author: DUNAGAN, Chief Justice.

text:
    Earlene KNOLLE, Individually and as Executrix of the Estate of Ruby K. Hunt, et al., Appellants, v. Lacy H. HUNT, II, et al., Appellees.
    No. 1000.
    Court of Civil Appeals of Texas, Tyler.
    May 5, 1977.
    Rehearing Denied June 9, 1977.

      James S. Robertson, Jr., Charles F. Potter, Potter, Guinn, Minton & Dickerson, Tyler, S. Moss Adams, Jr., Nacogdoches, John G. Payne, Pye & Dobbs, Tyler, W. James Murdaugh, Jr., Asst. Atty. Gen., Austin, for appellants.
    M. M. Stripling, Stripling & Sutton, Nac-ogdoches, Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, Austin, Marion G. Holt, Holt, Tatum & Meehan, Nacogdoches, for appellees.
   DUNAGAN, Chief Justice.

This is a joint, mutual and contractual will case in chief involving secondary issues concerning trial amendment of pleadings and the status of after-acquired property. This suit was brought by Lacy H. Hunt, II, Andrew W. Hunt, Jr. and William T. C. Hunt (hereafter collectively referred to as appellees), all of which were beneficiaries under an alleged contractual will. The suit was brought against numerous individuals, all of whom in some form or fashion were beneficiaries under a will made subsequently to the alleged contractual will. Only the defendants who are now appellants need be named, and they are as follows: Earlene Knolle, individually and as executrix of the will and estate of Ruby Hunt, deceased, Myrtle Knolle, B. Frank Knolle, Nancy Knolle, Suzy Knolle, Clemmie Williams and the Gulf Coast Presbytery (hereafter collectively referred to as appellants). Appellees (plaintiffs below) in their pleadings sought a declaratory judgment declaring that the joint will of Lacy and Ruby Hunt, husband and wife, was mutual and contractual, and in relation thereto appellees sought the enforcement of their derivative contract rights, the imposition of a constructive trust upon all estate property, and an injunction freezing all estate property until disposition of this suit.

Trial was before the court, without jury, and the trial court, after considering the pleadings, evidence and argument of counsel, both oral and by written brief, rendered its judgment, holding, among other things, that:

(1) The joint will of Lacy H. Hunt and wife, Ruby Hunt, was mutual and contractual;

(2) The joint codicil executed several months later by the same persons was also mutual and contractual;

(3) Appellees herein (plaintiffs below) were the owners of equitable title to one-half of all properties owned by Ruby K. Hunt at her death “save and except such properties as were inherited by Ruby K. Hunt from her mother’s estate”; and that

(4) A constructive trust . .be impressed upon all property owned by Ruby K. Hunt at the time of her death” except that property which she inherited from her mother.

Both sides appeal. Appellants Myrtle Knolle and Earlene Knolle (hereafter sometimes called the “Knolle sisters”) and Gulf Coast Presbytery (hereafter sometimes referred to as the “Presbytery”) filed briefs. They contend that the trial court erred in holding that the joint will and codicil were mutual and contractual and erred in impressing a constructive trust on “all the property owned by Ruby K. Hunt at her death.” The Knolle sisters also contend in their second point of error that the trial court erred in denying their motion for leave to file a trial amendment.

Appellees gave notice of limitation of appeal and thereby bring one cross-point alleging that the trial court erred in holding that the property inherited by Ruby K. Hunt from her mother was not subject to the provisions of the joint, mutual and contractual will.

We affirm in part and reverse and render in part.

On February 21, 1969, Lacy H. Hunt and his wife, Ruby Hunt, executed a joint will. Paragraphs II and III of the joint will provided as follows:

“II

“I, LACY H. HUNT, do give, devise and bequeath unto my beloved wife, RUBY HUNT, all property of every kind or character, of which I may die seized and possessed, real, personal and mixed, subject only to the provisions of Paragraph IV of this will . .

“Ill

“I, RUBY HUNT, do give, devise and bequeath unto my beloved husband, LACY H. HUNT, all property of every kind or character, of which I may die seized and possessed, real, personal and mixed, subject only to the provisions of Paragraph IV of this will . . . .” [Emphasis added.]

In the following paragraph IV, the joint will provided that if Lacy and Ruby Hunt died in a common catastrophe or failed to survive each other by thirty days, then the estate would pass:

(1) An undivided one-half to Earlene Knolle and Myrtle Knolle, share and share alike;

(2) An undivided one-half to appellees in the indicated amounts: (a) 50% of said one-half interest to Lacy H. Hunt, II; (b) 25% of said one-half interest to Andrew W. Hunt; (c) 25% of said one-half interest to William T. C. Hunt. In the event Lacy Hunt and Ruby Hunt did not survive each other as stated in the joint will, paragraph IV provided that Lacy H. Hunt, II, was to be the independent executor. Paragraph IV finally made the following provision which is crucial to this appeal:

“It is our further will and desire that at the death of the survivor of us, whether in a common catastrophe or otherwise, that the estate remaining in the hands of such survivor of us at the time of his or her death shall vest or pass as in this paragraph above provided, with the appointment of the Executor as in this paragraph provided.” [Emphasis added.]

On September 5, 1969, Lacy and Ruby Hunt executed a codicil which solely provided in relation to paragraph IV of the joint will the following:

“It is our will and desire that at the death of the survivor of us, Lacy H. Hunt and wife, Ruby Hunt, irrespective of which one of us may survive the other, that all property which said survivor may be seized or possessed at the time of his or her death shall pass to and be vested in the parties named in Paragraph IV of our aforesaid Will and in the proportionate interest as set out in Paragraph IV, and we so will, devise and bequeath our property upon the happening of the death of the survivor of us.” [Emphasis added.]

The codicil expressly stated that it was not “in any way changing or altering” the 1969 joint will but that it was making “additional provisions thereto.”

Lacy H. Hunt died on September 28, 1969. His wife, Ruby Hunt, qualified as independent executrix, and the joint will and codicil were admitted to probate on October 13, 1969. Ruby Hunt took as the sole beneficiary under the joint will.

On June 12,1970, Ruby Hunt made a new will through the same attorney who had prepared the 1969 joint will. On May 31, 1973, Ruby Hunt made a new and final will, changing the disposition of her estate and revoking all her previous wills. This final will provided that appellants Earlene and Myrtle Knolle were to each receive 25% of the estate, and other bequests were made to other persons and organizations, most of which were not provided for in the 1969 joint will. Earlene Knolle was appointed independent executrix under the final will. Appellee, Lacy H. Hunt, II, was named to receive only 5% of Ruby Hunt’s estate, with the two other appellees receiving nothing under the final will.

Ruby Hunt died in August, 1974, and Earlene Knolle made an application to probate the final will in Nacogdoches County in total disregard of the 1969 joint will. Appellees thereafter instigated two suits, the first suit contesting Earlene Knolle’s right to be appointed independent executrix, and the second suit to enforce certain provisions of the 1969 joint will providing for appellees’ share. Both suits were consolidated for trial purposes, but are appealed separately. This appeal stems from the second suit concerning appellees’ rights under the 1969 joint will.

Appellants contend that the appellees did not sustain their burden of proof in proving that the joint will and codicil were mutual and contractual. Appellants Knolle sisters contend that by the terms of the joint will, Ruby Hunt received a fee simple estate in the property which she inherited from her deceased husband, Lacy Hunt, as opposed to a life estate, and that this creates a presumption that the 1969 joint will was not mutual and contractual. Appellant Presbytery contends that the 1969 joint will was not contractual except in the event of a common disaster, relying upon the 1969 joint will’s use of certain pronouns and words which are of precatory as opposed to mandatory nature, and relying upon a limited application of the codicil provisions. Therefore, appellants generally contend that the 1969 joint will and codicil are not themselves sufficient proof of their mutual and contractual nature, and that beyond this appellees failed to carry their burden of proof. We disagree.

A joint will may be proven to be mutual and contractual by its own terms and provisions and, as such, proven to have been executed pursuant to an agreement between the joint makers. Dougherty v. Humphrey, 424 S.W.2d 617, 621 (Tex.Sup.1968); Murphy v. Slaton 154 Tex. 35, 273 S.W.2d 588, 593 (1954). Chief among the criteria which the Supreme Court considered in handing down this rule was that the will set forth “a comprehensive plan for disposing of the whole estate of either or both” of the joint makers. Murphy, supra. Lacy and Ruby Hunt executed a joint will containing provisions whereby the first to die bequeathed to the survivor of them all of his or her property “subject only to the provisions of paragraph IV.” Paragraph IV contained two conditional provisions. The first provision provided for the disposition of the estate in the event there was no survivor, and this was followed by a detailed and comprehensive disposition. The second provision provided that:

“It is our further will and desire that at the death of the survivor of us, whether in a common catastrophe or otherwise, that the estate remaining in the hands of such survivor of us at the time of his or her death shall vest or pass as in this paragraph above provided, . . . .” [Emphasis added.]

