author: STEAKLEY, Justice. GREENHILL, Chief Justice,

text:
    FROST NATIONAL BANK OF SAN ANTONIO, Independent Executor and Trustee of the Estate of Louise M. Cozby, Deceased, Petitioner, v. Karolen NEWTON and Louise Purvis et al., Respondents.
    No. B-6453.
    Supreme Court of Texas.
    June 22, 1977.
    Rehearing Denied July 20, 1977.

      Joe Meador, James E. Aderhold, San Antonio, for petitioner.
    Barry Snell, Van G. Hilley, San Antonio, for respondents.
   STEAKLEY, Justice.

The Frost National Bank of San Antonio, Independent Executor of the will of Louise M. Cozby, deceased, and Trustee of the trust estate created in the will, brought this declaratory judgment suit to determine whether the trust estate created by Mrs. Cozby in her will should be terminated. The district court rendered a judgment terminating the trust, and the Court of Civil Appeals affirmed that judgment. See Frost National Bank of San Antonio v. Newton, 543 S.W.2d 196 (Tex.Civ.App.—Waco 1976). We reverse the judgments of the lower courts.

The will in question was drafted by Rex-ford Cozby, an attorney and the husband of the testatrix. Paragraph One appointed the Frost National Bank Independent Executor of the estate, Paragraph Two provided for certain specific bequests, and Paragraphs Three and Four provided for the creation and administration of the trust estate. Pertinent to the resolution of this case are the following provisions:

PARAGRAPH NUMBER THREE. TRUST ESTATE:
I hereby give, devise- and bequeath unto the FROST NATIONAL BANK OF SAN ANTONIO, AS TRUSTEE, in trust for the following beneficiaries and for the uses and purposes hereinafter set forth, all of my right, title and ownership in and to all of the residue and remainder of my property and estate, not otherwise here-inabove disposed of, all of which property will be hereinafter referred to as the “TRUST ESTATE”, and is to be held, managed, controlled and disposed of by said Bank as Trustee, as hereinafter provided.
The said Trust shall become effective as soon as my Independent Executor shall have completed the administration, or sooner if the said Bank as Executor or Trustee shall so elect, and shall continue in force and effect during the remainder of the lifetime of the last survivor of the following named three beneficiaries, viz: Rexford S. Cozby, Karolen Newton and Louise Purvis, and shall terminate upon the date of death of the last survivor of said three last named beneficiaries. Provided, however, that said Trustee shall have the right, at its option, to sooner terminate said Trust in the event the income from the trust property shall hereafter cease to be sufficient in amount to justify the further continuance of such Trust, in the opinion of the Trustee.
The said Frost National Bank of San Antonio shall not be required to give any bond as such Trustee, and shall act free from the control of any Court, and for the services as such Trustee and as such Independent Executor said Bank shall be entitled to receive and retain, out of the Trust funds, the usual and customary compensation charged by said Bank in like cases. .
During the entire existence of the term of said Trust, the said Trustee is directed to pay, out of said Trust funds, to or for the use and benefit of the following named respective beneficiaries the following periodical payments:
One-third (%) of the net income from said Trust Estate shall be by said Trustee paid to my husband, Rexford S. Cozby, during the remainder of his lifetime; and the remaining two-thirds (%) of said net income from said Trust Estate (plus such portions of the principal thereof as the Trustee may deem necessary) shall be applied to the payment of the expenses incident to: (a) — The support and education through high school and college of my great-nephew, Warren S. Wilkinson, Jr., so long as he may attend and continue in school or college during the term of said Trust; and (b) — The support and education through college of my great-niece, Susan Arnette, so long as she may attend and continue in college during the term of said Trust; and (c) — The support and education through college of my great-niece, Karolen (Lyn) Wilkinson, so long as she may attend and continue in college during the term of said Trust; and (d) — If, as and when any one or more of said three student beneficiaries shall, during the term of said Trust, obtain a college degree, he or she shall be paid by said Trustee the sum of $1,000.00 in cash out of the interest or principal of said two-thirds (%) of said total Trust Estate, as a graduation present.
The payments of net income which are to be so paid by the Trustee to or for the use and benefit of the respective beneficiaries above named shall be so paid in monthly installments, or in such other periodical installments as the Trustee may determine, and the respective proportionate amounts of the principal payments to be so paid to or for the benefit of my said great-nephew and great-nieces for educational purposes, out of the said two-thirds (%) of the total net income from the entire Trust Estate, shall be left to the discretion of and shall be determined by the Trustee according to the needs of each of said three student beneficiaries, and need not be in equal proportions. Such payments may be made direct to said student beneficiaries, regardless of their minority, or may be made to any other person or persons for any such beneficiary’s use and benefit.
If at any time during the term of said Trust the net income from said two-thirds (%) of said Trust Estate shall be insufficient to pay the expenses incident to a college education for said last named three beneficiaries, or any of them, then in such event the Trustee shall have the right to pay any excess amount needed for said purposes out of the principal of said two-thirds (%) share of said entire net Trust Estate; and in the event their said proportionate share of said net income shall be more than sufficient to pay for their college education as aforesaid, then any such excess amount thereof shall be by the Trustee, from time to time, paid in equal shares thereof to Louise Purvis and Karolen Newton at such times and in such installments as the Trustee may determine.
In the event of the death of my husband, Rexford S. Cozby, before the expiration of the term of said Trust, then his one-third (Vs) of the net income from the entire Trust Estate shall be thenceforth added to and become a part of the proportionate two-thirds (%) part of the net income from the Trust Estate which is hereinabove provided for the college education of my said great-nieces and great-nephew above named.
PARAGRAPH NUMBER FOUR.
Upon the final termination of said Trust Estate all of the property then comprising said Trust Estate, and all of the remainder and residue of my property and estate, if any, not hereinabove otherwise disposed of, I hereby give, devise and bequeath to the following named ultimate beneficiaries, in equal shares, an undivided one-half (V2) to each, viz: Ka-rolen Newton and Louise Purvis. If either one of said last named beneficiaries be not living at the time of the final termination of the Trust Estate above provided for, then the share of my estate which such deceased beneficiary would be otherwise entitled to receive if living, shall go to and vest in her then living children, in equal shares.

