author: BARROW, Justice. POPE, Justice,

text:
    Raul TREVINO et al., Petitioners, v. Patrick A. TURCOTTE et al., Respondents.
    No. B-6474.
    Supreme Court of Texas.
    March 15, 1978.
    Rehearing Denied April 26, 1978.

      Tom N. Goodwin, John E. Fitzgibbon, William C. Wright, Laredo, Day & Day, Joe Day, Fort Worth, Vela & Vela, Moisés Vela, Harlingen, Downman, Jones & Mussle-white, Norman Jones, Baker & Botts, Den-man Moody, Houston, Perkins, Davis, Oden & Warburton, Kenneth Oden, Alice, Lee H. Lytton, III, Corpus Christi, Rankin & Kern, Inc., H. H. Rankin, Jr., McAllen, John L. Hill, Atty. Gen., Stephen J. Wilkinson, Asst. Atty. Gen., Austin, Elmore H. Borchers, Laredo, Harry J. Schulz, Three Rivers, for petitioners.
    Wood, Burney, Nesbitt & Ryan, Frank W. Nesbitt, Corpus Christi, for respondents.
   BARROW, Justice.

This is a will contest involving the 1960 will of Mrs. Sarita K. East who died on February 11, 1961. The issue presented by this appeal does not concern the actual validity of the will. It is instead whether respondents, who are the widow and six children of Edgar Turcotte, deceased, have an interest in the estate of Mrs. East which will entitle them, or some of them, to contest the will. The district court, sitting without a jury, conducted a trial on the issue of respondents’ interest and entered a judgment which dismissed all respondents from the will contest on the ground that they are not interested persons within the meaning of Section 93 of the Texas Probate Code. On appeal, the court of civil appeals affirmed as to all respondents except Patrick A. Turcotte and Robert A. Turcotte. The judgmentpf the trial court insofar as it affects Patrick A. Turcotte and Robert A. Turcotte was reversed and remanded for trial on the merits. Turcotte v. Trevino, 544 S.W.2d 463 (Tex.Civ.App.—Corpus Christi, 1976). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The factual background of this case and the long history of the litigation is fully set out in the two opinions of the Thirteenth Court of Civil Appeals. See Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.), and Turcotte v. Trevino, supra. We will repeat only those facts, circumstances, and legal principles necessary for the disposition of this appeal.

Mrs. East executed one will dated December 31, 1948, and another on January 22, 1960. Four codicils were subsequently made to the 1960 will. The 1960 will was duly admitted to probate and Edgar Tur-cotte qualified as one of three independent executors of the estate; he served in that capacity until his death on March 18, 1963. On July 25, 1962, petitioner Raul Trevino and 39 others filed a will contest. Numerous parties intervened including Patrick A. Turcotte, individually and in his capacity as Independent Executor of the Estate of Edgar Turcotte, who intervened along with Edgar Tureotte’s widow and other children on December 20, 1963. Marie Walker and her brother, Robert C. Putegnat, intervened on September 30, 1963. At one time there were over 120 contestants of the 1960 will. All contestants, with the exception of respondents, have now been finally dismissed, or have settled and agreed to probate the 1960 will.

None of the respondents is an heir at law of Mrs. East. Three of Edgar Turcotte’s children, Jack, Joe an L. E. Jr., were employees of Mrs. East at the time of her death and, as such, received cash bequests under the 1960 will. None of the other respondents is a legatee or devisee under either the 1948 or 1960 wills. Respondents urge, however, that they are “interested persons” in that they are the sole heirs at law, and the only beneficiaries under the will, of Edgar Turcotte, a cousin of Mrs. East and a devisee of substantial bequests in both the 1948 and 1960 wills. In addition, Patrick and Robert Turcotte claim to be interested persons in the East estate in their own right by virtue of assignments which they acquired from Marie Walker and Robert Putegnat. Patrick Turcotte purchased a total of ten percent of Walker’s and Putegnat’s interests “in expectancy or otherwise as an heir at law or as a beneficiary under any valid will and testament of Sarita K. East, Deceased.” Marie Walker and Robert Putegnat are not beneficiaries under the 1960 will, but are beneficiaries under the 1948 will as well as remote heirs at law. Patrick Turcotte subsequently assigned ⅛2th of his interest to Robert Tur-cotte.

On June 1, 1971, during the trial on the validity of the 1960 will, the trial court dismissed these same respondents from the case then pending on the ground that they were estopped as a matter of law from contesting the 1960 will. That action was reversed by the court of civil appeals and the cause remanded with instructions that the issues of respondents’ interest must be tried separately and in advance of a trial on the validity of the will. 499 S.W.2d 705. This was done and, on June 26, 1975, the trial court entered a final judgment which dismissed respondents from the will contest.

At the outset, since this is the second appeal of the case involving the issue of whether respondents are “persons interested,” we must consider whether or not the first opinion of the court of civil appeals established the “law of the case.” The doctrine of the law of the case is defined as that principle under which the initial determination of questions of law will be held to govern the case throughout its subsequent stages. Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.). Application of the doctrine is addressed to the discretion of this Court. Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 (1896).

It should be recognized that neither the trial court nor the appellate court relied upon the doctrine as a basis for the judgment which is now before us. To the contrary, the second opinion of the court of civil appeals expressly stated that the record presented by the second appeal differs materially from that presented by the prior appeal. The court observed that the type and character of the pleadings, the allegations contained therein, and the theory of the attack differed in many respects in the two trials. The estoppel in the first trial court judgment was found as a matter of law without a full development of the facts. The case was remanded for such development and the second judgment was based on findings of fact by the trial court.

The first opinion held that the trial court’s judgment was erroneous and required a remand for several different reasons. By refusing the application for writ of error with the notation of “no reversible error” the Supreme Court approved only the result reached by the court of civil appeals and not necessarily all the statements as to the law in the opinion. Fant v. Howell, 547 S.W.2d 261 (Tex.1977).

We conclude that the first opinion did not establish “the law of this case” on the issue of whether or not respondents are “persons interested.”

After the trial on the interest of respondents, numerous findings of fact and conclusions of law were made by the trial court. Essentially, the trial court ruled that all of the respondents were estopped to contest the 1960 will because Edgar Tur-cotte, from whom the respondents received an interest in the East estate, would be estopped to contest the will in that he accepted and retained substantial benefits under the 1960 will. The court further held that Patrick Turcotte and Robert Turcotte were not “persons interested” in the estate by virtue of the assignments.

The court of civil appeals affirmed the ruling that respondents were estopped to attack the 1960 will in their capacities as devisees and legatees of Edgar Turcotte. We affirm that holding. It is a fundamental rule of law that a person cannot take any beneficial interest under a will and at the same time retain or claim any interest, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. Miller v. Miller, 149 Tex. 543, 235 S.W.2d 624 (1951); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633 (Tex.Com.App.1942, opinion adopted); Dunn v. Vinyard, 251 S.W. 1043 (Tex.Com.App.1923, judgmt adopted); Smith v. Negley, 304 S.W.2d 464 (Tex.Civ.App.—Austin 1957, no writ hist.). Respondents attempt to avoid this rule of law by arguing that the court of civil appeals’ holding is without support by proper pleading in the probate court, without support of credible evidence, and is contrary to law under the facts of this case.

