author: OSBORN, Justice. PRESLAR, Chief Justice,

text:
    TEXAS AMERICAN OIL CORPORATION, Appellant, v. THEO H. BLUE DRILLING, INC., Appellee.
    No. 6555.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 9, 1977.
    Rehearing Denied March 3, 1977.

      Rassman, Gunter & Boldrick, James P. Boldrick, Midland, for appellant.
    James McDonald, Crane, for appellee.
   OPINION

OSBORN, Justice.

This is a venue case involving a drilling contract. The trial court overruled the Ap-pedant’s plea of privilege, and held that venue was properly established in Crane County under the provisions of Subdivision 5, art. 1995, Tex.Rev.Civ.Stat.Ann. We reverse and order the case transferred to the District Court of Midland County, Texas.

The Appellee, as contractor, and the Appellant, as owner, entered into a written contract for Appellee to drill an oil well in Crane County, Texas, for Appellant. During the drilling operations, gas was encountered and it blew out, and a resulting fire destroyed the drilling rig. Appellee alleged in its suit that the Appellant breached its contract by failing to provide a rotating assembly for a blowout preventer, as provided for in Paragraph 26 of the contract. That paragraph of the contract provides:

“Owner Will Furnish The Following:
“All Water-Fresh and 10.0# Brine. Cellar, Pits and reserve pit if they have to be shot with dynamite.
Line reserve pit if it is to be lined. Rotating assembly for B.O.P. if needed. Bradenhead to nipple up on surface casing.”

In order to maintain venue under Subdivision 5, art. 1995, Tex.Rev.Civ.Stat.Ann., it was necessary for the Appellee to prove an obligation in writing, the execution by the Appellant, and that the obligation is performable in the county of the suit. MACPET v. Oil Field Maintenance Company, 538 S.W.2d 240 (Tex.Civ.App., Corpus Christi 1976, no writ). In this case, there is no question about the execution of the written contract. The sole question is whether or not the obligation made the basis of the Appellee’s suit is performable in Crane County, where suit was filed.

Since the 1935 amendment of Subdivision 5 of Article 1995, the Courts have recognized that venue under this subdivision may not be fixed by implication. In Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948), the Court said:

“The intention of the Legislature in adding this amendment is obvious. Under Subsection 5 as it stood at the time of the amendment one might become a party to a contract which by implication obligated him to perform in a particular county, although the contract did not expressly name the county of performance and obligate the defendant to perform therein. By amendment the language of the subdivision was made so plain as to admit of no construction that would fix venue by implication. In order to sustain venue in Harris County in this case the contract must have expressly named that county or some definite place therein where relator was obligated to perform. This contract does not meet that test. It provides merely that the relator was to make payments to the named bank. Where such payments were to be made is not covered by the express language of the contract. * * * ”

The Appellee contends that since under the terms of the written contract the well was to be drilled in Crane County, and since the rotating assembly was used in the drilling of the well, the only place the rotating assembly could be furnished was in Crane County, and, thus, venue is not fixed by implication but by the terms of the contract. A similar contention was made in Hamilton v. Booher, 124 S.W.2d 184 (Tex.Civ.App., Amarillo 1939, no writ), where suit was brought for damages for the alleged breach of a rental contract for land in Lubbock County. The Court, after noting that venue could not be fixed by implication, said:

“Appellee contends that the nature of the contract was such that it could not be performed in any county other than the one in which the land was located because it was for the breach of a contract to place him in possession of the land and that obviously the physical act of placing him in possession thereof could not be performed at any place other than upon the land itself, which was located in Lubbock County. We cannot agree to this contention. * * * ”

In this connection, it is important to note that venue under Subdivision 5 is not controlled by the place where the contract requires the Appellee to perform the drilling of the well, but by the place where the contractual obligation sued upon requires the Appellant to perform. Rogers v. Waters, 262 S.W.2d 521 (Tex.Civ.App., San Antonio 1953, no writ); Jeter-Miliar Company v. Kasch Bros., Inc., 466 S.W.2d 598 (Tex.Civ.App., Eastland 1971, no writ); Heath v. Gilbreath, 536 S.W.2d 404 (Tex.Civ.App., El Paso 1976, no writ). The contract is silent as to the place that obligation is to be performed. Exhibit “A” to the drilling contract provides in paragraphs 5, 6, and 7 that certain machinery, equipment, tools, materials, supplies, instruments, services, and labor shall be provided at the well location. But that language was not used in Paragraph 26 of the contract, which was set forth above, and the only way to determine where the rotating assembly was to be furnished is by implication, just as the place for payment of the note in the Saigh case could only be fixed by implication.

In Maynard Hill, Inc. v. Smith, 534 S.W.2d 733 (Tex.Civ.App., Waco 1976, no writ), suit was filed to recover damages from a manufacturer who contracted to provide aluminum windows for the plaintiff’s home which was being constructed in Waco. The written order which served as the basis for the suit stated the plaintiff’s name and address and the location of his proposed residence as Waco, Texas. The order obligated the manufacturer “to furnish items as described.” The appellate Court, in concluding that Subdivision 5 was not applicable, said:

“The contract executed by Maynard Hill does not expressly state that the windows and doors are to be delivered to Waco or McLennan County. It states that they are to be ‘furnished’ * * *. The contract is addressed to Mr. Harry Trippett in Waco, and recites ‘Project: Smith Residence, Location: Waco, Texas’, but nowhere expressly agrees to deliver the building materials to such project or to Waco. The only way Maynard Hill can be said to have agreed in the contract to deliver the materials to Waco would be by implication, and venue under subdivision 5, cannot be fixed by implication, Bowden v. Murphy, Tex.Civ.App. (Waco) NWH, 448 S.W.2d 183; Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610; Thomas v. Oil Belt Supply Co., Tex.Civ.App. (Eastland) NWH, 375 S.W.2d 527; Johnston v. Personius, Tex.Civ.App. (San Antonio) NWH, 242 S.W.2d 471; Williams v. James, Tex.Civ.App. (Ft. Worth) NWH, 308 S.W.2d 528; Harkness v. Employers National Ins. Co., Tex., 502 S.W.2d 670.”

The statement of facts contains evidence that when the owner agreed to furnish those items listed in Paragraph 26, it agreed to pay for such items, and that it is customary in the industry when the contractor needs the special equipment listed, the contractor will call a service company designated by the owner to supply such equipment and have it delivered to the drill site and charged to the account of the owner. While that may well be the custom in the industry, we conclude that such testimony is not controlling, and that we are bound by the terms of the written contract. Even a glance at Exhibit “A” reflects that the parties did specifically provide that over 50 different items would be provided at the well location when they intended for one of them to do so. They did not use that language with regard to the equipment listed in Paragraph 26, and we conclude that the only way an obligation can be imposed upon the owner to provide such equipment at the well site in Crane County is to do so by implication. Thus, Subdivision 5 of Article 1995 is not applicable, and the Appellant’s plea of privilege should be sustained.

The order of the trial Court overruling the Appellant’s plea of privilege is reversed, and the case is ordered transferred to the District Court of Midland County, Texas.

PRESLAR, Chief Justice,

dissenting.

I respectfully dissent and would affirm the judgment of the trial Court overruling the plea of privilege.

The majority has applied to this case the rule that venue cannot be fixed by implication under Subdivision 5. The writer is of the opinion that venue is fixed in this cause by the terms of the contract in writing. “By implication” is a broad, catch-all phrase, and innumerable cases can be cited upholding it where the facts do not in anywise comport with those of this case. This case meets the rule that the obligation sued on was the particular obligation the Defendant agreed to perform. Heath v. Gilbreath, 536 S.W.2d 404 (Tex.Civ.App., El Paso 1976, no writ). The Defendant was to furnish a rotating assembly; the suit was for the failure to furnish that rotating assembly. Where did he fail to furnish it? In Crane County, the County of suit. Subdivision 5 of art. 1995 provides:

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

Our contract provides: “Location of Well: County: Crane State: Texas.” It further provides that the contractor and owner will each furnish certain items; among them, the contractor will furnish the drilling rig and he will furnish for it a blowout preventer, and the owner will furnish for that blowout preventer a rotating assembly. Our sole question is, where is that rotating assembly to be furnished under the terms of the contract? In essence, the contract provides that the Defendant/owner is to furnish a part of a drilling rig located in the county of suit; that is “by such writing” and not by implication. There can be no reading of the contract but that the place of furnishing is where the rig is located.

The cardinal rule of contract construction is to determine the intent of the parties, and I know of no rule that says a contract will be construed for venue purposes by different rules than for other purposes. There can be no question but that the intent of the parties to this contract was that the items to be furnished, including the rotating assembly, were to be furnished at the well location.

Items to be furnished by the owner appear in two separate lists, one by the printed form and one added by typewriter. As to the equipment and materials to be furnished by the owner, the contract provides:

“The machinery, equipment, tools, materials, supplies, instruments, services and labor hereinafter listed, including any transportation required for such items, shall be provided at the location at the expense of owner unless otherwise noted hereon and otherwise provided for in Paragraph 7 hereof.” (Emphasis supplied)

This is followed by a long list of items in printed form. In another section of the contract, listed as “Special Provisions” in the printed form, is a large blank space into which is typed the provision that the “Owner Will Furnish The Following:”

“All Water-Fresh and 10.0# Brine. Cellar, Pits and reserve pit if they have to be shot with dynamite. Line reserve pit if it is to be lined. Rotating assembly for B.O.P. if needed. Bradenhead to nipple up on surface casing.”