The will was executed on August 25, 1965. Mrs. Cozby died in December 1967, her husband having predeceased her. All other beneficiaries of the will survived Mrs. Cozby. The Bank administered the trust as provided in the will, making the specified payments to the student beneficiaries and disbursing the excess income to Louise Pur-vis and Karolen Newton, the nieces of the testatrix. Warren Wilkinson, Jr., the last of the beneficiaries to be entitled to the educational benefits provided for in the trust, graduated from college in 1971 and received the stipulated one thousand dollars as a graduation present.

In 1974 the Bank brought this declaratory judgment suit to determine whether the trust had terminated upon the completion of the payments to the student beneficiaries or whether the trust remained in effect until the death of the last to survive of Karolen Newton and Louise Purvis. Named as defendants in the suit were Karolen Newton, Louise Purvis, Warren S. Wilkinson, Jr., Susan Arnette, Karolen (Lyn) Wilkinson Dittmar, Doreen N. Levine, Howard P. Newton, L. Inez Newton, and Alibel M. Pardue. Warren Wilkinson, Jr., Susan Arnette, and Karolen Dittmar, the student beneficiaries of the trust, are the only three children of Louise Purvis. Doreen Levine, Howard P. Newton, and L. Inez Newton are the children of Karolen Newton. Alibel M. Pardue is the testatrix’s surviving sister.

Karolen Newton, Louise Purvis, and their children entered into an agreement urging the court to terminate the trust and releasing the Bank from all responsibilities in connection with such termination. After a hearing at which all parties were represented, including the unborn and unadopted children of Karolen Newton and Louise Purvis, the trial court rendered a judgment terminating the trust on the ground that, while the trust estate was sufficient in amount to justify its continuance, its primary purposes had been accomplished and fulfilled and all the beneficiaries except the unborn and unadopted children of Karolen Newton and Louise Purvis had agreed to the termination of the trust. The court ordered the Bank to deliver the funds comprising the trust estate to the ultimate beneficiaries, Karolen Newton and Louise Pur-vis. The Court of Civil Appeals affirmed the trial court judgment, agreeing that the primary purposes of the trust had been accomplished and that its termination would not subvert the wishes of the testatrix.

The Bank and the guardian ad litem for the unborn and unadopted children of Karo-len Newton and Louise Purvis here contend the lower courts erred in decreeing termination of the trust. They argue the language of the will is unambiguous and clearly states that, unless the Bank voluntarily terminates the trust due to insufficient income, the trust is to terminate only upon the death of the last to survive of Karolen Newton and Louise Purvis. Newton and Purvis, they assert, are “ultimate beneficiaries” only in the sense that they would be entitled to the corpus of the trust in the event the Bank terminated it because of insufficient income. Furthermore, according to the Bank and the guardian ad litem, the primary purposes of the trust have not been fulfilled because the provision for the payment of excess income to Karolen Newton and Louise Purvis is not incidental and is a continuing obligation of the Bank as trustee. The beneficiaries argue the two primary purposes of the trust have been accomplished and that therefore termination of the trust as decreed by the lower courts is proper and does not defeat the intent of the testatrix.

The beneficiaries of the trust established by the will of Louise Cozby do not contend the will is ambiguous, and the trial court did not so find. Therefore, the true meaning of the will must be determined by construing the language used within the four corners of the instrument. Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39 (1955). No speculation or conjecture regarding the intent of the testatrix is permissible where, as here, the will is unambiguous, and we must construe the will based on the express language used therein. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960).

Louise Cozby could not have stated more clearly her intention regarding the termination of the Trust. Paragraph Three of the will states:

The Said Trust . . . shall continue in force and effect during the remainder of the lifetime of the last survivor of the following named three beneficiaries, viz: Rexford S. Cozby; Karolen Newton and Louise Purvis, and shall terminate upon the date of death of the last survivor of said three last named beneficiaries.

The will then provides that the Frost National Bank, as trustee, could terminate the trust if in its opinion the income from the trust property was insufficient to justify the continuation of the trust. The trial court found the income of the trust was sufficient to justify the continued existence of the trust, and that finding is undisputed here. That being the case, it is clear the trust established under the will of Louise Cozby will terminate upon the death of the last to survive of Karolen Newton and Louise Purvis unless circumstances dictate an earlier termination due to insufficient income.

The beneficiaries assert that the payment of “excess income” to Karolen Newton and Louise Purvis is merely an incidental purpose of the trust and that, since the primary purposes of the trust have been accomplished, the trust can be terminated prior to the time specified in the will. See Alamo National Bank of San Antonio v. Daubert, 467 S.W.2d 555 (Tex.Civ.App.—Beaumont 1971, writ ref’d n.r.e.); G. Bogert, Trusts and Trustees § 1002 (2d ed. 1962). To accept such a contention would require a determination of what the testatrix considered to be the principal purposes of the trust and what she considered only incidental. Such a determination would take the court beyond the express language of the will into the realm of conjecture and speculation, for it is by no means clear that the provision for excess income distribution was merely an incidental purpose of the testatrix. It is consistent with the estate plan of Louise Cozby to infer that after the death of her husband and the education of the student beneficiaries, the trust was to continue in effect, with periodical payments of excess income to Karolen Newton and Louise Purvis, until the death of the last to survive of Purvis and Newton. In construing an unambiguous will, the cardinal rule is to give effect to the intentions of the testator or testatrix as they are expressed within the four corners of the instrument. Huffman v. Huffman, supra. Absent an express declaration of purpose in the instrument, a court cannot go beyond the face of the will to make an ad hoc and speculative assessment of which purposes the trustor or testator considered “primary” and which he considered merely “incidental.” Thus the trust established by Louise Cozby in her will cannot be judicially terminated on the ground that its primary purposes have been accomplished where, as in the instant case, the trust expressly provides for its termination upon the happening of specified events. To the extent Alamo National Bank of San Antonio v. Daubert, supra, is inconsistent with this opinion, it is disapproved.

The beneficiaries of the trust also argue the trust should be terminated because they have all consented to, and indeed requested, its termination and its continuance is not necessary to carry out a material purpose of the trust. See Restatement (Second) of Trusts § 337 (1959); G. Bogert, Trusts and Trustees § 1007 (1962). As noted above, the evidence in this case includes an agreement requesting termination of the trust executed by Karolen Newton, Louise Purvis, and their six children. However, the better rule of law is that beneficiaries of a trust can consent to its termination only where all purposes of the trust have been accomplished. Note, 2 Real Prop. Probate & Trust J. 303, 305 (1967); Annot., 163 A.L.R. 852 (1946). Since one purpose of the trust established by Louise Cozby, the payment of the excess income to Karolen Newton and Louise Purvis, remains unfulfilled, the trust cannot be terminated.

