author: O’QUINN, Justice.

text:
    Janie PRICE et al., Appellants, v. The AUSTIN NATIONAL BANK, Independent Executor of the Estate of Lillian Price Swann, Deceased, Appellee.
    No. 12195.
    Court of Civil Appeals of Texas, Austin.
    April 30, 1975.
    Rehearing Denied May 21, 1975.

      Fred B. Werkenthin and Lawrence S. Smith, Small, Craig & Werkenthin, John L. Hill, Atty. Gen., Richard E. Green, Asst. Atty. Gen., Austin, for appellants.
    Peter M. Lowry, McGinnis, Lochridge & Kilgore, Austin, for appellee.
   O’QUINN, Justice.

The Austin National Bank, in its capacity as independent executor of the estate of Lillian Price Swann, deceased, filed this suit in December of 1971 for declaratory judgment construing the will of decedent with respect to specified testamentary trusts and the Bank’s powers and duties under the will in acting as executor. Seventeen persons named in the will, two banking institutions acting as trustees under the will, and the attorney general of Texas were named defendants, the attorney general being joined under authority of Article 4412a, Vernon’s Ann.Tex.Civ.Sts., by reason of charitable trusts affected by the suit.

The parties ultimately joined issue on construction of paragraph Vl.g. of the will and distribution to be made under subpara-graphs (1) through (8) under that provision. The appellants, who are four individual beneficiaries of trusts under the will, the attorney general, and trustees of certain charitable trusts having remainder interests, contended in the trial court and contend on appeal that the correct amount to be distributed under paragraph Vl.g. to the four testamentary trusts is $203,478.85. The appellees, who are residuary legatees under paragraph Vl.g., contend that the amount to be distributed to the four testamentary trusts is $146,428.85, or $57,050.00 less than the figure appellants contend is correct.

The trial court’s judgment, entered in April of 1974, held " . . . that the sum of $146,428.85 is the correct amount to be distributed by [the executor] under the terms of Paragraph VIg of such Will to the four testamentary trusts created in Paragraph VIg(l.) through VIg(4.) thereof.”

The individual appellants and the trustees make their contentions on appeal under six points of error, and the attorney general brings six points of error. Appellees answer under two reply points. We will overrule all points urged by appellants and will affirm the judgment of the trial court.

The will of Lillian Price Swann, dated June 11, 1969, which is the subject of this lawsuit, and a codicil dated June 30, 1969, were admitted to probate in Travis County early in December of 1969, following the death of testatrix in Austin on November 15, 1969. During her lifetime Mrs. Swann created two inter vivos trusts, the first instrument dated June 6, 1968, styled The Evans Swann Memorial Trust, referred to as Trust No. 1, and the second instrument dated January 3, 1969, styled The Evans Swann Memorial Trust No. 2, referred to as Trust No. 2.

In her will Mrs. Swann recognized that all her property was acquired during her marriage to Evans S. Swann who predeceased the testatrix. Apparently in part to aid her executor in meeting estate and inheritance tax requirements, Mrs. Swann directed the executor to divide her estate into two equal portions by value, and referred to the first part as her husband’s portion and to the second part as her portion.

Paragraph VI of the will, under examination and construction in this appeal, provided in pertinent part the following:

“VI

“My portion of the estate, computed as set forth above, shall be distributed as follows:

[Subparagraphs a. through f. make six cash bequests to named persons in sums ranging from $500 to $10,000, followed by subparagraph g. next set out]

“g. Such sum of money which, when added to the value as of the date of my death of the corpus of The Evans Swann Memorial Trust No. 2, created by instrument dated January 3, 1969 (less the payments totaling $25,000 provided for in paragraphs 3a and 3d), will equal $310,000.00, to The Austin National Bank, Trustee, to be held, administered and distributed as hereinafter set forth in this subparagraph g:

“(1) 7%ioths, of such sum shall be set aside in a separate trust for the benefit of my sister, Janie Price, of Laredo, Texas, for the term of her natural life and the income only from such trust paid to her or for her benefit in convenient installments not less frequently than monthly.

“(2) 7%ioths of such sum shall be set aside in a separate trust for the benefit of my sister, Johnnie Price (Mrs. Alfred) Murphy, of Laredo, Texas, for the term of her natural life and the income only from such trust paid to her or for her benefit in convenient installments not less frequently than monthly.

“(3) 10%ioths of such sum shall be set aside in a separate trust for the benefit of my nephew, Wayne Price Brock, of Fort Worth, Texas, for the term of his natural life and the income only from such trust paid to him or for his benefit in convenient installments not less frequently than quarterly.

“(4) 6%ioths of such sum shall be set aside in a separate trust for the benefit of Harriette Graham, daughter of Mr. and Mrs. W. Murray Graham, Austin, Texas, for the term of her natural life and the income only from such trust paid to her or for her benefit in convenient installments not less frequently than monthly.

“(5) Upon the death of the first to die of my sisters named in Subparagraphs (1) and (2) above, the trust previously held for the benefit of such deceased sister shall pass eighty percent (80%) to the John C. and Leona Numsen Price Scholarship Trust set forth in Subparagraph 3g(l) of the trust indenture with The Austin National Bank dated January 3, 1969, and twenty percent (20%) to the Evans Swann Memorial Trust created by instrument dated June 6, 1968, naming The Austin National Bank, Trustee, (seven-tenths (%oths) of such twenty percent to be used for medical scholarships as set forth in Paragraph 6 of such trust instrument, and three-tenths (%oths) of such twenty percent to be used for scholarships administered by the Downtown Austin Rotary Club as set forth in Paragraph 5 of such trust).

“(6) Upon the death of the second to die of my sisters named in Subparagraphs (1) and (2) above, the trust previously held for the benefit of such second deceased sister shall pass to the Citizens First National Bank of Tyler, Texas, as trustee, to be used for the purposes of the Smith County medical scholarship trust set forth in Paragraph 3g(2) of the trust indenture with The Austin National Bank, Trustee, dated January 3, 1969.

“(7) Upon the death of my said nephew, the trust previously held for his benefit shall pass one-fourth (½⅛) to the Price Scholarship Trust set forth in Subpara-graph 3g(l) of the trust indenture with The Austin National Bank dated January 3, 1969, fifty percent (50%) to The Evans Swann Memorial Trust created by instrument dated June 6, 1968 (one-half (½) of such fifty percent to be used as provided in Paragraph 5 of such trust instrument, and the other one-half (½) to be used as provided in Paragraph 6 of such trust instrument), and one-fourth (¼⅛) to the Citizens First National Bank of Tyler, Texas, as trustee, to be used for the purposes of the Smith County medical scholarship trust set forth in Subparagraph 3g(2) of the trust indenture with The Austin National Bank, Trustee, dated January 3, 1969.

“(8) Upon the death of Harriette Graham, the trust previously held for her benefit shall pass one-third (⅛) to The Evans Swann Memorial Trust created by instrument dated June 6, 1968, to be used for medical scholarships as provided in Paragraph 6 of such trust instrument, one-third (⅛) to the Citizens First National Bank of Tyler, Texas, as trustee, to be used for the purposes of the Smith County medical scholarship trust set forth in Subparagraph 3g(2) of the trust indenture with The Austin National Bank, Trustee, dated January 3, 1969, and one-third (⅛) to the John C. and Leona Numsen Price Scholarship Trust set forth in Subparagraph 3g(l) of the trust indenture with The Austin National Bank, dated January 3, 1969.”

The paragraphs in Trust No. 2 (3a and 3d) referred to in Vl.g. of the will are included in the following pertinent excerpt from the trust instrument:

“3. Upon the death of the Grantor [Mrs. Swann] the trust principal shall be distributed as follows:

“a. $5,000.00 to the Episcopal Church of the Good Shepherd, Austin, Texas, preferably for the little chapel (none shall be used for the diocese).

“b. $5,000.00 to Episcopal Christ Church, Tyler, Texas (none shall be used for the diocese).

“c. $5,000.00 to the Friends of The Austin Public Library, Austin, Texas, in memory of Evans Swann.

“d. $10,000.00 to The Scientific, Education, and Research Foundation of Bracken-ridge Hospital, Austin, Texas, in memory of Evans Swann.

“e. $57,050.00 to the Trustee of the Thomas E. Swann Memorial Trust, Tyler, Texas, to be added to the corpus of the trust.

“f. The remainder of said trust principal shall be distributed to The Austin National Bank, a national banking association with offices in Austin, Travis County, Texas, as Trustee, to be held, administered, and distributed as follows:

“(1) 7%ioths of such sum shall be set aside in a separate trust for the benefit of the Grantor’s sister, Janie Price, of Laredo, Texas, for the term of her natural life and the income only from such trust paid to her or for her benefit in convenient installments.