In other words, in addition to the printed items to be furnished, the parties added the above items. Thus, we have a contract which provides that the items to be furnished by each party are to be delivered to the well location, but no such provision was typed in as to these additional items which were added. The only possible reading of the contract is that all items are to be delivered to the well location, regardless of where they are placed in the contract. The contract viewed as a whole provides for the rotating assembly to be furnished at the well location.

“It is not necessary that the written obligation be spelled out in exact terms if the contract, viewed as a whole from its four corners, clearly shows that venue of performance lies in such county. Tyson v. Seaport Grain, Inc., 388 S.W.2d 731 (Tex.Civ.App., Corpus Christi 1965, writ dism’d).”

Burdette v. Cook Industries, Inc., 544 S.W.2d 495 (Tex.Civ.App., Corpus Christi 1976, no writ).

Subdivision 5 does not require that the place of performance be stated in the same sentence with the required act. This is a lengthy contract with many terms and provisions. It differs from the simple note of Saigh v. Monteith, cited by the majority, 147 Tex. 341, 215 S.W.2d 610 (1948). With a note, the normal thing is to place the place of performance with the obligation, that is, the promise to pay would be followed by the place of payment. Our contract has a requirement for performance by delivery of named items to the well location listed thereunder. It then has other items listed in another portion of the contract. I would construe them to be subject to the same requirement of delivery, regardless of their location in the contract. Subdivision 5 says only that the place of performance be “by such writing.” “Such writing” is the contract — all of it. “By such writing,” the furnishing is to be in Crane County, the place specified in the words of the contract as the place where the drilling rig and the blowout preventer were located. “By such writing,” the Defendant is to furnish a part of a drilling rig located in Crane County.

I would affirm the judgment of the trial Court.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. The ESTATE of Annie Tolbert THOMAS, Appellee.
    No. 932.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 10, 1977.
    Rehearing Denied March 17, 1977.

      Jeffrey R. Parsons, Fulbright & Jawor-ski, Houston, for appellant.
    G. Robert Friedman, Friedman & Chaf-fin, Houston, for appellee.
   McKAY, Justice.

This is a workmen’s compensation case in which the question presented is whether the death of Amos Thomas was within the coverage afforded by the Texas Workmen’s Compensation Law. Trial was before a jury, and based on the verdict, the trial court rendered judgment for the Estate of Annie Tolbert Thomas, appellee, for $18,-326.16, against The Aetna Casualty & Surety Co., appellant.

Amos Thomas died by drowning in the swimming pool at the private residence of Gordon Van Liew, President of Cal-Tex Citrus Juice, Inc. (Cal-Tex), a subscriber for workmen’s compensation insurance and Appellant’s insured.

Appellant’s points one and two complain that the trial court erred in overruling appellant’s motion for instructed verdict and motion for judgment non obstante veredic-to, and in submitting issue 3 to the jury, because there was no evidence or insufficient evidence to support the jury’s answer that Amos Thomas was not a domestic servant.

Cal-Tex was a company engaged in the business of processing, packaging and distributing chilled citrus products, with offices and plant located at 402 Yale Street, Houston. Cal-Tex was a family-type corporation, and Van Liew owned all the shares of stock. Thomas answered an ad Van Liew had run in the newspaper for a live-in gardener or yardman. Thomas was employed by Van Liew to do yard work at Cal-Tex and to do yard work at Van Liew’s residence. He was carried on the payroll and paid by Cal-Tex. Thomas mowed the lawns, trimmed hedges and swept the yard at Cal-Tex and kept it clean. He had no duties inside the Cal-Tex buildings and never worked anywhere but on the yard or parking area and was classified as a yard man. According to Van Liew’s testimony Thomas usually worked one day and a half to two days at Cal-Tex — usually Wednesdays and Saturdays — and worked the other weekdays at the Van Liew residence. He sometimes worked at the plant on days other than Wednesday or Saturday.

Thomas was not paid any money by Van Liew for his domestic work but he was furnished living quarters above Van Liew’s garage, and Van Liew furnished his meals. Thomas cooked his own breakfast but ate other meals in the Van Liew house. His duties at the Van Liew residence were to cut the lawn, trim the hedges, sweep the walks, water the grass and beds, plant beds and clean the swimming pool. He sometimes cleaned the cabanas around the pool or the garage, but he never worked inside the house.

On Saturdays Thomas would go with Van Liew to the Cal-Tex plant to work, and they would usually leave the Van Liew residence between 9:00 and 10:00 a. m., and Thomas would wait for Van Liew near the garage. On a Saturday morning, between 9:00 and 9:30, after looking for Thomas in the yard and in his living quarters, Van Liew discovered Thomas face down in the water in the deep end of the swimming pool. Van Liew testified Thomas was apparently in the process of cooking his breakfast since he discovered bacon laid out and eggs burned up in the skillet on an electric grill Thomas used. The police were called and an autopsy was performed with a finding that Thomas died from drowning.

The Van Liew maid testified Thomas routinely was cooking or eating his breakfast at the cabana area or cleaning the swimming pool when she arrived at work at approximately 8:00 a. m. each morning, but she was late to work on the morning of his death. A brother of Thomas, Adam Thomas, testified that he went to the Van Liew residence on the morning of Thomas’ death and the swimming pool was clean.

The provisions of the Workmen’s Compensation Law, Art. 8306, Sec. 2, in part read as follows:

“The provisions of this law shall not apply to actions to recover damages for personal injuries nor for death resulting from personal injuries sustained by domestic servants . . . .”

We believe, and the record conclusively reveals, that Thomas was employed by Van Liew in two capacities — as a domestic servant at the Van Liew residence and as a yardman at Cal-Tex. It appears the case of Hardware Dealers’ Mutual Fire Ins. Co. v. King, 426 S.W.2d 215, 217-218 (Tex.Sup.1968), presents the same fact situation as here present, and is controlling on the legal point under consideration. Judge Calvert’s opinion at pp. 217—218, states:

“A person's contract of employment may provide for services in two capacities or enterprises, in one of which he is covered by the Compensation Act and in the other of which he is not covered. Tex. Emp. Ins. Ass’n. v. Derrick, 207 S.W.2d 199 (Tex.Civ.App.1947, writ ref’d n. r. e.). If injured while performing work or services in a capacity or an enterprise covered by the Act, he may recover benefits; but if injured while performing work or services in a capacity or an enterprise excluded from coverage, he may not recover. Denny v. Dept. of Labor & Industries, etc., 172 Wash. 631, 21 P.2d 275, at 278 (1933); Maeda v. Dept. of Labor & Industries, 192 Wash. 87, 72 P.2d 1034, at 1035 (1937). See also 172 A.L.R. 382.”

On the day of his death Thomas did not go to the Cal-Tex plant and, therefore, did not report for work or perform any work for Cal-Tex. The evidence establishes that just prior to his death Thomas was apparently either preparing his breakfast or cleaning the swimming pool.

We agree that the definition given by the trial court in connection with issue 3 was a correct one, 13 Words and Phrases 419, 420; 27B C.J.S. Domestic pp. 979, 980. We believe that the record conclusively shows that Thomas, at the time of his death, was engaged in one of two activities: he was acting as a domestic servant, or he was attending to purely personal matters. In view of our disposition of this appeal, we believe the answer of the jury to issue 3 was not controlling.

By point three appellant says that there was no evidence that Thomas drowned in the course of his employment, and point four says there was insufficient evidence to sustain the finding of the jury in issue 2 that Thomas drowned in the course of his employment with Cal-Tex. By point five appellant says there was no evidence that Thomas at the time of his death was acting as an employee of Cal-Tex within the meaning of the term “employee” as defined by Art. 8309, Sec. 1, V.A.C.S.; point six says there was insufficient evidence to support the jury’s answer to issue 1 that Thomas was acting as an employee of Cal-Tex at the time of his death.

Art. 8309, Sec. 1, V.A.C.S., provides in part:

“ ‘Employee’ shall mean every person in the service of another under any contract of hire . . . except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer . . . .”

Issue 1 asked the jury whether Thomas was an employee of Cal-Tex, and the answer was that he was an employee. It was undisputed that Thomas was under a contract of hire with Cal-Tex, but whether he was an employee entitled to Workmen’s Compensation at the time of his death would depend upon whether he was engaged in some activity in the usual course of the business of Cal-Tex. The record does not reveal that Thomas was performing any duty, doing any work or furthering the business of Cal-Tex at the time he died.

This court in Commercial Standard Fire and Marine Ins. Co. v. Hood, 474 S.W.2d 522, 525 (Tex.Civ.App.1971, writ ref’d n. r. e.), said:

“Having determined as a matter of law that there was dual employment, the only question left for determination is in what capacity was the appellee working when he suffered his fatal injury. As stated above, the jury found that at the time of the fatal accident Hood was engaged as a farm laborer. This finding of the jury is unchallenged. This court is bound by this finding. It was established conclusively by the evidence, and the jury so found, that at the time of Hood’s death he was engaged in that capacity (farm laborer) not covered by Article 8306, V.T.C.S. Therefore, appellees are not entitled to recover compensation benefits.”

If it could be said in the instant case that Thomas was working as an employee at the time of his death the nature of his work was that of a domestic servant which was not covered by Art. 8306.

