daugherty v. Manning, 221 S.W. 983 (Tex.Civ.App. — San Antonio 1920, writ dism’d), the deed in question conveyed a life estate in the land to Martha Ann Riggle, and at her death the remainder of the land was conveyed to her children “or their descendants in the same proportion as is prescribed by the laws of descent and distribution”. The Court, at page 988 of the published opinion, said:

“. . . The use of the word ‘children’ describing remaindermen, shows the intention of grantor to use words of purchase and not of limitation, and to create a life estate with a remainder. . . . ”

In Watterson v. Thompson, 404 Ill. 515, 89 N.E.2d 381 (1949), the subject of an annotation in 14 A.L.R.2d 1234, the Supreme Court of Illinois reached the conclusion that the words “children of her body” are words of purchase and not of limitation, mean immediate offspring only, and cannot be interpreted as meaning “heirs”. A similar construction has been given to the word “children” by the courts of this State. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945); Bartlett v. Terrell, 292 S.W. 273 (Tex.Civ.App. — San Antonio 1927, writ ref’d); Dallmeyer v. Hermann, 437 S.W.2d 367 (Tex.Civ.App. — Houston [14th Dist.] 1969, no writ); Bass v. Surls, 153 S.W. 914 (Tex.Civ.App. — Dallas 1913, no writ); 61 Tex.Jur.2d, Wills § 189.

The remainder, after the termination of any and all life estates and following the end of estates for years (the 20-year term), was vested by “Item Fifteen” of the will. Under the pleadings and summary judgment evidence here presented, since Ralph V. Ellis, Jr. survived the testator and as there were no children born to his body, the remainder became vested in the defendant Ethel Lee Ellis McCoy (the sister of Ralph V. Ellis, Jr.), and in the defendant Ethel Lee Ellis Parrish, the sole child of the body of Wilbur M. Ellis (the brother of Ralph V. Ellis, Jr.), who died in 1946, subject, possibly, to the enjoyment of the estate in remainder being postponed until the termination of a 20-year term that began on the date of death of Ralph V. Ellis, Jr.

It is manifest that the testator intended to designate only that group of persons who would take initially after the death of Ralph V. Ellis, Jr., the first taker. The words “children born to his body” were intended by the testator to be words of purchase, not of limitation. We so hold. See Hopkins v. Hopkins, 103 Tex. 15, 122 S.W. 15 (1909). Ralph V. Ellis, Jr. took a life estate only, and did not take a fee simple estate.

Plaintiff was adopted by Ralph V. Ellis, Jr. in 1951. She contends that the testator, by his use of the phrase “children born to his body” did not mean to exclude adopted children from taking under his will. She argues that the word “children”, when used in a will, includes adopted children, absent any language to the contrary. She petitions this Court to construe the will in question in the light of contemporary laws and modern concepts of social morality because the views of the present-day generation are much more humane and compassionate and in tune with civilized society. She states that a family of today is made up of emotional and spiritual experiences demonstrated by love and understanding, rather than by mere biological identity. That may be correct; however, that is not the issue before this Court. The question here presented is whether or not such asserted modern concepts and laws are applicable to a will which was made in 1914, and probated in 1917.

It has long been settled that the words “child” or “children of the deceased or their descendants” does not include an adopted child. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954); Harle v. Harle, 109 Tex. 214, 204 S.W. 317 (1918).

Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513 (1961), is almost directly in point. There, trusts for life were established for each of the children of the settlor, and the remainder was vested in the beneficiary’s child or children. One of the beneficiaries of a particular trust had an adopted child who sought a portion of the trust after the death of his adoptive father. The Supreme Court denied a recovery, and stated:

“. . . it is generally held that an adopted child is not entitled to property conveyed or devised to the ‘children’ of the adoptive parent unless a contrary intent is disclosed by additional language or circumstances. . . ."

In Decker v. Elliott, 425 S.W.2d 880 (Tex. Civ.App. — Fort Worth 1968, writ ref’d n. r. e.), the testatrix died in 1934 and left a will that devised a life estate to her daughter, with remainder to her daughter’s child or children. The adopted child of the daughter attempted to take the remainder. The court cited Cutrer as authority for the rule that an adopted child cannot take a remainder designated to go to a child or children of the holder of the life estate unless the will shows such an intent by the testator. The court also held that the testatrix’s failure to consider the possibility of adoption did not imply that she intended to include adopted children as persons who could take the remainder.

A will is to be construed by the law as it exists at the date of death of the testator. The arguments advanced by plaintiff concerning her right to take as an adopted child of Ralph V. Ellis, Jr. cannot be sustained by the law as it existed in 1917, when the testator died. There is no language in the will of John V. Ellis which either states or reasonably supports an inference that he intended for an adopted child to take under his will. Plaintiff is not included within the class identified as “children born to his body”. She is not entitled to take under the will as an adopted child of Ralph V. Ellis, Jr.

Plaintiff further contends that the remainder to the blood brothers and sisters of Ralph V. Ellis, Jr. was contingent upon his death occurring before the death of the testator, and that since he outlived the testator he took a fee simple estate because of the operation of either the doctrine of definite failure of issue or that of indefinite failure of issue. A “definite failure of issue” means a failure of issue at some specified time. An “indefinite failure of issue” means a failure of issue at any time.

In the instant case, there is no language in the will, in “Item Seven” or elsewhere, that purports to give to Ralph V. Ellis, Jr. anything more than a life estate in any real property. There are no words used by the testator in the will which indicate that he intended to create an estate of inheritance and to exclude collateral heirs. There is nothing in the will which suggests an intent by the testator to restrict the estate to the lineal descendants of Ralph V. Ellis, Jr. beyond either the children of his body or the children of such a deceased child. Nowhere in the will does the testator use the words “to the heirs of his body”, or “to his heirs”, or “to his issue”. A fair construction of the will will not support a finding that the words “children born to his body” were intended as words of limitation. There is no basis for a holding that the language used in “Item Seven” created a fee tail in Ralph V. Ellis, Jr. There was no limitation to Ralph V. Ellis, Jr. for life, remainder to the heirs (or issue) of his body, with a gift over to his brother and sister if he died without leaving heirs or issue of his body. The testator did not create “an alternative contingent remainder over in Ralph V. Ellis, Jr.’s brother and sister, contingent upon Ralph’s death without issue”, as argued by plaintiff in her brief. There is nothing in the will which shows that the testator “intended that Ralph V. Ellis, Jr. must die without surviving children prior to testator’s death for the alternative contingent remainder over to become a present interest”, as contended by plaintiff.

The rule in Shelley’s case has no application to the case at bar. The clear and unmistakable intent of the testator to give only a life estate to Ralph V. Ellis, Jr. in the subject property, the fact that there is no language in the will which will support a finding that the testator intended to create an estate of inheritance and to exclude collateral heirs, plus the fact that the testator intended to vest the remainder in the brother and sister of Ralph V. Ellis, Jr. in the event there were no children born to his body, prevents any holding that Ralph V. Ellis, Jr. took a fee simple estate by operation of either the doctrine of indefinite failure of issue or the doctrine of definite failure of issue. Since Ralph V. Ellis, Jr. took only a life estate in the land described in “Item Seven”, plaintiff, either as an adopted daughter or as an heir at law of Ralph V. Ellis, Jr., has no interest in any of the properties devised by John V. Ellis by his will. Plaintiff’s points 1, 2, 3 and 4 are overruled.

Plaintiff further asserts that the “trial court erred in ruling that there were no material facts to be determined by the jury” (point 8). In support of that assertion, she argues that her pleadings allege that she, though illegitimate at birth and later adopted by Ralph V. Ellis, Jr., her biological father, is a child of the body of Ralph V. Ellis, Jr., and is, therefore, entitled to take under the will of John V. Ellis. She contends that she has, by her pleadings, raised a material fact issue, which, accords her, at the very least, the right to a trial on that issue if there is the slightest doubt as to the existence of that fact.

The question really becomes whether or not an illegitimate child is included within the definition of “children born to his body”. It has been held by the Supreme Court of Texas that the term “child”, or “issue”, or “children”, without more, does not include illegitimate children. Hayworth v. Williams, 102 Tex. 308, 116 S.W. 43 (1909); Harle v. Harle, supra. See also 34 A.L.R.2d 4.

The words “children born to his body” in a will that was made in 1914, and probated in 1917, means prima facie legitimate children, and they cannot include illegitimate children unless a plain intention to so include them can be found on the face of the will itself. There is no such indication here. Plaintiff would not be entitled to take under the will of the testator even if she proved that she was the illegitimate child of Ralph V. Ellis, Jr. There are no material facts in dispute. Plaintiff’s point 8 is overruled.

We have carefully considered all of plaintiff’s remaining points of error. They have no merit. All such points are overruled.

A correct judgment was rendered. The judgment of the trial court is AFFIRMED.