“(2) 7%ioths of such sum shall be set aside in a separate trust for the benefit of the Grantor’s sister, Johnnie Price (Mrs. Alfred) Murphy, of Laredo, Texas, for the term of her natural life and the income only from such trust paid to her or for her benefit in convenient installments.

“(3) 10%ioths of such sum shall be set aside in a separate trust for the benefit of the Grantor’s nephew, Wayne Price Brock, of Fort Worth, Texas, for the term of his natural life and the income only from such trust paid to him or for his benefit in convenient installments.

“(4) 6%ioths of such sum shall be set aside in a separate trust for the benefit of Harriette Graham, daughter of Mr. and Mrs. W. Murray Graham, Austin, Texas, for the term of her natural life and the income only from such trust paid to her or for her benefit in convenient installments.

“(5) Upon the death of the first to die of the Grantor’s sisters named in Subpara-graphs (1) and (2) above, the trust previously held for the benefit of such deceased sister shall pass two-thirds (⅜) to the John C. and Leona Numsen Price Scholarship Trust set forth in Subpara-graph g(l) hereof, and one-third (⅝) to The Evans Swann Memorial Trust created by instrument dated June 6, 1968, between the Grantor and The Austin National Bank, Trustee, to be used for medical scholarships as set forth in Paragraph 6 of such trust instrument.

“(6) Upon the death of the second to die of the Grantor’s sisters named in Sub-paragraphs (1) and (2) above, the trust previously held for the benefit of such second deceased sister shall pass to the Citizens First National Bank of Tyler, Texas, as trustee, to be used for the purposes of the Smith County medical scholarship trust set forth in Paragraph g(2) hereof.

“(7) Upon the death of the Grantor’s nephew, the trust previously held for his benefit shall pass ten percent to the Price Scholarship Trust set forth in Subpara-graph g(l), fifty percent to The Evans Swann Memorial Trust (one-half of such fifty percent to be used as provided in Paragraph 5 of such trust instrument, and the other one-half to be used as provided in Paragraph 6 of such trust instrument), and forty percent to the Citizens First National Bank of Tyler, Texas, as trustee, to be used for the purposes of the Smith County medical scholarship trust as set forth in Subparagraph g(2) hereof.

“(8) Upon the death of Harriette Graham, the trust previously held for her benefit shall pass one-sixth (⅜) to the Price Scholarship Trust set forth in Subpara-graph g(l), one-third (⅛) to The Evans Swann Memorial Trust, to be used as provided in Paragraph 6 of such trust instrument, one-sixth (⅛) to The Evans Swann Memorial Trust, to be used as provided in Paragraph 5 of such trust instrument, and one-third (⅛) to the Citizens First National Bank of Tyler, Texas, as trustee, to be used for the purposes of the Smith County medical scholarship trust set forth in Subparagraph g(2) hereof.”

It is clear from the opening portion of paragraph Vl.g. of the will that the testatrix required the executor to ascertain the value of Trust No. 2 as of the day of her death and then compute from the formula provided the amount to be distributed, first to the four testamentary trusts of which the beneficiaries were appellants Janie Price, Johnnie Price Murphy, Wayne Price Brock, and Harriette Graham, and then to remainder interests bequeathed by numbered subparagraphs (5) through (8) under subparagraph g. In this portion the will, in paragraph Vl.g., parallels the distribution found in paragraph 3 of Trust No. 2.

It is undisputed that as of the date of Mrs. Swann’s death the value of Trust No. 2 was $188,571.15, and the trial court found that value. The trial court held “. . . that according to the plain and unambiguous terms of said Will, the amount distributable under the terms of Paragraph VIg is determined by deducting the value at the date of Mrs. Swann’s death of the corpus of the . . . Trust No. 2 less $25,000.00 from the sum of $310,000.00 . . . [and further found] that the sum of $146,428.85 is the correct amount to be distributed by Plaintiff [the executor] under the terms of Paragraph VIg ... to the four testamentary trusts created in Paragraph VIg (1.) through VIg (4.) thereof.”

By deducting $25,000.00 from the value of the trust ($188,571.15) a remainder of $163,571.15 was obtained, which when subtracted from $310,000.00 indicated the sum for distribution, or $146,428.85.

The trial court held “ . . . That based upon the extrinsic evidence concerning the intent of the testatrix, the testatrix intended in the execution of her said Will to continue in effect her plan to provide a total of $310,000.00 to be available for the purposes and beneficiaries set forth in Paragraph VIg of her Will, said $310,000.-00 to be provided by the value at her death of the gift previously made for the same purposes and beneficiaries under the terms of Paragraph 3.† of . . . Trust No. 2 augmented by a sufficient payment from her estate so as to equal said $310,000.00.” (Emphasis has been added)

The computation prescribed by Mrs. Swann in paragraph Vl.g. of her will is based on the value of the corpus of Trust No. 2 on the day of her death, which was $188,571.15, “less the payments totalling $25,000 provided for in paragraphs 3 a and 3 d” of the trust instrument. (Emphasis added) Because the payments provided for in paragraphs 3 a and 3 d are “$5,000.00 to the Episcopal Church of the Good Shepherd ...” and “$10,000.00 to The Scientific, Education, and Research Foundation of Brackenridge Hospital . . . ,” or a total of only $15,000, an inconsistency exists, unless the clause of the will indicating $25,000 in payments is read as payments “provided for in paragraphs 3 a through 3d” of the trust, since the payments provided for in these four paragraphs aggregate the sum of $25,000.

The trial court found “that the portion of Paragraph VIg, page 7 of the Will, which is in parentheses, should be read as follows: ‘ (less the payments totalling $25,000 provided for in Paragraphs 3 a through 3 d)’ ” of Trust No. 2. The court held “that the recitation in Paragraph VIg of ‘the payments totalling $25,000 provided for in Paragraphs 3 a and 3 d’ is conclusive that $25,000 and only $25,000 be deducted from the value of the trust in determining the amount to pass under Paragraph VIg and, moreover, [sic] no parties to this suit have alleged that the $25,000 figure should be changed to $15,000, so the figure of $25,000 should be left unchanged.”

The position of appellants is that the “will should be construed to require distribution of a total of $310,000 through the combination of Paragraph VI(g) of the will and the counterpart portion of Paragraph 3 f” of Trust No. 2. “Appellants believe,” it is argued, “such a result to be mandated by the otherwise inexplicable juxtaposition of the figure $310,000 with the distributions directed in fractions of 310, as well as by the evidence of the will itself, supported and corroborated by the extrinsic evidence of the testatrix’ intent erroneously excluded by the trial court.”

The trial court did exclude extrinsic evidence offered “to support and corroborate” the intent of the testatrix. The court held “that the Will on its face is clear and free from ambiguity, and that extrinsic evidence is not receivable so as to construe the same.”

Appellants contend that Mrs. Swann had “her own individualized way of conceptualizing her estate” and argue that “Because the court’s holding that the will is free from ambiguity and therefore extrinsic evidence is inadmissible to aid in its construction is so contrary to the facts and the established authorities, one suspects that the court’s judgment does not adequately verbalize the decisional process that obtained.”

Appellants apparently urge that Mrs. Swann’s mental processes should have been explained by extrinsic evidence so that the trial court would not have fallen into error in failing to subtract from the value of Trust No. 2, not only the $25,000 in payments stated in the will, but also $57,050 found in paragraph 3 e of the trust. If the court had proceeded in this manner, a total of $310,000 from both the will and the trust, instead of $252,950.00, would have been available for distribution to appellants.

To achieve this end, it would have been necessary for the trial court to ignore the plain words of paragraph Vl.g. of the will and to hear extrinsic evidence, drawn from prior wills and from parol interpretations of Mrs. Swann’s intentions, and then make computations which would have had as their purpose providing $310,000 for distribution from the trust and the will, regardless of the formula for computation provided in plain words by Mrs. Swann in her will.

By rewriting paragraph Vl.g. of the will to require the executor, in computing the sum to be distributed, to subtract not only the payments totalling $25,000 in paragraphs 3 a through 3 d of the trust, but also the sum of $57,050 found in paragraph 3 e, the combined sum for distribution under the will and the trust would have been $310,000. Appellants insist this was Mrs. Swann’s intent. If it was her intent, we do not find, it expressed in the words she used in paragraph Vl.g. of the will.

To paraphrase paragraph Vl.g., the formula to be employed by the executor may be stated in these words: To find the sum of money to be distributed, subtract from the value of the trust, as that value is found on the day of decedent’s death, the sum of $25,000, and then subtract that remainder from $310,000. Following these directions, the executor would subtract from $188,571.15 (trust corpus) the sum of $25,000, leaving a remainder of $163,571.15, and by subtracting that remainder from $310,000 the sum for distribution, as found by the trial court, would be $146,428.85. To employ any other computation requires going outside the terms of the will for a different formula.