The case of Torres v. Industrial Commission, 10 Ariz.App. 210, 457 P.2d 750, 752 (1969), had almost an identical fact situation as in the instant case. Miss Torres was a resident in the home of Mr. and Mrs. Singer in Phoenix; she had certain assigned household duties, and she was expected to be at the home five and one-half days each week. The Singers had a swimming pool at their residence, and had a rule that no one swam alone in the pool. Miss Torres could not swim. The Singers owned a business called the Murray Auto Radio Center. Miss Torres also worked at the Center doing basically janitorial work, but she had some clerical duties. She worked at the Center one or two days a week and sometimes three days and she was paid for these days. She was not paid for her domestic work, but was furnished her room and board as compensation. While the Singer family was away from home her body was discovered in the swimming pool. The court held that there was a dual relationship and that,

“If she was a domestic servant, she was not covered by the workmen’s compensation insurance. If she was not a domestic, then she was not ‘employed’ in relation to her status at the Singer home and would not have met her death in the course and scope of her employment. We have no difficulty in recognizing a dual status situation wherein the relationship between a person who performs acts for the benefit of another may at times be an industrially insured employee and may at times be a person who comes within the exclusion of A.R.S. § 23-902, subsec. A or occupies a status of not being an employee.”

We hold there is no evidence to support the jury’s finding in issue 2 that Thomas was in the course of his employment with Cal-Tex at the time of his death. We do not reach appellant’s point four on the insufficiency of the evidence to support the jury’s answer to issue 2, but had we reached it, we would hold the evidence to be insufficient.

In our view of the record it is conclusive that Thomas at the time of his death was not an employee of Cal-Tex within the meaning of Art. 8309, Sec. 1, V.A.C.S. He was employed by Cal-Tex to work on a regular basis, but on the occasion of his death he was not “in the usual course of the . business ... of his employer.”

Appellant’s point three is sustained. We do not reach points four, five and six.

Appellee presents a cross-point that the .trial court committed error in excluding certain testimony of Adam Thomas, brother of deceased. In the excluded testimony Adam Thomas testified that he visited his brother at the Cal-Tex plant, that the deceased was there sometimes on Mondays and Fridays, and that “Amos was on straight time. He worked all kind of hours there — he didn’t have no certain hours to work.” In our view there was no error, but if there was error in excluding this evidence, it was harmless. Rule 434, T.R.C.P.

The judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing.

      . “SPECIAL ISSUE NO. 1
      “Do you find from a preponderance of the evidence that at the time of such drowning, Amos Thomas was an employee of Cal-Tex Citrus, Inc.?
      “ ‘Employee’ means a person in the service of another under a contract of hire, express or implied, oral or written, whereby the employer has the right to direct the means or details of the work and not merely the result to be accomplished.
      “Answer ‘We do’ or ‘We do not’.
      “Answer ‘We do.’
      “If you have answered Special Issue No. 1 ‘We do,’ and only in that event, then answer:
      “SPECIAL ISSUE NO. 2
      “Do you find from a preponderance of the evidence that he drowned in the course of his employment by Cal-Tex Citrus Juice, Inc.?
      "A drowning is in the course of employment if it is produced or precipitated by an employee’s work or the conditions of his employment. Otherwise a drowning is not in the course of employment, even if it occurs on the job.
      “Answer ‘We do’ or 'We do not.’
      “Answer ‘We do.’
      “SPECIAL ISSUE NO. 3
      “Do you find from a preponderance of the evidence that at the time of such drowning Amos Thomas was a domestic servant of Mr. and Mrs. Gordon Van Liew?
      “Answer ‘We do’ or ‘We do not.’
      “Answer: ‘We do not.’
      “Domestic Servant as used in this charge means a person who primarily is employed in or about the maintenance of a home itself. Such a person is a household servant working in or about the house for the upkeep thereof, and the care, comfort and convenience of the occupants thereof.”


author: MASSEY, Chief Justice.

text:
    Eva Marie HAMMAN et vir., Appellants, v. Gladys A. RITCHIE, Appellee.
    No. 17796.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 11, 1977.
    Rehearing Denied March 18, 1977.

      Law, Snakard, Brown & Gambill, and Robert M. Randolph, Jack Ray, Roy Hud-speth, Fort Worth, John R. Lindsey, Jacks-boro, for appellants.
    Sewell & Forbis, and James E. Forbis, Decatur, James M. Spiller, Jacksboro, for appellee.
   OPINION

MASSEY, Chief Justice.

On the appeal the Court is presented with an example of how not to provide a deferred bequest by will, how not to provide by will for property devise in trust, and how not to administer a trust estate.

Involved is tragic litigation between family members in which probability is that all will lose, coupled with possibility of resultant participation in the loss by the children/grandchildren. Certainly these could not profit. Nevertheless, the decision of this Court upon the rights of parties litigant may not thereby be influenced. The parties must be treated as estranged by blood as is the situation otherwise. Occasion for the remark is because there must be retrial in part of the issues arisen in the case.

Eva Hamman, presently the wife of Blake Hamman, is the daughter of Gladys A. Ritchie by her former husband William R. Johnson, deceased. With occasional exceptions these parties will be hereinafter referred to by their first names. Often to be implied is that when Eva is referred to in the singular her husband Blake Hamman is included.

The appeal is by Eva and her husband from the take-nothing judgment rendered against them upon their suit against Gladys, and from the judgment for damages, actual and exemplary, awarded Gladys upon her cross-action.

Judgment is in part affirmed, in part reformed and affirmed, in part reversed and renderd, and in part reversed and remanded for retrial.

The part of the judgment which construes the will is affirmed; the part of the judgment which awards partition of the real estate is reformed so as to provide the deletion of one parcel, among many, which by the trial court was held burdened by a life estate and the same orderd to be partitioned without such burden and that there was not incumbrance upon Eva’s estate, and as so reformed, affirmed; the part of the judgment which awards damages to Gladys upon her cross-action is reversed and here rendered in favor of Eva and her husband; and in all other aspects, the judgment is reversed and remanded to the trial court.

By her suit Eva sought relief as follows:

(a)Declaratory relief in construction of the provisions of the will of William R. Johnson, dated October 9,1949, and to have defined the interest of Eva in the estate thereby created for her in trust, coupled with plea that there be cancellation of the trust and an award made to her of that part of her estate not already been delivered;

(b) Decree which would award to Eva and impose upon Gladys the duty to make an accounting of Eva’s testamentary trust, inclusive of trust property to which Gladys held the life estate, with accounting for trust profits on the portion thereof to which Gladys' did not have the life estate;

(c) Decree which would award Eva and impose upon Gladys the duty to make an accounting upon that property constituting Eva’s remainderman’s interest in property devised by the Johnson will, in substance constituting William R. Johnson’s community interest in a herd of valuable cattle (in which he owned an undivided 50% community interest with Gladys owning the other 50% community interest), and for cancellation of Gladys’s life estate by reason of her abuse of the property and having committed waste;

(d) Decree which would award to Eva her damages against Gladys because of Gladys’ waste of Eva’s estate in trust, as applied to realty, during the period of its administration by Gladys as trustee; — and

(e) Decree which would settle title and right of possession of accounts containing funds representing commingled income from Eva’s trust estate with Gladys’ individual funds accumulated from income, for an accounting upon the whole as Eva’s trust property, and for judgments in rem and/or in personam, with constructive trust impressed upon existent in rem property.

Relief sought by the cross-action of Gladys, erroneously awarded her by the judgment, was for damages resultant from the intentional, conscious, malicious, and tortious action of Eva and her husband in refusing to join with Gladys in the leasing of property in which Eva and Gladys stood in relation of tenants in common. By reason of the fact that there was refusal to join with Gladys in accomplishment of a lease to a third party there was undoubted failure to obtain profits for the benefit of both Eva and Gladys.

Not involved in the issues tried, save for Eva’s plea for accounting upon profits, were 330 acres of land conceded to have been the separate property of William R. Johnson, and pursuant to provisions of his will, constituting property already delivered to Eva.

With the exception of jury findings indicating 80 acres to have been separate property of William R. Johnson given Eva by his will, as to which there was disregard of findings by the court upon motion, the judgment was founded upon the verdict returned by the jury. Essentially, the findings upon special issues reflected the following:

1. Not all the land claimed by Eva to have constituted the separate property of her father at time of his death was the separate property of her father;

2. At least one of the parcels of land claimed by Eva to have been her father’s separate property actually was such (this was a finding disregarded by the court);

3. 80 acres out of G. W. Davis Survey A-179, conveyed by deed dated April 1, 1929, was the separate property of Eva’s testator father (this was a finding disregarded by the court);

4. Eva did not suffer economic loss as the result of Gladys having dealt with herself (in violation of duty because she was trustee) in respect to the trust estate of Eva;

5. None was amount of damages to Eva as result of Gladys having dealt with herself in respect to her trust estate;

6. Gladys did not mix her own funds with those of Eva which Gladys obtained in trust for Eva;

7. Eva entitled to “none” as the dollar value of her loss of use of the Johnson Polled Hereford cattle herd in the future;

8. “Undermined (sic) by evidence” was jury answer to monetary amount, if any, Gladys earned as a profit from her operation of the Johnson Polled Hereford Ranch during term in which she held it in trust for Eva;

9. Gladys did not commit waste with respect to property in which she had received life estate interest by the will of her former husband, William R. Johnson;

10. During the term of the trust relative to Eva’s land the reasonable rental value of the surface was $1.50 per acre per year;

11. As distribution of income from the trust, during its term, Eva received an amount sufficient to compensate her for the reasonable rental value of the surface of her land (Special Issue 12 not answered because conditionally submitted);

13. Gladys acted honestly and reasonably in the administration of Eva’s trust estate;

14, 15, 16, and 17. $1.00 actual and $1.00 exemplary damages was Gladys’ entitlement as amount lost by the arbitrary and unreasonable refusal of Eva and her husband to execute or ratify mineral leases arranged to be secured by Gladys upon lands in which Eva and Gladys were joint owners of the mineral interest.