      . “Item Seven. I will, give, devise, and bequeath to my grand-son Ralph V. Ellis, Jr. (a minor) the son of my deceased son, Ralph V. Ellis, for the full term of his natural life, the use, occupancy, and enjoyment, including all the usufruct, rents, revenues, profits and earnings therefrom, to belong to him, from the following described property, pieces, and parcels of land, to wit . . But the said Ralph V. Ellis, Jr. shall never take any fee-simple title to any part of said land; ... If Ralph V. Ellis should die before I do, then all that he would have taken as a life estate had he survived my death, shall pass ... in equal shares to such children born to his body as shall be living at the time of my death, for the terms of their natural lives; provided, that if at the time of the death of Ralph V. Ellis, Jr., any child born to his body, shall also be dead leaving it surviving a wife, child or children, then such surviving wife, child or children of such deceased child of Ralph V. Ellis, Jr., as shall survive my death, shall take, per stirpes, during the remainder of the life of that child of Ralph V. Ellis, Jr., living the longest, such portion as its deceased parent (the deceased child of Ralph V. Ellis Jr.) would have taken, thus and thereby making the last life estate created by this Item (7) to cease and end with the death of that child, born to the body of Ralph V. Ellis, Jr., that lives the longest; but if any child born to the body of Ralph V. Ellis Jr. should die before the death of Ralph V. Ellis Jr. without leaving it surviving a wife, child or children, then the portion which it would have taken hereunder shall pass in equal shares to those of its brothers and sisters who shall survive my death, during the term of their natural lives. But if Ralph V. Ellis Jr. should die before I do, without leaving surviving him, a child or children born to his body, and without leaving surviving him any other person designated in this Item (7) to take after him, then and in those events the life estate which Ralph V. Ellis Jr. would have taken under this Item (7) had he outlived me, shall be divided equally among his brothers and sisters of the whole blood (meaning those brothers and sisters born to the body of Ralph V. Ellis Sr.) who shall be living at the time of my death, and to such of their heirs at law (of the whole blood of Ralph V. Ellis Sr.) as would take personal property at the date of this will according to the Texas laws of descent and distribution.”


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    ALLAN CONSTRUCTION COMPANY, INC., Appellant, v. PARKER BROTHERS & CO., INC., Appellee.
    No. 7772.
    Court of Civil Appeals of Texas, Beaumont.
    March 25, 1976.
    Rehearing Denied April 15, 1976.

      E. H. Thornton, Jr. and W. L. Burnett, Houston, for appellant.
    Robert L. Rouner, Houston, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order overruling defendant’s plea of privilege. The parties will be referred to here as they were in the trial court.

Parker Brothers & Company, Inc., filed this suit in Harris County for debt with the primary allegations that defendant, Allan Construction Company, Inc., and Francis L. Bertling (Bertling) were engaged in a joint venture in connection with the construction of the East Bank Brazos River Levee in Brazoria County. Plaintiff furnished materials used in that construction, and this suit is to recover the amount not paid for. Defendant’s plea of privilege alleges it is a corporation with its domicile in Bexar County. Plaintiffs controverting plea relies upon Tex.Rev.Civ.Stat.Ann. art. 1995 §§ 5 (Supp.1975-76) and 23 (1964), to retain venue in Harris County. There are no findings of fact or conclusions of law.

June 30, 1970, defendant and Bertling entered into a written contract with the United States of America for this construction. A performance bond and a payment bond were required and were furnished. September 30,1970, defendant and Bertling entered into a written agreement between themselves outlining their respective duties and responsibilities. In such agreement defendant was to receive 3 percent of the final gross contract amount as its fee for furnishing the required bonding capacity. Bertling was responsible for financing the project, with all bills to be rendered in its name. All monies for work performed were to be sent to defendant to deposit in the defendant-Bertling joint venture account at the Frost National Bank in San Antonio. Defendant was to then forward to Bertling a check in this amount of 97 percent of the net monthly estimate so that Bertling could make full and prompt payment of all job costs including material. In June of 1971 plaintiff began to furnish material for this job. Plaintiff would furnish Bertling with an invoice, who would prepare a voucher for payment, and then mail checks to plaintiff in Houston. However, when the invoices were received from plaintiff by Bertling for materials furnished July, August, and September, 1971, even though the money was sent by defendant to Bertling, Bertling could not make the payments, because the money was withheld by its Galveston bank. Then October 1, 1971, defendant and Bertling entered into a new written agreement whereby defendant took over the management and responsibility for completing this construction job. Such agreement contained this provision:

“Allan will pay the back materials invoices, and any unpaid labor checks that may be unpaid at this time, but will not assume the obligation of paying any other bills.”

The record before us shows that defendant is a private corporation. In Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676 (1936), we find this statement:

“The provision of exception 23 of article 1995, supra, which permits ‘a private corporation, association or joint stock company’ to be sued ‘in any county in which the cause of action, or a part thereof, arose,’ means that either some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is brought.”

Then, in Employers Casualty Company v. Clark, 491 S.W.2d 661 (Tex.1973), it was made clear that under subdivision 23 a plaintiff must still prove a cause of action by at least proving a right and a breach by defendant.

Plaintiff’s evidence shows Ber-tling made a contract to purchase material from plaintiff that was used on the project in question. To maintain venue under Section 23, plaintiff had to prove either that the contract was made in Harris County or that the contract was breached in Harris County. Delhi Gas Pipeline Corporation v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.— Tyler 1973, no writ). In addition, plaintiff had to prove defendant was bound by that contract because of defendant’s relationship with Bertling.

The evidence shows plaintiff furnished a quotation of prices of materials which was used by Bertling in preparing a bid on this project. As soon as Bertling and defendant were awarded a contract, Bertling went to Houston and informed plaintiff that plaintiff’s quotation would be used. It was settled that plaintiff would sell the material on open account, and, as soon as the material was shipped, would bill Ber-tling at LaMarque. All invoices sent by plaintiff to Bertling showed them to be payable to Houston, Harris County. Until defendant took over the job, Bertling paid the account by mailing checks to plaintiff in Houston. Bertling breached its contract by failing to make the payments as agreed. The evidence supports an implied finding by the trial court that an oral contract was made by plaintiff and Bertling in Harris County, which contract was breached when the payments were not made.

The next question for this court to determine is whether or not defendant was bound by the actions of Bertling with plaintiff so that this action can be maintained in Harris County.

The evidence shows the following: Defendant and Bertling made a joint bid for the contract in question and also jointly executed a bid bond. Defendant and Ber-tling entered into a written contract with the U.S.A. and jointly and severally were obligated to carry out such a contract. Defendant and Bertling executed a performance and payment bond as principals. All money paid by the U.S.A. was sent to defendant’s office in San Antonio. The checks were deposited in a joint account of defendant and Bertling in the Frost National Bank in San Antonio. Estimates for labor and material were sent by Bertling to defendant. The plaintiff alleged that Ber-tling was acting as a joint venturer in this transaction. Defendant denied this under oath; so, joint venture became an issue of fact for the trial court to determine. By overruling defendant’s plea of privilege, the trial court impliedly found that there was a joint venture.

Even though the contractual relationship existing between defendant and Bertling has many of the characteristics of a joint venture, we have come to the conclusion that it is not one in fact. There are exceptions to the rule, however, generally the requisites of a joint venture are (a) the right to participate in the profits, (b) the obligation to share losses, and (c) joint control of the enterprise. Mann v. Risinger, 423 S.W.2d 626 (Tex.Civ.App. — Beaumont 1968, writ ref’d n. r. e.); Kaiser Gypsum Company v. Jordon, 399 S.W.2d 588 (Tex. Civ.App. — Waco 1966, writ ref’d n. r. e.); and Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 722 (1945). The agreement that defendant would receive 3 percent of the final gross contract amount for furnishing bond capacity was not an agreement to share in the profits. There was no agreement to share in the losses, if any. It is clear from the written agreement between defendant and Bertling that defendant would receive 3 percent without regard to whether there was a profit or a loss on this contract. The provision that defendant was to get 3 percent of the gross contract amount was merely the method used by those parties in determining how much defendant would receive for furnishing bonding capacity. Jenkins v. Brodnax White Truck Company, 437 S.W.2d 922 (Tex.Civ.App. — Tyler 1969, no writ), and Blair v. Rindy, 358 S.W.2d 685 (Tex.Civ.App. — Houston 1962, writ ref’d n. r. e.).

However we find that defendant is a joint venturer with Bertling by estoppel. The Texas Uniform Partnership Act [Tex. Civ.Stat.Ann. art. 6132b § 16 (1970)] provides in part as follows:

“Sec. 16. (1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made:
(a) When a partnership liability results, he is liable as though he were an actual member of the partnership.”

We will not repeat all of the evidence set forth above supporting a finding of joint venture by estoppel, but such evidence clearly brings this case under Section 16 as set forth above. Defendant is jointly and severally liable with Bertling for the materials furnished by plaintiff under this contract.