The result flowing from the computation prescribed by the will, and followed by the trial court, is that appellants feel deprived of $57,050, the very sum ap-pellees believe they are justly entitled to because the formula for calculating the amount for distribution leaves the residue richer by $57,050. When the words of the will are so plain as to be without doubt or ambiguity, the courts must adhere to the will and may not speculate that some other result may have been intended. “The intent must be drawn from the will, not the will from the intent.” Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960).

There the Supreme Court held that in arriving at the intention of the testatrix the true purpose of the inquiry is to ascertain what the words used express and not to discover what she meant to express apart from the language used in the will. The Court adopted this language: “Accordingly, when there is no dispute as to what words were written in the will, it is a fundamental principle that extrinsic evidence cannot be received to show that the testator intended something outside of, and independent of such written words, to add words to those in the will, to contradict its language, or to take words away from those in the will, even though the court may believe that the actual disposition of the testator’s property which results through changing circumstances was not contemplated by him.” (4 Page on Wills, (Lifetime Ed.), sec. 1617, p. 622)

In Huffman the Supreme Court pointed out a number of changes in the will that would have been necessary to accomplish results contesting parties insisted should flow from the will. The Court declined to rewrite the will by inserting words and numbers and substituting a semicolon for a period, and observed that although Texas courts have been liberal in construction of wills and “go a long way in the relaxation of the rules of construction of wills to arrive at the manifest intention of the testator, . . . courts are limited to the intent found within the will itself and may not redraft the will. Hunt v. White, 24 Tex. 643; Schelb v. Sparenberg, 1939, 133 Tex. 17, 124 S.W.2d 322.”

“The very purpose of requiring a will to be in writing,” the Supreme Court continued in Huffman, “is to enable the testator to place it beyond the power of others, after he is dead, to change or add to his will or to show that he intended something not set out in, or different from, that set out in his will.” (339 S.W.2d 889, col. 2)

Recent cases which follow Huffman v. Huffman include Alamo National Bank of San Antonio v. Daubert, 467 S.W.2d 555 (Tex.Civ.App. Beaumont 1971, writ ref. n. r. e.), in which the court of civil appeals quoted language adopted in Huffman from Page on Wills:

“ ‘Assuming that there is a valid will to be construed, it is the place of the court to find the meaning of such will, and not under guise of construction or under general powers of equity to assume to correct or redraft the will in which testator has expressed his intentions.’ ” 4 Page on Wills (Lifetime Ed.), sec. 1617, p. 627.

The principle of Huffman controlled these recent decisions: Muse v. Estate of Ether Muse, 486 S.W.2d 602 (Tex.Civ.App. Beaumont 1972, writ ref. n. r. e.); Bryan v. Melvin, 499 S.W.2d 17 (Tex.Civ.App. Waco 1973, no writ); In re Estate of Kirby, 516 S.W.2d 284 (Tex.Civ.App. Waco 1974, writ ref. n. r. e.).

An ambiguity arises only when the meaning arising from language used admits of more than one interpretation. We find no ambiguity in the language of Mrs. Swann s will, either patent or latent. The terms of paragraph Vl.g., prescribing the manner of computing the amount of money to be distributed under that paragraph, are clear, exact, and specific, and we find no room for doubt as to the intention of the testatrix. “Where the language of the will is plain and unambiguous, the court cannot give it a meaning different from that warranted by its words merely for the purpose of carrying into effect a conjecture or hypothesis as to the testator’s intention by changing such language.” McMullen v. Sims, 37 S.W.2d 141, 143 (Tex.Comm’n App.1931, holding approved).

The words of Mrs. Swann’s will are not subject to interpretation, and the trial court properly refused to receive and consider evidence concerning the situation of testatrix, or other extrinsic evidence, and based on the evidence give decedent’s words a meaning different from the words of the will.

Finding no error in the judgment of the trial court, the judgment is in all things affirmed.

Affirmed.

SHANNON, J., not participating.

      . Appellants are Janie Price, Johnny Price Murphy, Wayne Price Brock, Harriette Graham, beneficiaries of the Evans Swann Memorial Trust No. 2 (an inter vivos trust created by the testatrix), and are also beneficiaries under trust created under the will; The Austin National Bank of Austin, Trustee for John C. and Leona Numsen Price Scholarship Trust; the Citizens First National Bank of Tyler, Trustee for the Evans Swan Smith County Memorial Trust; The Austin National Bank of Austin, Trustees for the Evans Swan Memorial Trust; and The Austin National Bank of Austin, Trustee for each of the named individuals and trusts under terms of the will of Lillian Price Swann, deceased. Appellees are Libby Calvert Kennedy, G. Victor McNallie III, and Roger Wallace, who are residuary legatees under Par. Vl.g. of the will of decedent.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellant, v. The CITY OF GARLAND, Appellee.
    No. 18644.
    Court of Civil Appeals of Texas, Dallas.
    April 2, 1975.

      Patrick E. Higginbotham, Coke & Coke, Dallas, for appellant.
    Earl Luna, Dallas, for appellee.
   OPINION ON APPELLANT’S PETITION FOR STAY PENDING APPEAL

GUITTARD, Justice.

Appellant General Telephone Company of the Southwest petitions us for a stay pending appeal of the temporary injunction restraining it from charging rates which appellee City of Garland alleges to be without approval by the City Council. The temporary injunction requires General to reduce its rates, pending final decree, to a level prescribed by ordinance in January 1972. We grant the stay, but we direct the trial court to require a bond for protection of General’s subscribers.

Our jurisdiction to grant such a stay is found in Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1964), which grants to courts of civil appeals power to issue “writs necessary to enforce the jurisdiction of said courts.” Under this statute, we have no power to issue original writs solely to protect a party from damage pending appeal. Sobel v. City of Lacy Lakeview, 462 S.W.2d 344, 345 (Tex.Civ.App.—Waco 1971, no writ). We may, however, grant writs necessary to preserve the subject matter pending appeal and prevent the case from becoming moot. Nelson v. Blanco Independent School Dist., 386 S.W.2d 636, 637 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.).

We conclude that such a stay is necessary to preserve our jurisdiction. The subject matter of this appeal is the rate schedule applicable in the interval between the issuance of the temporary injunction and the final decree granting or denying permanent injunctive relief. The appeal is not likely to be completely moot at the time of our decision on the merits, since, presumably, our order will govern the rates to be charged from that time until issuance of the final decree. However, it will be moot with respect to the rates charged in the interval between the present application and the time of our decision, because if General is successful on this appeal, it will have no practical remedy to recover the difference from its subscribers. For the same reason the appeal will be moot with respect to certain credits which the temporary order requires General to give its subscribers for any excess collected since January 17, 1975, above the charges specified in the order. In these respects, the situation is analogous to that in which a temporary injunction is granted to a public service company for an increase in rates in the interval between filing the suit to restrain confiscatory rates and final decree adjudicating the merits of the claim of confiscation. Denial of a temporary injunction in such a situation has been held to permit a loss without a remedy. City of Athens v. Gulf States Telephone Co., 374 S.W.2d 757, 760 (Tex.Civ.App.—Tyler 1964, no writ). Accordingly, we hold that a stay of the temporary injunction is necessary for complete preservation of the subject matter of this appeal.

Since this stay permits General to charge the higher rates pending this appeal, General should be required to provide security to protect the subscribers in the event these rates should ultimately be determined not to be legally chargeable. Consequently, it should provide a refunding bond payable to the City for the purpose of indemnifying the subscribers in the event the final decree should determine that the lower rate schedule prescribed by the temporary injunction is controlling. See City of Baytown v. General Telephone Co., 256 S.W.2d 187, 194 (Tex.Civ.App.—Galveston 1953, writ ref’d n. r. e.). General has advised the court thát it has no objection to providing such a bond. The record before us does not contain information which would assist us in fixing the amount of such a bond. Consequently, we direct the trial court to fix the amount of the bond and to prescribe its terms. It will not be a supersedeas bond as defined by Texas Rules of Civil Procedure 364, but a bond we require as a condition of granting the stay. Accordingly, the stay will expire if General fails to, file a bond on such terms and within such time as the trial court shall prescribe.

Accordingly, the temporary injunction granted by the trial court is stayed pending this appeal, subject to the conditions above specified.

AKIN, J., not sitting.


author: AKIN, Justice.

text:
    Ex parte Andrew LACKEY.
    No. 18657.
    Court of Civil Appeals of Texas, Dallas.
    April 24, 1975.
    Jack B. Cowley, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Donald J. Robinson, Dallas, for appellee.
   AKIN, Justice.

This is an original habeas corpus proceeding brought under Tex.Rev.Civ.Stat.Ann. art. 1824a (Vernon’s Supp.1974). The question presented by this writ is whether notice of a contempt hearing to relator’s attorney of record is sufficient here to comply with “due process.” We hold that it is not.