The Judgment

On motion of Gladys the jury findings by Special Issues 2 and 3 (that 80 acres was separate property of William R. Johnson) were disregarded. The contrary of the finding that the 80 acres was’ separate property of' William R. Johnson was indisputably factually established. In view of Eva’s failure to obtain a favorable finding as applied to any other land the jury verdict foreclosed any right of Eva as to any other land parcel. By a part of the judgment it was settled that title to all of the realty litigated was originally the community property of William R. Johnson and his wife Gladys and later realty as applied to which Eva and Gladys were cotenants.

The judgment provided as follows:

(a) that Eva and her husband take nothing by their suit;

(b) that by her cross-action Gladys recover $2.00 as damages, actual and exemplary;

(c) by declaratory judgment provisions found:

1. Eva and Gladys were joint-owners of designated property (reference to Exhibit B made a part of the judgment), with each of them owning a one-half undivided interest therein, — and with Eva’s right subject to the life estate interest therein of Gladys,— that the property was subject to partition in kind (possessory rights of Gladys preserved for her lifetime);

2. Eva and Gladys were joint owners of certain designated property (reference to Exhibit A made a part of the judgment), with each of them owning a one-half undivided interest therein, — that the property was subject to partition in kind;

(d) the partitioning of all realty jointly owned with in rem decree upon title relative thereto, — with those properties of Eva to which Gladys held life estate designated and with those properties of Eva not thus burdened designated.

The Points of Error

Eva and her husband have presented eighty-six points of error, which by their brief have been grouped for discussion, viz:

1. Gladys’ failure, as trustee, to maintain records and to account; Gladys’ self-dealing; Gladys’ commingling of Eva’s trust funds with her own funds, and, as commingled funds, that such constructive trust should be impressed, with an equitable lien awarded upon the whole as Eva’s trust property and estate, with an accounting required by Gladys; the trial court’s erroneous exclusion of evidence upon facts and circumstances of Gladys’ administration of Eva’s trust estate.

2. The entitlement of Eva to 1,807.69 acres, with judgment award of only 1,068.84 acres, — consideration given the William R. Johnson will creating the trust estate; the separate property of William R. Johnson not involved with the community estate; the widow’s election of Gladys with consequent waiver of her right to claim any part of the property; Gladys’ practical construction of the trust as covering properties in which she had no interest as cotenant; the errors relative to “the 80 acres” and to the “119.7 acres”.

3. The court’s denial of an accounting relative to the proceeds of Gladys’ life estate in the herd of breeding cattle which she had sold, and the court’s refusal to impose an equitable lien securing Eva’s interest upon the proceeds from the sale of the same by Gladys which had converted in form into stocks, bonds, certificates of deposit, etc.

4. The error in the award of judgment for damages to Gladys because of the failure or refusal to Eva and her husband to join in the execution of mineral leases upon lands held in cotenancy with Gladys.

Will of William R. Johnson

The material provisions of the will by which there was disposition of testator’s property provided substantially as follows:

III.

I devise and bequeath to my beloved wife, Gladys A. Johnson, in trust for my beloved daughter, Eva Marie Johnson, my interest in the—

(1) J. H. Jones Tract, comprising 456.48 acres out of the Earl Pearce Survey, and 427.60 acres out of the James P. Kemp Survey, in Jack County, Texas,

(2) The P. S. Jones Tract being 100 acres out of the James P. Kemp Survey, and

(3) The Jones Boys Tract, comprising 80.3 acres out of the J. W. Simpson Survey and 119.7 acres out of the North J. P. Kemp Survey, and

(4) The Gomer Owens Estate land, being 194.61 acres,

(5) 240 acres in Abstract 179, Grantee G. W. Davis and

(6) 189 in Abstract 455, Grantee John O’Neal _ _ _ all of said lands being located in Jack County, Texas.

The said trustee in the management, administration and disposition of the said properties shall have all of the powers given to trustees of express trusts under the Texas Trust Act.

The trustee shall pay to or for the benefit of Eva Marie Johnson such part of the net income of the said trust properties as the trustee in her exclusive discretion shall deem necessary or advisable in order to maintain and educate the said Eva Marie Johnson until the said Eva Marie Johnson becomes twenty-five (25) years of age and thereafter the said trustee shall pay to or for Eva Marie Johnson all of the net income of said trust until the said Eva Marie Johnson becomes thirty years of age at which time the trustee shall convey free of this trust to Eva Marie Johnson one-third (Vs) of the trust estate.

Thereafter all of the net income of the trust shall be delivered to the said Eva Marie Johnson during the continuation of the trust, provided, however, that in the trustee’s discretion an additional one-half (V2) of the remaining assets of the trust may be deeded and conveyed free of trust to the said Eva Marie Johnson on her thirty-fifth (35) birthday.

This trust shall terminate when Eva Marie Johnson reaches the age of forty (40) years at which time all of the trust properties shall be conveyed and delivered to her free of the trust.

IV.

I devise and bequeath an undivided one-half (⅛) interest in all the separate real estate which I may own at my death, excluding, however, the properties herein-above devised by me which are my separate properties, to my beloved wife, Gladys A. Johnson.

V.

I devise and bequeath all of the rest and residue of my property to my beloved wife, Gladys A. Johnson, for her lifetime, and at her death all of such property shall go to my daughter, Eva Marie Johnson .

OPINION

As applied to the parcels of realty specified the will is not ambiguous merely because some of the parcels were separate property of the testator and some land in which his was the community interest of 50% (Gladys owned the remaining 50% interest). Absent agreement, and by reason of the parties’ dispute upon whether certain parcels were separate, there would be a necessity to investigate and determine which of the parcels in dispute were separate in order to apply the law after the necessary identification had been made. This would not constitute ambiguity in the will itself. Clearly the testator was giving to Eva whatever interest he had in the lands specified, and for purposes of testing the will it would be the full fee interest where the land parcel specified was found to be his separate property, and it would be his 50% undivided interest as applied to any land parcel in which his ownership was coupled with the community interest of Gladys.

Such determination was correctly made. Judgment in respect to title to the realty was erroneous in that a 119.7 acre land parcel was declared to be land in which Eva’s one-half undivided interest was burdened with a life estate interest of Gladys. The fact of that error has been conceded by Gladys on submission of the appeal. The error is possible to be cured by a reformation of the trial court’s judgment, and by our own judgment this will be accomplished.

Determined and identified as well was the “rest and residue” of the testator’s real property in which Gladys was given the life estate and Eva the remainderman’s interest. In the state of the record made below this was in substance the herd of cattle which William R. Johnson owned in community with Gladys at time of his death.

Undisputed by the evidence is the identification by which the litigation in this case would be controlled. It was testator’s undivided 50% interest in the herd which was devised to Eva subject to Gladys’ life estate interest. There was other personal property, but with this we are not concerned for there was no issue made as applied to it in the trial court. There was no ambiguity in the William R. Johnson will as applied to the cattle herd. There was no “widow’s election” to take under the will which in any way waived Gladys’ right to retain any property already owned.

Permitted in evidence upon the first trial was some testimony concerning occurrences in the past which could have at one time given rise to litigious issues. As of time of trial below the passage of so many years had rendered impossible the litigation which “once might have been”. By way of brief explanation: a few years after the death of William R. Johnson, Gladys remarried; the will (in a portion not copied) provided that Gladys’ life estate in all of William R. Johnson’s property not provided to be Eva’s trust estate, including the herd of cattle and residual community interest in realty and personalty, should terminate if and in the event of Gladys’ remarriage; Gladys did remarry; prior to her remarriage it became Gladys’ desire that her life estate interest should not terminate but should persist despite her remarriage for her entire life; a suit was filed, in which Eva was made a party defendant, which in part had as its objective to provide that Gladys’ life estate should continue in the event of her remarriage; on November 17, 1950, time of the judgment in that ease, Eva was of age and was a party thereto whose interests obviously would be adversely affected in the event of Gladys’ remarriage — even prior thereto Eva had been in court and had her disabilities of minority removed; as a result of and because of the judgment, Gladys did and does still continue to possess the life estate in the property, with Eva’s possessory rights as remainder-man deferred so long as Gladys shall live.

Ultimately, and after Gladys’ remarriage, the deferment of her right to possession of her estate came to be resented by Eva. The institution of the instant litigation was a culmination. However, none of the foregoing could be of importance to the issues of the instant case. There was not, nor could there have been, relitigation by bill of review upon the issues settled by the judgment of November 17, 1950. Gladys, as an individual, was a party to that case though she was not a party in her capacity as trustee for Eva’s estate. Gladys’ liability, if any, as an individual could not antedate November 17, 1950, though her liability, if any, as trustee would not be so limited. In other words, it would only be as applied to Gladys’ impropriety of action as trustee to the alleged injury of Eva’s trust estate, that evidence would be admissible upon any occurrence prior to November 17, 1950.

Although upon retrial the matter of Gladys’ misconduct in respect to committing waste to Eva’s estate interest in realty might be a question, it is not a problem on the instant appeal. On a waste question the measure of damages would be the difference in market value immediately before and after action as applied to any particular parcel of land upon which waste was alleged to have been committed. There was nothing proved on trial below relative to market value by which damages resultant from waste could be measured, either before or after any action (or non-action) on the part of Gladys. The same would be true as a principle of law applicable to damages to Eva’s remainderman interest in the herd of cattle. Of this there was no proof. It was not shown that at any time there was diminishment of the herd either in number of animals or value. By near undisputed evidence Gladys’ care of the cattle herd was exceptional. It grew in size and apparently there was increase in average value as applied to its individual members. It is obvious, however, that Gladys did not fully understand the legal consequences of ownership of the life estate interest in a herd of cattle where another was vested with a remainderman’s interest.