Respondents contend that the pleadings in the probate court were not sufficient to raise the issue of estoppel by acceptance of benefits in the district court since not all elements of estoppel, specifically acceptance with knowledge, were pled. It is settled that on appeal to the district court from probate matters which have had their origin in the county court, the jurisdiction of the district court is appellate only and, therefore, the issues which are tried de novo in the district court must be confined to issues raised by the pleadings and the evidence in the county court. Holliday v. Smith, 422 S.W.2d 791, 795 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.); Olds v. Traylor, 180 S.W.2d 511, 518 (Tex.Civ.App.—Waco 1944, writ ref’d). As pointed out by the court of civil appeals, the issue in both the county and district courts in this case was whether respondents were estopped from asserting their interest in the East estate. The same ground of estop-pel-acceptance of benefits — was pled in both courts. The pleadings in the district court which were amended to allege that the respondents were estopped because Edgar Turcotte had accepted benefits under the will with knowledge of his rights did not therefore inject a new issue into the proceedings or even enlarge the ground of estoppel raised in the probate court.

Respondents further assert there was no evidence that, at the time Edgar Turcotte accepted benefits under the will, he knew or should have known that the will contest would be filed by others, and that such knowledge is a necessary element of estoppel. Whether or not Edgar Turcotte had knowledge of all the facts and of all his rights at the moment he accepted the benefits is immaterial to a determination that he, by his acts and conduct after acceptance, became estopped to contest the will. Clearly, there is more than a scintilla of evidence to support the finding of the trial court that Edgar Turcotte did take many of the substantial benefits to which he was entitled under the 1960 will, and that he never revoked, or intended to revoke, his acceptance. He qualified under the will as one of the independent executors of the estate of Mrs. East and performed numerous duties as such until his death on March 18, 1963. He never contested the will. To the contrary, as executor, he defended the probate of the will in court. He accepted his share of the 43,000-acre San Pablo Ranch and he partitioned same, together with the cattle and personal property thereon, with his sister, Stella T. Lytton. He made improvements on this ranch and operated it until his death. In all, he accepted and took possession of approximately $1,300,000 worth of benefits under the 1960 will. He was advised by an attorney that his acceptance under the 1960 will would preclude any claim by him for benefits under the 1948 will. He never returned or tendered a return of those properties during his lifetime. Respondents are still in possession of these properties and the income therefrom.

Respondents also assert that they are not estopped because the will contest was initiated by people other than themselves. They urge that since a will contest is a proceeding in rem, the adjudication of property rights in the contest could affect the rights of the Turcottes. It is therefore argued that the personal estoppel against Edgar Turcotte and his privies should be precluded as a matter of law because to bar respondents from participating as contestants lacks mutuality, is prejudicial and is a denial of due process of law. We hold that the filing of a will contest by others cannot be deemed to revive the respondents’ relinquished right to contest the 1960 will. Furthermore, now that all contestants of the 1960 will except the respondents have settled and no longer challenge its validity, the respondents’ contentions in this vein are moot.

We therefore hold that there are pleadings and evidence to support the finding that Edgar Turcotte, with full requisite knowledge, elected to and did take the substantial benefits to which he was entitled under the 1960 will, and that this election was ratified by him until his death. This election and ratification is binding upon respondents in their capacity as heirs, legatees, or personal representatives of Edgar Turcotte, deceased. Wells v. Petree, 39 Tex. 419 (1873); Lancaster v. Burris, 352 S.W.2d 136 (Tex.Civ.App.—San Antonio 1961, no writ hist.); Cunningham v. Townsend, 291 S.W.2d 438 (Tex.Civ.App.—Eastland 1956, writ ref’d n. r. e.). The court of civil appeals did not err in holding that respondents did not have such an interest in these capacities to contest the 1960 will of Mrs. East.

Respondents Patrick Turcotte and Robert Turcotte also claim to be interested persons to contest the 1960 will by virtue of the assignments purchased from Robert C. Putegnat and his sister, Marie Walker, beneficiaries under the 1948 will and heirs at law of Mrs. East. The court of civil appeals reversed the trial court’s finding that the assignments were invalid and rendered judgment holding Patrick and Robert Tur-cotte to be interested persons.

Petitioners do not question the established rule in this State that the heirs, devi-sees and legatees of a decedent may validly assign all or any part of their interests in a decedent’s estate. Morris v. Halbert, 36 Tex. 19 (1871); Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.—Waco 1949, no writ); 61 Tex.Jur.2d Wills, § 324. Neither do they dispute the rule that assignees of an heir at law have such interest in testator’s will which enables them to contest its validity. Tex.Prob.Code Ann. Sec. 3(r) (1956); Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted). Petitioners do urge, however, that under the facts and circumstances in this case Patrick and Robert Turcotte should not be permitted to use these assignments to gain standing as “persons interested” to contest the 1960 will of Mrs. East.

The record fairly supports the conclusion that the assignments were acquired by Patrick A. Turcotte for the express purpose of acquiring an interest in the East estate which would give him standing to maintain the will contest should it be found that Edgar Turcotte and those claiming through him were estopped. This plan was undertaken after Patrick Turcotte had been advised by several attorneys that the probable estoppel of Edgar Turcotte would present at least a serious question to his intervention in the will contest. Patrick Turcotte commenced a search for an heir at law of Mrs. East or a beneficiary of the 1948 will who was not a beneficiary of the 1960 will. He learned the Putegnat family had been bequeathed $20,000 in the 1948 will and that Robert Putegnat and Marie Walker are each entitled to Várd of their father’s ⅛ th interest in this bequest. Patrick Tur-cotte first offered to furnish an attorney to Robert Putegnat for a five percent share in his interest, but after learning that Puteg-nat already was represented by an attorney, Patrick undertook to purchase an interest in Putegnat’s claim. Putegnat accepted Patrick’s offer of $1,000 for a five percent share in Putegnat’s claim. Putegnat also agreed to try to purchase for Patrick similar interests from other heirs at law for a commission of $100. Accordingly, Putegnat contacted his sister, Marie Walker, and her husband who agreed to assign Patrick a five percent interest in her claim for $1000. About a month later, Putegnat and Marie Walker contacted Patrick Turcotte and each assigned him an additional five percent interest for $1000 each. Putegnat was paid $400 in total commissions by Patrick for these four assignments.

Although the assignments were taken in the name of Patrick Turcotte, they were paid for with checks drawn on the Edgar Turcotte Estate Trust Account. It is reasonable to assume that Patrick intended, at one time at least, that these assignments would be owned jointly by the heirs of Edgar Turcotte in that he voluntarily assigned Robert Turcotte a ½2⅛ interest. Since the interests purchased by Patrick Turcotte for over $4000 would be worth only about $220 if the 1948 will is probated, the logical conclusion to be drawn is that these interests were acquired for the purpose of securing standing to maintain a will contest.

We agree with the holding of the court of civil appeals that the assignments to Patrick Turcotte are not null and void by reason of the barratry statute, violations of the Canons of Ethics of the State Bar of Texas, or any illegal conduct on his part. Patrick’s offer to represent Putegnat was not pressed after he learned that Putegnat already had an attorney. Instead, negotiations were had leading to the purchase by Patrick Tur-eotte of the four assignments.