In the codicil executed September 5, 1969, Lacy and Ruby Hunt affirmed the disposi-tive provisions of paragraph IV and made “additional provisions” that the estate was to include “all property” which the survivor owned at “his or her death”. Thus, Lacy and Ruby Hunt jointly created a disposition of their estates that was comprehensive, complete, clear and definite.

Appellants cite several cases dealing with wills containing characteristics similar or identical to the 1969 joint will’s testamentary use of the pronouns “I,” “we,” “our” and “us,” and appellants urge that the use of these pronouns in the context in which they are used in the 1969 joint will supports a holding that the 1969 joint will was not mutual and contractual, as so found in the cases which appellants cite. Appellant Presbytery contends, citing cases, that the testamentary use of the pronoun “I” in the second and third clauses of the 1969 joint will is evidence that the will provided for separate, not joint, dispositions except in the event of a common catastrophe. Concerning the testamentary use of plural pronouns, the cases cited held that the use of “we,” “our” and “us” in a joint will does not necessitate a finding that the joint will is mutual and contractual. While we agree with the result reached in each of the cases cited by appellants, we do not feel those cases are controlling here.

The 1969 will is without dispute a joint will. In the second and third clauses, Lacy and Ruby Hunt, respectively, left their property to the other using the words “I . give, devise and bequeath . subject only to the provisions of Paragraph IV of this will.” As mentioned earlier, paragraph IV provided for the distribution of the joint estate in the event Lacy and Ruby Hunt died in a common catastrophe (defining common catastrophe to mean that the “death of the survivor of us should follow the death of the first to die within thirty days”). However, paragraph IV additionally provided that the joint estate was to pass in the same manner “at the death of the survivor of us, whether in a common catastrophe or otherwise.” [Emphasis added.] We think the intent of Lacy and Ruby Hunt was to make a joint, mutual and contractual distribution of the estate regardless of who survived the other, and regardless of how long the period of survival. There could be no other purpose for such a “subsequent provision”.

The testamentary use of the plural pronouns “we,” “our” and “us” is both extensive and uniform. Lacy and Ruby Hunt declared that all property owned by them or either of them was community property “irrespective of origin”. There is evidence that Lacy Hunt owned separate property received through inheritance. The disposition to be made after the death of the survivor was an equal distribution among collateral heirs on both sides of the family. The will itself and our limited knowledge of the circumstances surrounding the will lead us to adopt the language of the Supreme Court in Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 168 (Tex. 1946), followed in Murphy v. Slaton, supra, as follows:

“The division made is apparently equal, . . The will treats the property of the testators as one, and the dispositions made are joint gifts from the testators, dividing the property equally . A will like that could not have been made without agreement between the testators that it should be so made. Its very terms are evidence that an agreement was made. . . . ”

Appellant Presbytery attacks the testamentary use of the words “will and desire” in the last sentence of paragraph IV of the will, complaining that the words as used therein are precatory, being words of request, as opposed to being mandatory or words of direction. We disagree. First of all, appellant Presbytery selectively makes this attack. In other portions of its brief appellant relies on the first sentence of paragraph IV and also the codicil to affirmatively support its argument that the 1969 will was contractual only in the event of death by common catastrophe. The first sentence of paragraph IV begins with “It is our further will and desire . . . ” The first sentence of the dispositive provision in the codicil begins with “It is our will and desire . . . .” Appellant relies on these phrases to be mandatory indications while in the last sentence of paragraph IV appellant alleges that the same words are precatory indications.

While we suppose that the' same words can be used in different senses in separate parts of the will, as appellant’s brief impliedly suggests, we do not believe such is the case here. The rule is quite clear that “. . . Texas cases, including both those that give to precatory words a mandatory effect and those that construe such words according to their ordinary or natural meaning, are decided by ascertaining the testator’s intention from the language used in the will, taking into consideration the immediate context and the context of the entire instrument. . . . ” Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363, 365 (1944). Also see: Goldring v. Goldring, 523 S.W.2d 749, 757 (Tex.Civ.App.-Fort Worth 1975, ref’d n.r.e.); Woods v. Wedgeworth, 453 S.W.2d 385 (Tex.Civ.App.-El Paso 1970, n.w.h.); Henry v. Curb, 430 S.W.2d 29 (Tex.Civ.App.-Eastland 1968, ref’d n.r.e.).

The mother of the appellees (sister-in-law of Lacy and Ruby Hunt) testified that there was an agreement between Lacy and Ruby Hunt that half of the estate would go to Ruby Hunt’s sisters and half would go to Lacy Hunt’s nephews. Lacy and Ruby Hunt’s accountant testified that subsequent to Lacy Hunt’s death Ruby Hunt had stated to him that the 1969 joint will was meant to divide everything equally. We recognize that appellees’ mother, although not a party to this suit, was at least an interested witness due to the status of her sons in this lawsuit. Nevertheless, her testimony is supported by the testimony of Ruby Hunt’s accountant as well as by the scheme of distribution in the will.

Appellants Knolle sisters contend that Ruby Hunt took an unlimited fee simple interest in Lacy Hunt’s estate which became vested by law; and, therefore, Ruby Hunt as the survivor “had the primary right ... to revoke the former joint will, if she so desired, and execute a new will providing for the distribution of her fee simple title upon her death.” In furtherance thereof appellants Knolle sisters state, “In every case found where the court has determined that the terms of a will were conclusive evidence of its contractual character, the devise to the surviving spouse has been a traditional life estate with limited powers of use.” We recognize the rationale behind appellants’ argument, but we feel it is erroneous. In the case of Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), the Supreme Court dealt with a similar contractual will. The devise to the survivor was not a life estate, limited or otherwise, but was a devise in fee simple. The Supreme Court wrote at page 878 as follows:

“. . . That estate was limited, however, in the fourth paragraph by language which had the effect of converting it into a conditional fee or, as it is sometimes called, a defeasible fee, the condition of defeasance being that in the event T. M. Harrell [survivor] should die seized and possessed of any of the property, then such property should pass to and vest in the various institutions and individuals named in the will . . . [citing cases]. No provision in the will or contract places any limitation whatever upon the right of T. M. Harrell during his lifetime to dispose of the estate in any manner he might see fit. The will evidences that each of the testators reserved in himself or herself, should he or she become the survivor, the absolute right to dispose of the estate as such survivor might desire, with the single exception that the survivor could not make a disposition thereof by will contrary to that made in their joint will.”

The will in the Harrell case was interpreted by the Supreme Court to mean that the contractual testamentary disposition applied only to “the remainder of our property, of which the survivor of us shall die seized and possessed . . . .” [quoting from the will itself], subject only to the right of the survivor to dispose of the estate during his or her lifetime. The Supreme Court held in the Harrell case, as quoted above, and we so hold in this case, that this right to dispose of the estate during the survivor’s lifetime did not include the right to make a new will disposing of the property differently than disposed of in the contractual will.

Lacy and Ruby Hunt’s joint will contained the provision that “the estate remaining in the hands of such survivor at the time of his or her death shall vest or pass” as provided in Paragraph IY. We hold that the use of these words brings this case within the rule laid down in the Harrell case. There is logic behind the Harrell case which needs mentioning. It is of secondary importance what title the survivor receives through the contractual will. Of primary importance is the fact that the will is contractual, the testators having agreed to the disposition of the estate remaining in the hands of the survivor. The fact that a survivor holds a life estate in the remaining property may give more immediate effect to the interest of the beneficiaries as opposed to the holding of a conditional fee simple title, but the agreed disposition of the estate remaining in the hands of the survivor at death creates an obligation which is controlling over, and not restricted by, the type of title held by the survivor for the surviving period. Furthermore, the fact that the survivor may or may not make an “inter vivos” disposition of the estate does not itself affect the obligation that takes effect when the survivor takes under a joint, mutual and contractual will.

In their second point of error appellants Knolle sisters complain that the trial court erred in denying leave to file their trial amendment. After the evidence had been closed the Knolle sisters sought to amend their pleadings to plead alternatively that they were each entitled to 25% of the estate (or 50% collectively) regardless of whether the trial court determined that the 1969 joint will was contractual or that the separate 1973 will of Ruby Hunt should be enforced. Appellants Knolle sisters plead in their offered trial amendment that “The percentage interest so bequeathed to them they are entitled to receive regardless of whether the joint will is held to be contractual or the separate will of Ruby K. Hunt is enforced . . . . Accordingly, whatever judgment is rendered in this case the percentage interest of such parties must stand and said interest be distributed to them when there is no further need for administration, and no injunctive relief or trust is proper with reference to the said percentage interest.” Appellants Knolle sisters further state in their brief that, “The question before this court, as was previously before the trial court, is simply which will is to be given effect. Once that determination is made, the clear provisions for distribution in the will which is given effect cannot be altered or varied.”