Roughly stated for purposes of accounting upon retrial, we believe that a proper treatment of the corpus of Eva’s remainderman’s interest in the “herd” of cattle would be to take the number of cattle and their value, at 100% (with calculation of Eva’s 50% interest to be at any stage determined by appropriate division) and to determine the average value per animal at time of creation of Eva’s interest. By the inventory of the estate of William R. Johnson shown in the evidence, 558 animals comprised the original herd, its total valuation being $99,571.00. Each (average) animal was shown to have the value of $169.33. Without evidence that there had been decrease below 558 animals in the herd until it was sold, there would be propriety in considering 558 to have ever been the size of the herd for any necessary purpose of determining the value of “Eva’s herd” at any subsequent time. It would only be necessary to obtain expert (or owner’s) appraisal of an “oversized” (i.e., more than 558 animals) herd 'value at any particular time, divide it by number of animals, and the value of each animal (by average) thereby determined. By multiplying the value of the average animal by 558 one would know the value of “Eva’s herd”, in any necessary determination of her remainderman’s interest.

From Eva’s standpoint the “herd” would ever have been 558 animals, or 558 multiplied by the value of each (average) animal to determine the total herd value. Eva, or someone for her, could at any time determine the value of her interest if and in the event there should then be a termination of Gladys’ life estate. Of course, Eva’s interest was 50%, meaning that such should enter into any calculation of her remainder-man’s interest.

The foregoing is somewhat simplified, and is able to be thus stated because it appears that there was never any fewer animals in the herd than 558. There would be qualification of the statement if calves and their value be calculated as a different classification from mother cows, and if bulls and their value should be calculated as a different classification from cows, or heifers, etc. This would be a matter for the consideration of the court upon retrial, and perhaps matter to be taken into consideration in the accounting. There should be direction and control by the court in the accounting prior to retrial, and a provision for alternatives in procedure if value of calves, cows, bulls, etc., should be treated as in different property classifications.

Prior to the time Eva’s suit was filed there had been a sale of the herd; a conversion of the form of the corpus of Eva’s remainderman’s interest as applied thereto. This could not have affected Eva’s rights though it certainly entitled her to have Gladys make an accounting. Eva was never entitled to the herd increase or profits, if any, nor was she nor will she, during Gladys’ lifetime, be entitled to the profits from the use of the corpus as converted into stocks, bonds, certificates of deposit, etc. Eva has ever been and will continue to be entitled to be informed relative to the state of the corpus. It was the privilege of Gladys to make the conversion in form, reinvest the proceeds from sale, etc., because she was rightfully the possessor of the life estate. Wagnon v. Wagnon, 16 S.W.2d 366, 370 (Tex.Civ.App.-Austin 1929, writ ref’d).

As an observation we remark that unless the evidence on retrial differs materially from that on original trial there would not be justification for imposition of lien on the stocks, bonds, certificates of deposit, etc., in which Eva possesses the remainderman’s estate. Gladys has obviously exercised business acumen in the preservation of the corpus of that estate and her possession does not constitute a threat of its destruction.

To be reversed and rendered is the portion of the trial court’s judgment which awarded damages to Gladys because of the malicious refusal of Eva and her husband to join her in the execution of oil and gas leases on property to which the parties stood in the relation of cotenants. The element of trust is not involved. It appears that there had been a termination of the trust before the refusal. The property involved was land in which the parties adversary had relation as cotenants. There is no duty in such a case for either cotenant to join with the other in leasing the property for oil and gas purposes.

An owner of land in cotenancy is not trustee for the others who may be his cotenants and there is no fiduciary obligation owed by any one of them to the others. Each acts for himself and, absent an additional reason as by contract, neither has the authority to act for the others. Should one produce oil and/or gas from the land without consent of the others the production would not constitute waste. Burnham v. Hardy Oil Co., 147 S.W. 330, 335 (Tex.Civ.App.-San Antonio 1912), aff’d 108 Tex. 555, 195 S.W. 1139 (1917); 2 Williams & Meyers, Oil & Gas Law (1975), Ch. 5, “Concurrent and Successive Interests”, § 502, “Right of Concurrent Owner to Sever Oil and Gas”; 3A Summers, The Law of Oil & Gas (1968), § 609.1, “Concurrent Ownership of Mineral and Royalty Interests in Oil and Gas.” That being the right of a cotenant he may by lease of his right in the land to another transfer the same for the purpose. Where this is done and production of oil and/or gas is obtained, the other cotenants are privileged to either recognize and adopt the lease as of their interest as well, so as to be entitled to their fractional interest in the royalty, or to reject it and be entitled to their fractional part of oil and/or gas produced, less a proportionate part of the cost of discovery and production. Cox v. Davison, 397 S.W.2d 200 (Tex.1965); 5 A.L.R.2d 1368, Annotation: “Basis of computation of cotenant’s accountability for minerals and timber removed from the property”.

The remainder of the case has in’ part a relation to the alleged intermingling of Eva’s trust funds with the funds of Gladys (at least in part comprised of Gladys’ profits from her personal interest in profits from her own estate). The trust funds of Eva which were commingled were, in principal part, those to which she was entitled as profits from her estate. Eva claims that as a consequence she is entitled to have the whole of the accounts where this occurred impressed with a constructive trust for her benefit.

Also involved is Eva’s demand for Gladys to account for earnings from her trust estate which Gladys had not delivered, including amounts actually received from third persons for use of the surface of land owned by her in the entirety, and for compensation because of Gladys’ use of her interest in the surface of land owned in joint-tenancy. Eva claims entitlement to Gladys’ entire profits as compensation where the use was by Gladys for her own purposes at times when Gladys acted as trustee; averment being that such is the proper measure of the beneficiary’s entitlement when there is unauthorized use of trust property for the trustee’s individual profit. Her claim includes the profits, during trusteeship, of Gladys’ use of the 330 acres of land which had been the admitted separate property .of her father, though the title to such property is not an issue in the case.

Concerning the foregoing we could write so as to unduly lengthen the opinion. We deem it obvious that in may respects there was error in the trial and judgment rendered below in the denial of the accounting demanded by Eva. Since she did not obtain it and it was denied her by the judgment she is entitled to have this aspect of her case reversed, with remand for another trial. The accounting will necessarily embrace available (at least to some extent) amounts in money “claimed” as intermingled funds, “claimed” as withheld and not delivered, “claimed” to have been earned as profits by Gladys’ use of Eva’s land while she was trustee, etc.

We have concluded that the preferable method to proceed would be to speak of the law to be applied by the trial court upon retrial.

There will, of course, be issues to be tried by a jury if such is demanded. Preliminary thereto, however, the circumstances would appear such as to make necessary the appointment of a Master in Chancery. Necessary to be enlisted will be the aid of an accountant under his direction. Obviously several hearings must be conducted by the Master in Chancery, by discoveries obvious to be made during the piecemeal auditing which will be essential and for the Master’s guidance of further audit procedures.

In the accounting aspect there will obvi-. ously be too great complexity for jury trial. With alternative methods of calculation perhaps to be directed by the court in anticipation of issues to be tried by jury in determination of that proper calculation to be applied in the judgment determination, the court can resolve all issues upon accounting without the aid of a jury. 1 Tex.Jur.2d p. 351, et seq., “Accounts and Accounting”, § 104, et seq., relative to “Suit for Accounting”.

Perhaps the attorneys for the parties would be able and willing to narrow the scope of investigation upon prehearing that there might be a reduction in the amount of the Master’s labor, and consequent reduction of the time to be required by him before the proper jury issues could be delineated to be tried to a jury.

It is the demand of Eva and her husband that there be the accounting, whereby the proper order of the court would be for the payment or provision for payment in advance, with credit for such made to the costs to be ultimately taxed at time of the final judgment.

October 25, 1954 Eva attained the age of 25 years and this was the date after which, by the William R. Johnson will, she should have received all of the net income (from the leases, etc.) of the trust land received from third parties, and, unless there was consent by her as well as her trustee that Gladys (as an individual) use her land, recovery from Gladys of her profits, if any. Necessary accounting procedures will immediately become laborious in the attendant investigation of a Master in Chancery.

Observable is that matter is involved in this case where plea or pleas of limitation might be filed upon occasion of retrial. None was filed pursuant to the prior trial. The trial court should insist that if Gladys intends to file any plea or pleas of limitation it be attended at an early stage that wherever possible the questions to thereby arise might be resolved, perhaps in advance of labors by the Master and accountant. Of course, one is not required to plead limitation and many have moral or religious scruples against so doing. Gladys did not present such a plea upon the occasion of the first trial.

We take occasion to remark the necessary accounting complication in a discussion. October 25, 1959 Eva attained the age of 30 years. By the will of William R. Johnson Eva was at this time to be delivered one-third of the trust estate. Beginning this date and for the succeeding ten year period Eva herself, not the trustee, had the obligation to attend the collection of one-third the income from her trust estate, with the trustee continuing under burden of the trust obligation to collect the other two-thirds for her and deliver it over. As applied to her land the one-third interest would be a percentage of Eva’s one-half interest or whole interest, as the case might be. As applied to land parcels in which Eva would be presented as cotenant with Gladys as an individual Gladys would be privileged to use a percentage of Eva’s land without accountability, though where it continued to constitute Eva’s trust estate Gladys would be accountable as trustee; and, where used “against the trust” and in violation of a trustee’s fiduciary duty Gladys would, as an individual, be obligated to Eva, as the trust beneficiary, for profits. Observable as applied to the will provision, is that there will be a difficulty for the accountant, one considerably increased above that involved before Eva reached age 30.