We likewise find that defendant may be sued in Harris County under Section 5 of Tex.Rev.Civ.Stat.Ann. art. 1995 (Supp.1975-76) under the same rules of law set forth in our consideration of Section 23. See Foster v. Pace Packing Co., 269 S.W.2d 929 (Tex.Civ.App. — Eastland 1954, no writ); Gonzalez v. Burns, 397 S.W.2d 898 (Tex.Civ. App. — San Antonio 1965, writ dism’d); Romer v. Gruver State Bank of Gruver, 456 S.W.2d 788 (Tex.Civ.App. — Amarillo 1970, no writ); and Johnson v. Abco Industries, Inc., 460 S.W.2d 957 (Tex.Civ.App. — Eastland 1970, no writ).

AFFIRMED.


author: PER CURIAM.

text:
    Cynthia CALK et al., Appellants, v. GANS AND SMITH INSURANCE AGENCY, INC. and Les Pruett, Appellees.
    No. 2054.
    Court of Civil Appeals of Texas, Tyler.
    March 25, 1976.

      Dennis R. Wolinsky, Houston, for appellant.
    Robert M. Parker, Nichols & Parker, Longview, for appellee.
   PER CURIAM.

This is an attempted appeal from a judgment granting defendants’ motion for summary judgment and decreeing that plaintiffs take nothing of defendants. On March 4, 1976, the Clerk of this Court received from Cynthia Calk and C. P. Erection Company, through their attorney of record, a purported transcript in Cause No. 1479-75B, styled Cynthia Calk and C. P. Erection Company vs. Gans and Smith Insurance Agency, Inc. and Les Pruett in the District Court of Gregg County, Texas. It appearing to the Clerk of this Court that upon examining the transcript that the appeal had not been duly perfected, the transcript was referred to the Court as provided by Rule 388, Texas Rules of Civil Procedure. An examination of the transcript so tendered reveals that judgment was rendered and signed on December 2,1975. The plaintiffs’ motion for new trial was filed with the Clerk of the District Court on December 15, 1975, thirteen days from the date of the rendering and signing of the judgment. December 12, 1975, which was neither a Saturday, Sunday, nor holiday, was the tenth day from the date of judgment and therefore the last day for filing an original motion for new trial. Obviously, the motion for new trial was not filed within ten days as required by Rule 329b, Texas Rules of Civil Procedure. Therefore, the motion for new trial was not timely filed.

The filing of an original motion for new trial within a ten-day period after the rendition of any judgment or order complained of, or the date on which such judgment or order was signed, is jurisdictional where the appeal or attempted appeal is from an order overruling a motion for a new trial. A later date is a nullity. Rule 329b, supra; Dean v. Warren, 464 S.W.2d 672 (Tex.Civ.App. — Tyler 1971, n. w. h.); and Selman v. Ross, 302 S.W.2d 752, 754 (Tex.Civ.App. — -Galveston 1957, n. w. h.).

In the absence of a timely-filed motion for new trial, Rule 329b, supra, expressly terminates the trial court’s jurisdiction thirty days after rendition of the judgment. Dillard v. McClain, 322 S.W.2d 26 (Tex.Civ. App. — Texarkana 1959) affirmed 159 Tex. 559, 324 S.W.2d 163.

Notice of appeal must “be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.” Rule 353, Texas Rules of Civil Procedure.

An appeal bond must be filed “within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law.” Rule 356, Texas Rules of Civil Procedure.

The notice of appeal was filed on January 13, 1976, which was more than ten days from date of the judgment. The appeal bond was filed on January 26, 1976, which was more than thirty days from the date of the judgment. Therefore, the notice of appeal and appeal bond were filed late.

The tardy filing of a motion for new trial does not operate to extend the time for filing notice of appeal or an appeal bond as provided by Rules 353, supra, and 356, supra, even though the late motion be considered and overruled by the trial judge. Dillard v. McClain, 159 Tex. 559, 324 S.W.2d 163 (1959); Hilliard v. Hines, 403 S.W.2d 442 (Tex.Civ.App. — Tyler 1966, n. w. h.). An appellate court does not acquire jurisdiction of an appeal where notice of appeal, if required, as in this case, has not been timely filed or given or an appeal bond has not been timely filed. Curtis v. Carey, 378 S.W.2d 418 (Tex.Civ.App. — Corpus Christi 1964, n. w. h.) and cases therein cited.

From the foregoing, it appears to the court from said transcript, that neither the motion for new trial, notice of appeal nor appeal bond were timely filed from the date of the judgment. By reason thereof the transcript tendered failed to show jurisdiction in this Court of said appeal.

Thereupon this Court on authority of Rule 388, supra, ordered that notice of such defect issue to appellants’ attorney of record to the end that they might take steps to amend the record if such could be done, so that jurisdiction of this court would be shown in the transcript and was allowed fifteen days as a reasonable time for the correction of such defects.

By letter of March 5, 1976, the Clerk of this Court so informed plaintiffs’ attorney of record of such defects and the time allowed for the curing thereof, if it could be done.

Plaintiffs, by letter dated March 15, 1976, which we treat as a motion, contend that the motion for new trial was timely filed and request that we accept and file the transcript. They contend that the tenth day from the date of judgment was December 13th, which was a Saturday, and therefore, the filing of the motion for new trial on the following Monday, December 15th, was timely filed. We do not agree with plaintiffs’ calculations.

We overrule defendants’ motion to disregard the letter of March 15, 1976, because it is not in proper form and not in accordance with proper appellate procedure. We are not aware of, nor have we been cited to, any law or rule of Texas Civil Procedure that prescribes any particular or precise form for a motion of this nature in order for it to be considered as such. “A motion is an application for a court order or rule directing that some act be done in favor of the applicant. In determining the nature of the application, substance and not form will be considered.” 39 Tex.Jur.2d p. 243, sec. 1. We think the letter sufficiently and adequately presents plaintiffs’ plea to this court, and their reasons therefor, that the transcript shows jurisdiction and that it should be filed. However, we do not suggest or recommend this practice in presenting matters to this court or any other court for its consideration and disposition.

More than fifteen days have elapsed and plaintiffs have failed to cure such defects. Therefore, the transcript tendered, failing to show that this court had jurisdiction, and the failure to cure the defects, which were pointed out to them, this Court cannot accept the filing of the transcript because jurisdiction of this Court is not shown.

It is well established that when our jurisdiction is invoked the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so our duty is to dismiss the appeal. Hilliard v. Hines, supra; Miller v. Esunas, 401 S.W.2d 150 (Tex.Civ.App. — Tyler 1966, writ ref’d n. r. e.).

Plaintiffs have tendered to this court a purported order of the trial court overruling the motion for new trial on the 9th day of January, 1976, and signed on the 12th day of March, 1976. This instrument is not authenticated or certified by the Clerk of the trial court or under the Seal of the Court that said instrument is a true and correct copy of the original on file in the Clerk’s office as required by Rules 376 and 376-a, Texas Rules of Civil Procedure. The record may be supplemented by supplemental transcript. However, assuming that the trial court did overrule the motion for new trial on the date as shown, it would be a nullity, since the motion for new trial was not timely filed. Hilliard v. Hines, supra; Dillard v. McClain, supra.

For the reasons above stated the appeal is dismissed.


author: McKAY, Justice.

text:
    COFFEE CITY et al., Appellants, v. B. J. THOMPSON, Appellee.
    No. 882.
    Court of Civil Appeals of Texas, Tyler.
    March 25, 1976.
    Rehearing Denied April 22, 1976.

      F. Wilbert Lasater, Potter, Lasater, Guinn, Minton & Knight, Tyler, Jack Y. Hardee, Fields, Fields & Hardee, Athens, for appellants.
    A. D. Henderson, Palestine, for appellee.
   McKAY, Justice.

Appellee, B. J. Thompson, brought suit against the Town of Coffee City, Texas; Roland Wayne Phillips, individually and as mayor of Coffee City; Mary Phillips, individually and as city secretary of Coffee City; Paul Phillips and Wilbert Davis. Ap-pellee sought to have the zoning ordinance of the Town of Coffee City declared null and void, and prayed for a writ of mandamus or mandatory injunction for the issuance of a building permit for the construction of a building in which to operate a package store for the sale of alcoholic beverages. The property of appellee was zoned “residential” by the zoning ordinance of Coffee City. Trial was before the court without a jury.

The trial court rendered judgment that the zoning ordinance was invalid and null and void, and ordered the Town of Coffee City, Mary Phillips, city secretary, and all other officials to grant appellee’s building permit to construct a building for the operation of a package liquor store. Appellants bring this appeal from the portion of the judgment holding the zoning ordinance, being Ordinance No. 1, null and void, and of no further force and effect. We affirm.