Because of our disposition of Petitioners’ points one through five, we do not reach the remaining points of error.

The judgments of the lower courts are reversed and judgment is here rendered that the trust remain in effect until the death of the last to survive of Karolen Newton and Louise Purvis or until the trustee, in its discretion, determines that the income of the trust is insufficient to justify its continuation.

Dissenting Opinion by GREENHILL, C. J., in which DANIEL and JOHNSON, JJ., join.

GREENHILL, Chief Justice,

dissenting.

I respectfully dissent.

The terms of Louise Cozby’s will clearly indicate her primary purposes in establishing the trust estate were twofold: (1) to provide an income for life for Rexford Coz-by in the event he survived the testatrix; and (2) to provide for the education of the three student beneficiaries, Warren Wilkinson, Jr., Susan Arnette and Karolen Wilkinson Dittmar. If Rexford Cozby died before the expiration of the term of the trust, as indeed he did, the proportion of the trust principal reserved for his use was to be aggregated with the proportionate share reserved for the students and the income generated thereby was to be used to defray their college expenses. If the income from the trust property was insufficient to pay the expenses of the student beneficiaries, the trustee was authorized to invade the trust principal in order to provide the funds necessary to cover the expenses. If, on the other hand, the income from the trust property exceeded that necessary to pay the educational expenses of the three designated beneficiaries, the trustee was authorized to distribute such excess to Louise Purvis and Karolen Newton in equal shares.

The first purpose of Louise Cozby in establishing the trust, the provision of income for her husband, was rendered impossible of performance by his death prior to the death of the testatrix. The second purpose, the provision of educational benefits for the great-nieces and great-nephew of Louise Cozby, was accomplished with the 1971 graduation from college of Warren S. Wilkinson, Jr. In support of its judgment terminating the trust the trial court found the purposes of the trust had been accomplished. The Court of Civil Appeals concurred in this finding, specifying that at best the provision for the payment of excess income to Louise Purvis and Karolen Newton was an incidental or minor purpose of the trust.

The structure and terms of the will support these findings. The language of Paragraph Three directs the trustee to pay “to or for the use and benefit of the following named respective beneficiaries the following periodical payments. . . The remainder of the sentence specifies the nature of the payments to be made to Rexford Cozby and to the student beneficiaries. It says nothing of the possible payments to Karolen Newton and Louise Purvis and does not, in this section of the will, refer to them as beneficiaries of the trust.

The succeeding paragraph directs the bank to make the payments to the beneficiaries “in monthly installments, or in such other periodical installments as the Trustee may determine.” Again, there is no mention of the contingent payments to Purvis and Newton.

The next paragraph provides the only mention of the payments, and dictates that if the income is more than sufficient to cover the educational expenses, then and only then is the bank authorized to distribute the excess to Louise Purvis and Karolen Newton “from time to time, ... at such times and in such installments as the Trustee may determine.” The will mandates that any such excess income payments “shall” be made by the bank, but the frequency and amount of such payments are left to the discretion of the trustee. It is clear from these provisions that the testatrix did not intend to provide continuing, regular payments for Louise Purvis and Karolen Newton during the term of the trust, and that any benefits due them were an incidental and minor purpose of the trust.

There is no evidence or term of the will suggesting that this trust was in the nature of a spendthrift trust. It therefore occurs to me the better rule would be that where a trust is not a spendthrift trust, and the material purposes of the trustor have been accomplished, an agreement by all beneficiaries to terminate the trust should be given effect, provided none of the beneficiaries is under an incapacity. Restatement (Second) of Trusts § 337 (1959), G. Bogert, Trusts and Trustees § 1007 (2d ed. 1962); Annot., 163 A.L.R. 852 (1946). See Tinsley v. Magnolia Park Co., 59 S.W. 629 (Tex.Civ.App.1900, writ ref’d). Here all beneficiaries of the trust, Karolen Newton, Louise Purvis and their children, have entered into an agreement requesting judicial termination of the trust; the will does not create a spendthrift trust; and, as detailed above, the provision for the payment of excess income to Newton and Purvis was merely an incidental purpose of the trustor, Louise Cozby.

The bank and the guardian ad litem for the unborn and unadopted children of Karo-len Newton and Louise Purvis would deny effect to the agreement to terminate the trust on the ground that the beneficiaries of the trust corpus cannot be finally determined until the death of the last to survive of Karolen Newton and Louise Purvis. Thus, they argue, there are contingent re-maindermen whose interests are unprotected in case of termination. Under the terms of the will here in question, if either or both Karolen Newton and Louise Purvis die pri- or to termination of the trust, the share of the estate due each is to be distributed in equal shares to “her then living children.” The Petitioners argue that these contingent beneficiaries are unknown because Karolen Newton and Louise Purvis are presumed able to bear additional children. Furthermore, argue the Petitioners, either Newton or Purvis could adopt additional children.

The argument that Karolen Newton and Louise Purvis might adopt additional children and thereby expand the class of residuary beneficiaries is precluded by the decision of this Court in Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513 (1961). We there held that where a trust provided for the distribution of assets to the “children” of a designated beneficiary, the appellation “children” did not include adopted children. Therefore, even if Karolen Newton or Louise Purvis did adopt additional children, the class of “then living children” mentioned in the will of Louise Cozby would not be affected.

Regarding the possibility that Karolen Newton and Louise Purvis could bear additional children, the question is somewhat more problematical. The undisputed testimony at the trial indicated that both nieces of the testatrix had passed menopause and therefore were physically incapable of childbearing. Nevertheless, Texas courts have heretofore followed the old common-law doctrine, sometimes called the “fertile octogenarian rule,” that a person is conclusively presumed to be able to have issue as long as he or she is alive. Aberg v. First National Bank in Dallas, 540 S.W.2d 403 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.); Donald v. Troxwell, 346 S.W.2d 398 (Tex.Civ.App.—Eastland 1961, writ ref’d n.r.e.). The trend seems to be toward relaxing the doctrine so as to allow rebuttal of the presumption. See, e. g., In Re Bassett’s Estate, 104 N.H. 504, 190 A.2d 415 (1963); Restatement of Property § 274 (1940); Annot., 98 A.L.R.2d 1285 (1964). The better view is that adopted by the Restatement of Property, cited just above, which recognizes the presumption of fertility but recognizes that “this presumption can be rebutted by relevant evidence as to such person and by past experience concerning births to persons of like age and physical condition.”