October 25, 1964 Eva attained the age of 35 years. At Gladys’ option by the William R. Johnson will she was privileged, but not required to deliver over to Eva one-half (½) of the two-thirds of the remaining assets of the trust (meaning one-half (½) of two-thirds of the trust lands) plus income to the trust from third-persons held by her as trustee and not delivered to Eva when she became 25 years of age on October 25, 1959, if any not theretofore delivered. Gladys had the option. Unclear on the original trial is whether she did or did not exercise the option. The matter should be settled upon retrial, with determination of the portions conceded to have been delivered, and with the portions as applied to which there is controversy established. Thereby would be supplied some guidance for the Master in Chancery and accountant. Complication of the labors of the accountant is obvious by Eva having become 35 years of age.

October 25, 1969 Eva attained the age of 40 years and by the William R. Johnson will she was entitled to have delivered the remainder of her trust estate in the realty so that her title and possession would be completely vested; and she was entitled to have delivered to her all of the accumulated and undelivered income from the rentals theretofore received by Gladys for property use by third persons (at least as accumulated from the two-thirds undivided interest directed to be delivered on October 25, 1959 when Eva became 30 years old — presumed to have been received by Gladys for delivery to her as income), or, perhaps, dependent upon whether there was exercise of the option by Gladys on or after October 25, 1964 (when Eva was 35). At age 40 Eva was entitled to have delivered to her all of the accumulated and undelivered income from the rentals, etc., on the realty, at least as accumulated from the lands exclusive of the additional one-half (½) of the two-thirds, in addition to the one-third (Vs) delivered on October 25,1959 when she was 30 years old.

Unless issues are narrowed for purposes of retrial it is conceivable, even with availability of the essential accounting and report of the Master in Chancery, that the questions for jury consideration might include:

(a) Question of the value of the herd of cattle in which Eva owned the remainder-man’s estate together with issues upon the value of its corpus as of the time of the conversion in form of the herd.

(b) Questions upon Eva’s entitlement pursuant to her charge that there was commingling of her trust funds (income, etc.) in the accounts which also contained individual funds of Gladys. Should Eva discharge her burden of proof to show that there was commingling in any particular fund (and, perhaps its maximum amount while the funds were commingled) so that she would be entitled to go to the jury and, should she prevail become entitled to have an equitable lien upon the fund remaining, etc., to the extent of her interest. Restatement of the Law, Restitution, ch. 13, “Following Property”, § 211, “Effect of Withdrawals from Mingled Fund”.

As opposed to Eva’s entitlement, if any, Gladys, in the event she raised an issue thereon, could become entitled to go to the jury as to what, if anything, should be deleted in order that there might be established Eva’s correct total entitlement as applied to any particular commingled fund. Newland v. Newland, 529 S.W.2d 105 (Tex.Civ.App.-Fort Worth 1975, writ dism’d); Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493, 497-499 (1943). Note that Gladys’ guilt or innocence is of no consequence; nor would the question of whether Eva suffered economic loss be of any importance.

(c) Question upon whether in fact there was exercise of option of Gladys to deliver to Eva — at or after she was 35 years of age and before she was 40 years of age — any part of the two-thirds of the assets remaining after Eva became 30 years of age and, if so, what had been delivered and when delivery was made.

(d) Questions upon the profits obtained by Gladys in the event Eva should show that there was, — in any particular year and as applied to any particular parcel of real property in which she had the whole or a percentage interest at a time when Gladys was trustee for her interest therein, —a use of her beneficial interest by Gladys in violation of her responsibilities as trustee. Eva would be entitled to go to the jury on a restitution, theory should she make out a case upon Gladys’ violation of her duty as trustee to obtain profit, with the whole of such profit to be declared Eva’s in view of the trust violation. As opposed to Eva’s entitlement, if any, Gladys would be entitled to prove and have credit by way of set-off to the extent such profits were actually paid to Eva, if any; or, if there had been settlement of any part of such actual or potential dispute over Eva’s entitlement because of Gladys’ use at a time when there was full disclosure to Eva or knowledge on her part, a credit therefor by extinguishment of what had already been settled.

On possible jury questions dealt with in Section (d) of the preceding paragraph reference is made to circumstances where Gladys, as trustee, might owe Eva “profits”. Restatement of the Law, Restitution, ch. 13, “Following Property”, § 202, “Conscious Wrongdoer”. In Texas the trustee in such circumstances is treated as a wrongdoer whether he was or not, or in any event the profits are the entitlement of the trust benefactor. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945). Where the trustee has been found to have been guilty of self-dealing with trust funds the trustee’s liability as an individual is ascertained by the court as a matter of law. Langford v. Shamburger, 417 S.W.2d 438, 444, 446 (Tex.Civ.App.-Fort Worth 1967, writ ref’d n.r.e.). As applied to property in existence there might be appropriate in rem adjudication; as applied to that which has been removed so that it cannot be followed there may be appropriate in personam adjudication against the trustee.

That portion of the judgment which makes the construction of the William R. Johnson will is affirmed. That portion of the judgment which adjudicates title to real property in dispute is reformed so as to provide that the 119.7 acres of land in the J. P. Kemp Survey, A — 323, Jack County, Texas, more particularly described in deed dated November 14, 1939, recorded Vol. Ill, Page 492, Deed Records Jack County, Texas is land in which Eva Hamman owns an undivided 50% interest which is not in any way encumbered by any life estate in Gladys A. Ritchie and is not land Gladys A. Ritchie is entitled to retain and use for her lifetime; and as so reformed such portion of the judgment making the decree upon title and ordering its partition, as one of many land parcels to be partitioned, is affirmed. That portion of the judgment which awards damages to Gladys A. Ritchie against Eva Hamman and Blake Hamman is reversed, with judgment rendered that Gladys A. Ritchie take nothing by her suit in cross-action against Eva Hamman and Blake Hamman. Except for our action in the foregoing respects the judgment of the trial court is reversed and remanded for retrial.

Costs are taxed 50% against Eva Ham-man and Blake Hamman and 50% against Gladys A. Ritchie.

HUGHES, J., not participating.


author: SHANNON, Justice.

text:
    SECURITY SAVINGS AND LOAN ASSOCIATION OF DICKINSON, Texas, Appellant, v. W. Sale LEWIS, Savings And Loan Commissioner of Texas, et al., Appellees.
    No. 12483.
    Court of Civil Appeals of Texas, Austin.
    Feb. 16, 1977.
    Rehearing Denied March 16, 1977.

      Conrad P. Werkenthin, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Patrick P. Rogers, Asst. Atty. Gen., Austin, for W. Sale Lewis, Savings and Loan Commissioner.
    Lowell B. Hays, Baker & Heard, Charles L. Price, Kennerly & Price, Houston, for City Savings Ass’n.
   SHANNON, Justice.

Security Savings and Loan Association of Dickinson, has appealed from the judgment of the district court of Travis County sustaining the order of the Savings and Loan Commissioner of Texas granting a charter for City Savings Association to be located in League City. Appellant is Security Savings and Loan Association, and appellees are the proposed association, City Savings Association, and W. Sale Lewis, Savings and Loan Commissioner of Texas.

This is the second appearance of this case in this Court. In the previous appeal, this Court reversed the judgment of the district court and remanded the cause to the Commissioner for the reason that the statement of underlying facts in the Commissioner’s order was not in compliance with Tex.Rev. Civ.Stat.Ann. art. 852a, § 11.11(4) (1964). 515 S.W.2d 392 (Tex.Civ.App.1974, no writ).

After remand, and without receiving additional evidence the Commissioner entered an “amended” order on January 22, 1975. The amended order, as did the original order, approved the creation of City Savings Association. Appellant appealed from the Commissioner’s order to the district court of Travis County.

At trial the “hearing record and all exhibits” certified to by the Commissioner were received in evidence. In addition to the record certified by the Commissioner, City Savings Association offered in district court the following documents for admission into evidence:

(1) Instrument entitled “Application for Charter for a Savings and Loan Association” including certain attachments or exhibits thereto, to-wit:
(a) Letter ' from Capital National Bank to the Savings and Loan Commissioner dated October 27, 1972;
(b) List of stockholders;
(c) Instrument entitled “Statement of Proposed Managing Officer”;
(d) Instrument entitled “City Savings Association League City, Texas Projected Income and Expense”;
(e) Proposed loan instruments (note and deed of trust); and
(f) A brief summary of matters relevant to Section 2.08(2), (3) and (4) of the Texas Savings and Loan Act.
(2) Instrument entitled “Articles of Incorporation.”
(3) Instrument entitled “By-Laws of City Savings Association League City, Texas.”

Document (l)(f) is attached to the application and is, in part, a summary of the background and experience of the directors of the proposed association. As might be expected, that summary presents an optimistic account of those persons.