Therefore, the decisive question presented narrows to whether or not Patrick and Robert Turcotte, although personally es-topped from contesting the 1960 will as beneficiaries of their father, may “unestop” themselves by purchasing a ten percent interest in the claims of two remote heirs of Mrs. East, claims which are inconsistent with and would defeat the interest already accepted by the Turcottes through their father. We have been unable to find a Texas case which has squarely considered this point. The court of civil appeals held that the assignees may do so and cited the following authorities in support of this holding: Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted); Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923, judgmt adopted); 23 Am. Jur.2d, Descent and Distribution, § 36 (1965). We do not find any of these authorities as controlling the disposition of this case.

The question before the court in Dickson, supra, was whether the right of a deceased who occupied the position of a “person interested” which would have entitled him to contest the probate of a will passed by the terms of his will or died with him. It was held that the right of action is assignable and is the subject of conveyance, and that a “person interested” means anyone who has an interest in the subject matter of the proceeding. The court did not consider or speak to the question of whether such party could assert such right when it would be inconsistent with a position the party had previously elected to adopt under a will.

In Abrams, supra, the contestants asserted alternate interests in the estate by claiming under the purchaser of the land in controversy at an execution sale and also under a conveyance from the grandson of testatrix. It was held that both of these interests would be affected by the probate of the will and therefore contestants were “persons interested” and entitled to maintain the contest under either claim. The court held that contestants had a right to plead both their titles in the alternative and, if either title proved to be an interest in the estate of testatrix, they were entitled to contest such probate. The court neither considered nor spoke to the question of the effect of an estoppel as a bar to one of the titles.

The final authority cited by the court of civil appeals is a partial quote from 23 Am.Jur.2d, supra, as follows:

“. . . Estoppels, where operating against the ancestor, do not operate against his heirs as to property not inherited from the ancestor, but acquired from an independent source. Hence an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance, from one other than the particular ancestor.”

This sentence relies on five cases, none of which are Texas cases. Three, French v. McMillion, 79 W.Va. 639, 91 S.E. 538 (1917); Foote v. Clark, 102 Mo. 394, 14 S.W. 981 (1890), and Russ v. Alpaugh, 118 Mass. 369 (1875), are very similar. In French the father of the plaintiff conveyed, by warranty deed, the land he lived on and apparently owned. The land was actually owned by the grandmother of the plaintiff. The plaintiff claimed title alternatively as the heir of the father and as the heir of the grandmother. The court found that the same estoppel or warranty which would have prevented the father from claiming title to the land would also operate to prevent the plaintiff from claiming title as the heir of the father. However, the court went on to find that title was never vested in the father since he predeceased the grandmother, and that upon the grandmother’s death, title passed directly to the plaintiff. The estoppel which prevented him from claiming title through the father was held not to operate to also prevent him from claiming through the grandmother.

Similarly, in Russ and Foote the estoppel which would have prevented the children from claiming title as heirs of one parent who had apparently conveyed away the land did not prevent them from acquiring the land as heirs of the other parent who, at death, actually had title. In Oliver v. Piatt, 3 How. 333, 11 L.Ed. 622 (1844), and McSwain v. Griffin, 218 Miss. 517, 67 So.2d 479 (1953), the heirs stood in the shoes of a decedent whd would have been estopped from claiming title to land, but were held not to also be estopped from acquiring valid title by purchasing the land in question.

We do not believe that the quoted rule controls the situation before us in that none of the cases cited in support thereof involved a will contest. There was no heir before the court in any of those cases who was a successor in interest standing in the shoes of his ancestor to any rights or properties which were inconsistent with, or which would defeat in any manner, the property right which the heir was then claiming.

The New York case of De Witt v. Jayne, 222 App.Div. 674, 225 N.Y.S. 97 (1927), supports petitioners’ position on this point. It was there held that plaintiff and the other legatees under the will of plaintiff’s sister, having accepted their legacies, were personally estopped from later claiming any interest in the estate of the deceased hostile to the will. Furthermore, plaintiff was held to be estopped for the same reason from asserting the claims assigned to her by the other beneficiaries under the will.

Although we have found no Texas case which considered the question of “unestop-pel” in regards to a will contest, Texas courts have rejected the somewhat analogous arguments that a person may circumvent his estoppel by acquiring a chain of title unrelated to the estoppel. See Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599 (1948); Doty v. Barnard, 92 Tex. 104, 47 S.W. 712 (1898); Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137 (1892).

The question before us is not, as in Abrams, whether or not interests may be alternatively asserted as grounds for contesting a will; it is instead whether or not a party who is estopped by equity from contesting by way of one interest may avoid that estoppel by acquiring another interest which is not estopped. No court has so held. To so hold would make a mockery of the equitable rule of election in will contests. The rule of election and estoppel in will contests is based upon equity and public policy. It is designed to prevent one from embracing a beneficial interest devised to him under a will, and then later asserting a challenge of the will inconsistent with the acceptance of benefits.

Here respondents Patrick and Robert Turcotte are seeking to assert the relatively minute interests assigned to them in order to contest the 1960 will which their father ratified by his election. Yet their admitted purpose in invalidating such will is to recover through their father since respondents are neither beneficiaries under the 1948 will nor heirs at law. In the meantime respondents have enjoyed, and continue to enjoy, the fruits of their father’s election in that they remain in possession of the property taken by Edgar Tur-cotte under the 1960 will, and have earned almost one million dollars from same. They admit that over $150,000 from the estate bank account has been spent on this contest of the 1960 will. True, respondents have pleaded that they are willing to tender back the property received by them should the 1960 will be invalidated. However, even assuming that a valid tender could be made after these many years of unqualified possession, the election to take or not to take is not the respondents’ to make; it was made long ago by Edgar Turcotte. Respondents cannot now repudiate that election.

The Putegnat heirs, including Robert Pu-tegnat and Marie Walker, as well as all other contestants, have now settled their claims and no longer desire to contest the 1960 will. Putegnat and Marie Walker have offered to pay Patrick and Robert Turcotte ten percent of the interest to be received by Putegnat and Marie Walker.

We conclude that it would be inequitable and unjust to allow Patrick and Robert Turcotte to assert standing as interested parties by virtue of the minute interests acquired through the assignments purchased for the purpose of defeating the will under which their father elected to take. Furthermore, to permit standing under such circumstances is against public policy in that it would breed litigation and deprive the real parties at interest of their right to compromise and settle their controversies.

Therefore, the court of civil appeals erred in holding that Patrick and Robert Turcotte are persons interested in the Sarita K. East estate and, as such, entitled to contest the 1960 will. The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

POPE, J., dissents in an opinion in which CHADICK, J., joins.

POPE, Justice,

dissenting.

I respectfully dissent. I do not agree with that part of this court’s opinion which denies standing to Patrick and Robert Tur-cotte in their attack upon Mrs. Sarita East’s 1960 will and its codicils. In my judgment the Turcottes have the same standing as their assignors, Marie Walker and Robert C. Putegnat. Walker and Putegnat are the herís of Mrs. East, and they also have an interest as devisees under Mrs. East’s earlier 1948 will, which might become operative if the 1960 will were invalidated. The majority recognizes that Marie Walker and Robert Putegnat had an interest and standing, but in some mysterious manner, a part of their interest and standing vanished by their assignment to the Turcottes.

Mrs. Sarita K. East executed a will in 1948, and in 1960 she made a new will. A number of codicils were later added to the 1960 will. After Mrs. East died in 1961, some 120 persons set about to prove that the 1960 will and the codicils were void because Christopher Gregory, also known as Brother Leo, had overreached Mrs. East by undue influence and fraud. That contest was tried in the probate court of Kenedy County which rendered a judgment that the 1960 will was void and which admitted the 1948 will to probate. There was an appeal to the district court. See Alice National Bank v. Corpus Christi Bank & Trust, 431 S.W.2d 611 (Tex.Civ.App.—Corpus Christi 1968), aff’d, 444 S.W.2d 632 (Tex.1969).