After a hearing on April 1, 1975, Andrew Lackey (hereinafter referred to as relator) was adjudged in contempt of court by a domestic relations court of Dallas County for failing to pay an arrearage of child support. This contempt order was suspended upon condition that relator comply by April 2 at 1 o’clock p. m.

On April 4, 1975, the court entered an order requiring relator to show cause why such arrearage was not paid on April 2, 1975, at 1 o’clock p. m. and set the hearing for April 7, 1975. No notice was issued to relator. Relator’s attorney, however, received a copy of the show cause order of April 4, 1975, but did not notify relator. On April 7, 1975, based upon an affidavit of petitioner (wife), the court orally ordered that relator be attached and confined to jail. Relator was accordingly arrested and confined. We granted bail pending final hearing.

We grant relator’s relief because relator received no notice of the hearing of April 7, 1975, as required by due process.

Due process of law under Tex. Const. Vernon’s Ann.St., art. I, § 19 and U. S. Const. amend. XIV, § 1, requires at a minimum notice and hearing before a person is imprisoned for contempt. E. g., Ex parte Peterson, 444 S.W.2d 286, 288 (Tex.1969); Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App., Dallas 1975). The trial court here entered an order on April 4, 1975, requiring relator to show cause why he could not comply with the court’s conditional order of April 1, 1975, by paying the arrearage of child support. No actual notice, however, of this hearing was given relator. The only notice given was a copy of the court’s order to show cause mailed to relator’s attorney. Relator’s attorney received the show cause order on the morning of April 7, 1975, approximately two hours prior to the hearing and did not give notice to relator. We hold under these circumstances that notice to the attorney was insufficient to comply with due process. Ex parte Peterson, supra.

It is accordingly ordered that relator’s writ of habeas corpus be granted and relator ordered discharged.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Paul Alonzo BAXLA, Appellant, v. Grace Oleta BAXLA, Appellee.
    No. 18584.
    Court of Civil Appeals of Texas, Dallas.
    April 24, 1975.

      W. Lawrence Evans, Kennedy & Min-shew, Sherman, for appellant.
    B. Keith Brown, Brown & Hill, Sherman, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Divorce action. Paul Alonzo Baxla appeals from a judgment of the trial court dissolving the marriage between him and Grace Oleta Baxla, and also decreeing a division of property. We affirm the judgment.

In his first two points of error appellant contends that there was no evidence, or insufficient evidence, to support the trial court’s action in dissolving the bonds of matrimony.

In her petition for divorce, appellee alleged that the marriage had “become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” This allegation was made pursuant to the Tex.Family Code Ann. § 3.01 (Vernon 1973), which provides:

On the petition of either party to a marriage, a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

Prior to 1973, § 3.64 contained the provision:

The court shall base its decree for divorce or annulment on full and satisfactory evidence.

However, the legislature, by Tex.Laws 1973, ch. 577, § 23, at 1605, effective January 1, 1974, amended § 3.64 and completely deleted the quoted portion of the previous code. Appellant argues that even though the legislature repealed the provisions of § 3.64 in 1973, it did not intend to change the burden of proof in a divorce case. He contends that the testimony submitted by appellee amounts to no evidence at all, or is at least insufficient, to establish the essential grounds for divorce.

While on the witness stand, appellee testified:

Q. Is it true that irreconcilable differences — that there is no hope of reconciliation between you and Mr. Baxla ?
A. Yes, sir.

Appellant concedes that the question propounded to appellee is sufficient to present the fundamental ground for divorce as permitted by § 3.01 even though the question does not track the statutory language. He says, however, that this question and answer, standing alone, does not meet the requirements of proof necessary to support the decree.

As a result of extensive reform movements in the 1960’s, the Uniform Marriage and Divorce Act was drafted and various versions of this uniform act dealing with marriage breakdown as a ground for divorce have been adopted by thirty-two states. In 1971, Texas, while not adopting the Uniform Code entirely, enacted a portion thereof dealing with “no fault” divorce. Since the language used in the various statutes is new to divorce law there has not yet been time for much judicial interpretation of this language. It is, however, clear that the statutes have as their goal the abolition of fault as a requirement for granting of divorces. It is also manifestly clear from the legislative history of many, if not all, of the statutes, that the purpose and intent of the legislatures of the various states, including Texas, is to abolish the necessity of presenting sordid and ugly details of conduct on the part of either spouse to the marriage in order to obtain a decree of divorce. For example, in California, evidence of misconduct or fault will not be permitted in the proceedings except when relevant to child custody determination. Cal.Civ.Code § 4509 (West Supp.1969). Thus, it has been said that in seeking to create a legal system which meets the realities of marital failure, legislators believed that removing considerations of fault and eliminating the incentive to present fault evidence would materially reduce the bitterness and acrimony which had attended divorce proceedings.

We agree with the writer of the U.C.L.A.Law Review article referred to in the margin, wherein it is stated:

[T]he prima facie case for dissolution should be satisfied by the declaration of petitioner that he or she sincerely believes that the marriage has irreparably broken down. Courtroom questions are expected to be brief and would go directly to petitioner’s state of mind. .
Upon such testimony, dissolution should ordinarily be granted, unless the judge detects hesitancy on the part of the petitioner about the possibility of saving the marriage. In that case the judge may refer the spouses to conciliation counseling. Id, at 1322.

We conclude that the question presented to appellee, and answered by her in the affirmative, stating her opinion concerning feasibility of continuing the marriage relationship satisfies the requirement of the Texas Family Code to make out a prima facie case of divorce.

However, we need not uphold the judgment of the trial court exclusively on the one question propounded to appellee and answered by her in the affirmative. As stated by the court in Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d). The sufficiency and weight of the evidence necessary to meet the requirements of insup-portability must be left to the sound discretion of the court trying the case and on appeal from a judgment granting a divorce every presumption must be indulged in favor of the judgment. The court in that case also pointed out that the trial judge, and the appellate court, may view the entire record in determining the sufficiency of the proof. When we review the entire record in this case, we find that the decree is supported by evidence other than the appellee’s answers to the isolated question quoted above, to support the trial court’s decree. For example, appellee testified that appellant had threatened to kill her or any member of her family if she tried to take possession of the house following one of their separations. Appellee also testified that in an effort to work out their problems, she returned to her husband and lived with him one or more times following the filing of the divorce action but that these efforts on her part failed. The only logical inference that can be drawn from such testimony is that the marriage was irreconcilable and could not be saved. Such evidence, taken as a whole, is sufficient to justify the trial court in granting the decree of divorce. Appellant’s points are overruled.

In his third point of error, appellant contends that the court erred in dissolving the bonds of matrimony because appellant had established the defense of condonation. Without deciding the broad question of whether or not the defense of condonation is available when divorce is sought under § 3.01, we overrule appellant’s contention for several reasons. First, appellant did not plead condonation as a defense to appellee’s suit. Condonation is an affirmative defense that must be pled specially. Texas Rules of Civil Procedure, rule 94; Oxspring v. Oxspring, 393 S.W.2d 369 (Tex.Civ.App.—Houston 1965, writ dism’d); Thomason v. Thomason, 332 S.W.2d 148 (Tex.Civ.App.—Amarillo 1959, no writ). Secondly, § 3.08(b) of the Code provides that “condonation is a defense only if the court finds there is a reasonable expectation of reconciliation.” The evidence in this case is entirely sufficient to support the trial court’s implied finding that there is no reasonable expectation of reconciliation. Appellee testified that she made repeated efforts to reconcile the marriage but appellant’s acts and conduct were such as to frustrate such reconciliation. Duggan v. Duggan, 446 S.W.2d 727 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ).

In his fourth and fifth points of error, appellant contends that the trial court abused its discretion in making division of the property of the parties. We find no merit in either of these points. Section 3.63 of the Code provides that the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Wide latitude is granted to trial courts in exercising discretion in determining a division of the property between the parties to a divorce. Hensley v. Hensley, 496 S.W.2d 929 (Tex.Civ.App.—El Paso 1973, no writ); Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959). There is a presumption in favor of the trial court’s exercise of its discretion regarding division of the property. Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.—Dallas 1970, no writ). We find no abuse of discretion by the trial court in rendering its decision concerning the property of the parties in this case. Other than personal property, the principal item was the house and lot in Pottsboro, Texas, which was awarded to the appellee wife.

Appellant contends that the house in Pottsboro was purchased by him prior to the marriage and, therefore, occupied the status of his separate property. While there is testimony which might contradict this position we need not decide the issue. The court is given wide latitude in dividing separate property as well as community property. White v. White, 380 S.W.2d 672 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.). The evidence is undisputed that appel-lee made substantial contributions to the purchase of the house as well as payments on the loan following marriage. Also, the decree provides that the appellee wife is to have the property subject to a substantial indebtedness. For these reasons, we overrule appellant’s points.