Also contained in document (l)(f) is a statement of the evidence supporting the contention that there is a public need for the proposed association, the contention that the volume of business in the community is such as to indicate a profitable operation, and the contention that the proposed association will not unduly harm any existing association. That statement is set out below:

“(2) there is a public need for the proposed association and the volume of business in the community in which the proposed association will conduct its business is such as to indicate profitable operation.
“Today League City is growing at a rate of about 20% per year. There is only a branch office in League City. There is no way that this branch office can process loans without clearance from the home office. This branch office is in the same building with a bank. As you can see by the number of people that subscribe to shares in the proposed association, they also feel the need. We could at this time open with over one million and a half dollars in deposits. We find from the public that there is available within the next two years some five million in addition. We feel that this association will be ranked in the top ten associations in Harris and Galveston Counties within ten years. The Galveston County Council has predicated that this area, by the turn of the century alone, will have almost 700,000 people.
“Competition is needed badly now, as many builders have told us that they could not get competitive loans without coming to Houston. Competition is vitally needed for the public good. This business will be operated as a profitable operation in the first year, as shown by our budget figures. The public need is there. As one employee from another association told us, she has sent over seven and a half million dollars in loans to Houston this year alone. The money is there for the association, if competition can be created. The savings and loan institution, as such, has not been sold to this community, because of the ownership of the branch office and the bank being in one man’s hands.
“(3) the operation of the proposed association will not unduly harm any existing association.
“The operation of this association will not unduly harm the existing association branch because it is neither pushing for loans nor deposits. Many people in League City did not even know that that association exists and many people want to put their money where they can get the most interest. It will only add a new dimension for the many people that now have money on demand deposits rather than savings. There is no way that this association could harm the existing association. It could only help.”

It is undisputed that the above instruments were not introduced into evidence at the agency hearing and did not form a part of the record certified by the Commissioner.

Appellant objected to the offer in district court upon the basis that the instruments were not introduced into evidence at the Commissioner’s hearing and were not a part of the record certified by the Commissioner. Appellant objected further that the hearing officer had not officially noticed the contents of the instruments in the hearing and that the instruments were hearsay.

It was important for appellees to have the district court admit the instruments into evidence because some statements in those instruments were utilized in the Commissioner’s order as “underlying facts” in support of his order. The district court admitted the instruments into evidence for all purposes. In response to counsel’s inquiry in this regard, the court replied that the instruments were admitted for “. the facts stated therein.” (Emphasis added)

The admission of the instruments in evidence forms the basis for appellant’s initial point of error.

Judicial review of orders of the Savings and Loan Commissioner is controlled by Tex.Rev.Civ.Stat.Ann. art. 852a, § 11.12 (1964). Section 11.12(5)(b) provides in part that “. . .no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing.”

The evidence subject to judicial review is that certified by the Commissioner pursuant to § 11.12(4). Section 11.12(4) requires that after service of the petition upon the Commissioner, he shall “. . . certify to the District Court in which such petition is filed the record of the proceedings to which the petition refers.”

The above quoted provisions were construed by the Supreme Court in Gerst v. Nixon, 411 S.W.2d 350, 357 (Tex.1966). In that case Justice Norvell wrote:

“* * * The requirement that the Commissioner file a record of the proceedings had before him with the District Court clearly implies that such record is to be considered by the court. While the last phrase contained in Section 11.12, subsection (5)(b), could have been more artfully worded, it seems reasonably clear that when considered in connection with other portions of the Act, the purpose of the words, ‘no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing’, was to adopt the rule that the Commissioner’s order is to stand or fall upon the evidence adduced and matters noticed at the Commissioner’s hearing. It is from this record that the District Judge is to determine whether or not the Commissioner’s order is arbitrary, i.e., whether it is reasonably supported by substantial evidence.”

Since Gerst v. Nixon, supra, the uniform view has been that judicial review in cases involving applications for savings and loan charters has been limited to the Commissioner’s certified record. Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.1972), Lewis v. Guaranty Federal Savings and Loan Association, 483 S.W.2d 837 (Tex.Civ.App.1972, writ ref’d n.r.e.).

Appellees contend that the district court correctly admitted the instruments in evidence because the instruments were “. officially noticed in the record of such hearing” in compliance with § 11.12(5)(b). In support of their position, appellees rely upon Citizens of Texas Savings and Loan Association v. Lewis, 483 S.W.2d 359 (Tex.Civ.App.1972, writ ref’d n.r.e.). We will refer to Citizens later in this opinion.

In adopting appellees’ contention, the district court necessarily relied upon certain statements of the hearing officer concerning “notice,” the most formal of which was:

“Now, this concludes our introductory remarks, except to say that the Commissioner will take official and judicial knowledge of the fact that the application contains all of the prerequisites and that the protests are duly and timely filed, in connection with this particular hearing.”

We have concluded that the district court erred in admitting the instruments. The reasons for our conclusions follow. It is basic that a charter application hearing before the Savings and Loan Commissioner is an adversary proceeding. The application for a savings and loan association charter along with the accompanying documents constitutes the administrative pleading of the charter applicant. Lewis v. Guaranty Federal Savings and Loan Association, supra. In a contested hearing the applicant has the burden of going forward and of proving by competent evidence its case for a charter. In such a hearing the application and supporting documents, without other proof, would not suffice to support an order granting the charter. Stated another way, the applicant in a contested hearing could not close without placing competent evidence in the record in support of every element necessary to obtain the charter. If the charter applicant needs to rely upon the application and the supporting documents for proof of facts, it is incumbent upon the applicant to tender those instruments into evidence at the agency hearing. As in an ordinary trial opposing counsel then would have an opportunity to object to the admission of those documents. By failing to offer the documents, the applicant waives the right to have the instruments considered, because until their introduction into evidence, the protestants have had no opportunity to cross-examine with regard to the materials contained in the documents.

In a contested hearing we doubt that the Commissioner could relieve the charter applicant of the burden of establishing its case by competent evidence by officially noticing the contents of the application and the accompanying documents. If that proposition were true, after the application and documents had been filed and noticed, the applicant could rest and the protestants then would have the burden of disproving the self-serving statements usually found in the instruments submitted with an application.

That issue is not in this appeal because the statement of the hearing officer did no more than notice that the application was in order and that the application and the supporting documents had been “duly and timely” filed. It is true that the Commissioner may officially notice in the record the filing of the application and attached documents. Citizens of Texas Savings and Loan Association v. Lewis, supra. Appel-lee, however, did not offer the materials in evidence in district court as proof of filing, but instead it offered, and the court admitted, the material as proof of the statement of facts contained therein. Notice by the hearing officer of the filing of the instruments is not proof of the statements contained therein. The district court erred in permitting the charter applicant to supply proof in district court to plug holes in the agency record.

Citizens of Texas Savings and Loan Association v. Lewis, supra, is not authority for the district court’s admission of the application and supporting instruments for the truth of the material contained therein. No application and supporting instruments were received as additional evidence by the district court in that case. The appellants in Citizens were complaining only of the fact that the Commissioner took official notice of the filing of the charter application. This the Commissioner had the right to do.

An examination of the “underlying facts” in the Commissioner’s amended order demonstrates that the district court’s error in admitting the application and supporting documents was not an academic one. Statements from the application and the supporting documents were utilized in that order as “underlying facts” in support of the Commissioner’s findings that the proposed association had complied with the requirements of § 2.02, § 2.03, § 2.04, § 2.05, and § 2.06 of the Savings and Loan Act. Those particular “underlying facts” are not to be found in the Commissioner’s record. The error complained of amounted to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.

The judgment is reversed and the cause is remanded to the Savings and Loan Commissioner of Texas for further proceedings consistent with this opinion.

Reversed and Remanded.


author: BARROW, Chief Justice.

text:
    Richard HOLT et al., Appellants, v. CITY OF SAN ANTONIO, Appellee.
    No. 15713.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 16, 1977.
    Rehearing Denied March 16, 1977.
    0. Brock Huffman, Charles E. Campion, San Antonio, for appellants.
    James Parker, City Atty., Crawford B. Reeder, Steven Arronge, Asst. City Attys., San Antonio, for appellee.
   BARROW, Chief Justice.

Nine owners of massage parlors and one masseuse, who are appellants herein, brought this suit against The City of San Antonio seeking a permanent injunction to restrain the City from enforcing an ordinance regulating the massage business. Appellants alleged that many sections of the ordinance were unconstitutional. The trial court entered a judgment after a non-jury trial which granted appellants injunc-tive relief in part and permanently enjoined City from enforcing nine enumerated sections of the ordinance, but denied all other relief.

Both parties complain of this judgment. Appellants assert that eleven other sections of the ordinance are unconstitutional and ask that City be enjoined from enforcing these sections. City asserts a cross-point wherein it urges that the trial court erred in granting an injunction because there was no showing that the ordinance was both unconstitutional and would cause irreparable damage to a vested property interest. City also asserts by a cross-point that the trial court erred in holding unconstitutional the educational requirements of an applicant for a masseur’s permit.

It is now settled law that equity will not enjoin enforcement of a criminal law unless the latter is unconstitutional, or otherwise void, and enforcement thereunder would result in irreparable injury to vested property rights. City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.1969); City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.1967); Mooney v. City of San Antonio, 386 S.W.2d 638 (Tex.Civ.App.—San Antonio 1965, writ ref’d). The rule was stated in the oft-cited case of State v. Logue, 376 S.W.2d 567 (Tex.1964), as follows:

The general rule is that equity will not enjoin enforcement of the criminal law. Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (1932); City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528 (1894). However, there is an exception to the effect that when the criminal statute is unconstitutional, or otherwise void, and enforcement thereunder involves an invasion of property rights which will result in an irreparable injury thereto, equity will intervene to protect those property rights by enjoining enforcement of such void law. Ex parte Sterling, supra; Crouch v. Craik, Tex., 369 S.W.2d 311 (1963). If either one of the requirements of equitable relief in' this type of situation — void law and irreparable injury to property rights — is lacking, the courts of equity have no jurisdiction to entertain such suit. Because of the dual system of courts in this State— civil and criminal — this court will not pass on constitutionality of a criminal statute unless the requirement of irreparable injury of property rights is involved.