In the instant case, the evidence bearing upon the issue of the fertility of Karolen Newton and Louise Purvis is their own testimony. The testimony is undisputed and supports the trial court finding that they are incapable of bearing children. That being true, I would hold that the presumption of fertility was rebutted and that all requisite beneficiaries joined in requesting termination of the trust.

The bank and the guardian ad litem also assert that the legal heirs of Louise Cozby were necessary parties to this lawsuit because if, when the trust terminated, neither Louise Purvis, Karolen Newton, nor any of their children were living, then the legal heirs of Louise Cozby would inherit the property comprising the trust corpus. As these legal heirs were contingent beneficiaries of the trust, the bank and the guardian ad litem contend they were necessary and indispensable parties to this suit to terminate the trust. The trial court ordered the joinder of Alibel Pardue, the sister of the testatrix; and so the contingent remaindermen not parties to the suit were the descendants of Alibel Pardue. These remote contingent beneficiaries were not necessary parties to this suit. The interest of these contingent beneficiaries could vest only if the trust remained in effect until the death of the last to survive of Karolen Newton and Louise Purvis. The arguments advanced by the bank as trustee sought the continuation of the trust until such time as it terminated by the express language of the will, that time being the death of the last to survive of Karolen Newton and Louise Purvis. Thus the interests of the bank as trustee and the interests of the remote contingent beneficiaries were identical. In such a case, the contingent beneficiaries are considered to be adequately represented by the trustee; and while the remote beneficiaries would be proper parties, they are not indispensable. Mason v. Mason, 366 S.W.2d 552 (Tex.1963); Fisher v. Southland Royalty Company, 270 S.W.2d 677 (Tex.Civ.App.—Eastland 1954, writ ref’d n.r.e.).

I would affirm the judgments of the trial court and the Court of Civil Appeals.

DANIEL and JOHNSON, JJ., join in this Dissent.

      . The language of the will is subject to the construction that the trust will terminate only upon the death of the last surviving heir, i. e., “the last survivor,” of Karolen Newton and Louise Purvis. However, such a construction has not been advanced by the parties. Furthermore, to so construe the will would violate the rule against perpetuities. See Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800 (1945).


source: Caselaw Access Project

author: REAVLEY, Justice.

license: Public Domain

text:
    Vivian GOFFNEY, Relator, v. Honorable Robert LOWRY, Judge, Respondent.
    No. B-6739.
    Supreme Court of Texas.
    June 22, 1977.

      Nicholas R. Serna, Houston, for relator.
    Joe Resweber, County Atty., J. Alexander Johnson, Asst. County Atty., Houston, for respondent.
   REAVLEY, Justice.

This relator is entitled to a writ of mandamus because the fact findings of the trial court require that the contest to the rela-tóos affidavit of inability to pay the costs of appeal be overruled.

A final judgment terminating the parent-child relationship between Vivian Goffney, the relator, and her two small children has been rendered by Honorable Robert L. Lowry, respondent and Judge of Juvenile Court No. 1 of Harris County. Relator Goffney then undertook an appeal from that judgment. She and the interested parties followed Rule 355 of the Rules of Civil Procedure. Relator filed an affidavit of inability to pay or secure any part of the costs of appeal; the District Clerk filed a contest of her inability to pay costs; a hearing was then held at which time relator Goffney testified and took the burden of proving the truth of her affidavit. Judge Lowry filed his findings of fact and conclusions of law, and he sustained the contest. Relator Goffney next sought an original writ of mandamus in the Court of Civil Appeals for the First Supreme Judicial District. Her application was denied. She then initiated this original proceeding here.

Respondent has moved that we dismiss the application because the Court of Civil Appeals has rendered judgment that relator is not entitled to appeal without giving security for costs, and relator has failed to seek our order against the justices of that Court to set aside their judgment. While it would not be inappropriate to include the justices of the appellate court as parties and to seek mandamus to rescind their action of dismissal, it is not necessary that this be done. Relator could not obtain our review of the judgment of the Court of Civil Appeals by application for writ of error. Alexander v. Meredith, 137 Tex. 37, 152 S.W.2d 732 (1941). This Court has jurisdiction to direct mandamus to an act of the trial court despite the contrary action of a court of civil appeals and without acting directly against the appellate court justices and their order. Gulf C. & S.F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897 (1919).

The relator comes here without a statement of facts of the testimony given in the hearing before the trial court on the contest of inability to secure costs. This would ordinarily be fatal to relator’s cause, but in this matter the trial judge was careful to prepare findings of fact which present the legal issue clearly — thereby avoiding unnecessary costs and difficulty for all concerned.

The relator is a 19 year old unskilled black female with only a ninth grade education. She has no husband or parents and lives with a cousin who is now supporting her and her children. She was unemployed at the time of the hearing, although she had sought employment and had held three different jobs in the six weeks prior to the hearing. Public assistance funds had been received but consumed. She could not afford to retain counsel and was, and is, represented by attorneys of the Houston Legal Foundation, a legal service organization which provides representation for indigent residents of Harris County. On the day of the hearing in the company of her attorney she had sought loans unsuccessfully from four loan companies.

Three grounds are given for sustaining the contest. The County Attorney, representing the District Clerk, urges that the Houston Legal Foundation had funds which could have been used to pay the costs. Secondly, the trial court found that relator “had a television or stereo set and that she had not attempted to sell, mortgage, or pawn it.” During oral submission of this cause, her attorney stated that this was a record player, purchased secondhand, and was her only personal property. The County Attorney accepted the statement. Finally, the basis of the Court of Civil Appeals decision, and apparently the principal ground of the trial court’s action, was relator’s testimony that she thought she could borrow money from her cousin. Our holding is that because of the impoverished circumstances of this relator, any funds that she might obtain for costs of court could be nothing more than charity, and the possibilities of her obtaining that charity do not justify denying her right to appeal without securing the costs.