The judgment of the trial court is affirmed.

      . Hereinafter, all references to sections of the Code refer to provisions of the Vernon’s Texas Family Code Annotated.

      . A comprehensive survey of this new concept in the law of divorce is found in Family Law Quarterly, American Bar Ass’n, Vol. 8, No. 4, Winter Edition 1974, pp. 401-423.

      . For a comprehensive review of this question, and many other questions involving the new Family Code, see Comment, The End of Innocence: Elimination of Fault in California Divorce Law, 17 U.C.L.A.L.Rev. 1306 (1970).

      . This case was decided prior to the effective date of the repeal of the provision of the Family Code requiring full and complete testimony.


author: STEPHENSON, Justice.

text:
    Betty L. COOK et al., Appellants, v. Warren C. LYON et al., Appellees.
    No. 7687.
    Court of Civil Appeals of Texas, Beaumont.
    April 10, 1975.
    Rehearing Denied May 8, 1975.
    Mary Neal Sisk, Dallas, for appellants.
    Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court granting a motion for summary judgment. The parties will be referred to here as they were in the trial court or by name.

Plaintiff, Betty Cook, brought this action for damages for herself and on behalf of her sister and aunt. Named as defendants are Warren C. Lyon and the law firm Brundidge, Fountain, Elliott & Churchill, hereinafter called the “law firm.” It is alleged that Lyon was guilty of certain fraudulent actions which resulted in losses and damages to plaintiff. It is also alleged that Lyon was acting as a member of and on behalf of the law firm, and it is, therefore, liable for the resulting damages.

The law firm filed its motion for summary judgment, alleging in essence that Lyon was acting outside of the course and scope of his employment in performance and omission of the acts complained of by plaintiff, and, therefore, the law firm was not liable. Affidavits and depositions were filed and considered, and such motion for summary judgment was granted. This portion of the case was severed from the cause of action as to Lyon and other defendants not material to the questions raised on this appeal.

Plaintiff’s allegations generally are as follows: In April 1969 she retained Lyon to represent her in a divorce case. At that time-he was a partner in the “law firm.” Lyon discovered that plaintiff, her aunt, and sister would inherit $60,000 and wished to invest in mortgages. Lyon induced her to lend the money to “Texas Yummers Corporation” for the construction of a store in Dallas. The money was used for outstanding debts and expenses of that corporation. Lyon was a substantial stockholder in such corporation. Plaintiff and those she represented ended up with stock instead of a mortgage. That the corporation had already been dissolved at the time plaintiff’s stock was issued. The law firm had the duty of establishing as a matter of law that it was not liable under any theory fairly presented by the allegations of plaintiff’s petition. Plaintiff’s contention, in substance, is that even though Lyon may not have had actual authority from this law firm to do the things complained of, that he was acting within the scope of his apparent authority.

There is surprisingly little cease law in this state on the subject before us. All parties agree the questions raised are of first impression. We have not been cited, nor háve we found, a single case involving the question of liability on the part of a law firm for the acts of one of the partners.

The Uniform Partnership Act provides for liability of the partnership for wrongful acts of a partner “acting in the ordinary course of the business of the partnership.” Vernon’s Tex.Rev.Civ.Stat.Ann. art. 6132b § 13 (1970).

Section 14 of that article reads as follows :

“The partnership is bound to make good the loss: (a) Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it

In K & G Oil Tool & Service Co. v. G & G Fishing Tool Serv., 158 Tex. 594, 314 S.W.2d 782, 793 (1958), it is stated:

“A non-participating partner is ordinarily not personally liable for the wrongful, tortious or criminal acts of the acting partner unless such acts are within the scope of the partnership’s business or were consented to, authorized, ratified or adopted by the non-participating partner.”

The summary judgment proof in this case shows: that Lyon was a partner in the firm for the practice of law, and there was no partnership for the giving of investment counsel or the performance of services of a real estate or security broker. Lyon represented plaintiff in a divorce proceeding and in the preparation of a will. While plaintiff was conferring with Lyon in his office about the divorce, she mentioned to him that she, her aunt, and her sister had inherited $60,000. She asked Lyon if he knew someone she could talk to as an investment counselor or a real estate agent. Lyon told her he was a silent partner in a real estate firm and knew of several investments. He first mentioned two apartment complexes, and then later he mentioned Yummers. Lyon told plaintiff he had just invested in San Francisco Yummers and was going to be getting the franchises for a fourteen state area. Plaintiff paid Lyon legal fees only for the divorce and will. Plaintiff gave Lyon a check in the amount of $60,343.25 made payable to “Warren Lyon as Attorney for Isabelle M. Griffin, Winifred Baker [her aunt and sister] and Betty Cook.” Lyon endorsed the check and deposited it in an account not connected with the law firm.

We have come to the conclusion that the summary judgment proof established as a matter of law that Lyon had neither the actual authority nor the apparent authority to represent the law firm in the fraud perpetrated upon plaintiff. Such proof shows the fraudulent acts by Lyon were not consented to, authorized, ratified, or adopted by the other members of this law firm.

We have made a careful study of Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971), and find that it has no application to the case before us. In that case, part of the alleged cause of action was breach of a duty owing by the clinic to the plaintiff when it learned of the relationship between the offending partner and the plaintiff. In that Supreme Court opinion, it is stated that the clinic could be held liable as a result of its own negligence without regard to whether the tortious act causing the harm was in the ordinary scope of the partnership business. The summary judgment proof in that case showed Dr. Kelsey, leading member of the partnership, had been called and put on notice of the acts of the offending partner.

Liability on the part of the law firm in the case before us, by reason of negligence on the part of the law firm, is a question which is not reasonably presented by the allegations in plaintiff’s petition.

Judgment affirmed.


author: RALEIGH BROWN, Justice.

text:
    CHRYSLER CORPORATION, Appellant, v. DALLAS POWER & LIGHT COMPANY, Appellee.
    No. 4765.
    Court of Civil Appeals of Texas, Eastland.
    April 25, 1975.
    Rehearing Denied May 16, 1975.
    Edward E. Crowell, Jr., Gardere, Porter & DeHay, Dallas, for appellant.
    Robert A.‘ Wooldridge, Worsham, For-sythe & Sampels, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is a summary judgment case. Chrysler Corporation sought to recover for water damage to 545 automobiles. The loss occurred when waters released by Dallas Power & Light Company through its Mountain Creek Dam flooded the premises of Big D Auto Auction where the cars were being stored. Chrysler alleged Dallas Power & Light was negligent in releasing a great and unnatural volume of water and in not warning Chrysler of such action. It also invoked the doctrine of res ipsa loqui-tur.

The trial court sustained Dallas Power & Light’s special exceptions to all of Chrysler’s allegations of negligence and allegation of res ipsa loquitur. Chrysler did not replead. The trial court then granted Dallas Power & Light’s motion for summary judgment on the ground that Chrysler had failed to state a cause of action. Chrysler appeals.

One of Chrysler’s contentions is the trial court erred in sustaining exceptions to its pleadings and thereby striking subpara-graphs (2) and (3) of paragraph V of Plaintiff’s First Amended Original Petition. Such pleadings alleged:

“That at the time and on the occasion in question, the Defendant, by and through its agents, servants and/or employees, acting in the course and scope of their employment, was guilty of the following negligent acts and/or omissions which proximately caused the Plaintiff’s damage as more fully alleged hereinafter:
(2) The Defendant, or its agents, servants or employees acting in the course and scope of their employment, failed to warn the Plaintiff or the personnel of Big D Auto Auction that a large volume of water would be discharged through the Defendant’s dam.
(3) The Defendant, or its agents, servants or employees acting in the course and scope of their employment, failed to give timely warning to the Plaintiff or the personnel of Big D Auto Auction that a large volume of water would be discharged through Defendant’s dam.”

. Dallas Power & Light argues that as a matter of law it had no duty to warn under the facts and circumstances as set forth in Chrysler’s petition. It is their contention that such duty could only exist where a defendant created a situation of danger. They urge Dallas Power & Light did not cause the flood; nor was it responsible for the flood; nor did it create the danger which the flood waters presented; therefore, no duty to warn could exist.

In support of their position, Dallas Power & Light cites Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942), as the governing case on the subject in Texas. They point to the following language from Buchanan for the proposition that they owed no duty to Chrysler:

“If the driver of the truck was negligent at all, it was because of . . the broken bridge. Before we can determine whether he was negligent in failing to give warning, we must first decide whether he owed the legal duty to do so. * * * it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others. Under the last rule, a bystander may watch a blind man or a child walk over a precipice, and yet he is not required to give warning. He may stand on the bank of a stream and see a man drowning, and, although he holds in his hand a rope that could be used to rescue the man, yet he is not required to give assistance. He may owe a moral duty to warn the blind man or to assist the drowning man, but being a mere bystander, and in nowise responsible for the dangerous sitúation, he owes no legal duty to render assistance.”