All of the parties who originally urged the invalidity of the 1960 will have now, we are told, made settlements in the vast estate — all, that is, except Patrick and Robert Turcotte. The majority opinion says that the Turcottes should not now be permitted to assert their rights or test the validity of the 1960 will, because it would be “inequitable and unjust to allow Patrick and Robert Turcotte to assert standing as interested parties.” The assignments that they own have not been set aside or voided by any legal proceeding and the majority opinion confirms their validity. In my opinion, the Turcottes have standing, and it is inequitable and unjust to deny them their day in court to make proof that Mrs. East was overreached when she made the 1960 will.

The Turcottes assert their standing on two independent bases, either of which entitles them to contest the 1960 will. They first assert that they are the sons of Edgar Turcotte who was a beneficiary under Mrs. East’s 1960 will. Edgar Turcotte received substantial benefits under the 1960 will, but the Turcottes say that he did so without full knowledge of the undue influence and fraud of Father Leo, and also that Edgar Turcotte did not know that he was granted even greater benefits under the earlier 1948 will and its codicil. Edgar Turcotte died and his two sons then received by devise a part of what Edgar had received under Mrs. East’s 1960 will. Patrick and Robert Tur-cotte urge that in 1973 when this same issue was before the court of civil appeals that the court ruled that Edgar Turcotte was not estopped unless there were pleadings and proof that he received the benefits of the 1960 will with knowledge of the facts. 499 S.W.2d 705, 712-15 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.). The court of civil appeals at that time ruled:

There is neither pleading nor evidence to support the findings that Edgar Turcotte, at the time he accepted benefits under the contested will, had full knowledge of the lack of testamentary capacity of Mrs. East when she executed the will.

Patrick and Robert advance a second basis to establish their standing to attack the 1960 will. They own an interest entirely independent of their claims as children of Edgar Turcotte, one of the beneficiaries of the 1960 will. Robert C. Putegnat and his sister Marie Walker were second cousins of Mrs. East and as such were her heirs at law. They were also named as beneficiaries by a codicil to Mrs. East’s 1948 will. They were not named as beneficiaries under the 1960 will. Putegnat and Walker contested the 1960 will, and there has at no time been any pleading or contention that those parties lacked standing to sue to strike down the 1960 will.

Putegnat and Walker sold a part of their valid and nonestopped claim to Patrick and Robert Turcotte by transactions which the majority opinion upholds as valid. In other words, Patrick and Robert Turcotte lawfully bought the interests of Putegnat and Walker and the majority upholds the lawfulness of the purchase. We thus have the situation in which Patrick and Robert Tur-cotte bought an unestopped interest; however, this court denied them the right to assert that unestopped interest.

Patrick and Robert Turcottes’ standing, provided they factually proved their acquisition of the interests, was decided in the earlier appeal of this case. Patrick and Robert Turcotte rely upon these express holdings by the court of civil appeals on the former appeal about standing: Patrick Tur-cotte had the legal right to purchase from other heirs an interest in Mrs. East’s estate; Patrick and Robert Turcotte had the right to plead their interest based on (a) what they acquired by devise under the will of their father Edgar Turcotte, and (b) that which they purchased from Marie Walker; if either title so pleaded was proved, they were entitled to prosecute the will contest; an estoppel against Robert Turcotte by reason of his devise under his father’s will does not cut off his interest acquired by purchase from Marie Walker; neither Patrick nor Robert Turcotte were personally es-topped from contesting Mrs. East’s will, because they were not named as beneficiaries in her will, “They having accepted no benefits under Mrs. East’s will . . . .” Turcotte v. Trevino, 499 S.W.2d 705, 721-22.

The majority now rejects all of those earlier holdings, but writes at length to excuse and justify its disregard of the earlier 1973 opinion. The point before the court of civil appeals in 1973 and this court on application for writ of error in that former case, was whether the Turcottes had standing as the assignee of a part of an unes-topped claim of Marie Walker. It is correct that the court of civil appeals recognized differences in the records of the two appeals of these same parties. But the court of civil appeals, writing on this second appeal, recognized the identity of the parties and problem, and it applied the same rule in the second appeal that it did in the first one. Whatever may be the other differences in this and the earlier records on appeal, the records are the same concerning the right of the Turcottes to assert rights under their valid assignments.

Lest there be any question of the sameness of the issue and parties in the earlier and the present appeal, we should examine the verbatim holdings in the two opinions written by the same judge of the same court about the same point. Five years ago the court of civil appeals relied upon Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted); Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923, judgmt adopted), and 23 Am.Jur.2d, Descent and Distribution, § 36 (1965). The court of civil appeals in this case believed that it was applying the law of the case, because it cited the 1973 case of Turcotte v. Trevino.

Patrick and Robert Turcotte have now done precisely what they were told they needed to do by the 1973 remand of this case. They returned to the trial court and made the factual proof of their standing. They now learn that the retrial upon the remand was an empty and useless effort. As stated by the majority opinion, this court has the power to ignore the law of the case, but it is unfortunate that we have chosen to do so after so long a delay which we ordered, and after the waste of so much time and money upon a retrial that really should not have been conducted. The majority has found no better reasons than those urged in the former appeal for its change of mind, and it cites no Texas authority for its rule that, in this instance, it would be “inequitable and unjust” to allow Patrick and Robert Turcotte to conduct a trial which would determine which will in truth was Mrs. East’s last will. That issue will now never be determined. In my opinion this is a textbook example for the application of the law of the case. Kendall & Harcourt v. Mather, 48 Tex. 585, 597-98 (1878); Wood v. Wheeler, 9 Tex. 127 (1852).

I agree with the opinion of the court of civil appeals, and I would refuse the writ, no reversible error, and permit Patrick and Robert Turcotte, who have a valid assignment from unestopped heirs and devisees, to make their proof about the testamentary capacity of Mrs. East and on the issues of fraud, undue influence and duress. I do not believe that the property rights which Patrick and Robert purchased should be deemed expendable.

CHADICK, J., joins in this dissent.

      . There have been nine previous appeals involving this estate: Kimmel v. Lytton, 371 S.W.2d 927 (Tex.Civ.App.—Waco 1963, writ ref'd); Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App.—Corpus Christi 1964, writ refd n. r. e.); Turcotte v. Alice National Bank, 402 S.W.2d 894 (Tex.1966); Alice National Bank v. Edwards, 408 S.W.2d 307 (Tex.Civ.App.—Corpus Christi 1966, no writ hist.); Gregory v. Lytton, 422 S.W.2d 586 (Tex.Civ.App.—San Antonio 1967, writ ref'd n. r. e.); Corpus Christi Bank and Trust v. Alice National Bank, 444 S.W.2d 632 (Tex.1969); Alice National Bank v. Trevino, 445 S.W.2d 237 (Tex.Civ.App.—Beaumont 1969, no writ hist.); Turcotte v. Trevino, 467 S.W.2d 573 (Tex.Civ.App.—Corpus Christi 1971, writ refd n. r. e.); Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App.—Corpus Christi 1973, writ refd n. r. e.).