The law is quite clear that before an appellate court designates as error the trial court’s denial of a trial amendment, an abuse of judicial discretion must be shown. Ka-Hugh Enterprises, Inc. v. Ft. Worth Pipe & Sup. Co., 524 S.W.2d 418, 422 (Tex.Civ.App.-Ft. Worth 1975, ref. n.r.e.); Tuck v. Tuck, 509 S.W.2d 656, 658 (Tex.Civ.App.Austin 1974, ref. n.r.e.).

The tenor of the Knolle sisters’ trial amendment was that no constructive trust or injunction is necessary to enforce their claims under the 1969 joint will (which claims were plead in the alternative to their rights under the 1973 separate will) if the 1969 joint will was held to be mutual and contractual.

A judgment declaring that the 1969 joint will and codicil are mutual and contractual does not fix the legal rights of any of the beneficiaries named in that will. The 1973 will of Ruby Hunt has been probated by order of the same trial court under separate cause number. The 1973 will technically revoked the 1969 joint will. Tips v. Yancey, 431 S.W.2d 763 (Tex.Sup. 1968). The 1973 will could not, however, terminate the equitable interests held by the appellees in the 1969 joint will from the time that Ruby Hunt probated it, because their interests were founded in a contract which became irrevocable upon the death of Lacy Hunt and acceptance by Ruby Hunt of the benefits of the 1969 will.

The case of Magids v. American Title Ins. Co., Miami, Fla., 473 S.W.2d 460 (Tex.Sup. 1971), dealt with reciprocal wills as opposed to a joint, mutual and contractual will. Nevertheless, as to contractual wills the court stated at page 464 that:

“. . . Texas authorities make a clear distinction between the wills themselves and any underlying irrevocable contracts to dispose of property at death. If the same document contains both the will and the contract, ‘it is the contractual portion of the will and not the will itself which is irrevocable.’ ”

A beneficiary, to assert his property interests in a revoked contractual will, must seek, through equity, the imposition of an equitable trust over the property to which, according to contract, he is entitled to. Lieber v. Mercantile Nat’l Bank at Dallas, 331 S.W.2d 463, 473 (Tex.Civ.App.-Dallas 1960, ref’d n.r.e.); Cate v. Cate, 235 S.W.2d 456, 458 (Tex.Civ.App.-Dallas 1950, writ ref’d). Since the trial amendment offered by the Knolle sisters stated generally that no equitable relief was proper to affect their percentage interests under either will, we fail to see how the trial amendment could provide any relief to them. The denial of the trial amendment could not, therefore, have been an abuse of discretion.

Furthermore, appellants Knolle sisters state in their brief that a trial amendment was unnecessary “as a matter of law” to accomplish their purposes. It could not be an abuse of discretion for the trial court to deny a trial amendment after the close of the evidence when the offering party admits that the same was unnecessary to accomplish their purposes in offering it.

If the trial court’s action in denying the trial amendment had been erroneous, we are of the opinion that such error would not amount to such a denial of the rights of appellants Knolle sisters as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P. Appellants Knolle sisters’ second point of error is overruled.

Appellees, through notice of limitation of appeal, bring one cross-point alleging that the trial court er^ed in holding that the property acquired 1/ Ruby Hunt during the time she survived Lacy Hunt was not subject to the distribution scheme contained in the joint, mutual and contractual will and codicil. Appellants urge that this portion of the trial court’s judgment was not erroneous, contending that the 1969 joint will and codicil controlled only over property held by Lacy and Ruby Hunt at the time of Lacy Hunt’s death. Appellees contend that the 1969 joint will and codicil provided for the testamentary distribution of both community property and property acquired by the survivor after the death of the first to die. We agree with appellees.

We recognize the discussion of the Supreme Court in Murphy v. Slaton, supra, wherein the court stated:

“While the question is not free from difficulty, and we recognize that the makers of a joint and mutual will, or of mutual wills, have the right and power to provide that all of the property owned by the survivor at his death shall pass under and be bound by the terms of their will, we do not believe such effect should be given to mutual wills unless the intention to do so is set forth in the will by very plain, specific and unambiguous language. In the absence of such clearly expressed intention we feel that the better reasoning supports the rule that after-acquired property owned by the survivor in his or her individual right does not pass.” 273 S.W.2d at 595 [Emphasis added.]

The 1969 joint, mutual and contractual will in this case provided that “the estate remaining in the hands of such survivor of us at the time of his or her death” should pass according to the disposition contained in the will. Were our decision controlled by these words alone, we would hold that the 1969 will did not control the disposition of after-acquired separate property.

However, Lacy and Ruby Hunt executed a codicil to the 1969 will which provided that “all property which said survivor may be seized or possessed at the time of his or her death” [Emphasis added] should pass to and vest in the beneficiaries according to the disposition contained in the 1969 will. There is no conflict between the will and the codicil. The codicil provided that it in no way changed or altered the will but made “additional provisions thereto.” One additional provision was, in our opinion, that all property acquired by the survivor after the death of the spouse was to be included in the joint estate irrespective of which one of them survived the other. A codicil must be considered as a part of the will, and the will and codicil are to be construed as one instrument. Deegan v. Frost Nat’l Bank of San Antonio, 505 S.W.2d 428, 431 (Tex.Civ.App.-San Antonio 1974, err. ref’d); Van Hoose v. Moore, 441 S.W.2d 597, 609 (Tex.Civ.App.-Amarillo 1969, ref’d n.r.e.). The codicil may make additional provisions or otherwise modify the existing provisions of a will. Fitzgerald v. Agnew, 402 S.W.2d 811, 812 (Tex.Civ.App.-Texarkana 1966, n.w.h.). In this case, even if there were a conflict between the will and the codicil, the provision in the codicil would prevail. Thornhill v. Elskes, 381 S.W.2d 99, 104 (Tex.Civ.App.-Waco 1964, ref’d n.r.e.); First Christian Church of Temple v. Moore, 295 S.W.2d 931, 933 (Tex.Civ.App.-Austin 1956, ref’d n.r.e.). It is our opinion that the language and meaning of the codicil provision is plain, specific and unambiguous and comes within the exception to the Murphy case, supra. Furthermore, in the recent case of Wallace v. Turriff, 531 S.W.2d 692 (Tex.Civ.App.-Tyler 1975, ref’d n.r.e.), this court dealt with the same issue concerning the status of after-acquired property under a joint, mutual and contractual will. The will involved in the Wallace case stated that “. . . all the property, both real and personal, that the survivor may die seized and possessed of .” was to go to certain individuals [emphasis added]. This court held in its majority opinion that the phrase “all the property” included property acquired by the survivor after the death of the survivor’s spouse. The phrase “all property” in the codicil to the 1969 will in this case we feel is equally, if not more, controlling.

Thus it is our opinion that the court erred in holding that the appellees were the owners of equitable title to one-half of all properties owned by Ruby K. Hunt but excluding “such properties as were inherited by Ruby K. Hunt from her mother’s estate,” and further erred in imposing a constructive trust in favor of appellees to the same extent. These portions of the court’s judgment are reversed and judgment is here rendered that the appellees are the owners of equitable title to one-half of all properties owned by Ruby K. Hunt, including the property which she inherited from her mother and that the constructive trust be imposed upon all property of which Ruby K. Hunt was seized and possessed at her death, including the property which she inherited from her mother. In all other respects, the judgment of the trial court is affirmed.

Affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

license: Public Domain

text:
    Lacy H. HUNT, II, Appellant, v. Earlene KNOLLE, Individually and as Executive of Estate of Ruby K. Hunt, et al., Appellees.
    No. 995.
    Court of Civil Appeals of Texas, Tyler.
    May 5, 1977.
    Rehearing Denied June 9, 1977.

      M. M. Stripling, Stripling & Sutton, Nac-ogdoches, Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, Austin, for appellant.
    S. Moss Adams, Jr., Nacogdoches, James S. Robertson, Jr., Charles F. Potter, Potter, Guinn, Minton & Dickerson, Tyler, Marion G. Holt, Holt, Tatum & Meehan, Nacogdo-ches, John G. Payne, Pye & Dobbs, Tyler, W. James Murdaugh, Jr., Asst. Atty. Gen., Austin, for appellees.
   DUNAGAN, Chief Justice.

This is a contest of the appointment of the independent executrix under the will of Ruby K. Hunt, deceased. Lacy H. Hunt, II (hereafter called appellant) brought suit initially contesting the probate of the last will of Ruby K. Hunt, deceased, and also contesting the right of Earlene Knolle to be named as independent executrix under said will. Thereafter appellant amended his pleadings withdrawing his contest of the probate of the will, but reserved his contest of the right of Earlene Knolle to be named independent executrix. Appellant seeks to be named independent executor in her place. For clarity, we shall refer to Earlene Knolle as appellee.