In Ford Motor Company v. Dallas Power & Light Company, 499 F.2d 400 (5th Cir. 1974), a case involving the same flood and defendant, the court said:

“Texas law does recognize a duty to warn on the part of the person who creates a dangerous situation, although without negligence on his part. Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942). The Supreme Court in Buchanan stated:
We think it may also be said that if one by his own acts, although without negligence on his part, creates a dangerous situation * * * the one creating the same must give warning of the danger or be responsible for the consequences.
This rule has been acknowledged in subsequent Texas cases. E. g., Henderson v. Willmon, 407 S.W.2d 24, 27 (Tex.Civ.App. 1966, writ dism’d); Courville v. Home Transportation Co., 497 S.W.2d 788, 791 (Tex.Civ.App.1973); Page v. Scaramozi, 288 S.W.2d 909, 911 (Tex.Civ.App.1956, writ ref’d n. r. e.); City of Austin v. Schmedes, 270 S.W.2d 442, 446 (Tex.Civ.App.1954), aff’d in part, rev’d in part, 1955, 156 Tex. 416, 279 S.W.2d 326.
Applying the Buchanan rule to the case of DP&L poses no problems. To be sure, DP&L did not create the flood. But it created, maintained and operated the dam, the presence of which posed nearly all of the problems of proper conduct. Moreover, DP&L was in effect a monitor of the flood waters. . . .
With this operational control over the instrumentality having damaging potentialities, the means of knowledge on existing conditions and likely future developments, and the capacity to make assessments on what would be done and the consequences thereof, DP&L had a duty to give such warning to Big D as would an ordinarily prudent person.”

We hold the trial court improperly sustained the exceptions to the pleadings of Chrysler as set forth herein. The point of error is sustained. Therefor, the court erred in granting summary judgment on the pleadings.

The judgment is reversed and the cause remanded.

McCLOUD, C. J., not participating.


author: STOCKARD, Commissioner.

text:
    MISSOURI UNITED METHODIST RETIREMENT HOMES, a corporation, Appellant, v. The STATE TAX COMMISSION of Missouri et al., Respondents.
    No. 58659.
    Supreme Court of Missouri, Division No. 2.
    May 12, 1975.

      Meredith B. Turner, Turner, Reid & Duncan, Springfield, for appellant, Missouri United Methodist Retirement Homes, a Corporation.
    Samuel C. Jones, Mt. Vernon, for respondents, The State Tax Commission of Missouri, Lewis A. Carlson, County Collector of Lawrence County, Missouri, County Court of Lawrence County, Missouri, and Earl Snyder, Assessor of Lawrence County, Missouri.
    Robert S. Wiley, Crane, for respondents, the City of Marionville, Missouri, and Pat Walker, City Collector of Marionville, Missouri.
   STOCKARD, Commissioner.

This appeal involves the denial by the State Tax Commission of an exemption of ad valorem taxes on certain property owned and operated by plaintiff for the care of elderly persons. The construction of the revenue laws of this State is required, and therefore appellate jurisdiction is in this court. We reverse and remand with directions.

We must first dispose of a motion to dismiss this appeal filed by some of the defendants-respondents on the basis that the appeal is premature.

Plaintiff is a Not-For-Profit Corporation chartered in November 1970 under the provisions of § 355.020. (All statutory references are to RCMo 1969, V.A.M.S.). It operates a residential and retirement facility for elderly persons known as the Ozark Methodist Manor at Marionville, Lawrence County Missouri (hereafter referred to as the “Manor”). Prior to 1972 the Manor’s property had at all times been deemed exempt from ad valorem taxes for state, county and local purposes.

In 1972 the Lawrence County Assessor valued a portion of the Manor’s property at $100,000. Plaintiff appealed the assessment to the county board of equalization, which refused to alter it, and on August IS, 1972, advised plaintiff that the assessed valuation of $100,000 for 1972 was “to be divided in proportion on the 43 units or cottages” located at the Manor. Plaintiff then petitioned the State Tax Commission (hereafter referred to as the “Commission”) for review of the assessment on the ground, among others, that the realty assessed was used for purposes purely charitable within the meaning of § 6, Art. X, Const. of Mo., V.A.M.S., and § 137.100 Par. (S). A hearing was held before the Commission, a record was made, and by letter dated December 1, 1972, the Commission upheld the assessment. On December 29, 1972, plaintiff commenced this action in the Circuit Court of Lawrence County, although no findings of fact or conclusions of law had been made by the Commission, on the theory that unless the petition was then filed the 30-day limitation set forth in Rule 100.04, V.A.M.R., would apply and preclude a subsequent petition for review.

Plaintiff’s petition was in three counts, whereby it sought (1) a review of the decision of the Commission pursuant to Rule 100.07; (2) a declaratory judgment that the Manor is exempt from ad valorem taxation for state, county and local purposes because it is operated for purposes purely charitable within the meaning of § 6, Art. X, Const. of Mo. and § 137.100, Par. (5); and (3) recovery of real property taxes paid under protest as provided by § 139.-031, as amended. On February 13, 1973, plaintiff moved the trial court to compel the Commission to file the transcript including findings of fact and conclusions of law, and these were filed on March 14, 1973. Thereafter, plaintiff filed an amended petition for review of the decision of the Commission, the amended petition being in three counts, and in each plaintiff sought the same relief as in the prior petition. Plaintiff then requested a separate trial of Count I. After trial and on November 13, 1973, the circuit court entered its judgment affirming the order of the Commission. It further ruled that Counts II and III were predicated upon plaintiff’s right to relief on Count I, and they were “dismissed and stricken.”

Plaintiff timely filed a motion to (a) “open or set aside the judgment,” (b) to amend said judgment, (c) to direct the entry of a new judgment in favor of plaintiff, or (d) in the alternative, to grant plaintiff a new trial. In this post-trial motion plaintiff set forth the circumstances whereby the decision of the Commission dated December 1, 1972, did not contain and was not accompanied with findings of fact and conclusions of law, and it was alleged that the procedure followed by the Commission resulted in the proceedings being “arbitrary, capricious, unfair, and contrary to the law of the State of Missouri, and should thereby be set aside.” On December 26, 1973, the trial court entered an order remanding the “cause * * * to the Missouri Tax Commission for further proceedings,” and directed that the Commission “consider all relevant factors in the record bearing on the right of the * * * Commission to assess taxes against the plaintiff’s property in question, and make proper findings of fact and conclusions of law to support its decision in accordance with the requirements of the Model State Administrative Act and Stephen and Stephen Properties, Inc. v. State Tax Commission,” 499 S.W.2d 798 (Mo.1973).

In the Stephen case, this court reversed the judgment of the circuit court which had affirmed a decision of the Commission because certain necessary factors had not been considered by the Commission in arriving at the value of the property. This court then commented that § 536.090 provides that “ ‘Every decision * * * shall include or be accompanied by findings of fact and conclusions of law,’ ” and that the findings of fact and conclusions of law were not timely made and did not comply with the statute. The court noted that the trial court had quashed the untimely findings of fact and conclusions of law, but had affirmed the decision of the Commission, and that “having quashed the Commission’s findings, the circuit court [had] no basis to support its affirmation of the commission order.”

In this case, as in the Stephen case, the findings of fact and conclusions of law were not filed with the decision of the Commission. In fact, in order to be within the period of limitation to appeal plaintiff had to file its petition for review before it knew the factual basis of the Commission’s decision. However, after the transcript was filed, and the Commission’s findings of fact and conclusions of law were received, plaintiff amended its petition for review, presumably to meet any new issue presented by the findings and conclusions. Also, in this case there was no motion to quash the findings of fact and conclusions of law, and they were not quashed hut were considered by the circuit court. Under these circumstances, although the Commission did not follow the clear mandate of the statute, no prejudice (other than delay) resulted to plaintiff. In preparing its amended petition for judicial review, it had the benefit of the Commission’s findings of fact and conclusions of law.

The effect of the judgments of November 13, 1973, and December 26, 1973, is that Counts II and III are dismissed, and Count I (the petition for review of the order of the Commission), has been held in abeyance while the “cause” has been remanded to the Commission for it to again consider the case and file its decision containing, or accompanied by, its findings of fact and conclusions of law. The Commission has advised plaintiff that in the reconsideration of the matter “A new hearing will be scheduled only if new facts have arisen which have a bearing on the case and could not have been presented to the Commission at the ■ original hearing.” None of the parties has indicated that any such new facts are to be presented.