      . Since there were no other contestants in the case, the trial court entered judgment dismissing the will contest.

      . Respondents prayed that the 1960 will be held for naught and that the 1948 will be probated.

      . Turcotte v. Trevino, 499 S.W.2d 705, 721-22 (Tex.Civ.App.—Corpus Christi 1973, writ ref d n. r. e.):
      It is without dispute in the record that Marie Walker is an heir at law of Mrs. East as well as one of the beneficiaries entitled to share in a $20,000.00 legacy bequeathed by the 1948 will. As such, she holds the necessary justiciable interest in the East estate to maintain the will contest, and did, in fact, do so.
      It is settled law in this State that the heirs, devisees and legatees of a decedent may validly assign all or any part of their rights and interests in a decedent’s estate to another person. Morris v. Halbert, 36 Tex. 19 (1891) [sic]; Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.—Waco 1949, n. w. h.); 20 Tex. Jur.2d, Descent and Distribution, § 33, p. 116. An assignee of an heir at law or of a devisee or legatee of a decedent has a right to prosecute a will contest to set aside a will which prejudicially affects the rights or properties transferred by the assignment. Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1938) [sic].
      The rule is set forth in 23 Am.Jur.2d, Descent and Distribution, § 36, p. 782, as follows;
      . Estoppels, where operating against the ancestor, do not operate against his heir as to property not inherited from the ancestor but acquired from an independent source. Hence, [sic] an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance [sic] from one other than the particular ancestor”.
      In Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923), the will contestant had acquired two rights, through different sources, to maintain a will contest. He sued on the basis of both rights. The court held that he was entitled to maintain the will contest if either right be valid, saying:
      “. . . They were not required to rely upon one or the other. If either title pleaded showed in them any interest in the estate of Sarah Ross, in the absence of the probate of her will, they were entitled to contest such probate.

      . Turcotte v. Trevino, 544 S.W.2d 463, 474 (Tex.Civ.App.—Corpus Christi 1976):
      It is settled law in this State that the heirs, devisees and legatees of a decedent may validly assign all or any part of their rights and interests in a decedent’s estate to another person. Morris v. Halbert, 36 Tex. 19 (1871); Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.—Waco 1949, no writ); 20 Tex.Jur.2d, Descent and Distribution, § 33. An assignee of an heir at law, devisee or legatee of a decedent has a legal right to maintain a will contest to set aside a will which prejudicially affects the properties assigned or conveyed to him by the assignment under which he claims. Dickson v. Dickson, 5 S.W.2d 744 (Tex.Comm’n App.1928).
      * * * * * * *
      The rule is set forth in 23 Am.Jur.2d, Descent and Distribution, § 36, p. 782, as follows:
      “. . . Estoppels, where operating against the ancestor, do not operate against his heir as to property not inherited from the ancestor, [sic] but acquired from an independent source. Hence an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance, from one other than the particular ancestor”.
      A will contestant who has acquired rights through different sources to property owned by the decedent and disposed of by will may file a suit to contest a will. Such contestant is entitled to maintain the will contest if either right be valid, and he is not required to rely upon one or the other. Abrams v. Ross' Estate, 250 S.W. 1019 (Tex.Comm’n App.1923); Turcotte v. Trevino, supra.


source: Caselaw Access Project

author: SAM D. JOHNSON, Justice.

license: Public Domain

text:
    B-R DREDGING COMPANY, Petitioner, v. Feliciano RODRIGUEZ, Respondent.
    No. B-6966.
    Supreme Court of Texas.
    April 12, 1978.
    Rehearing Denied May 17, 1978.

      Dyer, Redford, Burnett, Wray & Wool-sey, James W. Wray, Jr., and S. Eldon Dyer, Corpus Christi, for petitioner.
    William R. Edwards, Hubert L. Stone, Corpus Christi, for respondent.
   SAM D. JOHNSON, Justice.

Feliciano Rodriguez brought suit as a seaman under the Jones Act, United States Code, Title 46, Section 688, and under general maritime law for personal injuries sustained when he fell through an open hatch on the deck of the tender boat, Burley Koen. He sued his employer, B-R Dredging Company, basing his cause of action upon negligence and unseaworthiness of a vessel and negligence and unseaworthiness per se for the violation of alleged statutory duties imposed by the Corps of Engineers Safety Manual. Based on jury answers to special issues, the trial court held that B — R Dredging was negligent and provided an unseaworthy vessel. Rodriguez was awarded damages which were reduced from $150,-000 to $55,388.02 in accordance with the comparative fault provisions of the Jones Act and the jury finding that Rodriguez was fifty-five percent contributorily negligent. The court of civil appeals reversed the damages award and rendered judgment for Rodriguez in the full amount of $150,-000. The court of civil appeals held that the Jones Act incorporated the provisions of the Federal Employers’ Liability Act, United States Code, Title 45, Section 51, et seq. (hereinafter referred to as FELA), and that Section 53 of the FELA precluded the reduction of damages for contributory negligence if there has been a violation of any statute enacted for the safety of employees. 552 S.W.2d 601. This court reverses the court of civil appeals and affirms the trial court judgment.

B-R Dredging was a subcontractor under a prime contract between T. J. James and Company, Inc. and the U.S. Army Corps of Engineers which provided for the dredging of the Corpus Christi ship channel area. Rodriguez was employed by B — R Dredging as captain of the George Pospisil, one of several tender boats working as support vessels to the dredge, Bill Bauer.

On the day of the injury Rodriguez and his deckhand, Domingo Reyna, were working the twelve midnight to twelve noon shift. Just prior to dawn, they were preparing to go ashore to pick up the day crew when the George Pospisil would not start. They began a search for jumper cables, looking on the dredge and in the other tender boats. Rodriguez was injured while searching a sister tender boat, the Burley Koen. As he searched the deck area of the Burley Koen, he used only a flashlight and did not turn on the deck lights. On reaching the stern, Rodriguez stepped into an open hatch on the starboard side of the deck, whereupon he suffered injuries to his back and legs. It is undisputed that the hatch or manhole was completely uncovered and unguarded.

Both the trial court and the court of civil appeals have held that the failure to cover the hatch constituted negligence on the part of B-R Dredging and made the Burley Koen unseaworthy. However, the trial court further found that Rodriguez was fifty-five percent contributorily negligent in failing to turn on the deck lights of the Burley Koen and adhered to the comparative fault provisions of the Jones Act, reducing Rodriguez’s damages by his degree of contributory fault. The court of civil appeals, however, held that the Jones Act incorporated provisions of the FELA by extending to seamen all the rights and remedies provided to railroad workers under the FELA. Section 53 of the FELA provides in part as follows:

“That no such employee [of a common carrier by railroad] who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” [Emphasis added.]

The court of civil appeals further held that a violation of a safety statute had occurred in the instant case because the failure to cover the hatch was a violation of provisions in the Corps of Engineers Safety Manual which state that all deck openings should be guarded. The court of civil appeals, therefore, held that comparative fault should not constitute an offset of damages in the instant case; accordingly, the court reinstated the full award of damages to Rodriguez in the amount of $150,-000.

B — R Dredging takes issue with the court of civil appeals judgment on two grounds: (1) the holding that the Corps of Engineers Safety Manual constitutes a safety statute; and (2) the determination that Section 53 of the FELA governed the damages award in the instant case. This court makes no holding relative to the second ground; we make no determination on the applicability of Section 53 of the FELA to causes of action under the Jones Act. If applicable, Section 53 would only be operative when there has been a violation of a safety statute. This court finds that no such violation of a safety statute has occurred in the instant case.