The trial court made and filed Findings of Fact and Conclusions of Law. The Town of Coffee City was incorporated under the laws of Texas on December 18, 1969. At the first election Wayne Phillips was elected mayor, Paul Phillips was elected councilman, and Mary Phillips was appointed city secretary, all of whom are parties individually and in their official capacities. On January 19, 1970, Ordinance No. I was adopted by the Town Council. Under the local option provisions of the Texas Liquor Control Act, the Town of Coffee City legalized the sale of all alcoholic beverages, for off-premises consumption only, on February 22, 1970.

Under the provisions of Ordinance No. 1 appellee’s property was classified as “residential”. On August 2, 1973, appellee filed with the city secretary and Town Council an application and request that his property be changed from “residential” classification to “commercial” classification, and such request was denied on September 12, 1973, by the Council.

On October 4, 1973, appellee filed an application for a building permit with the city secretary to construct a building for use as a package store and the sale of other alcoholic beverages. The appropriate filing fee was tendered with such application. On October 25, 1973, the application for the building permit was refused on the ground that the property in question was zoned “residential” under Ordinance No. 1.

At the time of the adoption of Ordinance No. 1, January 19, 1970, the town did not have a Zoning Commission or a Planning and Zoning Commission, nor did it have such a commission at the time of trial.

Cora Bradley had an undivided interest in appellee’s property at the time of the adoption of Ordinance No. 1 and had actual notice of the proposed ordinance and requested that the property be zoned “residential”.

The appellants, Roland Wayne Phillips, mayor, and his brother, Paul Phillips, a member of the Town Council, jointly own the package store, Kilo Drive-In, in Coffee City, and it is the only package store in the Town of Coffee City located on Highway No. 155. At all times material to this case Coffee City had a population not less than 200 nor more than 1,000 inhabitants.

Prior to the meeting of the Council on January 19, 1970, written notices of such meeting were posted in three public places in the Town of Coffee City at least three days prior to such meeting. No personal notice was given to any property owner prior to the council meeting of January 19, 1970, regarding the proposed adoption of Ordinance No. 1. Subsequent to the passage of Ordinance No. 1, the entire ordinance was published in the Athens Review, Athens, Texas, a weekly newspaper of general circulation in Henderson County, Texas.

The trial court found in conclusions of law that Ordinance No. 1 is invalid (1) because it is vague and indefinite in that it does not contain a prohibition of commercial use such as the use sought by appellee in a residential area nor does it define or furnish guidelines for commercial or residential use; (2) because the Town of Coffee City failed to provide for a Zoning Commission in order to exercise zoning powers as required by Art. lOllf; (3) because of the failure of the Town of Coffee City to follow the procedural requirements of Art. lOlld; (4) because of the failure of the Town of Coffee City to give personal notice to the appellee’s predecessors in title and for failure to comply with the notice requirements of Art. lOlld. The Court also found that Art. 974d-18, does not validate Ordinance No. 1 in that the validating act has no application to an invalid ordinance such as the instant one.

Appellant brings three points of error contending that the trial court erred in declaring Ordinance No. 1 invalid (1) for vagueness, (2) for failure of the Town of Coffee City to provide for a Zoning Commission, and (3) for failure of the Town of Coffee City to give personal notice to appel-lee’s predecessors in title and for failure to comply with the procedural requirements of Art. lOlld.

Appellants’ first point complains that the trial court erred in finding Ordinance No. 1 invalid because it is vague and indefinite. Appellants argue that the ordinance is not uncertain simply because it does not define “residential” and “commercial”, and that the word “residential” has a clear and well understood meaning — that is, the use of property for living purposes as distinguished from use for business or commercial purposes. Appellants further say that an ordinance may be adequate as a rule of civil conduct even though it may be too indefinite and uncertain to be enforced by criminal prosecution. Appellants cite Vac-caro v. Rougeou, 397 S.W.2d 501 (Tex.Civ. App. — Houston 1966, writ ref’d n. r. e.), a restrictive covenant case, as authority for the meaning of the words “residential” and “commercial”.

Appellants make the further argument that appellee knew his property was zoned residential before he acquired it and before he applied for a building permit, and that he does not have standing to assert the rights of others.

On the other hand, appellee contends that the ordinance is vague, ambiguous, uncertain and incomplete because (1) it fails to prohibit commercial uses of property classified or zoned residential; (2) it fails to provide any guideline for the city secretary in either issuing or denying a building permit; and (3) it fails to define uses permitted in the areas zoned residential and the areas zoned commercial. Appellee argues that since the ordinance fails to expressly restrict the use of properties zoned residential to residential use, that is, it fails to prohibit a commercial use of property zoned residential, it would have to be implied that a commercial use is not permitted in a residential area, and be implied that a residential use is not permitted in area zoned commercial. Appellee points out that the ordinance has no provision making it unlawful or prohibiting the use of property for commercial purposes in a residential area, nor does Ordinance 1 contain a directive to the city secretary requiring her to deny a building permit for construction of a commercial building simply because it is located in the residential zone.

In Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (Tex.Comm’n.App. 1942, opinion adopted), it is said, “A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

Sanders v. State Department of Public Welfare, 472 S.W.2d 179 (Tex.Civ.App.— Corpus Christi 1971, writ dism’d), contains this language:

“It is a general principle of law that a statute or regulation must be definite to be valid. Due process of law in legislation requires definiteness or certainty. If a regulation is incomplete, vague, indefinite and uncertain, and it forbids the doing of an act which is so vague, that men of common intelligence must necessarily guess at its meaning and that such men differ as to application, it violates the first essential of due process of law.”

See 56 Am.Jur.2d Municipal Corporations, Sec. 367, p. 394.

Applying the above principles to the ordinance here in question, we are of the opinion such ordinance is vague, uncertain, indefinite and incomplete and, therefore, invalid. It does not prohibit the building of a residence upon a commercially zoned area, nor does it prohibit the erection of a commercial building upon an area zoned residential. It simply describes a certain area as commercial, and then it declares all other property is zoned residential. It does not describe what type or kind of residential structures may be built. Some buildings, such as an apartment building, may have both residential and commercial use.

The ordinance does not provide any criteria or guidelines for the city secretary to follow in granting or refusing building permits; and, therefore, it must be implied that the city secretary has discretionary authority without restriction in issuing or denying such permits. An ordinance leaving the question of issuing or denying building permits to the arbitrary discretion or determination of the city secretary without any rule or standard to follow is invalid. Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 517,19 A.L.R. 1387 (1921); Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810, 815, 26 A.L.R. 1210 (1923); City of Houston v. Freedman, 293 S.W.2d 515 (Tex.Civ.App. — Galveston 1956, writ ref’d n. r. e.); 56 Am.Jur.2d Municipal Corporations, Sec. 369, p. 396.

The only provision (Sec. IV) in the ordinance for an application for a building permit to come before the Town Council results from the withholding of the issuance of a building permit by the city secretary if she “shall conclude that the applicant is not truthfully representing the cost of construction ...”

We overrule appellants’ point one.

Appellants say by their point two that the trial court erred in declaring Ordinance No. 1 invalid for failure of the Town Council to provide for a Zoning Commission.

Art. 1011a, provides that, “For the purpose of promoting health, safety, morals, and for the protection and preservation of places and areas of historical and cultural importance and significance, or the general welfare of the community, the legislative body of cities and incorporated villages is hereby empowered” to regulate the use of property. Art. 1011b, provides that the municipal legislative body may divide the municipality into districts, and that “within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land. All such regulations shall be uniform for each class or kind of building throughout each district, but the regulations in one district may differ from those in other districts.”

Art. lOllf, reads in part as follows:

“In order to avail itself of the powers conferred by this Act, such legislative body shall appoint a commission, to be known as the Zoning Commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such Commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such Commission; . . Written notice of all public hearings before the Zoning Commission on proposed changes in classification shall be sent to owners of real property lying within two hundred (200) feet of the property on which the change in classification is proposed, such notice to be given, not less than ten (10) days before the date set for hearing, to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll . . ”
(Emphasis added.)

Appellants contend that Art. 974d-18, a validation statute affecting cities and towns of 1,000 inhabitants or less, which became effective in 1973, cured any failure by Coffee City to appoint a Zoning Commission or give notice to property owners and validated the act of the Town Council in enacting Ordinance No. 1. Section 3 of Art. 974d-18 provides:

“All governmental proceedings and acts performed by the governing bodies of such cities and towns and all officers thereof since their incorporation, or attempted incorporation, are hereby in all respects validated as of the respective date of the proceedings and acts.”

Since the provisions of Art. lOllf relating to a Zoning Commission are made mandatory in character by using the word shall concerning the appointment of such a Commission, it appears that the Town Council of Coffee City, in order to avail itself of the power to enact a zoning ordinance, was required to appoint a Zoning Commission. No Zoning Commission was appointed; therefore, Ordinance No. 1 can be valid only if it is made valid by Art. 974d-18. We have found no Texas case, nor have we been cited one, which directly decides this question.