The parties have briefed this case to this court on its merits, and as previously pointed out, no material prejudice to any party resulted from the failure of the Commission to file timely its findings of fact and conclusions of law. Also, it would be a useless and time consuming act for the Commission now to rewrite its “Decision” and attach to it a copy of the findings and conclusions previously made and file them with the Circuit Court of Lawrence County, and for the parties to again present their case to the circuit court. Under the unusual circumstances of this case, and in the exercise of our discretion, we overrule the motions to dismiss the appeal, and we shall rule the case on its merits as though it is an appeal by the plaintiff from the judgment on November 13, 1973, which affirmed the order of the Commission.

Plaintiff was first organized as a Not-For-Profit corporation under the laws of Missouri in 1950 for the purpose of establishing and maintaining a home for aged persons under the auspices of The United Methodist Church of Missouri. Prior thereto, the Manor was an operation referred to as a “Home for the Elderly,” or the “Ozarks Methodist Manor.” At all times prior to 1950 the facilities were owned and operated by the Methodist Church. Some of the land upon which the Manor is located was acquired from the St. Louis Conference of the Methodist Episcopal Church which in turn had acquired it from an institution known as the Marion-ville College, and some of the property was originally acquired by gift. The members of the Board of Directors of the presently existing corporation are nominated by the Health and Welfare Ministries of the East and West Conferences of the United Methodist Church in Missouri. The Manor is one of 181 homes for aged persons operated under the auspices of The United Methodist Church in the United States. The Board of Health and Welfare Missions is the particular agency of the church charged with general supervision of such facilities. The free services given in 1971 on a national basis exceeded 10 million dollars. In the event the Methodist Manor should cease to operate, its property would revert to The United Methodist Church of Missouri under existing trust provisions, and the Manor has complied with the requirements of the certification council of the United Church and is entitled to and has received financial support from the church. The procedure to obtain financial assistance is to set an amount for each church to be obtained by voluntary gifts. No tax support or assistance is received from any governmental agency.

The Manor has not been required to pay a federal income tax, a Missouri income tax, or the Missouri intangible tax. It also has been deemed exempt with respect to the Missouri Inheritance Tax as to bequests made to it. In 1971, the Internal Revenue Service audited the returns and found that the Manor was a charitable organization and exempt from the income tax, and that there were no unrelated property or business being carried on by the Manor. Also, contributions made to the Manor qualify as deductible items for income tax purposes by the donors.

An exhibit was introduced in evidence showing a portion of the City of Marion-ville on which the Manor’s properties are located. All the property of the Manor has not been subjected to an ad valorem tax. The entire project is operated as a unit, so it will be of some importance to set forth the use of the property not taxed as well as the use of the property that has been subjected to an ad valorem tax.

On Block 24 of College Addition, not subjected to tax, there is located the administrative offices, a residence hall of apartments (Wesley-Smith Hall), a health center, some nursing facilities, and a second residence hall where aged residents are housed. At the health center, and in the nursing facilities, care is furnished to those residents who are unable to care for themselves, some of whom are bedfast persons and require intensive care.

The remaining property, described below, has been subjected to an ad valorem tax.

Lots 176 and 179 of O’Dell’s Addition are across a street to the west of the above property. These two lots, together with the above described tract, comprise what is known as the “original campus.” On these two lots are located two courts of cottages designated as Wesley Court with eleven cottages, and Asbury Circle with eight cottages.

Lot 177 of O’Dell’s Addition lies to the west of Asbury Circle, and located thereon are eight cottages known as Coke drive.

To the west of Coke Drive is Block One of Hayes Addition on which are located two courts of cottages known as Straw-bridge Court with eight cottages, and Al-bright Circle with six cottages and another cottage under construction at the time of the hearing before the Commission.

A small area to the west of Block One of Hayes Addition, comprising five lots, is vacant and is used by some of the residents for gardening purposes.

South of Block One of Hayes Addition is a tract comprising all of Blocks Three and Four of Hayes Addition which is vacant land and is used by the Manor as a garden area to produce vegetables to be used in serving the meals in the two dining halls located on the area known as the “Original Campus.”

We note that as of October 10, 1972, there were five groups of cottages, totaling 41 cottages and one under construction; not 43 cottages as stated in the assessment. Also the assessed valuation of $100,000 included areas on which no cottages were located, but the assessment was “to be divided in proportion on the 43 units or cottages located at the Missouri United Methodist Retirement Home of Marionville, Missouri.” Just how this was to be accomplished is not clear.

Appellant presented evidence through church officials that the care for the aged and concern for human needs is a major policy of the United Methodist Church, and has been since the years following the Civil War. Until recent years the general practice was to provide food and shelter but little more. In recent years the concept of care for the aged has changed, and it has become the accepted philosophy that in caring for the aged they should be provided facilities so they may enjoy their latter years, and to provide a feeling of security. Consistent with that concept, the Manor developed facilities to include dormitories and a health center, but also small cottages where the aged, while physically able, may live as nearly as possible in a home atmosphere, and when no longer able to do so, they will then have available to them the dormitories and the health center as a part of the overall facility.

The initial amount paid by a cottage resident is based on the construction cost of the cottage, and that amount constitutes a “life care lump sum.” That sum is subject to a deduction for each month of residence based upon the life expectancy of the resident. In the event the resident becomes disabled he is transferred to the Health Center or to a dormitory, and the balance of the sum if any, is transferred to his credit at that facility, and continues as a monthly credit, based on life expectancy, on the cost of his care in the other facility, thereby reducing the amount payable by that resident for his care in the Health Center or dormitory. In the event the full amount of the “sum” is exhausted, that is, the resident outlives his life expectancy, he will continue “regardless of what happens in his financial situation” to receive care at the Manor. If he has remaining at time of death any amount of his “sum” there is no refund. Also, if a resident dies, his or her spouse may remain as a resident for the remainder of his or her life.

When a cottage becomes vacant, another person or couple may become a resident, and there again will be paid to the Manor a “lump sum” based on the original cost of the cottage, and again a computation is made with reference to the life expectancy of the new occupant. The residents of the cottages pay their electric bill, but the Manor furnishes gas and water, maintains the cottage, mows the law, cleans the walks, and disposes of trash. A cottage resident, if single, pays $21, and if husband and wife pay $42 per month for cottage occupancy. The cottage residents may take meals at the dining halls of the Man- or at the cost of $3.00 per day for three meals. No resident, whose funds have been depleted, has ever been turned out of the Manor.

None of the residents of the Manor pay the actual full cost of care. An exhibit was introduced showing the “normal rate” for each person in the Manor on October 10, 1972. This rate is fixed by the Board. It is in fact a fictitious rate because it is below the actual cost of the care of residents. The exhibit also shows the actual monthly payments made by each resident. Of the total resident population of 157, there were 52 who were being subsidized in whole or in part as to the “normal rate,” but a subsidy results even as to those who pay the “normal rate” because it does not equal the actual cost.

For the 5-year-9-month period from April 1, 1965 to December 31, 1970, financial contributions from the two Missouri Conferences of the Methodist Church amounted to $240,462.85. Other contributions amounted to $61,321.21, resulting in a total amount of $301,784.06. During the 9-month period immediately before" October 10, 1972, the Manor operated a deficit of $17,000, which must be and was paid from reserve funds. The history of the Manor is that it has always operated at a deficit, and the difference is made up from contributions, mainly from the church.

Persons are admitted to the Manor on a nondenominational basis and substantially in the order of application without regard to ability to pay, however, as might be expected, preference is given to members of the Methodist Church.

Pursuant to § 6, Art. X, Const. of Mo. the Legislature enacted § 137.100 which states that certain “subjects are exempt from taxation for state, county or local purposes :

“(5) All property, real and personal actually and regularly used exclusively for * * * purposes purely charitable and not held for private or corporate profit, except that the exemption herein granted does not include real property not actually used or occupied for the purpose of the organization but held or used as investment even though the income or rentals received therefrom is used wholly for * * * charitable purposes.”

It has long been the rule “that exemption statutes are strictly but reasonably (so as not to curtail the intended scope of the exemption) construed. * * * [C]haritable use exemption depends upon the use made of the property and not solely upon the stated purpose of an organization.” Young Men’s Christian Ass’n of St. Louis and St. Louis County v. Sestric, 362 Mo. 551, 242 S.W.2d 497, 502 (1951). “[E]ach tax exemption case is ‘peculiarly one which must be decided upon its own * * * facts.’ Taxation is the rule. Exemption therefrom is the exception. Claims for exemption are not favored in the law.” Midwest Bible & Missionary Institute v. Sestric, 364 Mo. 167, 260 S.W.2d 25. However, Missouri has declared as its public policy that property actually and regularly used exclusively for charitable purposes shall be exempt from taxation, and the taxing authorities are not to be permitted to defeat that announced public policy by unreasonable or unrealistic application of the “strict construction” rule.