This case is companion to Cause No. 1,000 this day decided, Tex.Civ.App., 551 S.W.2d 755, styled Earlene Knolle, Individually and as Independent Executrix of the Estate of Ruby K. Hunt, et aL, appellants v. Lacy H. Hunt, II, et al., appellees. Both this cause and Cause No. 1,000 involve the conflict between a prior joint, mutual and contractual will executed by a husband and wife and a subsequent will executed by the surviving spouse. Cause No. 1,000 is a case involving the rights of beneficiaries under the joiht, mutual and contractual will. For a complete fact statement applicable to both cases, refer to our opinion in Cause No. 1,000. In addition to that fact statement, we feel it helpful to this, our separate opinion under Cause No. 995, to state the following.

Under the 1969 joint, mutual and contractual will executed by Lacy and Ruby Hunt appellant was named to be appointed independent executor of the estate of the survivor upon the survivor’s death. Lacy Hunt was the first to die, and Ruby Hunt as the survivor probated the 1969 will and, according to the will, was appointed independent executrix of her husband’s estate. Ruby Hunt made a new will in 1973 revoking all her prior wills and naming her sister, Earlene Knolle, appellee, as independent executrix. Upon Ruby Hunt’s death in 1974, appellee made application to probate the 1973 will in the County Court of Nacog-doches County seeking appointment as independent executrix and letters testamentary. Appellant contested this application and sought to probate the 1969 joint, mutual and contractual will a second time. Appellant, pursuant to the terms of the 1969 will, also sought appointment as independent executor thereby contesting appellee’s right to appointment. The County Court transferred the contested proceeding to the 145th Judicial District Court.

Appellant thereafter filed his “Second Amended Petition for Appointment of Executor” stating that he no longer desired “to contest the application to probate the May 31, 1973, will” and thereby abandoned his contest “to the extent, preserving, however, his contest of the right of Earlene Knolle to appointment as Independent Executrix of the will and estate of Ruby K. Hunt.”

In conjunction with the above pleading appellant contends that the death of Lacy Hunt, and the probate of the 1969 will under which Ruby Hunt took as sole beneficiary, resulted in the fact that Ruby Hunt could not effectively revoke the provision in the 1969 will appointing him (appellant) as independent executor upon the death of the survivor, and that appellee was estopped to contend otherwise. Appellant also plead that “In spite of the execution of the second [1973] will, and regardless of the validity and-probate thereof, contestant [appellant] is entitled to enforce the contractual provision of the joint and mutual will and is entitled to appointment as Independent Executor of the will and estate of Ruby K. Hunt, deceased.”

The trial court entered its judgment admitting the 1973 will to probate, and further held that appellee Earlene Knolle was named in the 1973 will as independent executrix, that appellee was duly qualified and not disqualified by law to act as independent executrix and to receive letters testamentary. The court thereby appointed ap-pellee independent executrix, and provided that on the taking of oath, she receive letters testamentary.

Appellant brings one point of error, alleging that the trial court erred in appointing appellee independent executrix because appellant was named executor in the 1969 joint, mutual and contractual will. In reply, appellee asserts that the court’s action was not error.

We affirm.

Concerning a subsequent will executed by the survivor of two parties which revokes a prior joint, mutual and contractual will executed by both of said parties, where there is no question as to the competency, execution, witnessing and proof of the subsequent will, the probate court and district court have no alternative but to admit the subsequent will to probate rather than the joint will, “without regard as to whether the joint will was mutual and contractual.” Nesbett v. Nesbett, 428 S.W.2d 663 (Tex.Sup. 1968). Also see: Tips v. Yancey, 431 S.W.2d 763 (Tex.Sup. 1968). “If the same document contains both the will and the contract, ‘it is the contractual portion of the will and not the will itself which is irrevocable.’ ” Magids v. American Title Ins. Co., Miami, Fla., 473 S.W.2d 460 (Tex.Sup. 1971). Once the subsequent will is admitted to probate, the beneficiaries under the joint will must bring an action in equity to enforce their rights under the joint will and prove that the joint will was mutual and contractual in nature. Tips v. Yancey, supra.

Since the 1969 will was technically revoked by the 1973 will, appellant withdrew his contest of the probate of the 1973 will. Appellant along with other beneficiaries under the 1969 joint will filed a separate suit to enforce their rights under the 1969 will. The 1969 joint will was últimately determined to be mutual and contractual, as we so held in Cause No. 1,000. This case, however, deals with the right to be appointed independent executor or executrix, as the case may be. We have researched to no avail for other cases on point and feel that this is a question of first impression.

The office of independent executor is inherently an administrative office. It is an office that eliminates to a considerable degree judicial supervision of the administration of an estate. The statutes permit a testator to nominate a person as executor. Tex.Prob.Code Ann. sec. 77 (1956). It can also be provided that the executor may act independently of the probate court except for the probating of the will and the return of an inventory, appraisement and list of claims, and except where specifically provided otherwise by the Probate Code. Tex. Prob.Code Ann. sec. 145 (Supp.1976). The purpose of this office is “to free an estate of the often onerous and expensive judicial supervision . . ., and in its place, to permit an executor, free of judicial supervision, to effect the distribution of an estate with a minimum of cost and delay.” Cor-

pus Christi Bank & Trust v. Alice Nat'l. Bank, 444 S.W.2d 632 (Tex.Sup. 1969).

The person first named as executor in the will of the deceased is given priority in the granting of letters testamentary, providing that person is qualified. Tex.Prob.Code Ann. sec. 77 (1956). There is no question but that appellee is qualified to serve as independent executrix, as there has been no finding to the contrary. Tex.Prob. Code Ann. sec. 78 (Supp. 1976). The 1973 will named appellee as independent executrix and then provided “but in the event of the death, resignation, incapacity, failure or refusal to qualify or serve of the said EARLENE KNOLLE, then I appoint LACY HUNT, II, Independent Executor, without bond.” Appellee has done nothing specified in the will that could bring appellant’s alternate appointment into effect. Thus, her application and appointment had priority according to statute and according to the 1973 will. Appellant has no present right to be appointed under the 1973 will. According to the provisions of the Probate Code, the court had no choice but to appoint the person first nominated in the will as independent executrix provided she was not disqualified or unsuitable.

However, appellant seeks appointment via an alleged equitable right to appointment under the 1969 joint, mutual and contractual will. This will has not been admitted in the probate of the estate of Ruby Hunt, and, according to Nesbett v. Nesbett, supra, should not be admitted. It was revoked by the 1973 will. Since the office of independent executor is solely a statutory creation by provisions of the Probate Code, there can be no “equitable” independent executor. There may be an “equitable” right to be appointed independent executor, but, if it cannot be enforced by statutory provision, we fail to see how it can be enforced at all other than through a judicially supervised regular administration.

A full reading and research of all applicable sections in the Probate Code leaves us no choice but to hold that an independent administration can only be allowed by the courts when it is provided for by a valid will admitted to probate that effectively meets statutory requisites for the creation of an independent administration.

Judgment affirmed.


author: ELLIS, Chief Justice.

text:
    AETNA LIFE & CASUALTY INSURANCE COMPANY, Appellant, v. Richard NUZUM, Appellee.
    No. 8724.
    Court of Civil Appeals of Texas, Amarillo.
    May 9, 1977.
    Second Rehearing Denied June 6, 1977.
    Woodfin C. Henderson, Dallas, for appellant.
    R. L. Middleton, Jr., Dallas, for appellee.
   ON MOTION FOR REHEARING

ELLIS, Chief Justice.

Our opinion issued on March 31, 1977, is withdrawn, and the following opinion, issued subsequently to appellee’s motion for rehearing, is substituted therefor:

Richard Nuzum brought this action to recover certain medical and hospital expenses under a group insurance policy issued by the defendant, Aetna Life & Casualty Insurance Company. The trial court, sitting without a jury, rendered judgment in Nuzum’s favor. Within Aetna’s single appellate point of error is the contention that there is no evidence to support the judgment. We agree. Reversed and rendered.

In January, 1974, Nuzum underwent surgery in connection with an ulcer condition. Aetna denied Nuzum’s claim and this litigation was brought to determine whether the policy covered the expenses in connection with the surgery.