Validating acts are remedial and are to be liberally construed. Perkins v. State, 367 S.W.2d 140,147 (Tex.1963). It was held in State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1078 (1932) that:

. . where the act of some agent of the state or of some agency which must derive its power to act from the Legislature is void for the reason that, at the time the act was performed legislative power therefor had not been given, the Legislature may, in the absence of constitutional prohibition, supply by law operating retrospectively the power originally lacking so that the act which was originally void is valid and binding.”

The case of State v. Town of Bullard, 312 S.W.2d 435 (Tex.Civ.App. — Texarkana 1958, writ ref’d n. r. e.), cited by Appellant cites, follows and quotes from Bradford.

Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.1975) held that the Legislature has the power to enact curative or remedial legislation and that such legislation should be given liberal construction.

There seems to be no question that if the Town Council of Coffee City had attempted to appoint a Zoning Commission or Board and there were irregularities in such procedure such irregularities would be cured by the validation statute. And if the Town Council had appointed a Zoning Commission and then there had been some irregularity in the adoption of a zoning ordinance it was the intention of the Legislature that such irregularities would be cured. But it is difficult for us to see an intention on the part of the Legislature to permit the Town Council of Coffee City to ignore a mandatory statute requiring the appointment of a Zoning Commission. The Town Council had not availed itself of the powers to enact a zoning ordinance, and we see no intention on the part of the Legislature to permit the Council to totally ignore Art. lOllf.

In City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970), the court held that a validation act like the one here did not authorize the City Council to change a zoning classification of property by resolution — that there was no intent seen on the part of the Legislature to change a resolution into an ordinance, and that the property remained as it had been zoned before the resolution, and the resolution was not “validated” into an ordinance.

The case of City of Mason v. West Texas Utilities Co., 237 S.W.2d 273 (Tex.1951), held that curative or remedial statutes should generally “be given the most comprehensive and liberal construction possible,” but also held:

“The fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof. This Court has repeatedly held that the intention of the Legislature in enacting a law is the law itself; and hence the aim and object of construction is to ascertain and enforce the legislative intent, and not to defeat, nullify, or thwart it . . .It is settled that the intention of the Legislature controls the language used in an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather than the strict letter of the act will control.” See 62 C.J.S. Municipal Corporations § 432, pp. 827-8.

In City of Waco v. City of McGregor, 523 S.W.2d 649 (Tex.1975), McGregor maintained that a validating act, Art. 974d-12, validated its attempted annexation by ordinance of a strip of land 261 feet wide down U. S. Highway 84 approximately five miles and then extending northerly to include a 900 acre tract owned by McGregor and used as a municipal airport. Under Art. 970a McGregor could annex an unincorporated area contiguous to its corporate limits, not a part of any other city, within its extraterritorial limits of one-half (½) mile, “provided, however, that such limitation shall not apply to the annexation of property owned by the city annexing the same.” The 900 acre McGregor airport was within the extraterritorial limits of Waco. After stating that “curative statutes are liberally construed only to effectuate the intent of the legislature in enacting them and not to other ends”, the court held that legislative intent must be applied, and that the McGregor ordinance violated Art. 970a, and that the validating statute, Art. 974d-12, “was not intended to and did not validate the annexation of either noncontiguous or nonadjacent territory,” and that “the portion of the stem along Highway 84 which intrudes into the exclusive extraterritorial jurisdiction of Waco is not adjacent to McGregor and so McGregor’s attempted annexation of that portion of the stem was not validated by Article 974d-12. Since that part of the stem is not validly annexed, the airport is not contiguous to McGregor and so McGre-gor’s attempted annexation of the airport was not validated by Article 974d-12.” See City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971).

This court held in Rogers v. Raines, 512 S.W.2d 725 (1974, writ ref’d n. r. e.), that the same validating act as here involved, Art. 974d-18, did not validate an attempted incorporation of a town or village where the area sought to be incorporated did not constitute a town or village.

Appellant concedes “that initially Ordinance No. 1 was not legally enacted because of the failure of the town of Coffee City to follow the various procedural requirements,” but relies entirely upon Art. 974d-18 to validate the ordinance.

In Bolton v. Sparks, 362 S.W.2d 946 at page 950 (Tex.1962), the court said:

“The courts of this State have held ordinances and amendments to ordinances invalid where the express, mandatory provisions of our zoning statute have not been complied with. The steps directed to be taken for notice and hearing, when provided for in the law, are intended for the protection of the property owner, and are his safeguards against the exercise of arbitrary power. Each act required is essential to the exercise of jurisdiction by the City Council, and each must be rigidly performed. . . . ”

In Storm Bros. v. Town of Balcones Heights, 239 S.W.2d 842 (Tex.Civ.App. — El Paso 1950, writ ref’d n. r. e.), there was some question raised about the procedure followed in appointing the members of the Zoning Commission, and the court held that the members of the Zoning Commission having been appointed and being de facto members and serving as such, the validating act cured the defects complained of.

As is said in Lawton v. City of Austin, 404 S.W.2d 648 (Tex.Civ.App. — Austin 1966, writ ref’d n. r. e.), the police powers of the State are exercised by the Legislature enacting zoning laws, and the State has delegated some of this legislative authority to municipalities. Arts. 1011a-1011j. “The Legislature, of course, may put such restrictions on and provide the manner in which municipalities may exercise the delegation of this authority as it sees fit.” Lawton v. City of Austin, supra.

63 Tex.Jur.2d Zoning, Sec. 69, p. 836, reads in part:

“In order to avail itself of the powers conferred by the Zoning Enabling Act, the governing body of a municipality must appoint a zoning commission to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. The zoning commission must make a preliminary report and hold public hearings thereon before submitting its final report, and the governing body of the municipality may not hold its public hearings or take action until it has received the final report of the zoning commission . . .”

The case of Peters v. Gough, 86 S.W.2d 515 (Tex.Civ.App. — Waco 1935, no writ), opinion by Judge Alexander, held that the statutory requirements in Arts. 1011a-1011j “are intended for the protection of the property owner and are his safeguards against an arbitrary exercise of the powers granted by the statute. Hence, it would appear that such preliminary steps required by the statute are essential to the exercise of such jurisdiction.” To the same effect is Tonroy v. City of Lubbock, 242 S.W.2d 816 (Tex.Civ.App. — Amarillo 1951, writ ref’d n. r. e.); City of Amarillo v. Wagner, 326 S.W.2d 863 (Tex.Civ.App. — Amarillo 1959, writ ref’d n. r. e.); City of San Antonio v. Pope, 351 S.W.2d 269 (Tex.Civ.App. — Eastland 1961, no writ).

Some of the above cases point out that Art. lOllf provides that, “In order to avail itself of the powers conferred by this Act, such legislative body shall appoint a commission,” and certain other steps must be taken.

In City of Kermit v. Spruill, 328 S.W.2d 219 (Tex.Civ.App. — El Paso 1959, writ ref’d n. r. e.), the court said:

“While the legislature may validate an ordinance passed by a municipal corporation which would otherwise be void, because of procedural defects in the manner of enactment, notice and public hearing, provided there is no constitutional objection to an act which would have embraced every power exercised in the ordinance; it does not follow that every such validating act is sufficient to cure substantive defects which render the application or subject of the ordinance ambiguous, vague or uncertain.”

In Richardson v. State, 199 S.W.2d 239 at page 244 (Tex.Civ.App. — Dallas 1946, writ ref’d n. r. e.), is found this language:

“Acts curing defects in the incorporation of municipalities under the general law apply where a legal incorporation was sought to be established — that is, where the law was attempted to be followed, but in some particulars was not followed, and where, if the forms of law had not been omitted, the incorporation would have been valid. They do not apply where it was sought to incorporate in violation of law.”

We have concluded that it was not the intention of the Legislature to validate Ordinance No. 1 of the town of Coffee City when Coffee City had not availed itself of the power to enact a zoning ordinance and that such failure was a substantive defect. It had not appointed a Zoning Commission nor had it attempted to do so. There was no Zoning Commission to make a preliminary report or to hold public hearings or to make a final report to the Town Council.

We are of the opinion that the reasoning in Richardson v. State, supra, pertaining to a validating act attempting to cure defects in the incorporation of a municipality, is applicable here. The analogy is that acts curing defects in zoning ordinances apply where a legal zoning ordinance was sought to be established—that is, where the law was attempted to be followed, and where, if the town of Coffee City had availed itself of the power to zone and then certain procedures had not been followed, the ordinance would have been validated. The validating act did not apply where it was sought to zone in violation of law.

Accordingly, we find Ordinance No. 1 of the town of Coffee City to be invalid because of the failure of the Town Council to provide for a Zoning Commission. We overrule appellants’ point two.

Appellants’ third point complains of the finding of the trial court that Ordinance No. 1 is invalid for failure to give personal notice to appellee’s predecessor in title and for failure to comply with the procedural requirements of Art. lOlld. In view of disposition of points one and two, this point is overruled.