The starting point in this matter is the inquiry set forth in Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 (Tex.Com.App.1942): Would the applicant be “unable to pay the costs, or a part thereof, if he really wanted to and made a good-faith effort to do so?” The court there explains:

[I]f a laborer was barely earning the necessities of life for himself and family, ordinarily he should not be required to mortgage his hand tools or household furniture in order to raise funds to pay the court costs. On the other hand, if a party has a credit rating that will enable him to borrow the money, or if he is earning a substantial income, although he is expending it as rapidly as it comes in, or if he owns an automobile or truck or other valuable property, although exempt from execution, which he could mortgage or otherwise dispose of and thereby secure the necessary funds without depriving himself and his family of the necessities of life, he should be required to pay the costs, or give security therefor. 164 S.W.2d 20.

We fully appreciate the principles announced in Pinchback v. Hockless. The rules allowing one to proceed without being required to pay costs or give security therefor were “adopted to protect the weak against the strong, and to make sure that no man should be denied a forum in which to adjudicate his rights merely because he is too poor to pay the court costs.” 164 S.W.2d 20. [Emphasis added.] The law does not afford the right of appeal as an idle gesture or as something easily lost. Furthermore, these rules do not require the litigant to borrow money which cannot be repaid except by depriving the litigant of the necessities of life.

The findings of the trial judge establish that Vivian Goffney is destitute and dependent upon others for the necessities of life. It is not disputed that a portion of her past income was derived from public assistance. The fact that any individual is dependent upon the charity of the public afforded through the various welfare programs is, by itself, prima facie evidence that the person is financially unable to pay the court costs or give security therefor. The facts that Vivian Goffney and her children are dependent upon the charity of her cousin, that Vivian has not been regularly employed, and that Vivian could not obtain loans from commercial lenders to pay for court costs merely buttress this conclusion that she is financially unable to meet any of the court costs or give security therefor.

Rule 355 only requires that Vivian Goff-ney show that she is unable to pay the costs of appeal — not that her cousin is unable to do so. Perhaps the cousin could find the means for this purpose and perhaps she would do this for relator — and perhaps not. If the cousin did so, it would not be a bona fide “loan” because relator has no means or expectancy of repayment at any foreseeable time. It would simply be an additional gift which, together with the cost of her upkeep, may or may not be repaid some day. If all potential sources of charity must be exhausted prior to the proof of inability to pay court costs, the trial judge need not grant the privilege to anyone. This is not the applicant’s burden under Texas law.

We direct Judge Lowry to enter an order overruling the contest to relator’s affidavit of inability to pay costs, and authorizing relator to appeal on her affidavit of inability to pay costs. Upon the entry of that order her appeal will then be perfected. Rule 363, Texas Rules of Civil Procedure.

The mandamus is granted, but the writ will be issued only if necessary.


author: SAM D. JOHNSON, Justice.

text:
    Shelton D. HOOD, Petitioner, v. Dr. John R. PHILLIPS, Respondent.
    No. B-6113.
    Supreme Court of Texas.
    June 29, 1977.
    Rehearing Denied July 27, 1977.

      John H. Holloway, Houston, for petitioner.
    Hoover, Cox & Miller, Howard S. Hoover, Houston, Fulbright & Jaworski, W. N. Arnold, Jr. and Sandra Foster, Houston, for respondent.
   SAM D. JOHNSON, Justice.

Seeking both actual and exemplary damages, Shelton Hood sued Dr. John R. Phillips alleging he suffered injuries from surgery which was not a medically accepted method of treatment for emphysema. The trial court rendered judgment for Dr. Phillips after the jury refused to find he was guilty of gross negligence. Contending that the trial court should have submitted to the jury the issues of informed consent and ordinary negligence, should not have quashed subpoenas on the basis of Article 4447d, Section 3, Texas Revised Civil Statutes Annotated (Pamphlet Supplement 1974-1975), and should not have excluded certain other evidence, Hood appealed. The court of civil appeals reversed the judgment of the trial court and remanded the cause for a new trial on the grounds the case should not have been submitted on the theory of gross negligence biit rather on a theory of ordinary negligence. 537 S.W.2d 291. On other grounds, we affirm the judgment of the court of civil appeals, which reversed the trial court judgment and remanded the cause for a new trial.

At trial, Dr. Phillips described the accepted medical treatment for emphysema as follows: (1) encourage the patient to stop smoking and to move to a dry, pollution-free climate; (2) use medication to lessen the bronchial spasm; (3) use machines to aid the patient in breathing; and (4) employ oxygen therapy. Dr. Phillips related that when he first examined Mr. Hood in 1966 he had emphysema. Attempting to reduce Mr. Hood’s suffering, Dr. Phillips removed one of the carotid bodies from his neck. Dr. Phillips testified he had employed this surgery since 1962 and by 1966 he had performed it between 1,200 and 1,500 times. In his experience, 85 percent of his patients were helped to some extent and 15 percent were not helped at all. He acknowledged that the use of this surgery was not generally accepted and was in fact highly controversial.

In contrast to the testimony of Dr. Phillips that carotid surgery generally produced beneficial results, three physicians testifying for Hood characterized carotid surgery as an unaccepted mode of treatment for emphysema, as a treatment not supported by medical evidence, and as a surgical procedure which had been tried by a number of physicians, found ineffectual, and abandoned.

Dr. Erin Longfield, Chief of Staff of the Veterans Administration Hospital located in Houston and a specialist in chest diseases, testified there was only one accepted medical treatment for emphysema; namely, the use of drugs and machines to assist the patient in breathing. Dr. Longfield asserted carotid surgery would not benefit anyone suffering from emphysema and that the performance of such surgery would be negligence. To his knowledge, such surgery was not used in any veterans’ hospital.

Dr. William Thompson, a practicing osteopath in Harris County, agreed that the accepted treatment for emphysema included the use of drugs and machines to assist the patient in breathing, and added that on occasion chest surgery was employed to remove diseased bronchi from the lungs. This doctor had no knowledge of any medical support for carotid surgery as a cure for emphysema and no knowledge of any reputable physician using this method, as of 1966, to cure or relieve the symptoms of severe emphysema.