The insurance contract sued upon was a group policy issued to Arnold & Burch Corporation. It was stipulated that between August of 1973 and February of 1974 Nu-zum was employed by that firm and during that period of time such firm was insured under a group policy of Major Medical and other insurance covering all its employees. It is uncontested that the effective date of coverage for the insurance contract in question was November 1, 1973, and that the medical expenses sought to be recovered are a result of surgery performed in January of 1974. The policy contained the following exclusionary clause:

“SPECIAL CONDITIONS:
Hospital Expenses and Other Medical Expenses incurred during the first twelve months that coverage for a family member is in force under this policy will not be included as Covered Medical Expenses if they are in connection with a disease or injury for which he received treatment or services or took prescribed drugs or medicines, during the three month period prior to the effective date of such coverage; provided however, that
******
if the family member becomes eligible for coverage under this policy after its effective date, and was covered under the primary policy immediately prior to the date he becomes eligible for coverage under this policy, the foregoing terms of this paragraph shall apply only with respect to a disease or injury for which the family member received treatment or services or took prescribed drugs or medicines during the three month period prior to the effective date of coverage for him under the primary policy and only for the first twelve months the family member is insured under the primary policy and this policy.”

Aetna properly pleaded this exclusion in its First Amended Original Answer.

The evidence reveals that Nuzum had a history of stomach ulcer and ulcer-related ailments. In 1968, while residing in California, Nuzum was diagnosed as having an ulcer and put on an ulcer diet. In September, 1972, he had a bleeding ulcer for which surgery was performed in Dallas, Texas by Doctor Morris J. Fogelman. On this occasion Doctor Fogelman surgically removed approximately sixty percent of Nuzum’s stomach. On November 3, 1972, Nuzum saw Doctor Franklin Casey and related to him a fifteen year history of peptic ulcer condition. On this occasion he was diagnosed as having active hepatitis suspected to be secondary to a blood transfusion given to him in September, 1972. According to Doctor Casey, he got over the hepatitis and returned to work approximately December 15, 1972. He was next seen by Doctor Casey on May 22,1973, for an ear infection, which according to Doctor Casey was after he had been working for about six months subsequent to his return to work after the hepatitis problem. Doctor Casey stated that on May 22, 1973, his liver functions were evaluated, the hepatitis condition checked and these “were essentially returned to almost normal at that particular point in time which was about eight months after the hepatitis episode, so that was over then.”

On September 12, 1973, Nuzum was prompted to consult Doctor Casey by his experiencing dizziness, discolored stools and weakness. These are all recognized as symptoms of a bleeding ulcer. Tests also revealed that Nuzum was anemic — another symptom of a bleeding ulcer. Doctor Casey did not perform a full set of tests, but these symptoms, coupled with Nuzum’s long history of ulcers, led him to diagnose Nuzum as having “a bleeding ulcer again.” The doctor testified that he recommended that Nuzum go into the hospital, but he declined to do so. Nuzum denied that Doctor Casey advised him to go into the hospital. Doctor Casey prescribed antacids which he stated could stop the bleeding, and the patient was put on a bland diet. Nuzum admitted that the doctor prescribed antacids. Two days later, Nuzum returned feeling better. Although his hematocrit level still indicated anemia, he was no longer experiencing discolored stools. This last condition indicated that the bleeding, if any, had stopped, but the proof adduced indicated that symptoms from ulcers come and go intermittently. Nuzum stated that prior to September 12, 1973, he had been taking doses of iron previously prescribed by Doctor Casey. Although Doctor Casey recognized that consumption of iron, as well as bleeding ulcers, can cause discolored stools, and that “any form of inflammation in your body, if you have hepatitis, or otherwise,” may result in low hematocrit, he clearly testified that, as of the time here in question, it was his opinion, based on reasonable medical probability, the patient had a bleeding ulcer.

On January 25, 1974, Doctor Fogelman performed another operation on Nuzum for a bleeding ulcer condition. On this occasion he performed a vagotomy (i. e. cut the acid nerves in the stomach) and sutured the ulcer to prevent further bleeding. Aetna contends that it is not liable for the expenses of this operation under the provisions of the policy.

It is well established that upon being sued on one of its policies, an insurance company can deny liability under any exclusion in the policy by pleading specifically the exclusion upon which it relies. Although the insurance company has the burden of pleading the exclusion, the plaintiff retains the burden of proving that his right to recover is not defeated by the exclusion pleaded. Tex.R.Civ.P. 94; Shaver v. National Title & Abstract Co., 361 S.W.2d 867 (Tex.1962). Applied to this case, this rule operates to place upon Nu-zum the burden of proving that he had not been treated for ulcers between August and November, 1973. Specifically, he had the burden to prove that the September 12, 1973, consultation with and treatment by Doctor Casey was not treatment or services received for or in connection with ulcers.

In this regard, it should be noted that Aetna was not required to prove that Nu-zum was treated for ulcers on September 12, 1973. Instead, Nuzum had the burden of proving that he was not treated for ulcers at that time or took no prescribed drugs or medicines therefor during the three month period here involved. We do not believe that it has been established that conditions unrelated to the ulcers caused the September, 1973 illness. The appellee’s argument in that regard is based upon speculation and conjecture and not upon any evidence of probative force. See Bass v. Fouts, 400 S.W.2d 15 (Tex.Civ.App.—Texarkana 1966, writ ref’d n. r. e.). Also see Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). The only doctor who examined Nu-zum during the three month period of time here involved was Dr. Franklin Casey who directly testified that in his opinion it was reasonably and medically probable that in September of 1973 the patient was suffering from a bleeding ulcer. He again stated such medical opinion on cross-examination.

Also, both doctors, Doctor Casey and Doctor Morris J. Fogelman, agreed that in January, 1974, Nuzum had peptic stomach ulcers and had a history of peptic stomach ulcers prior to that time. Both medical witnesses agreed that a bleeding ulcer can cause discoloration of the stools. Although Doctor Fogelman’s testimony indicated that the patient’s ulcer for which he operated in January, 1974, was an acute ulcer which may have been present fo? thirty days or less, both doctors testified that peptic stomach ulcers can go away, appear and reappear from time to time. In the light of the medical testimony and the long history of this patient’s condition relating to ulcers, along with the background and circumstances of this case, we find only evidence of a conjectural and speculative nature, and no direct medical evidence, that conditions other than those which reasonably pertain to an ulcer condition were the cause of Nuzum’s illness on September 12, 1973, and the treatment therefor.

The appellee questions .whether the alleged ulcer condition of September, 1973, was a “disease,” and pointed out that Doctor Casey characterized the condition as a “syndrome.” We note that a syndrome is defined as “a group of signs and symptoms that occur together and characterize a disease.” See Webster’s New International Dictionary, Second Edition, Unabridged, 1961. It is our opinion that the appellee did not meet the burden of establishing by evidence of probative force that in September, 1973, he was not treated for an ulcer condition, which under a reasonable interpretation would be regarded as a disease — “ailment” or “illness” (see Webster’s New International Dictionary, supra).

In view of the foregoing we have concluded that the appellee produced no evidence of probative force to negate the pleaded exclusion. To the extent that appellant’s point of error presents the contention of no evidence to support the judgment, it is sustained. Accordingly, the judgment of the trial court is reversed and judgment rendered that the plaintiff take nothing by his suit.

The appellee’s motion for rehearing is overruled.


author: J. CURTISS BROWN, Chief Justice.

text:
    BAYTOWN STATE BANK, Appellant, v. DON McMILLIAN LEASING COMPANY, Appellee.
    No. 1499.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 11, 1977.
    Rehearing Denied June 1, 1977.

      Jon C. Pfennig, Reid, Strickland, Gillette & Elkins, Baytown, for appellant.
    Jarrel D. McDaniel, G. Michael Curran, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a summary judgment for repudiation of a contract.

Don McMillian Leasing Company, appel-lee, entered into three equipment leasing agreements with International Computer Credit & Recovery, Inc. The financing arrangements provided that Baytown State Bank, appellant, would honor drafts presented by Don McMillian drawn upon International’s account up to thirty-six months. The bank also released its security interest in the equipment leased to International upon Don McMillian’s payment of certain sums.

In July, August, and September of 1975, Don McMillian presented drafts totaling $2,062.11 which the bank honored; however, the bank dishonored the drafts for October, November, and December of that year. Considering International in default, Don McMillian made demand upon the bank for the balance owing on the leases totaling $63,234.78. Don McMillian claimed that this obligation was incurred by the bank as part of the financial arrangements. Upon the bank’s refusal to pay the balance, Don McMillian filed suit asking for specific performance under the agreements, or in the alternative, alleging breach of contract to honor the drafts resulting in damages of $63,234.73 plus delinquency and collection charges. The trial court ordered summary judgment against the bank for the full amount plus costs. The bank has appealed on three points of error: (1) The summary judgment evidence did not establish as a matter of law a repudiation and breach by the bank of the agreement to honor Don McMillian’s drafts; (2) The evidence showed that a mistake existed as to the bank’s obligations under the leasing agreement which would preclude recovery on the theory of anticipatory breach of contract; and (3) The trial court erred in not discounting the award of damages to its present value.