Appellee presents a cross-point complaining of the failure of the trial court to find Ordinance No. 1 invalid because it does not have any substantial relationship to the public health, safety, morals and general welfare of the public as required by Art. 1011a. Appellee points out that the only property in the town of Coffee City located on Highway 155 which was zoned commercial belongs to Mayor Phillips, his brother (who is a member of the Town Council) and to Mayor Phillips’ mother, and that Highway 155 is heavily traveled and carries substantially all of the traffic through the town. Moreover, there are only three tracts of land within the corporate limits located on Highway 155 and one of these is owned by the Phillips family, one by Henderson County used as a park, and the third tract is the tract known as the Cora Bradley tract involved here. The Phillips’ tract had three residential houses located on it and was zoned commercial while the Bradley tract had one house on it, and it was zoned residential. Ordinance No. 1 provides for seven (7) specifically described areas zoned commercial, and there are six (6) alcoholic beverage stores located in these areas which are scattered at random over the town. The record reflects that the property in the town was zoned residential or commercial according to the request of the individual owner. In our opinion this does not show an attempt to regulate in accordance with a comprehensive plan as required by Art. 1011c.

The witness, Street, a Council member at the time the ordinance was adopted testified that, as zoned, Mayor Phillips and his brother would have the only liquor store on Highway 155, and that this result was known and discussed at the time the ordinance in question was adopted.

Exhibit P-1 shows that the corporate limits of the town consists mainly of long, narrow strips along public roads and such strips have no regular shape and appear to be several miles in length.

A zoning ordinance must bear a substantial relation to the public health, safety, morals or general welfare, and if by the terms of the ordinance or as established by the evidence as a matter of law it does not do so, then such ordinance is void. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704 (1950); City of Corpus Christi v. Jones, 144 S.W.2d 388, 397 (Tex.Civ.App.—San Antonio 1940, writ dism’d); 56 Am.Jur.2d Municipal Corporations, Sec. 438, p. 487.

The record reveals that the Town of Coffee City was incorporated on December 18, 1969; that the first election of officers was held on January 7, 1970; that Ordinance No. 1 was passed January 19, 1970; and that a local option election for the sale of all alcoholic beverages was held on February 22, 1970.

In Vol. 1, Antieau, Municipal Corporation Law, Sec. 516, p. 5-48, is found this language:

“When the judiciary finds it fairly obvious that a municipal ordinance was motivated by a desire to advance the interests of a particular individual, corporation or group, the courts have been quite willing to invalidate the particular exercise of municipal power as not having a reasonable tendency to protect the public health, safety, morality or general welfare.”

If it could be said the trial court erred in failing to find the ordinance invalid because it bore no substantial relation to the public health, safety, morals or general welfare, in view of our disposition of this cause, it was harmless error. Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.

      . “ORDINANCE I.
      “AN ORDINANCE FOR THE ISSUANCE OF BUILDING PERMITS PRESCRIBING REGULATIONS CONCERNING THE SETBACK OF COMMERCIAL IMPROVEMENTS FROM HIGHWAY AND ROAD RIGHT-OF-WAY DEFINING COMMERCIAL PROPERTY, AND RESIDENTIAL PROPERTY, PROVIDING THAT NO PERSON MAY BE ISSUED A BUILDING PERMIT FOR A STRUCTURE TO BE USED FOR A LIQUOR OR PACKAGE STORE OR A STORE FOR THE SALE OF BEER AND/OR WINE ON OR OFF PREMISES UNLESS SUCH PERSON SHALL HAVE BEEN A RESIDENT OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR PRIOR TO FILING SUCH APPLICATION, PROVIDING THAT NO PERSON SHALL ENGAGE IN THE RETAIL LIQUOR BUSINESS OR IN THE BUSINESS OF RETAILING BEER AND/OR WINE ON OR OFF PREMISES UNLESS SAID PERSON SHALL HAVE BEEN A RESIDENT OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR, ESTABLISHING FEES FOR BUILDING PERMITS AND PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE IN ANY SUM NOT LESS THAN TEN ($10.00) DOLLARS AND NOT MORE THAN ONE HUNDRED ($100.00) DOLLARS EACH AND EVERY DAY OR A FRACTION THEREOF DURING WHICH THIS ORDINANCE IS VIOLATED IN DECLARING EACH SUCH DAY TO BE A SEPARATE OFFENSE.
      “BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF COFFEE CITY, TEXAS: “SECTION I.
      “This entire ordinance is and shall be deemed an exercise of the police power of the State of Texas, and of the Town of Coffee City, for the public safety, comfort, convenience and protection of the town and citizens of said town, and all of the provisions hereof shall be construed for the accomplishment of that purpose. “SECTION II.
      “The following property in the city limits of Coffee City, Texas, shall be and is hereby zoned commercial property:
      (The metes and bounds description is omitted.)
      “All of the rest of the property in the city limits of Coffee City, Texas, not hereinabove zoned as commercial property is hereby zoned as residential property and shall hereafter be residential property.
      “SECTION III.
      “No person shall erect any structure of any nature upon any commercial property within the limits of the town of Coffee City, Texas, unless said structure is set back from the boundary of the highway or public road right-of-way a minimum of forty (40) feet distance. No part of any structure shall extend or obtrude toward the highway or public road so as to be within the forty feet limit herein prescribed.
      “SECTION IV.
      “No person shall commence the construction of any building or structure of any nature whatsoever within the limits of the town unless that person has first obtained a building permit. Any person desiring a building permit shall make application to the City Secretary and shall accompany said application by the fee hereinafter prescribed. The City Secretary shall determine whether the proposed structure complies with all ordinances of the town and shall upon the receipt of the proper fee then issue a building permit. Each application for a building permit shall state the cost of the construction of the proposed building or other structure and the fee for such building permit shall be One Dollar ($1.00) for each Thousand Dollars ($1,000.00). If the City Secretary shall conclude that the applicant is not truthfully representing the cost of construction, she may withhold the issuance of the building permit, in which event the issuance of a permit shall be determined by the town council at its next regular or called meeting.
      “SECTION V.
      “All applications for building permits shall specify the purpose for which the proposed structure is to be used. Such application shall further state the name in full of the applicant, the age of applicant, and the length of residence in the corporate city limits of Coffee City. No permit shall be issued to any person for the construction of a building to be used as a package store or liquor store and no permit shall be issued to any person for the construction of a building to be used as a place of business for the retail sale of beer and/or wine either on or off premises as such terms are defined in the Liquor Control Act of the State of Texas unless the owner of such building shall have been a resident of the City of Coffee City, Texas, for not less than one (1) year prior to the filing of such application. No person shall engage in the retail sale of liquor or engage in the retail sale of beer and/or wine either on or off premises unless such person shall have been a bona fide resident of Coffee City, Texas, for at least one (1) year prior to the commencement of business. Nothing in this section, however, shall apply to or affect any person who is engaged in the business of retailing liquor, beer and/or wine on or off premises on the effective date of this act in Coffee City, Texas, and this section further does not affect any person who has heretofore made application for a building permit for the purpose of constructing a building to be used as a package or liquor store or for retailing beer and/or wine for on or off premises consumption.
      “SECTION VI.
      “Any person, firm or corporation violating any of the provisions of this ordinance of (sic) failing to observe any of the provisions hereof, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00) and each and every day or fraction of a day during which this ordinance or any part thereof shall be violated shall be deemed a separate offense and punishable as such.
      “SECTION VII.
      “Each and every provision, paragraph, sentence and clause of this ordinance has been separately considered and passed by the Town Council of the Town of Coffee City, and each said provision, paragraph, sentence and clause would have been separately passed without any other provision, and if any provision, paragraph, sentence or clause hereof should be ineffective, invalid, or unconstitutional for any cause, it shall not impair or affect the remaining portion nor any other part hereof, but the valid portion shall be enforced in the manner as if it had been passed alone.
      “SECTION VIII.
      “The fact that the Town of Coffee City, Texas, now has no ordinance governing the matters regulated herein and the fact that construction of building (sic) and other structures is not now regulated so as to protect the citizens of the Town of Coffee City in their property and persons as aforesaid, creates an emergency, which is here and now declared, and this ordinance shall take effect and be in force, from and after its passage and publication, as provided by law. “PASSED AND APPROVED THIS THE 19TH DAY OF JANUARY, 1970.”

      . Among the reasons given for denying the request to rezone were:
      (1) that the property is best suited for residential property, there being a residence close by; (2) that a tract of land adjacent to the land sought to be rezoned has been set aside for a public park and the best use of the property would be to remain residential since it is adjacent to and would be close to a public park; (3) that to rezone this property would constitute spot zoning; (4) that to rezone the property would interfere with the best interest and welfare of the citizens of Coffee City, Texas; (5) that the application to rezone the property is not in proper form and order; (6) a request was made when the property was originally zoned for residential, that it be zoned residential; (7) there have been complaints from citizens in Coffee City, Texas, to leave the property as residential property.