The court of civil appeals held that the Corps of Engineers Safety Manual had the force and effect of a safety statute based upon its determination that the Safety Manual was adopted by reference in the Armed Services Procurement Regulations, Code of Federal Regulations, Title 32, Section 7-000, et seq., and was consequently incorporated in the contracts between the parties herein. The Armed Services Procurement Regulations were promulgated by the Secretary of Defense pursuant to the United States Code, Title 10, Section 2202, to develop a series of uniform contract provisions to be used in government contracts for supplies or services. The court of civil appeals noted that these Regulations have been consistently recognized as having the full force and effect of law. Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); California Comm’n v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958); G. L. Christian and Associates v. United States, 160 Ct.Cl. 58, 320 F.2d 345 (1963). Section 7-602.42 of these Regulations specifically adopts the Corps of Engineers Safety Manual in the “accident prevention” provision as follows:

“Accident Prevention.
“(a) Normally, the following clause concerning safety controls, records, reports and corrective action to be taken shall be inserted.
“ACCIDENT PREVENTION (1967 JUN)
“(a) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies, and equipment; and for avoidance of work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual, EM 385— 1 — 1, dated 1 March 1967, entitled ‘General Safety Requirements’, as amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose.
“(d) Compliance with the provisions of this article by subcontractors will be the responsibility of the Contractor.”

The contract between T. J. James and Company, Inc. and the U.S. Army Corps of Engineers contained this accident prevention provision as paragraph 49 therein. Furthermore, T. J. James provided for B-R Dredging’s compliance with the accident prevention provisions in Article 19 and Article 22 of the subcontract.

The court of civil appeals did not hold, nor does Rodriguez urge, that the Safety Manual has statutory effect in and of itself. Rather, the statutory status of the Safety Manual is predicated solely on the fact that it is incorporated by reference in the Armed Services Procurement Regulations which have the full force and effect of law. The courts have generally recognized the right to incorporate by reference in one statute the provisions of another statute or law. Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926). However, the courts have not held that adoption by reference confers statutory status upon a rule which did not have the force and effect of law prior to such adoption.

It has been held that the Corps of Engineers Safety Manual in and of itself does not have the force of law. In Quinn v. United States, 312 F.Supp. 999 (E.D.Ark.1970), aff’d, 439 F.2d 335 (8th Cir. 1971), the court refused to hold that the Corps of Engineers’ violation of its own Safety Manual constituted negligence per se as the regulations did not have the force of law. In Quinn the court relied upon that body of cases wherein parties, to establish negligence or contributory negligence, have attempted to introduce into evidence codes or safety manuals issued by governmental bodies. The majority of courts have ruled such codes inadmissible because they do not have the force of law and represent only the views of their compilers which are subject to conflicting views. Such cases include Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928 (5th Cir. 1934), involving the National Electric Safety Code, and Manhat v. United States, 220 F.2d 143 (2d Cir. 1955), involving a Coast Guard manual for seamen. See also Annot., 75 A.L.R.2d 778.

Furthermore, a holding that the Corps of Engineers Safety Manual does not have statutory status is supported by general administrative law and rules of statutory construction. Generally, administrative regulations only have the full force and effect of law when: (1) a statute exists which specifically authorizes the issuance of rules and regulations by the agency; (2) the rule or regulation adopted is within the authority of the agency; and (3) the rule or regulation is adopted according to the procedure prescribed by statute. 1A Sands, Sutherland Statutory Construction § 31.02. The Corps of Engineers Safety Manual fails to meet these criteria. Most significantly, the Safety Manual has not been adopted according to the procedure prescribed by statute. The Federal Administrative Procedure Act, United States Code, Title 5, Section 551, et seq., establishes the proper procedure. The Act requires that any regulations or “substantive rules of general applicability adopted as authorized by law” shall be published in the Federal Register. 5 U.S.C. § 552(a)(1)(D). Further, in the Act creating the Federal Register Congress specifically required that documents having “general applicability and legal effect” be published in the Register. 44 U.S.C. § 1505(a). Notably, the Act exempted from publication those documents “not having general applicability and legal effect or [those] effective only against Federal agencies . . . .” The Corps of Engineers Safety Manual has not been published in the Federal Register nor is it published in the Code of Federal Regulations. Accordingly, the Safety Manual has not been published in accordance with the adoption procedure prescribed by statute.

Therefore, the Corps of Engineers Safety Manual in and of itself does not have the full force and effect of law; it follows that such Safety Manual, not having independent statutory effect, is not elevated to the status of a statute by incorporation by reference in the Armed Services Procurement Regulations. Accordingly, we hold that the instant violation of the Corps of Engineers Safety Manual is not a violation of a statute for the safety of employees. The court of civil appeals erred in finding a statutory violation and consequently erred in applying FELA, Section 53. The trial court properly applied the provisions of the Jones Act and reduced Rodriguez’s damages by his percentage of contributory fault.

This court has considered the points raised in the application for writ of error filed by Rodriguez. He asserts that the trial court erred in sustaining special exceptions to his pleadings concerning the inadequate lighting on the Burley Koen. He argues that although such ruling may not constitute error as to liability, it does create error in calculating damages based on comparative fault standards. He argues that in the event this court upholds the application of comparative negligence, the case should be remanded, rather than rendered. We find no merit in these points and uphold the court of civil appeals’ determination that if there was error, it was harmless under Rule 434, Texas Rules of Civil Procedure.

Accordingly, this court reverses the judgment of the court of civil appeals and affirms the judgment of the trial court which awards Rodriguez damages in the amount of $55,388.02.


author: PER CURIAM.

text:
    SHESHUNOFF AND COMPANY, INC., Petitioner, v. Tom SCHOLL, Respondent.
    No. B-7221.
    Supreme Court of Texas.
    April 12, 1978.
    Rehearing Denied May 17, 1978.
    John H. Holloway, Houston, for petitioner.
    Don W. Graul, Houston, for respondent.
   PER CURIAM.

This is a suit involving the breach of an employment contract prior to the expiration of the period of employment. Sheshunoff & Co., Inc., through its president, entered into a written employment agreement with Tom Scholl. The agreement provided that Scholl was to be compensated at the rate of $2000 each month for a period of five years beginning on June 15, 1976. This compensation rate was based on part-time employment. The agreement further provided that in December, 1976, an evaluation would be made concerning the possibility of full-time employment with a salary of $4000 per month. On August 9, 1976, Scholl’s employment was terminated. He had received only one month’s compensation at that time.

Scholl filed suit for breach of the employment contract. Sheshunoff, although duly served, neither answered nor appeared. The trial judge held that the cause of action was liquidated and granted Scholl a default judgment of $118,000. This amount was apparently computed by multiplying the portion of the contract unpaid, 59 months, by the monthly compensation, $2000.