The summary judgment evidence consisted primarily of the lease agreements and the affidavits of E. W. Leach, manager of Don McMillian Leasing Company, and Kyle D. Wright, former president of Baytown State Bank. The controversy centers on three letters sent by the bank to Don McMillian in which the bank agreed to hon- or Don McMillian’s drafts drawn on International’s account. The important language in the three letters is identical except for the amount of the drafts:

The Baytown State Bank also agrees to honor monthly drafts in the amount of $250.08 drawn by Don McMillian Leasing Co. on International Computer Credit & Recovery, Incorporated’s account at this bank, not to exceed thirty six months from June, 1975. The only exception is for the lease to be paid in full earlier than the thirty six month term.

The bank by a sworn affidavit of its former president at the time the letters were executed, claimed that its intention under the agreement was only to honor drafts if International had sufficient funds in its account to honor them. It was on this basis, then, that the bank dishonored the drafts of October, November, and December. Don McMillian, on the other hand, argues that the letters amounted to a guarantee to honor all drafts up to thirty-six months, regardless of the amount in International’s account.

In construing the effect of these letters we observe the rule that the parties’ intention must be ascertained from the language used in the instrument. Citizens Nat’l Bank v. Texas & P. Ry., 136 Tex. 333, 150 S.W.2d 1003-1006 (1941); Grayson County State Bank v. Osborne, 531 S.W.2d 846, 848 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.). We feel that the language in these letters is clear and unambiguous. A common sense reading lends itself to only one interpretation — that Baytown State Bank agreed to honor monthly drafts drawn on International’s account by Don McMillian. The agreement to honor the drafts was unconditional. The “only exception” was in the event the lease was paid in full earlier than thirty-six months. To accept the bank’s interpretation would render the purpose of the language meaningless since under the Uniform Commercial Code the bank is obligated to honor drafts drawn on its customer’s account if the account has sufficient funds absent a lawful excuse for dishonor. Tex.Bus. & Comm.Code Ann. § 4.402 (1968); Gustason v. Northeast Nat’l Bank, 486 S.W.2d 596, 598 (Tex.Civ.App.—Fort Worth 1972, no writ). For these reasons we hold that the three letters amounted to a guarantee by the bank to honor all drafts presented by Don McMillian on International’s account. It was no excuse that International did not maintain sufficient funds in its account during the months of October, November, and December.

By its first point of error the bank argues that the only evidence offered by Don McMillian to support the alleged repudiation was the affidavit of E. W. Leach. In that affidavit, Mr. Leach recounted the terms of the financial arrangements between Don McMillian and the bank including the bank’s agreement to honor drafts drawn on International’s account. He stated that the drafts for October, November, and December were dishonored by the bank and that there was a subsequent demand for the balance and the refusal. We agree with the bank that this evidence alone would not sufficiently show an absolute repudiation of the agreement to warrant a summary judgment. It is well settled that the intention to abandon a contract must be expressed in positive and unconditional terms. See Pollack v. Pollack, 39 S.W,2d 853, 856-57 (Tex.Comm’n App.1931, holding approved). Repudiation may consist of words or actions that indicate an intention not to perform in the future. Continental Cas. Co. v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ.App.—Waco 1965, writ dism’d). In any event, there must be a “definite and unequivocal manifestation of intention” not to perform, 4 A. Corbin, Corbin on Contracts § 973 (1951). The bank’s mere dishonor of the drafts would not be a definite and unequivocal manifestation of its intention to repudiate the contract. Taking into account the volume of transactions that a bank is involved in every business day, it would not be uncommon for the wrongful dishonor to occur due to a simple accounting error. In this case, however, the bank’s dishonor of the drafts was not the only evidence of repudiation. The bank maintained at trial and still maintains on appeal that it did not breach the agreement because it intended to honor the drafts only if International had sufficient funds to cover them. At no time would the bank have honored the drafts if International’s account was deficient. This evidence of the bank’s position on their obligation under the agreement when coupled with their action in dishonoring the October, November, and December drafts, manifests a clear repudiation of the guarantee agreement. In Rapid Transit Lines, Inc. v. Transit Ads, Inc., 401 S.W.2d 276 (Tex.Civ.App.—Eastland 1966, no writ), the defendant pleaded no legal obligation under the disputed contract. The defendant’s president testified that the contract was not binding on his company and the record revealed that defendant had refused to perform under the contract. The court held that this evidence along with other facts and circumstances established an anticipatory breach. Id. at 282. Viewing the summary judgment evidence in a light most favorable to the bank, we find that there was no genuine fact issue raised on the question of repudiation. The bank’s reason for dishonoring the drafts was clear by its own defense and evidenced an intention not to perform in accordance with the terms of the contract. The bank’s first point of error is overruled.

The bank’s second point of error asserts that there was a mutual mistake over the construction of the language in the three letters since in his affidavit Kyle D. Wright stated that the bank’s intention was to hon- or drafts only if there were adequate funds in International’s account and not, as Don McMillian argues, to guarantee payment.

Although a mutual mistake between the contracting parties as to a material fact would be grounds for avoiding a contract, the mistake must be mutual, both parties laboring under a misconception. A unilateral mistake is not sufficient. Here, the language of the agreement to honor drafts was clear and unambiguous. If there was a mistake, it was unilateral on the part of the bank. Hanover Ins. Co. v. Hoch, 469 S.W.2d 717, 722 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Earp v. First State Bank of Abilene, 356 S.W.2d 178, 181 (Tex.Civ.App.—Eastland 1962, writ ref’d n. r. e.).

Under the third point of error both the bank and Don McMillian have agreed that the total amount due after the date of the trial court’s judgment of $63,234.73 should have been discounted to its present value at the 9 percent interest rate set in Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 (Supp. 1976). See Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937). There being no dispute as to the proper award, we order that judgment be modified and reduced to the amount of $58,857.87.

Therefore, the judgment is modified in part and affirmed. Costs on appeal are assessed two-thirds against appellant and one-third against appellee.

Modified and affirmed.


author: McKAY, Justice.

text:
    George MILLER, Sr., Individually and as next friend for George Miller, Jr., Appellant, v. BOCK LAUNDRY MACHINE COMPANY, Appellee.
    No. 1004.
    Court of Civil Appeals of Texas, Tyler.
    May 12, 1977.
    Rehearing Denied June 9, 1977.

      Blake Bailey, Wellborn & Houston, Henderson, for appellant.
    Earl Sharp, Sharp, Ward & Ross, Long-view, for appellee.
   McKAY, Justice.

This is a products liability case in which George Miller, Jr., age 11, had his left arm amputated near the shoulder after the arm became entangled in a piece of laundry equipment. The laundry machine was known as a Bock Centrifugal Extractor, was manufactured by appellee, Bock Laundry Machine Co. (Bock), and was located and being used at the Blue Ribbon Cleaning Center in Henderson operated by Luther Jenkins (Jenkins). Appellant brought suit against Jenkins, United Furniture Co. (United), the seller of the machine to Jenkins, and Bock, alleging that the machine was defective in design and in manufacture and operation because the cage or basket inside the extractor continued its centrifugal rotation at a high rate of speed after the motor was disengaged and the lid raised. Bock by its answer alleged that there was no defect in design or manufacture, but if the machine was dangerous it resulted solely from unusual wear and tear use by customers and owners over a long period of time after its manufacture, that it was not operated and maintained in accord with good practices recognized in the general field and use of such equipment, and that any danger or defect claimed resulted from the failure to properly maintain, inspect and repair the equipment and so operating it or allowing it to be used by the public without proper maintenance and repair. Bock further alleged the injured minor was negligent and his parent was negligent, and that if the machine was dangerous because of lack of maintenance, inspection or repair it had no notice of same.

After Bock’s motion for instructed verdict was overruled the court submitted issues to the jury and the jury found:

1. The Bock laundry machine was (a) defectively designed, and (b) defectively manufactured at the time it left the Bock plant.

1A. Such defect was a producing cause of the injury to George Miller, Jr.

2. The laundry machine was still in such defective condition when sold by United to Jenkins.

2A. United expected the machine to be used by Jenkins’ customers without substantial change in its condition.

3. United failed to properly inspect the laundry machine in question prior to selling it to Jenkins, but, (3A) such failure was not a proximate cause of the occurrence in question.

4. United failed to furnish operating instructions and warnings at the time it sold the machine to Jenkins and, (4A) such failure was negligence, but (4B) was not a proximate cause of the occurrence in question.

5. On the occasion in question the laundry machine was in such condition that the lid of the machine could be raised by an ordinary user while the spinning basket was still rotating, and (5A) Bock knew, or should have known in the exercise of ordinary care, of such fact, and (5B) Bock failed to properly warn the public using such machine of such fact which was (5C) a proximate cause of the occurrence in question.

6. United did not know, nor should it have known, of such fact.

7. George Miller, Jr., suffered damages in the sum of $250,000.00 and reasonable medical and hospital care expenses of $1,000.00.