      . All references are to Vernon’s Texas Annotated Civil Statutes unless otherwise noted.


author: HALL, Justice.

text:
    Erma S. ROZELLE, Appellant, v. FIRST NATIONAL BANK IN DALLAS, Appellee.
    No. 5568.
    Court of Civil Appeals of Texas, Waco.
    March 25, 1976.
    Rehearing Denied April 22, 1976.
    Garrett, Settle & Callaway, William O. Callaway, Jr., Ft. Worth, for appellant.
    Hewett, Johnson, Swanson & Barbee, Ernest E. Figari, Jr., Dallas, for appellee.
   HALL, Justice.

On August 26, 1970, the First National Bank In Dallas brought this suit against the appellant to recover on a written guaranty executed by her in which she guaranteed a certain indebtedness of her son, F. McQueen Rozelle (hereinafter “Rozelle”), to the Bank, and to foreclose a deed of trust lien on the appellant’s property securing her debt under the guaranty. After a trial without a jury, judgment was rendered in favor of the Bank for $50,000.00 principal; interest accrued thereon to October 15, 1975, the date of judgment, in the amount of $29,-734.72; and foreclosure of the lien. The appellant questions the judgment, on grounds that (1) the Bank has never made the demand upon her for payment which she asserts is required by the guaranty agreement; and (2) the Bank is not entitled to interest beyond October 19,1970, the day she assertedly tendered payment of the indebtedness to the Bank. We overrule these contentions and affirm the judgment.

Most of the proof was adduced by way of stipulations, and we find no dispute in the facts critical to our disposition on this appeal.

On May 3,1967, the appellant and Rozelle executed and delivered to the Bank a “First Deed Of Trust Note” in the principal sum of $50,000.00 payable to the Bank. This note is referred to in the record as the “cattle note.” Simultaneously, the appellant alone executed and delivered to the Bank a deed of trust to 36 acres of land in Dallas County, which secured payment of the note and its renewals or extensions. Additionally, the deed of trust secured the following:

“(b) all indebtedness arising pursuant to the provisions of this deed of trust and any and all renewals or extensions of any such item of indebtedness or any part thereof, (c) all loans and advances which Bank may hereafter make to the Grantor and any and all renewals or extensions of the same, or any part thereof, (d) all other and additional debts, obligations, and liabilities of every kind and character of Grantor, now or hereafter existing in favor of Bank, regardless of whether such debts, obligations and liabilities be direct or indirect, primary or secondary, joint, several, or joint and several, fixed or contingent, and regardless of whether such present or future debts, obligations and liabilities may, prior to their acquisition by Bank be or have been payable to, or be or have been in favor of some other person or have been acquired by Bank in a transaction with one other than Grant- or, together with any and all renewals and extensions of such debts, obligations and liabilities, or any part thereof.”

The deed of trust was duly recorded in Dallas County on May 16, 1967.

On January 1, 1968, the appellant, for a good and valuable consideration, executed and delivered to the Bank the guaranty in question in which she guaranteed payment of “loans extended F. McQueen Rozelle for purpose of interim financing of Conn. General Deal” by the Bank, “limited in the aggregate at any one time to the sum of $50,000.00 plus interest.”

On September 24, 1969, Rozelle made and delivered to the Bank three promissory notes in the principal sums of $109,580.10, $50,000.00 and $2,500.00. These notes represent loans extended to Rozelle for the purpose of interim financing of the Connecticut General Deal. All of the notes were due on December 15, 1969. The two larger notes provide for interest at 9½% from September 5,1969, until maturity, and at 10% thereafter; and the smaller note provides for interest at 9½% from September 24, 1969, until maturity, and at 10% thereafter. These notes have never been paid. The Bank is their present owner and holder. They and the guaranty form the base of this lawsuit and the judgment below.

In an action by Connecticut General Life Insurance Company against Rozelle in the United States District Court for the Eastern District of Oklahoma, in which the Bank was joined as a defendant and became a cross-claimant against Rozelle, the Bank recovered judgment against Rozelle on the three notes of September, 1969. This judgment was affirmed by the United States Court of Appeals, Tenth District, on December 11, 1972, and became final on April 2, 1973. A separate suit was also filed by the Bank in the United States District Court for the Eástern District of Oklahoma against Rozelle on notes other than the three notes of September, 1969. The “cattle note” was not one originally sued on. However, in that case, the court determined that the question of payment vel non of the “cattle note” was tried by consent, and ruled that the “cattle note” was paid on January 8, 1968. This judgment was affirmed by the United States Court of Appeals, Tenth District, on January 31, 1974, and became final on May 8,1974. Although ruling against the Bank on the “cattle note”, the court concluded that the evidence was “wholly inadequate” to prove that the Bank acted in bad faith in seeking to collect on the note. The facts of these federal court cases, reported at 471 F.2d 29 and 493 F.2d 1196, are expressly a part of the record of our case by stipulation.

On the trial of the case at bar, the appellant did not plead the defense of failure of demand on her by the Bank. The trial court concluded that by this want of pleading the defense was waived. We concur with this ruling. Failure to make demand is an affirmative defense under Rule 94, Vernon’s Tex.Rules Civ.Proc. By failure to plead it, the appellant waived the defense. Durrum v. Hendrick, 4 Tex. 495, 501 (1849); Young v. J. F. Zimmerman & Sons, Inc., 434 S.W.2d 926, 927 (Tex.Civ. App. — Waco, 1968, writ dism.); Gresham v. McElroy, 309 S.W.2d 84, 90 (Tex.Civ.App.— Hou., 1958, no writ hist.). We are also convinced that the appellant waived the defense of demand when she admitted liability under the guaranty agreement in her pleadings, as hereinafter shown.

In her original answer, filed on October 19, 1970, and again in her first amended original answer, filed on September 23, 1971, the appellant admitted the execution of the deed of trust, but specially denied that it was intended by the parties to secure “Connecticut General Deal” loans to Rozelle, or any indebtedness other than the “cattle note” dated May 3, 1967. However, in both pleadings she made a purported tender of payment under the guaranty agreement in these words:

“Defendant admits the execution of the instrument which might commonly be called a Guaranty Agreement and attached to the Plaintiff’s Original Petition as Exhibit C and admits and recognizes her obligation to the extent of $50,000 plus interest, and by this pleading does hereby tender to the Plaintiff such sum of money, conditioned upon the Plaintiff’s releasing the aforesaid Deed of Trust (Exhibit B), Guaranty Agreement (Exhibit C) and dismissing this cause of action against her.”

The defendant then prayed “that plaintiff take nothing by its suit other than the sum of money hereby tendered, and that she be dismissed and go hence with her costs. . .”

In her second amended original answer, filed September 24, 1973, which was accompanied by a cross-action, the appellant acknowledged execution of the deed of trust and guaranty agreement; denied that the deed of trust was intended by the parties to secure Rozelle’s debts; denied that she owed the Bank any sum under the guaranty agreement; and prayed that the Bank recover nothing. Finally, in her third amended original answer, filed on February 21, 1975, and her fourth amended original answer filed three days later, on February 24, 1975, which was the day the trial began, in language virtually identical to that used in her original answer and first amended original answer, the appellant again denied the deed of trust was meant to secure Rozelle’s “Connecticut General Deal” debts; again acknowledged her obligation to the Bank under the guaranty agreement “to the extent of $50,000.00, plus interest”; verbally tendered “$50,000.00 plus interest found due, if any, on condition that the Plaintiff release the aforesaid Deed of Trust”; and prayed that she “go hence with her costs.”

No money in any form was ever delivered to the Bank or deposited in the court in connection with the appellant’s pleaded “tender” until February 25, 1975, while the trial was in progress. On that day the appellant paid $55,000.00 into the registry of the court. The record is silent as to the circumstances or conditions of the deposit. In the judgment, this deposit was ordered paid to the Bank.

The appellant asserts that under the record the offer of payment made in her original answer constituted a valid tender of her obligation under the guaranty to the Bank which stopped the running of interest after October 19, 1970, the date on which the pleading was filed. We disagree.

The burden of proving a valid tender rests upon the party asserting it. Business Aircraft Corp. v. Electronic Commun., Inc., 391 S.W.2d 70, 71 (Tex.Civ.App. —San Antonio, 1965, writ ref., n. r. e.); Cornelius v. Cook, 213 S.W.2d 767, 770 (Tex. Civ.App. — Eastland, 1948, no writ hist.).

In Baucum v. Great American Insurance Co. of New York, 370 S.W.2d 863, 866 (Tex. Sup., 1963) the elements of a valid tender are set forth by our Supreme Court in these words:

“A tender is an unconditional offer by a debtor or obligor to pay another, in current coin of the realm, a sum not less in amount than that due on a specified debt or obligation ... A valid and legal tender of money consists of the actual production of the funds and offer to pay the debt involved. The tenderer must relinquish possession of it for a sufficient time and under such circumstances as to enable the person to whom it is tendered, without special effort on his part, to acquire its possession.”