Sheshunoff, by way of writ of error, sought to have the default judgment set aside. The court of civil appeals denied the writ of error. 560 S.W.2d 113. With reference to the damages involved, the court stated that “[t]he measure of damages was the present value of the contract if it had not been breached, a sum that is calculated by determining the amount that would have been earned and discounting it.” 560 S.W.2d at 115, citing Dixie Glass Co. v. Poliak, 341 S.W.2d 530 (Tex.Civ.App.—Houston 1960), writ ref’d n. r. e. per curiam, 162 Tex. 440, 347 S.W.2d 596 (1961). The court of civil appeals in Dixie Glass Co. v. Poliak stated that any future amounts recovered as salary should be discounted to its present worth based on the unexpired term of the contract at the date of the judgment, relying on the case of Pollack v. Pollack, 39 S.W.2d 853 (Tex.Comm’n App. 1931, holdings approved). See also Mr. Eddie, Inc. v. Ginsberg, 430 S.W.2d 5 (Tex.Civ.App.—Eastland 1968, writ ref’d n. r. e.); Mayhew v. Vanway, 371 S.W.2d 90 (Tex.Civ.App.—Houston 1963, no writ). After noting the above rule, the court of civil appeals failed to apply it to the facts of this case.

The opinion of the court of civil appeals conflicts with Republic Bankers Life Insurance Co. v. Jaeger, 551 S.W.2d 30 (Tex.1976); Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (Tex.1937); and Pollack v. Pollack, supra, with respect to the computation of damages in this case. Scholl was paid one month’s salary. At the time of the judgment on January 14, 1977, he had accrued six months’ salary. He was thus entitled to recover the full value of the salary covering that six-month period plus interest. Furthermore, the remaining unaccrued salary for 53 months should have been discounted to its present value at the legal rate of interest. Therefore, it is obvious that the trial court incorrectly computed the measure of damages in this case when it arrived at a gross amount of $118,000 by using the method previously mentioned.

Accordingly, under Rule 483 of the Texas Rules of Civil Procedure, after granting the application for writ of error and without hearing oral argument, the judgment of the court of civil appeals is reversed and the cause remanded to the district court in order that damages may be awarded in accordance with this opinion.


author: ODOM, Judge. ONION, Presiding Judge. ODOM, Judge,

text:
    John Lewis SULLIVAN, III, Appellant, v. The STATE of Texas, Appellee.
    No. 53324.
    Court of Criminal Appeals of Texas, En Banc.
    May 25, 1977.
    On State’s Motion for Rehearing April 12, 1978.
    Rehearing Denied May 10, 1978.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Mike Keasler, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Appellant’s punishment was assessed at seventy-five years’ imprisonment.

Appellant contends that the trial court erred in overruling his motion to suppress and admitting the murder weapon, a twelve gauge shotgun, into evidence at trial. He relies on the Fourth Amendment to the United States Constitution; Article 1, Section 9 of the Texas Constitution, and Article 88.23, V.A.C.C.P.

After the jury was selected, and before the reading of the indictment to the jury, the court heard evidence on appellant’s motion to suppress the murder weapon on grounds that it was obtained by an unlawful, warrantless search and seizure. The only witness to testify was the officer who conducted the search of a 1972 Cadillac and found the weapon in the trunk. After this testimony, which consists of less than nine pages in the record, defense counsel argued the evidence did not show consent, that no warrant was obtained and no exigent circumstances existed, and that appellant’s interest in the automobile was based on the fact that he had a key to the ignition on his key ring obtained prior to the search. The State made no argument in the trial court and the court overruled the motion to suppress. This preserved the issue for review. Art. 40.09(6)(d)(3), V.A.C.C.P.

Officer N. D. Emberlin testified at the hearing held on the motion to suppress. He stated that he investigated the murder of the deceased and that appellant was a suspect. Emberlin obtained the keys taken from the appellant and went to the South Dallas Auto Pound on Choice Street. Em-berlin, accompanied by Officer R. C. Wagner, discovered that one of the keys on the ring fit the ignition and the doors of the Cadillac. The key, however, did not open the trunk nor would it open the glove box of the car. The murder weapon was found in the trunk.

No warrant was obtained by Emberlin prior to his search of the car and seizure of the shotgun. The State, however, contends that the search was valid because the owner of the car consented to Emberlin’s action and because appellant has no standing to challenge the search.

At the hearing held on the motion to suppress, Emberlin stated that he ascertained the registered owner’s name was Roosevelt Allen, and attempted to contact him through a long distance phone call to Houston. Allen’s mother answered the phone and informed the officer that Allen was out. Subsequent to this, Allen called Emberlin. The State’s consent to search theory rests on the following testimony about that telephone conversation elicited from Emberlin:

“Q. All right. What did Mr. Allen say to you? Just recite the conversation as best you remember it, Mr. Emberlin.
“A. Well, first he wanted to know where the car was and I told him and I told him there was something that might be connected with the car that I needed to know and he asked me when I got through with it if his wife could have it back.
“Q. All right.
“A. And I said she could.
“Q. All right. When you got through with it, could his wife have it back?
“A. Yes.”

On the basis of the evidence presented on the motion to suppress we cannot conclude that the officer had the consent or permission of the owner to search the vehicle. The State has not met its burden of showing that it was given consent to search the vehicle. See, Swift v. State, Tex.Cr.App., 509 S.W.2d 586; Morrison v. State, Tex.Cr.App., 508 S.W.2d 827.

On appeal the State also maintains that the appellant does not have standing to challenge the search.

In Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234, at 238, the Court stated:

“Appellant’s standing was never contested in the proceedings below. The State raises the issue for the first time in its brief upon appeal. The State should not be heard to complain of an incomplete record when its failure to dispute appellant’s standing is responsible for the deficiency.”

At the hearing on the motion to suppress, the State presented evidence on the merits of the legality of the search without contesting appellant’s standing to raise the issue. Thus, the State has waived the issue. Appellant was not put on notice that such a claim would be made, and thus was not required to present evidence on the issue of standing.

We therefore conclude that neither of the theories urged by the State to support the trial court’s ruling on the motion to suppress has merit. The search was without a warrant and does not appear from the record to have been within any of the exceptions to the warrant requirement. The search and seizure being in violation of the State and Federal constitutional protections relied on by appellant, the motion to suppress should have been granted.

The judgment is reversed and the cause remanded.

Before the Court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

The State, with leave of this court, has filed a motion for rehearing in which the State argues that this court erred in holding that the trial court should have granted appellant’s motion to suppress. We agree with the State’s contention.

The uncontroverted evidence in the record before us reveals that appellant, some fourteen hours after the murder of L. C. Reagor, was observed by a policeman standing about four feet in front of a parked brown Cadillac. The policeman recognized the appellant and sought to arrest him on a warrant issued following bond forfeiture proceedings in a misdemeanor case and did so while appellant was some distance from the Cadillac. He gave the officer a false name, which the officer knew was not true. Although appellant had a key ring with several keys on his person when arrested, he denied any contact or connection with the brown Cadillac and said that it was not his car. Appellant was taken to the station and his keys were placed with his personal property in the property room of the Central Station. The brown Cadillac was subsequently towed to the South Dallas Auto Pound.

Officer Emberlin, who was investigating the murder, learned that appellant was arrested near a car that had been impounded and ascertained that the owner of the Cadillac was Roosevelt Allen. Officer Ember-lin attempted to get in touch with Allen and talked to Allen’s mother in Houston, who stated that he was out but that she would have Allen get in touch with the officer when she heard from him. Later than evening, a man who identified himself as Roosevelt Allen called Officer Emberlin and implicitly gave his consent for the car to be searched and asked if his wife could have the car back after the police were through with it. After Officer Emberlin assured Allen that his wife could have the car back, he went to the property room, took appellant’s keys and proceeded to the auto pound. It was found that one of the keys on appellant’s key ring would work in the doors and ignition of the Cadillac, but not in the glove box or the trunk. However, the glove box was pried open (it appeared to have been pried open before), a lever was operated therein which opened the trunk, and the murder weapon, a sawed-off shotgun, was found in the trunk.