Dr. Thomas Petty, a physician employed by the University of Colorado Medical Center as an associate professor of medicine in charge of the pulmonary disease division, testified upon deposition by written questions that carotid surgery is not an accepted procedure for the cure or treatment of emphysema. He stated: “[T]he procedure has been proposed really without much scientific rationale, tried by a number of physicians worldwide; found ineffectual and abandoned. In my own judgment, the procedure is not only not beneficial, but potentially harmful.” He described the accepted treatment for emphysema as a combination of the use of drugs, the systematic use of inhaled aerosol to help combat the disease, and the application of physical medicine techniques designed to improve breathing efficiency and to promote the physical reconditioning of the patient.

According to the testimony of Dr. Phillips on the issue of informed consent, the doctor told Mr. Hood of the risks of the surgical removal of the carotid body in accordance with medically accepted standards. Dr. Phillips maintained he informed Mr. Hood of the risk of death, the possibility of numbness in his jaw and his ear, the danger of a heart attack or a stroke, the possibility of soreness in the windpipe, and the possibility of infection of the prostate gland. He did not tell Mr. Hood high blood pressure may be a result of the operation, and Dr. Phillips emphasized that no physician would have warned Mr. Hood of this danger because it was negligible. Dr. Phillips asserted he did not commit himself to the size of the incision he would make during the course of the operation and, furthermore, did not guarantee Mr. Hood he would cure him, but instead expressed the hope the operation would help him. Dr. Phillips stated he knew Mr. Hood was an uneducated man and he described the carotid body as similar to a valve in an automobile tire because Mr. Hood would understand that explanation.

Contrary to the testimony of Dr. Phillips, Mr. Hood stated upon deposition that Dr. Phillips did not tell him 15 percent of those undergoing this surgery did not receive any relief. Mr. Hood insisted Dr. Phillips guaranteed to cure his emphysema. Mr. Hood also stated that Dr. Phillips represented the incision would be small and that he would no longer need medication for emphysema after the operation. He asserted Dr. Phillips did not tell him that the operation would require the removal of nerves from his neck, did not mention his heart in any way, and did not inform him that the operation might result in high blood pressure.

Mrs. Hood, who was present during the conversation between her husband and Dr. Phillips, testified Dr. Phillips promised to cure the emphysema, represented that the incision would be small, indicated that there would be no risk or ill effects connected with the surgery, and did not state that he would remove nerves from the neck.

The trial court refused to submit plaintiff Hood’s issue on informed consent and ordinary negligence. It did submit an issue on whether the carotid surgery was gross negligence on the part of Dr. Phillips, and the jury refused to find Dr. Phillips grossly negligent.

The court of civil appeals reversed and remanded on the grounds the plaintiff, Hood, should not have been required to meet the higher burden imposed by a gross negligence standard but rather should have been required to meet the following ordinary negligence standard:

“[A] physician is not guilty of malpractice where the method of treatment used is supported by a respectable minority of physicians, as long as the physician has adhered to the acceptable procedures of administering the treatment as espoused by the minority.” 537 S.W.2d 291 at 294. [Emphasis added.]

At this juncture, we note that the above standard articulated by the court of civil appeals was intended to apply to a negligence suit based on allegations that the mode or form of medical treatment was not a proper remedy for the diagnosed condition. It was not intended to apply to an action based on the negligent performance of the correct remedy for the diagnosed condition.

The court of civil appeals also held: (1) there was no evidence to support the submission of the issue of whether Dr. Phillips failed to obtain the consent to surgery of Mr. Hood; and (2) the trial court acted properly in quashing subpoenas directing Dr. Phillips to produce records in his possession and in quashing subpoenas to the executive secretary to the Harris County Medical Society on the basis of Article 4447d, Section 3.

Both Dr. Phillips and Hood applied for writs of error to this court and both writs were granted.

THE NEGLIGENCE STANDARD

It should be noted at the outset that Hood does not assert that the surgical removal of the carotid body was unskillfully or negligently performed. Nor does Hood contend that Dr. Phillips’ diagnosis of emphysema was incorrect. Instead, the patient-plaintiff maintains that it was negligence to utilize this particular surgical procedure as a method of treating emphysema.

Both Hood and Dr. Phillips assert the court of civil appeals erred in adopting the “respectable minority” negligence standard. There are at least four standards that may be applied to a medical malpractice suit based on the assertion that the mode or form of treatment was not a remedy for the diagnosed condition.

RESPECTABLE

MINORITY: The “respectable minority” standard approved in the instant case by the court of civil appeals was adopted in Leech v. Bralliar, 275 F.Supp. 897 (D.Ariz.1967); Baldor v. Rogers, 81 So.2d 658 (Fla.1954); Walkenhorst v. Kesler, 92 Utah 312, 67 P.2d 654 (1937); Gruginski v. Lane, 177 Wash. 121, 30 P.2d 970 (1934); Swanson v. Hood, 99 Wash. 506, 170 P. 135 (1918); Dahl v. Wagner, 87 Wash. 492, 151 P. 1079 (1915); and Smith v. Beard, 56 Wyo. 375, 110 P.2d 260 (1941).

In McHugh v. Audet, 72 F.Supp. 394, 400 (M.D.Pa.1947), the court adopted a slightly different standard: “Where competent medical authority is divided a physician or surgeon will not be held responsible if in the exercise of his judgment he followed the course of treatment advocated by a considerable number of his professional brethren in good standing in his community.” [Emphasis added.] Accord, Fritz v. Parke Davis and Company, 277 Minn. 210, 152 N.W.2d 129 (1967); Scheuler v. Strelinger, 43 N.J. 330, 204 A.2d 577 (1964); Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935); Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408 (1951); McPeak v. Vanderbilt University Hospital, 33 Tenn.App. 76, 229 S.W.2d 150 (1950).

REASONABLE SURGEONS WOULD DISAGREE: Dr. Phillips maintains it was error for the court of civil appeals to adopt the “respectable minority” standard. He proposes the following test:

“When reasonable surgeons would disagree as to either the need for an operation or the procedure employed, the decision is a matter of surgical judgment, and the surgeon will not be liable even if it subsequently appears that the organ removed was healthy or the operation itself was not needed or was unsuccessful.” [Emphasis added.]