9. Neither George Miller, Sr. nor his wife was negligent in failing to exercise parental supervision and control over George Miller, Jr.

10. George Miller, Jr., was not negligent in playing or tampering with the lid of the machine or forcing the lid open and placing his arm into the extractor.

11. Jenkins was negligent (a) in operating and maintaining the extractor machine or in permitting it to be operated by the public without proper maintenance and repair; (b) in failing to inspect the machine; (d) in failing to comply with written instructions placed on the name plate of the machine; and (e) in failing to obtain a manual of instructions; but (HA) none of the above was a proximate cause of the occurrence in question.

12. United was not engaged in the business of selling commercial laundry extractors at the time the machine in question was sold to Jenkins in 1967.

14. George Miller, Jr., did not misuse the extractor.

At the beginning of the trial Jenkins settled plaintiff’s claim against him for the sum of $45,000.00 under a compromise agreement.

After a hearing the trial court granted Bock’s motion for judgment non obstante veredicto on the ground that the evidence raised no issue of fact and that a directed verdict would have been proper, and rendered judgment that plaintiff take nothing against Bock or against United.

Appellant by his one point of error contends the trial court erred by determining that the evidence raised no issue of fact and by granting a judgment non obstante veredicto based upon such finding. The trial court may render judgment non ob-stante veredicto if a directed verdict would have been proper. Rule 301, T.R.C.P. To sustain the action of a trial court in granting a judgment notwithstanding the verdict there must be no evidence having probative force upon which the jury could have made the findings relied upon. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). We must, therefore, examine the record to determine whether there is evidence having probative

force which supports the findings of the jury.

The record reveals that the machine in question was manufactured by Bock in 1957, sold to Hammond Laundry Cleaning Machinery Co., Shreveport, and shipped to Leon Crim Furniture Co., Henderson, on February 6, 1957. Bock had no further knowledge of the machine until notified of the accident and injury to George Miller, Jr.

Jenkins testified he bought the machine in July, 1968, from United, and United did not furnish or provide him with any operating, repair or maintenance instructions, nor did he receive any such instructions from Bock or anyone. He further testified there was a plate attached to the top of the machine with the words printed on it: “Read instructions for operation and care of machine before using,” but there were no other instructions or warning that when the lid was opened the inner basket would continue to spin. Jenkins said he never oiled the machine. Jenkins further testified that from the time he acquired the machine the basket continued to spin after the lid was raised but “how fast, I couldn’t say. Not too fast,” and the machine was in that condition when the injury occurred. He said “it worked the same way when it was installed as it did when we finished with it.” Jenkins tested the machine the day after the accident, and he testified that when he raised the lid the basket continued to spin faster than usual. He said he knew there was some type of safety device on the machine that prevented the tub from spinning with the lid open, but he did not know how it worked.

George Miller, Jr., age 11, at the direction of his mother to remove clothes from the machine, turned off the switch and opened the lid with his left hand. He saw the inner basket still rotating and changed to his right hand to hold the lid. His left arm was then pulled into the spinning basket and severed near the shoulder.

The witness L. A. Stern, a consulting engineer and a registered professional engineer in four states, testified as an expert for appellant. He had a college degree in Chemical Engineering, and he had been employed by the Water Department of the City of Dallas, the ordinance plant operated by the Federal Government in Texarkana during the war, and by Pittsburg Testing Laboratories from the early 1940’s to 1970. He was general manager of Pittsburg Testing, where he had tested machinery, pipe, locomotives and component parts. Since 1970 he had been a consulting engineer and had tested products for quality control for many companies.

Shortly after the injury in question here Stern traveled to Henderson and saw the Bock extractor machine at Jenkins’ laundry where the accident occurred. He turned on the machine for one-half to one and one-half minutes, then turned it off and lifted the lid. The basket continued to spin with great velocity which he later measured to be 1600 to 1700 rpms, by his description equivalent to 50 to 60 miles per hour. On later, more detailed examination and testing he testified the basket continued to spin for 24 seconds after the power was turned off and the lid raised. Stern testified that the safety device would not engage and operate to stop the spinning of the basket when the lid was raised because the rubber pads, upon which most o'f the operating mechanism rested, had deteriorated or shrunk causing the machine to slip down. Such dropping caused a rod which should have contacted a collar to go completely over the collar and fail to engage the safety device for the lid. He testified that these rubber pads could have deteriorated because of use, age, time or because they were attacked by some petroleum product such as oil, gasoline or grease. He further said that there was a design defect because the pad could have been made of material that would not deteriorate — that, therefore, there was a manufacturing defect which created an unreasonable risk of harm to those using the machine in the future. Stern suggested that neoprene pads or metal springs would not have deteriorated, that a safety device should work as long as the machine with which it functions is operable, and that a timer or an electro-magnet safety device could have been used.

The witness John Vivian Perry, Jr. was a Professor of Mechanical Engineering at Texas A. & M. University. He had a B.S. degree from Virginia Polytechnical Institute, and his Masters and Doctors degrees from Texas A. & M. He was a Texas licensed professional engineer, and his teaching specialty was machine designs. Perry testified that the rubber bumpers or pads had deteriorated and allowed the machine to drop enough to prevent the safety device from operating, and that the deterioration could have resulted from oil from nearby openings for oil, or from ozone, a substance given off by electric motors which is deteriorative to rubber, or from a combination of oil and ozone plus the heat from the motor. Perry further testified that it was a bad design and that in his opinion the safety plunger should have been moved toward the center of the safety disc rather than contacting it on the side.

John Clement, President of Bock, testified he had been with the company since 1938 except for four years when he was in the military service during World War II. He said he received a B.S. degree in Mechanical Engineering from Cornell University and had taken continuing adult education programs at the University of Toledo. Clement testified that the sole product manufactured by Bock is the centrifugal extractor; that a patent was applied for and issued for the safety devices which are to prevent access to the spinning parts; that it “was a dynamic safety device with a safety disk, and the safety balls lifting the disk, causing an interference with a plunger that translated mechanically up to the cover,” and it was not possible to raise the lid while the basket was still spinning or rotating; that the machine could not be turned on with the lid open, and after the lid was closed and the machine was running the lid could not be opened; that when the machine was turned off there was a braking device which applied an asbestos brake lining against a brake plate, and when the brake was applied it lifts up to a brake disk to stop the rotation. He said the brake lining will wear.

Clement further testified that upon inspection of the machine involved here he observed considerable metal on metal wear, and in his opinion the brake friction facing was not present or was worn out, and the fiberboard had been removed, but he saw nothing else wrong with it. He said it was a safe design for a brake lining and a safe braking system; that the lid is prevented from being opened while the basket spins after the switch is off and the brake is applied by two three-quarter inch metal balls thrown out by centrifugal motion on an inclined plane that sets in motion a safety plunger which blocks against a lip on the safety disk which results in locking the lid as long as the basket spins. He stated that at about 75 rpms the balls would re-track back down and the basket will then turn less than one-half revolution.

In further testimony Clement said installation and instruction material was furnished and accompanied each machine as it was sold, and there was a manual of instructions which contained information on maintenance including “Brake friction facing and rubber mountings should be inspected at least annually and replaced when necessary.” In the same manual which was furnished with each extractor in 1957 was a list of “Parts Most Frequently Required,” and such list included “the A260 bumper rubber, a set of four,” and “the A263 brake friction facing”. He said the wearing of the rubber bumpers or pads of one-eighth inch would not cause the safety plunger to miss the safety disk; that if the rubber bumper or pad was depressed one-eighth inch it might drop the safety disk only approximately one one-hundredth of an inch, and that would not affect the safety plunger and safety disk.

In testing this type machine Clement said it was found that it took 20 seconds for the braking device to stop the basket from rotating, and in the operating and maintenance instructions it was recommended that if it took more than 20 seconds the brake lining should be replaced. He said that the company had considered springs instead of rubber and found them to be dangerous, and that in tests and experiments he had never found a rubber pad deteriorated from oil escaping from an oil receptacle near the front of the machine.

Clement further testified that the dynamic safety device has been in the laundry machine industry since 1923, and to his own knowledge since 1938, that it is used by all the manufacturers in the industry making the same type of equipment, that he considered it to be a safe design and free of defect and the best safety device available for the extractor; and that there was no better material or no better design at the time it was produced. He said that in 1957 each machine, before it left the factory, was tested by operating it — starting it, stopping it, and seeing that the safety devices were all in order; and that it was tested for sound, for leakage and for scratches. He further said no notice was ever received by Bock from Leon Crim Furniture, United or Jenkins about any problem with the machine.