The appellant’s offer was not unconditional. It was expressly conditioned “upon the Plaintiff’s releasing the Deed Of Trust, guaranty agreement, and dismissing this cause of action against her.” At the time of the offer, on October 19, 1970, the deed of trust secured the “cattle note” which was not finally determined by the courts to have been paid (on January 8, 1968) until May 8,1974. The release of the deed of trust at the time of the offer would have prejudiced the Bank’s rights on the “cattle note.” Moreover, until the day of trial, no funds were actually produced by the appellant. Too, her offer was not a definite sum, but was “$50,000 plus interest” without specifying the rate of interest intended. The notes in question call for interest at the rate of 9V2% per annum, but the appellant testified unequivocally that her offer of “interest” was at 7V2% on the notes. For these reasons, if not for others also asserted by the appellee, the appellant’s offer was not a valid and legal tender. It did not halt the running of interest.

In the light of the holdings above, many of the appellant’s points and contentions are immaterial. The others have been duly considered and found to be without merit. All are overruled.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Marjorie L. McLEROY et al., Appellants, v. Nola Mae DOUTHIT, Appellee.
    No. 17709.
    Court of Civil Appeals of Texas, Fort Worth.
    March 26, 1976.
    Rehearing Denied April 23, 1976.

      Farrar & Claunch, and James R. Claunch, Fort Worth, for appellants.
    Mehl, Williams, Cummings & Truman, and B. Michael Cummings, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Ñola Mae Douthit, former wife of Taylor Denney Barnett, deceased, filed her former husband’s will, with application for its probate, in the Probate Court of Tarrant County in January, 1975. Over protest of contestants it was ordered admitted to probate on July 17, 1975. Contestants were Marjorie L. McLeroy and her sister, both daughters of Mrs. Douthit and Taylor Denney Barnett, deceased. They appealed the order of July 17, 1975, and are the appellants in this case.

Judgment reversed. Judgment here rendered denying probate of purported will of Taylor Denney Barnett, deceased.

Premise of our action of reversal is the conclusion that the will was not valid, but to the contrary was void because it did not meet the requirements of Texas statutes necessary to be complied with in order to make a proper will. In abbreviated form we will copy the will:

“THE STATE OF TEXAS
“COUNTY OF TARRANT
“KNOW ALL MEN BY THESE PRESENTS, that I, Taylor Denney Barnett . do hereby make, publish and declare this to be my last will and testament
(Here follows bequest of all his estate to Ñola Mae, his wife, and appointing her to be independent executrix without bond, etc.)

“This I make, publish and declare as my last will and testament, hereunto signing and subscribing my name this the 18th day of November, A.D. 1955, in the presence of the attesting witnesses listed below, each of which are above the age of twenty-one years and being credible persons, attest the same.

/s/ “Tavlor Denney Barnett “Testator”
(Here ends the instrument.)

Following the above, and appended thereto upon a separate sheet of paper, is the affidavit:

“THE STATE OF TEXAS “COUNTY OF TARRANT
“Before me, the undersigned authority, on this day personally appeared Taylor Denney Barnett, known to be the testator and the witnesses, Lee S. Secrest and C. W. Goerte whose names are subscribed to the annexed instrument in their respective capacities, and all of said persons being by me duly sworn, the said Taylor Denney Barnett, the testator, declared to me and to the said witnesses in my presence that the said instrument is his last will and testament and that he had willingly made and executed it as his free act and deed for the purposes therein expressed, and the said witnesses, each on his oath stated to me in the presence and hearing of said testator that the said testator had declared to them that said instrument is his last will and testament, and that they executed same as such and wanted each of them to sign it as witness; and upon their oath each witness stated further that they did sign the same as witnesses in the presence of said testator at his request; that they are more than twenty-one years old.
/s/ “Taylor Denney Barnett “Testator
/s/ “Lee S. Secrest “Witness
/s/ “C. W. Goerte “Witness
“Subscribed and acknowledged before me by the said Taylor Denney Barnett, the testator, and subscribed and sworn to before me by the said Lee S. Secrest and C. W. Goerte, as witnesses, this the 18th day of November, A.D. 1955.
/s/ “Tom C. Chapman
“Notary Public, Tarrant County, Texas.”

From the foregoing it may be observed that we are dealing with a will which is demonstrably void “on the face of the record.” The will is indeed the most important of all the instruments in the “record” or “judgment roll” where it is that will which is presented for probate.

Its character as a void will is because of the absence, as a part of the will itself, of signatures of at least two witnesses who have subscribed their names in their own handwriting upon the will in the presence of the testator. This is the requirement of law where a will is not wholly in the handwriting of a testator. V.A.T.S. Probate Code, Sec. 59, “Requisites of a Will”, and V.A.T.S. Art. 8283, the statute it succeeded on January 1, 1956 which bore identical provision. McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App., Houston, 1965, error refused).

The holding in McGrew is in accord with those in the greater part of the United States, the general rule being that a will must be executed in accordance with statutory requirements or it will be void, and these requirements apply to all instruments which are testamentary in character, unless otherwise proved. 94 G.J.S. “Wills” § 167, p. 964, “Statutory Requirements”.

The only difference in the facts in McGrew from those in the instant case is the presence of the signature of Taylor Denney Barnett, as testator, on the face of the will, where in McGrew the testator had not signed the will, but had signed only the self-proving affidavit attached thereto. In both McGrew and the instant case the testator and two witnesses signed the self-proving affidavit, authorized for a prescribed purpose beginning January 1, 1956 by V.A.T.S. Probate Code, Sec. 59.

It is to be noticed that unlike the situation in McGrew, where due to the time of execution there was authorization for use of the self-proving affidavit, the will before us on the instant appeal was executed antecedent to January 1, 1956, at a time when provision relative thereto was no part of our law. Having been executed prior thereto it would constitute nothing of any consequence as applied to the transaction. Even had the will been properly executed so that it was valid and not void, it could not be treated as self-proving so that it might be proved upon probate without testimony of witnesses, as was required in all cases before January 1, 1956.

Likewise supporting our conclusion that the will is void are the following authorities: Boren v. Boren, 402 S.W.2d 728 (Tex. Sup., 1966); In re Estate of Pettengill, 508 S.W.2d 463 (Tex.Civ.App., Amarillo, 1974, writ ref., n. r. e.).

Mrs. Douthit points out that the appellants raised the foregoing question upon validity of the will for the first time on appeal. That is immaterial for the invalidity of the will as reflected “on the face of the record” would constitute fundamental error which should be noticed by the appellate court. Furthermore the appeal was taken without motion for new trial and the complaint was made a point of error on the appeal; and even had there been a motion for new trial in which the complaint was not raised, yet would the appellants have been free to raise it by point of error for below the trial was before the court. T.R. C.P. 324, “Prerequisites of Appeal”, and cases thereunder.

Mrs. Douthit further cites cases by which she contends that there was compliance with the law relative to attestation by the signatures upon the self-proving affidavit, coupled with antecedent signature of the deceased upon the face of the will. Those cases we deem necessarily distinguishable and to have no operative effect to lend stature to the will that it might be deemed valid and not void.

The reason is that in the cases upon which Mrs. Douthit relies all the signatures were upon the face of the will so that the court found itself at liberty to construe a proper attestation. In the instant case the will and the affidavit were upon separate pages and in any event were separate instruments, whether stapled together or not. The affidavit spoke of the will as “the annexed instrument”, which language would affirmatively display the want in entitlement of the court to contrarily consider it and to deem the signatures thereon as a part of the will itself. It is true that the affidavit says that the witnesses had subscribed the will annexed, but the will presented for probate, and by which Mrs. Douthit is necessarily to be deemed bound, bears no signature of any witness. This fact would compel disregard of the statement to that effect even had there been different means by which there was attempt to prove the will; and certainly compels disregard of the statement in the state of the instant record. It is to the will presented that we are confined, as was the court below.

Because of the foregoing the reversal of the decree admitting the will to probate is compelled.

In substance appellants’ additional points relate to the admission of the will to probate when application therefor was made beyond that four year period following the death of the testator within which there is authorization therefor by law, plus contention that no good cause for delay in presentation had been shown by evidence that Mrs. Douthit was not in default by the delay. Additional contention is that the trial court’s finding of good cause or that there had not been default was in any event so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous. We have examined the record, and have concluded that the trial court did not err and that there was nothing wanting in the evidence to support the finding and conclusion that Mrs. Douthit was not in default by the late application for probate.

The judgment is reversed and judgment here rendered denying the application of Mrs. Douthit to have admitted to probate the purported November 18, 1955 will of Taylor Denney Barnett, deceased.