See Graham v. Alcoa S. S. Co., 201 F.2d 423 (3d Cir.), cert. denied, 346 U.S. 832, 74 S.Ct. 32, 98 L.Ed. 335 (1953); Snyder v. St. Louis Southwestern Ry. Co., 228 Mo.App. 626, 72 S.W.2d 504 (1934).

ANY VARIANCE: Some courts have held any variance from the accepted mode of treatment renders the physician liable. In Jackson v. Burnham, 20 Colo. 532, 39 P. 577, 580 (1895), it was stated that “when a particular mode of treatment is upheld by a consensus of opinion among the members of the profession, it should be followed by the ordinary practitioner; and if a physician sees fit to experiment with some other mode, he should do so at his peril.” Accord, Allen v. Voje, 114 Wis. 1, 89 N.W. 924 (1902).

REASONABLE AND PRUDENT DOCTOR: The following standard has been applied in Texas in other medical malpractice suits — “. . . what a reasonable and prudent doctor would have done under the same or similar circumstances.” Snow v. Bond, 438 S.W.2d 549, 550 (Tex.1969).

This review of the various standards reveals most courts have not attempted to articulate a distinction among “experimental,” “outmoded,” “rejected,” and “accepted” surgical procedures. Instead, the majority of courts have attempted to draw a line between the reasonable and prudent physician who, as a last resort, turns to an “experimental” or a “rejected” treatment in the hope of assisting the patient and the individual practitioner who attempts to beguile his patient with false or distorted promises. These courts have recognized, as we do, that physicians should be allowed to exercise their professional judgment in selecting a mode or form of treatment. Further, physicians should be allowed to experiment in order that medical science can provide greater benefits for humankind. Consequently, we reject the “any variance” standard.

The “respectable minority” standard adopted by the court of civil appeals and “considerable number test could convey to a jury the incorrect notion that the standard for malpractice is to be determined by a poll of the medical profession. Accordingly, these standards are rejected.

Dr. Phillips’ proposed “reasonable surgeons would disagree” standard and the “what a reasonable and prudent doctor would have done” standard, which has been applied in other medical malpractice suits, appear to be simply different ways of reaching the same objective — preclude the imposition of liability on the reasonable and prudent physician and permit liability on the one who is not. We are of the opinion that the statement of the law most serviceable to this jurisdiction is as follows: A physician who undertakes a mode or form of treatment which a reasonable and prudent member of the medical profession would undertake under the same or similar circumstances shall not be subject to liability for harm caused thereby to the patient. The question which conveys to the jury the standard which should be applicable is as follows: Did the physician undertake a mode or form of treatment which a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances? See Snow v. Bond, supra; McCoid, Some Particular Duties of Medical Practitioners, in Clinical Investigation in Medicine: Legal, Ethical, and Moral Aspects 216 (1963). Generally this standard should be applied whether the mode or form of treatment is “experimental,” “outmoded,” or “rejected.”

The burden of proof is on the patient-plaintiff to establish that the physician-defendant has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. The circumstances to be considered include, but are not limited to, the expertise of and means available to the physician-defendant, the health of the patient, and the state of medical knowledge. Unless the mode or form of treatment is a matter of common knowledge or is within the experience of the layman, expert testimony will be required to meet this burden of proof. In the instant case there was expert medical testimony characterizing carotid surgery as an unaccepted mode of treatment for emphysema, as a controversial procedure, as a treatment not supported by medical evidence, and as a surgical procedure which had been tried by a number of physicians, found ineffectual, and abandoned. Although the trial court refused to submit an issue regarding ordinary negligence, this evidence would raise a question of fact for the jury on the issue of ordinary negligence and such issue should have been submitted.

GROSS NEGLIGENCE

Hood next contends it was error for the court of civil appeals to hold that the trial court should not have submitted the issue of gross negligence in this medical malpractice suit. The court of civil appeals correctly held that Hood did not have to establish gross negligence in order to recover in a medical malpractice suit. Hood only had to prove ordinary negligence. However, the record in this case is such that not only was Hood entitled to an issue regarding ordinary negligence, but also an issue concerning gross negligence.

The issue of gross negligence has been submitted to the jury in several Texas medical malpractice cases. Brooke v. Clark, 57 Tex. 105 (1882); Gaut v. Quast, 505 S.W.2d 367 (Tex.Civ.App.—Houston [14th Dist.]), writ ref’d n. r. e. per curiam, 510 S.W.2d 90 (Tex.1974); Jeffcoat v. Phillips, 417 S.W.2d 903 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.). Other courts have also held it proper to submit the issue of gross negligence to a jury in a medical malpractice case. Green v. Hale, 433 F.2d 324 (5th Cir. 1970); Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175 (1954); Rennewanz v. Dean, 114 Or. 259, 229 P. 372 (1924).

This court has defined gross negligence as “that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” McPhearson v. Sullivan, 463 S.W.2d 174, at 174 (Tex.1971). With respect to the instant case, the testimony by doctors Petty, Thompson, and Longfield that carotid surgery is not an acceptable method for the treatment of emphysema and the further testimony that the method had been rejected and was not being employed by reputable physicians would raise a fact issue as to whether Dr. Phillips performed this type of surgery with conscious indifference to the welfare of Hood. The testimony in the instant case would therefore entitle Hood to a submission to the jury of an issue concerning gross negligence and, accordingly, an issue regarding exemplary damages.

INFORMED CONSENT

Hood next argues it was error for the trial court to refuse to submit the issue of informed consent to the jury. This court, in Wilson v. Scott, 412 S.W.2d 299, 301 (Tex.1967), held “[pjhysicians and surgeons have a duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment.” The court also held the patient had the burden to prove by expert medical evidence what a reasonable practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to the patient and that such medical standard of disclosure may be proven by testimony of the physician-defendant.

The evidence in this case was such that the issue of informed consent should have been submitted to the jury. Mr. Hood testified Dr. Phillips promised to cure his emphysema and to make a small incision, and he asserted Dr. Phillips did not mention his heart in any way, the possibility of numbness, the removal of nerves, or the lack of success in 15 percent of the operations. Mrs. Hood, who was present during the conversation between her husband and Dr. Phillips, corroborated this testimony. In contrast, Dr. Phillips testified a physician should inform a patient, and that he did inform this patient, of the possibility of numbness, a heart attack, or a stroke; of the 15 percent of the patients who received no benefit; and of the removal of nerves. He also asserted a physician should not, and that he did not, commit himself to the size of the incision. The conflict in the evidence on this issue is clear. Accordingly, the trial court should have submitted the issue of informed consent to the jury.