It is settled law that under the explicit language of Rule 683, Tex.R.Civ.P., it is mandatory that the reasons for issuing an injunction be stated in the order. State v. Cook United, Inc., 464 S.W.2d 105 (Tex. 1971); Southwestern Bell Telephone Co. v. Gravitt, 522 S.W.2d 531 (Tex.Civ.App.—San Antonio 1975, no writ). The injunction granted here is fatally defective in that it does not contain a finding that the enforcement of the ordinance would result in irreparable injury to vested property rights of any of the appellants. This defect requires that the injunction be dissolved. It is therefore unnecessary to consider whether there is any evidence in the record of irreparable injury to appellants’ vested property rights.

We still must consider whether our judgment should be one of remand or rendition. The ordinance in question strictly regulates the massage business in San Antonio. Appellants urge that the basic purpose of the ordinance is not to establish rules for health and sanitation in massage parlors but to indirectly prevent prostitution. Irrespective of the purpose of the ordinance or its effect, similar ordinances enacted by other cities have withstood attacks as to their constitutionality.

A very similar ordinance passed by the City of Savannah, Georgia, has recently been upheld by the Fifth Circuit Court of Appeals. Tomlinson v. Mayor and Aldermen, etc., 543 F.2d 570 (1976). It was there held that the action of the Supreme Court of the United States in dismissing appeals from state court decisions upholding constitutionality of massage parlor ordinances for want of a substantial federal question foreclosed a reconsideration of identical constitutional challenges. See also Hogge v. Johnson, 526 F.2d 833 (4th Cir. 1975).

These decisions foreclose a favorable consideration of appellants’ constitutional challenge of the ordinance in question and nothing would be gained by a remand of the cause. We therefore conclude that’ our judgment should be one of rendition.

The order granting the injunction is reversed and it is hereby rendered that appellants take nothing by their suit.

      . The ordinance regulates the massage business by requiring permits to be obtained from the Chief of Police before a business can operate and also requires all masseurs to obtain a permit. These permits are issued only after detailed background information is furnished by applicants. The ordinance establishes certain building and sanitation regulations and sets hours of operation. It also requires that minimum educational standards be met before a masseur’s permit will be issued.

      . Smith v. Keator, 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974), dismissing for want of a substantial federal question, 285 N.C. 530, 206 S.E.2d 203; Rubenstein v. Cherry Hill, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1136 (1974), dismissing for want of a substantial federal question, No. 10,027 (N.J.Sup.Ct. Jan. 29, 1974); and Kisley v. City of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169 (1972), dismissing for want of a substantial federal question, 212 Va. 693, 187 S.E.2d 168 (1972).


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Julian RAMIREZ, Appellant, v. Josefina GARCIA de BRETADO, guardian of the persons and Estates of Pablo Valles and Oswaldo Valles, minors, Appellee.
    No. 6507.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 16, 1977.
    Santiesteban, Kennedy & Martin, Jose G. Juarez, El Paso, for appellant.
    Malcolm McGregor, Harry T. Petersen, El Paso, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This case involves the question of who should be the guardian of the person and estate of two minors, Pablo 'Valles and Os-waldo Valles, whose natural mother is deceased and whose natural father has been declared non compos mentis. The trial Court, sitting without a jury, declared the Appellee, Josefina Bretado, guardian, and the contestant, Julian Ramirez, appeals that order. We affirm the judgment of the trial Court.

Appellee is the maternal grandmother and Appellant is a paternal uncle. All parties agree that the trial Court has broad discretion in the selection of a guardian, and that discretion will not be disturbed except where it is shown that it has been abused. Cox v. Young, 405 S.W.2d 430 (Tex.Civ.App.—Eastland 1966, writ ref'd n. r. e.). In our determination of whether the trial Court has abused its discretion, we are bound to consider the record as a whole. Flores v. Riveria, 473 S.W.2d 613 (Tex.Civ.App.-Amarillo 1971, writ ref’d n. r. e.). The record is full and complete as to the qualifications of the two persons seeking to be guardian; it contains all of the matters which the Court would need to determine who would be the most suitable person, considering that the welfare of the children is paramount and controlling. Also, with the mother deceased and the father non compos mentis, the children are, for all practical purposes, orphans, and this brings into effect Sec. 109(b)(1) of the Texas Probate Code, which provides:

“(1) If the last surviving parent has appointed no guardian, the nearest ascendant in the direct line of such minor is entitled to guardianship of both the person and estate of such minor.”

As the maternal grandmother, Appellee thus qualifies over the Appellant, a paternal uncle. Under this provision of the Probate Code, there is a presumption that the Appellee is the best qualified person to be the guardian. Ramos v. Rodriguez, 304 S.W.2d 274 (Tex.Civ.App.-San Antonio 1957, writ ref’d). Appellant has not met the burden of overcoming that presumption.

Of great concern is the fact that the Appellee resides in Juarez, Mexico, beyond the jurisdiction of the Court, and will take the children to her home there. Appellant urges that this non-residency disqualifies the Appellee and that the Court erred in appointing her in the face of testimony from her that she would take the children to Mexico to live. Texas law does not prohibit the appointment of a non-resident of Texas as guardian. In re Frantz, 397 S.W.2d 125 (Tex.Civ.App.-Amarillo 1965, writ ref’d n. r. e.). Article 109 of the Probate Code lists “persons qualified” to be guardian, and Article 110 of the Code lists persons who are disqualified from being guardians. Neither articles speaks of residence as qualifying or disqualifying. Section 222 of the Probate Code says that the Court may remove a guardian if he removes himself from the State. As noted in the Frantz case, the use of the word “may” remove instead of “shall” remove makes the matter permissive with the Court and not mandatory. Here, the Court knew in advance that the guardian would be a non-resident, but, in the exercise of its discretion, appointed her. In this, we see no abuse of discretion. It would appear that the contacts the Appellee has and the benefits to be derived therefrom would cause her to be cooperative with the Court, for the children are to receive, or are receiving, VA benefits and are the beneficiaries of a pending lawsuit. In any event, the power to remove still remains with the Court in the event it becomes necessary or desirable in the future.

Section 110(f) of the Probate Code provides that those who are unable to read and write the English language are disqualified to serve as guardian. Appellant urges the application of this provision to the Ap-pellee. From the record, we do not know if Appellee can read or write the English language or not. The burden to prove this disqualification would be upon the Appellant. There are no findings of fact and conclusions of law. Presumably, the judge found against the Appellant on this point. In the absence of findings of fact and conclusions of law, it is the duty of an appellate Court to affirm the judgment if it can be sustained upon any reasonable theory supported by the evidence and authorized by law. In re Frantz, supra; Connor v. City of University Park, 142 S.W.2d 706 (Tex.Civ.App.—Dallas 1940, writ ref’d); E. L. Farmer & Company v. Burkett, 324 S.W.2d 890 (Tex.Civ.App.—Amarillo 1959, no writ). As regards any reasonable theory, the trial judge could have found that the Appellant did not meet his burden of proving that the Appellee could not read and write the English language.

All points or error have been considered and all are overruled. The judgment of the trial Court is affirmed.


text:
    Cora Jean CLAYTON, Appellant, v. Eva Pauline CLAYTON et al., Appellees.
    No. 6591.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.
    John H. Green, Odessa, for appellant.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., W. 0. Shafer, Odessa, for appel-lees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This appeal is from a final judgment in a consolidated cause of two bill of review proceedings in which the Plaintiff, Cora Jean Clayton, Appellant herein, complained of the adjudication and division of community property in two prior divorce proceedings which terminated two marriages between Appellant and William Mancel Clayton. The first divorce judgment was granted in 1966, and was followed by a remarriage and the second judgment of divorce in 1969. The bills of review were instituted after the death of William Mancel Clayton.

Following trial by jury, the jury reported in open court that they had answered unanimously some of the issues but could not agree on some of the other issues. The Court accepted the verdict and then granted Defendants’ motion for judgment. We affirm that judgment.

Of the issues answered favorably to the Defendants, there was one in each case of the two consolidated cases which was necessary for the Appellant as Plaintiff to prove to sustain her bill of review action. Having failed to sustain her burden of proof as to a necessary issue in each case, Appellant could not recover against the Ap-pellees, even if she had obtained favorable answers to every other issue. Thus, the answers made by the jury rendered all other issues immaterial. Foster v. Moorhead, 382 S.W.2d 280 (Tex.Civ.App.—Houston 1964, n. w. h.); Dickens County Electric Cooperative v. Ratliff, 458 S.W.2d 949 (Tex.Civ.App.—Amarillo 1970, n. w. h.); King v. Smith, 459 S.W.2d 202 (Tex.Civ.App.—Corpus Christi 1970, n. w. h.); and 4 McDonald, Texas Civil Practice Sec. 17.31 (1971),

There is yet another reason why the judgment of the trial Court must be affirmed. That judgment recites that the Court found that the Defendants’ motion for instructed verdict should have been granted. Thus, the Court not only found that the Appellees were entitled to judgment on the jury verdict, but also as a matter of law under the evidence in the case. There is no statement of facts in this case and, in the absence of a statement of facts, the verity of the judgment rendered by the trial Court must be presumed. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951), and Pruitt v. Morriss, 517 S.W.2d 654 (Tex.Civ.App.—Tyler 1974, n. w. h.).

The judgment of the trial Court is affirmed.