“ ‘The phrase “exclusively used” has reference to the primary and inherent use as over against a mere secondary and incidental use; ’ ” Young Women’s Christian Ass’n et al. v. Baumann, 344 Mo. 898, 130 S.W.2d 499, 502 (banc 1939), and “ ‘dominant use’ or ‘principal use’ cannot be substituted for the words ‘used exclusively.’ ” State ex rel. Koeln v. St. Louis Y.M.C.A., 259 Mo. 233, 168 S.W. 589, 590 (1914); Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290, 295 (Mo.1968).

Whether the use of property is for purposes purely charitable depends upon the definition of “charity” and “charitable purposes.” There can be no doubt that the stated corporate purposes of the Manor are “charitable” within a reasonable and realistic definition of that term, and we do not understand that respondents contend otherwise. While the stated corporate purposes are of some importance, they are subservient to the use actually made. Young Men’s Christian Ass’n of St. Louis and St. Louis County v. Sestric, supra. Missouri does not follow the partial exemption theory, and if any part of the property is used for a noncharitable purpose the whole is taxable. Evangelical Lutheran Synod of Missouri, Ohio and other States et al. v. Hoehn, 355 Mo. 257, 196 S.W.2d 134, 145 (1946); Missouri Goodwill Industries v. Gruner, 357 Mo. 647, 210 S.W.2d 38 (1948). We note that the Manor, consisting of the Health Center, residence halls, dining halls, the cottages and garden areas, is operated as a unit. Yet, the taxing authorities separated the cottages and garden areas from the remainder of the property and purported to subject only part of the property used in the total operation of the Manor to ad valorem taxes. In our determination of the issues we shall consider the operatibns of the Manor as a unit. Therefore, this case necessarily turns on whether or not it reasonably can be concluded that the Manor as a unit is regularly and exclusively used for purposes purely charitable.

In the long overdue findings of fact by the Commission, it found that the Manor was a “not-for-profit corporation, organized and existing in the State of Missouri,” and that the Manor is “a residential and retirement facility for persons over age 60.” The Commission then described the physical property of the Manor and its use, including that portion upon which there has been no assessment of tax. Other findings of fact include the following: “The lump sum payments [made by cottage residents] represent the cost of a cottage when that particular cottage was built,” and does not represent any amount based on life expectancy; “Where there is a difference between the monthly payment and the normal rate, the difference is made up from the Manor’s reserve fund, which is maintained by church contributions, and legacies; ” the lump sum paid by a resident is “amortized over the [resident’s] life expectancy,” and any unused portion of this investment is transferred as a credit to the health center or a residence hall and applied to a reduction of the monthly fees in those places, but if a resident dies, the remaining portion of the lump sum payment is forfeited to the Manor; “Many residents are not able to pay the full actual cost of their care,” and when that occurs “the difference between what the [resident] is able to pay and the actual cost is made up by contributions from the Manor’s reserve funds,” and “the reserve fund itself is built up through church donations, gifts and legacies;” the Manor, when it accepts a [resident], ‘“recognizes a moral obligation to give lifetime care to that [resident],” and “no resident has been discharged from the Manor because of inability to pay for care;” “The Manor has operated at a loss over the past ten years,” but “church contributions, gifts and legacies have offset these losses so that the present reserve fund on hand is about. $185,000,” and “all the money in the Man- or’s reserve fund is used solely and exclusively for the operation of the Manor,” and the Manor “receives no support from any Government Agencies through taxes, nor does it receive support from any other source than church contributions, gifts and legacies.” From our statement of the evidence it is clear that these findings of fact are supported by the evidence.

In its conclusions of law the Commission stated that it was “impressed primarily with the fact that, essentially, each resident of the [Manor] pays his own way,” and it concluded that the operation of the Manor was not “purely charitable, since the cost to the individual is admittedly based on the cost of operating the Manor.” In arriving at its conclusion that the Manor was not entitled to the charitable exemption the Commission relied on the opinion of this court in Defenders’ Townhouse Inc. v. Kansas City, 441 S.W.2d 365 (Mo.1969), although it admitted that the facts in the Townhouse case were not identical with the facts of this case.

We are immediately impressed with the fact that the findings of fact by the Commission (for example, that “Many residents are not able to pay the full actual cost of their care;” that the Manor has “operated at a loss over the past ten years;” and that the “difference between what the [resident] is able to pay and the actual cost is made up by reserve funds” which are obtained solely from “church donations, gifts, and legacies”) are in direct contradiction to the statement in its Conclusions of Law, which appears to be the controlling feature of its decision, that “the cost to the individual is admittedly based on the cost of operating the Manor.” This conclusion is not supported by the evidence nor by the Commission’s findings of fact, and this is the distinguishing feature between this case and the Defenders’ Townhouse case.

It is not possible to state briefly the rationale of the Defenders’ Townhouse case, but it may be said that the basis for the result there reached was that the financial aspects of its operations were such that the residents bore the entire cost of operations.

“Neither Defendants’ Townhouse nor Paraclete Manor [of Kansas City v. State Tax Commission, 447 S.W.2d 311 (Mo.1969)] stands for the proposition that a not-for-profit operation to provide housing for the elderly loses its charitable nature because residents are charged for the facilities they receive. Missouri has long since abandoned the idea that charity can exist only for the indigent.” See the consolidated cases of Westminster Gerontology Foundation, Inc. v. State Tax Commission, and John Calvin Manor, Inc. v. State Tax Commission, 522 S.W.2d 754 (Mo.1975). As there stated, the cases “point up the problems that exist when the beneficiaries of the charity are the sole providers of the financial means for the claimed charitable operation,” which was the factual situation in those two cases. It was then noted that such a situation is in contrast to those to which the charitable exemption has been extended, and reference was made to cases from other jurisdictions involving homes for the aged where an exemption from taxes was approved on the basis that the operations were charitable including the following: Bozeman Deaconness Foundation v. Ford, 151 Mont. 143, 439 P.2d 915 (1968), where payments from residents would not pay the mortgage on the facility, and charitable donations were required to make up the difference: Fredericka Home for the Aged v. San Diego County, 35 Cal.2d 789, 221 P.2d 68 (1950), where the land buildings along with a $200,000 trust fund had been donated, and income from the residents provided only 65% of the cost of operation; State Board of Tax Commissioners v. Methodist Home for the Aged, 241 N.E.2d 84 (Ind.App.1968), where the home was constructed on land received as a gift and the church furnished one half of the cost of construction; South Iowa Methodist Homes, Inc. v. Board of Review, 173 N.W.2d 526 (Iowa 1970), where the building was purchased with church funds and the financing of additions was by way of donations from the Methodist Conference; Glass v. Oklahoma Methodist Home for the Aged, Inc., 502 P.2d 1268 (Okl.1972), where the operation of the home was subsidized by the Oklahoma Conference of the Methodist Church; and In re Tax Appeals of United Presbyterian Home, 428 Pa. 145, 236 A.2d 776 (1968), where the home was established by gifts and contributions from its members and friends. The above distinction between the cases was recognized in the Defenders’ Townhouse case. In the consolidated cases involving Westminster Gerontology Foundation and John Calvin Manor, supra, there are cases cited “which have emphasized the use of payments of residents to defray the entire cost of the project in denying [tax] exemption to retirement residences,” but in those consolidated cases recognition is also given to those cases where church or other contributions are necessary to meet the total cost of operation, and which has resulted in the operation being exempt from ad valorem taxes.

The facts of this case, and the findings of fact by the Commission, clearly demonstrate that a substantial portion of the total cost of the operations of the Manor is received from the two Missouri Conferences of the Methodist Church, and from other gifts and bequests. On this basis this case is to be distinguished from, and is not controlled by, the results in the Defenders’ Townhouse, Paraclete Manor, Westminster Gerontology Foundation, and John Calvin Manor cases. All the operations of the Manor, including the use of the vacant land, the operation of the cottages, the residence halls, the health clinic, dormitories, and other facilities dovetail into and round out the charitable operation of the Manor as a unit.

The facts of this case are not in dispute. It is only the legal consequences of those facts that give rise to any controversy. There is no question of weighing the evidence, and there is no place for discretion to be exercised on the part of the Commission. The question is one of law, and we conclude that the operations of the Manor entitles it to the exemption from ad valo-rem taxes on the basis that its property is used regularly and exclusively for purposes purely charitable within the meaning of § 137.100.

The judgment is reversed and the cause remanded for the entry of a judgment consistent with the views here set forth, and for such further proceedings as are appropriate.

HOUSER, C., concurs.

PER CURIAM:

The foregoing opinion by- STOCKARD, C., is adopted as the opinion of the court.

All of the Judges concur.