A manufacturer or a dealer who makes or sells a defectively designed or defectively produced product which is unreasonably dangerous to the user or consumer is subject to liability for physical harm thereby caused. Rourke v. Garza, 530 S.W.2d 794, 798 (Tex.1975); Henderson v. Ford Motor Co., 519 S.W.2d 87, 92, 93 (Tex. 1975); Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549, 557 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ); Restatement of Torts, sec. 402A, 2nd Ed. (1965).

There is an abundance of evidence concerning the condition of the extractor at the time of the accident; however, the crucial questions presented here are (1) whether the design was defective at the time the machine was manufactured by Bock, and (2) whether it was defectively produced by Bock. The reason given by the expert witness Stern that the design was defective was that the rubber pads were made of rubber rather than of some other material. He suggested neoprene would have been preferable because it would not have deteriorated and is resistant to petroleum products while rubber is not. Stern’s testimony is based upon the fact that the rubber pads had worn because of use or of age or of time or because they were attacked by some petroleum product. Stern did not testify that the safety device was defectively designed so that it caused the machine to be inherently or unreasonably dangerous at the time it was produced. The effect of his evidence is that eighteen years after the extractor was manufactured, and after it had been used for that period, he had some criticism of the material used in the pads. Likewise, there is no testimony by Stern of defective manufacture of the extractor; his criticism of the use of the rubber pads was not evidence that the extractor was defectively produced, nor that it was unreasonably dangerous to the consumer or user at the time it left Bock’s plant.

The other expert witness Perry testified that the rubber bumpers or pads had deteriorated which permitted the machine to drop enough to prevent the safety device from operating, and it was his opinion that the rubber pads could have deteriorated from oil or ozone or both plus heat from the electric motor. His criticism was that had the safety plunger been attached to the same metal frame as the disk into which the plunger was thrust it would have been a better design. However, he did not say that the machine was defectively designed or manufactured at the time it left Bock’s plant; nor did he testify that the machine was unreasonably dangerous to the consumer or user at that time.

In reviewing the record presented here we believe the reasoning of Henderson v. Ford Motor Co., supra, is applicable here. We paraphrase the Henderson case language at p. 92: The extractor was undoubtedly dangerous to those who used it at the time of the accident to George Miller, Jr., on September 1, 1975. The question is whether this Bock extractor, and all extractors of the same design, were unreasonably dangerous from the time of manufacture. Did some feature of the form or material or operation of the extractor threaten harm to persons using the extractor to the extent that any extractor so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use or to the extent that the extractor would not meet the reasonable expectations of the ordinary consumer or user as to its safety? We think it did not.

In discussing the general legal standard on design defects the writers in 14 Houston Law Review p. 12, The Law of Strict Tort Liability in Texas, analyze the Henderson case in this language:

“The court concluded that if all housings so designed were unreasonably dangerous, then the product would be defective. The court suggested a bifurcated test to resolve the question of whether a product was unreasonably dangerous. If the automobile would not be placed in the channels of commerce by a prudent manufacturer aware of the risk involved in its use or if the automobile would not meet the reasonable expectations of the ordinary consumer as to its safety, then the product is unreasonably dangerous. Concluding that the gasket was not defectively designed, the Texas Supreme Court declared that bare criticism that ‘the design could be better’ was insufficient to establish a defective design. A manufacturer is not expected to design every aspect of a product in the best way that is scientifically possible.”

The testimony of Stern and Perry indicates that there were alternatives in design or materials, which, had they been adopted or used, might have prevented the accident. Such a showing, standing alone, is insufficient to establish liability. Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260, 1267 (5th. 1975); Henderson v. Ford Motor Co., supra, at p. 93. The Weakley opinion contains the following language at p. 1267:

“It is one thing to show that the defendant might have designed a safer product; quite another to show that the product he did design was unreasonably dangerous. The defendant is not obliged to design the safest possible product, or one as safe as others make or a safer product than the one he has designed, so long as the design he has adopted is reasonably safe.”

The manufacturer is not required to design every part to be the best that science and engineering can produce or to guarantee that no harm will befall the user. Henderson v. Ford Motor Co., supra, at p. 93.

In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914, 922, 923 (Sup.Ct.Pa., 1974), is found this language:

“Section 402A does not make the manufacturers and sellers insurers of their products. They are not liable for defects caused by normal wear-and-tear or misuse of a product by its purchaser, however foreseeable these events may be.
“ . . . The age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact. But in certain situations the prolonged use factor may loom so large as to obscure all others in a case. . . . ”

Comment g. of Sec. 402A, Restatement, Torts 2d (1965), reads as follows:

“The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.”

The recent Supreme Court case of General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977) may be distinguished from the case at bar since it is concerned with alterations and misuse of the product as defenses when such are concurring causes with a defect.

After carefully reviewing all of the evidence we are of the opinion that there was no issue of fact for the jury on the question of defective design or defective manufacture, and the trial court acted properly in granting the motion for judgment notwithstanding the verdict.

Judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Betty Ruth Roberts GWARTNEY, Appellant, v. DAHLIN & FITCH et al., Appellees.
    No. 17828.
    Court of Civil Appeals of Texas, Fort Worth.
    May 12, 1977.
    Rehearing Denied June 16, 1977.

      Parnass & Fowler, and Laird H. McNeil, Irving, for appellant.
    Goldsmith & McClure, and Ben McClure, Fort Worth, for appellees.
   OPINION

HUGHES, Justice.

Betty Ruth Roberts Gwartney (Gwart-ney) appealed an order awarding interve-nors, Dahlin and Fitch, accountants, and Don E. Burdette (Burdette), attorney, fees for accounting and legal services. Interve-nors said these services were rendered to the community estate of Gwartney and her former husband, Thomas Bird Roberts (Roberts). Intervenors intervened in a suit brought by Roberts in the 211th District Court of Denton County to compel Gwart-ney to comply with transfer of properties as ordered by a divorce judgment entered in the 16th District Court of Denton County.

We are only concerned with the intervention in this appeal. Trial court entered judgment for Burdette in the sum of $13,-475.00 and for Dahlin and Fitch in the sum of $2,250.00 against Gwartney. Trial court ordered these sums paid out of funds in the registry of the court in Gwartney’s name. (Gwartney’s part of the proceeds of certain realty belonging to Gwartney and Roberts.)

We reverse and remand.

Gwartney appealed on the grounds that there was no competent evidence introduced at the trial to support assessing of monetary liability. Further, Gwartney states that such assessment was based on a former judgment which was vague, indefinite and obscure to the extent of being unenforceable.

The divorce judgment and property settlement to which it alluded, and which it incorporated, were not formally marked as exhibits in this cause. However, pages 80 and 81 of the statement of facts reflects an offer by attorney Goldsmith of the property settlement agreement and inventory and appraisement of Gwartney and her former husband into evidence and an admittance by the court of same. The court referred to the divorce judgment throughout the statement of facts, as did the parties.

The divorce judgment incorporated and adopted the property settlement. The property settlement recited: “The parties hereto mutually agree that the professional and accounting fees expressed by HUSBAND in his inventory are community debts, the amount of which is undetermined at this point in time, and it is further agreed that the parties hereto shall share equally the obligation of paying reasonable legal and accounting fees presently owing by the community.” (Emphasis ours.)

The inventory recited in part:

“LIABILITIES
“Professional— Legal and accounting_31,500.00”.

The trial court accepted the recitation in the divorce judgment as basis for holding for intervenors in their respective sums and refused to go behind such judgment, holding the same to be true.

Gwartney cited Steed v. State, 143 Tex. 82, 183 S.W.2d 458 (1944), which recites: “ ‘A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated.’ ” (Emphasis ours.) Gwartney urged only that part of the definition after the or (emphasis ours) in urging Point 2 that the judgment was vague, indefinite and obscure to the point of unenforceability. We disagree. The judgment simply states, in effect, that there are community debts in the form of legal and accounting fees, “amount of which is undetermined at this point in time,” and that the parties shall share equally in “paying reasonable legal and accounting fees presently owing by the community.” We hold that the divorce judgment did protect the rights of the only two litigants therein and specified with certainty that they each owed half of the legal and accounting debts then due. We overrule appellant’s point of error number two.

The only testimony in the record as to what Burdette and Dahlin and Fitch did for Gwartney and Roberts was in Gwartney’s bill of exception. The trial court accepted the divorce judgment as fully determinative of the intervenors’ rights and refused any further evidence thereon.

As stated, the divorce judgment was fully determinative of the rights of Gwart-ney and Roberts as between themselves but we find that the trial court erroneously theorized that thereby the intervenors could collect their fees without proving them and that they were reasonable. Trial court prevented introduction of any such proof and denied Gwartney the right of cross-examination of the claimants. The interest of justice requires reversal of the case with a remand for further development of the facts. Gruss v. Cummins, 329 S.W.2d 496 (Tex.Civ.App.—El Paso 1959, writ ref’d, n.r. e.).

Reversed and remanded.