ARTICLE 4447d

Hood next asserts the court of civil appeals erred in upholding the trial court’s action in quashing subpoenas requiring Dr. Phillips to produce records in his possession and in quashing subpoenas requiring the executive secretary at the Harris County Medical Society to produce records in the Society’s possession. The court of civil appeals upheld the trial court on the basis of the following statute, Article 4447d, Section 3:

“The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the by-laws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena; provided, however, that nothing herein shall apply to records made or maintained in the regular course of business by a hospital or extended care facility. . . .” [Emphasis added.]

Dr. Phillips’ records are not protected by this statute even though these documents may be contained in the records of one of the hospital committees. Texarkana Memorial Hospital, Inc. v. Honorable Guy Jones, Judge, 551 S.W.2d 33 (Tex.1977).

Some of the items sought from Dr. Phillips included:

1.“All reports or correspondence with any patient in which carotid body surgery was performed reporting to Dr. Phillips as to the effect of such surgery.”
2. “All records of the 189 patients in which he claims attained 85% relief in accordance with the article printed in the Journal of the International College of Surgeons, July, 1965, Section I, Volume 44, No. 1, beginning at page 253, and copies of the post-operative studies indicating improvement.”
3. “All of the patient records and follow-up records of the 200 surgical cases referred to in article entitled ‘Glomectomy for Asthma and Emphysema’ presented before the General Surgical Section at the 113th American Medical Association meeting in San Francisco on June 22, 1964, and appearing in the Journal of Abdominal Surgery, Volume 7, Number 3, May, 1965.”

Since these three items were sought for the purpose of establishing whether Dr. Phillips’ claimed results were substantiated by his records, they would be material and relevant to the issues of whether Dr. Phillips did inform Hood of the actual success rate of carotid surgery, whether Dr. Phillips had reason to believe this operation could assist an individual suffering from emphysema, and whether Dr. Phillips performed the surgery with conscious indifference to the welfare of Hood.

In view of the holding that Dr. Phillips’ records are not protected by Article 4447d, the trial court should review not only the three items referred to previously, but all items sought from Dr. Phillips to ascertain whether they are discoverable. Rule 167, Texas Rules of Civil Procedure. In order to protect the privacy of Dr. Phillips’ patients, the trial court may order an in camera inspection of these records.

Hood also sought information from the executive secretary of the Harris County Medical Society. Upon remand, discovery of these documents would be governed by Texarkana Memorial Hospital, Inc. v. Honorable Guy Jones, Judge, supra.

EXCLUDED EVIDENCE

Hood also contends the trial court’s exclusion of certain evidence and the approval of such exclusion by the court of civil appeals were errors. An examination of this evidence reveals that only a portion of it should have been admitted; namely, the testimony by Dr. Petty characterizing as outrageous the statement by Dr. Phillips that carotid surgery was similar to the removal of a valve from an automobile tire. Such testimony would be material and relevant on the issue of informed consent; that is, whether Dr. Phillips accurately described the procedure to Mr. Hood so he could make a knowledgeable decision as to whether to consent to the surgery.

The points of error presented in Dr. Phillips’ application for writ of error, other than the point regarding the “respectable minority” standard, are without merit.

The judgment of the court of civil appeals, which reversed the trial court judgment and remanded the cause to the trial court, is affirmed.

      . Prior to trial, Mr. Hood died. There is no contention that his death was caused by any action of Dr. Phillips.

      . As described by Dr. Phillips, this surgical procedure involved the removal of the carotid body and the nerves surrounding it. The carotid body is a receptor for chemical stimuli “sensitive to the concentration of carbon dioxide in the blood, and assist[s] in reflex control of respiration.” Henry Gray, F.R.S., Anatomy of the Human Body, at 895 (29th Am. ed. 1973). At trial, Dr. Phillips explained the surgical removal of the carotid body as an attempt to improve the airflow to the lungs by lessening the spasms of the involuntary muscles in the bronchial tubes.

      . The full response of Dr. Phillips to the question asked at trial regarding the “valve” explanation was as follows:
      “Q Now there is no valve effect with the carotid body that is removed, is there?
      “A This spasmodic element which causes a valve like effect, the mechanism of a valve like effect affects the entire bronchial tube tree. The operation is done in the neck and the sympathetic effect is to the lungs. There is no operation to the lungs at all. It is a sympathetic effect to the bronchial tubes. You see, the bronchial tubes have muscles in them, it is involuntary muscle, and when you go into a spasm or have a spasm in this vein those bronchial tubes close off. Now there is swelling or narrowing. Then the air gets in easier and when it closes by coughing or spasm, then the air has difficulty in getting out. It is merely . . There is no removal of the valve, it was just a method of attempting to explain to the patient air flow. For example, you have an air tire and you have a valve and you pump it up. The air goes in and none comes out. But if that valve is removed, why then you pump it up, the air immediately comes out. It was a method of explaining . . really there was no valve removed.”


author: PER CURIAM.

text:
    Richard A. HARRIS ex ux., Petitioners, v. Joseph M. LOGUE et al., Respondents.
    No. B-6565.
    Supreme Court of Texas.
    June 29, 1977.
    Minor, Jester & Davidge, T. Miller Da-vidge, Jr., Nelson & Lewis, L. A. Nelson, Denton, for petitioners.
    Jack W. Gray, John L. Sullivan, Gary Tim Banks, Denton, for respondents.
   PER CURIAM.

Joseph M. Logue et al. obtained a judgment setting aside a prior default judgment rendered in a class action suit brought to remove restrictions on two lots owned by Richard A. Harris and wife. The Court of Civil Appeals affirmed on two grounds: because the prior judgment was void and because the elements of a bill of review were proved. 544 S.W.2d 932. We agree that the judgment was correct because of the second ground. We disagree with and disapprove of the writing of the Court of Civil Appeals saying that the prior judgment was void “for want of due process or jurisdiction over necessary parties” and that Logue et al. were entitled to have it set aside without showing their meritorious defense. This writing is contrary to opinions of this Court, including Deen v. Kirk, 508 S.W.2d 70 (Tex.1974) and McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). The application for writ of error is refused, no reversible error.