We find appellant’s contention that the trial court erred in overruling his motion to suppress to be without merit. It does not appear that the appellant had standing to complain of the search under the facts of this case. As this court stated in Hensley v. State, 494 S.W.2d 816 (Tex.Cr.App.1973), “ . . . where, as here, the appellant disclaims ownership of an automobile he forfeits his standing to contest the search thereof.”

Further, in United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc), the search of briefcases containing sawed-off shotguns was upheld because the defendants placed them on the sidewalk, walked away from them and then denied to the police ownership of the briefcases. There the court wrote:

“Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir. 1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra [362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668]; United States v. Edwards, 5th Cir. 1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 431 F.2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.”

The defendants in Colbert argued that Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), precluded a holding that they lacked standing to challenge the search in the prosecution for possession of the sawed-off shotguns. The Court disagreed and wrote:

“ . . . The rule established in Jones is based on the positions the prosecution takes at trial when the duration of the possession charged includes the time of the search. In the above quoted passage the Court focused on the defendant’s possession of the narcotics ‘at the time of the search.’ When the time of the possession charged and the time of the search coincide or overlap, it is indeed inconsistent for the government to argue the defendant lacked sufficient possession to confer standing to challenge the search but had sufficient possession at the same time for conviction. When, however, the government shows that the property was abandoned before the search, there is no such inconsistency. On the contrary, the government may argue without self-contradiction that a defendant had possession at one time for purposes of conviction, but at a later time lacked sufficient possession to confer standing to object to search and seizure. Accordingly, we do not think the Jones rule of standing was intended to prevent the government from showing voluntary pre-search abandonment, if it can, or to apply to a possession prosecution when such abandonment is shown. In United States v. Edwards, 5th Cir. 1971, 441 F.2d 749, a panel of this court, in holding a defendant lacked standing to challenge a search and seizure in a possession prosecution because of voluntary pre-search abandonment, did not consider Jones to be an obstacle, and we hold today that Jones is not an obstacle to such a ruling.”

In a later case, United States v. Anderson, 500 F.2d 1311 (5th Cir. 1974), the Court wrote:

“The warrantless search of Spicer’s and Felts’ luggage, occurring after their arrests, presents a more difficult problem. However, the gun which serves as the basis of the third count of the indictment, as well as almost all of the incriminating material found in Spicer’s and Felts’ possession, was taken from the piece of luggage which neither Spicer nor Felts would claim.
“Our conclusion as to the materials taken from that suitcase would appear to be directly controlled by United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc). In Colbert, the two defendants, one of whom fit the description of a wanted suspect, were seen carrying briefcases by policemen. As the officers approached the defendants to question them, the defendants set their briefcases on the sidewalk. They subsequently denied that they owned the briefcases or had any knowledge of them, and began to walk away leaving the briefcases on the sidewalk. The officers arrested the defendants for failure to carry a Selective Service registration certificate, and placed them in the patrol car. The officers then opened the briefcases, finding sawed-off shotguns. The defendants were later convicted of possession of unregistered sawed-off shotguns. The Fifth Circuit affirmed the convictions holding the weapons properly admitted into evidence because the defendants abandoned the briefcases.
“Here, as in Colbert, the defendants abandoned the luggage before the search took place. As in Colbert, the defendants here, in response to questions from authorities, disclaimed any knowledge of the bag. Finally, in neither case did the officers compel the defendants’ actions. Hence, in accordance with the result in Colbert, we find that Spicer and Felts could have entertained no reasonable expectation of privacy in the unclaimed suitcase. They therefore lack standing to challenge the search of the unclaimed bag. See Lurie v. Oberhauser, 431 F.2d 330 (9th Cir. 1970).”

More recently, the Maryland Court of Appeals upheld a search on the abandonment doctrine, citing with approval United States v. Colbert, supra. See Duncan v. State, 37 Md.App. 330, 377 A.2d 567 (1977). In that case, two black men were seen taking bags of clothing out of a J. C. Penney’s store and putting them in trash cans. A security officer kept his eye on the cans and saw two black men drive up to them in a white Mercury. They sped away, however, when they saw they were being watched. Shortly thereafter, a nearby resident saw a white Mercury drive off the street and park on her lawn. Two black men got out and walked away. The resident called the police, the men were arrested several hundred yards away, and" the resident identified the men as the occupants of the Mercury. A search of the car produced goods stolen from a Montgomery Ward’s store in the same shopping mall as the Penney’s store.

The court held that the defendants, by denying that the car was theirs when asked about it by the police, lost their reasonable expectation of privacy in the car; that the abandonment doctrine came into play; and that they had no Fourth Amendment protection against the search.

In the instant case although possession of the shotgun was an integral part of the circumstantial evidence against the appellant, possession of the shotgun was not an essential element of the offense with which appellant was charged. This was not a possession prosecution, but a murder prosecution. Cf. Jones v. United States, supra.

Speaking to the issue of standing, the United States Supreme Court in Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973), wrote:

“ . . . there is no standing to contest a search and seizure where . the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. . .” See also Hutchinson v. State, 509 S.W.2d 598, 600 (Tex.Cr.App.1974).

In Wing v. Anderson, 398 F.Supp. 197 (E.D.Okl.1973), the petitioner was convicted for the offense of robbery by firearms. The petitioner admitted he was not present when the car was searched and specifically disavowed any proprietary or possessory interest therein. As the offense charged did not include “possession” of seized evidence, the court held, citing Brown v. United States, supra, that the petitioner had no standing to contest the lawfulness of the search and seizure.

In the instant case under the circumstances presented the appellant could have entertained no reasonable expectation of privacy in the unclaimed automobile. He, therefore, lacked standing to challenge the search of the said automobile. Further, under the circumstances the State did not take contradictory positions in claiming the lack of the appellant’s standing to challenge the search and its position on appellant’s attack on the sufficiency of the evidence. See United States v. Colbert, supra.

On original submission we held, citing Maldonado v. State, 528 S.W.2d 234, 238 (Tex.Cr.App.1975), that since the State did not raise the issue of appellant’s standing to challenge the search in the trial court it waived the issue and such issue could not be raised for the first time on appeal. Maldonado is the only case we have found so holding, and it cites no authority or precedent for its holding. It is clearly wrong. To hold that a search and seizure is illegal even though the record before this court and the evidence before the trial judge shows the defendant had no standing to challenge the search simply because the prosecutor did not verbalize the issue would be to reach an absurd result.

In Jones v. United States, supra, it was stated:

“[I]t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.” See also Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Clemons v. State, 501 S.W.2d 92, 93 (Tex.Cr.App.1973).

The State does not have the burden of listing or verbalizing in the trial court every possible basis for holding a search legal or else waive that basis for urging on appeal the validity of the search. Insofar as Maldonado is in conflict with the holding today, it is overruled.

Appellant also argues that the court committed reversible error in admitting the murder weapon into evidence because it was the fruit of an illegal search and seizure of appellant’s keys taken from his personal property in the Dallas police department. Appellant does not point out in his brief, nor do we find in the record, anything to indicate that appellant objected when the keys were offered into evidence or during the testimony concerning the obtaining and use of the keys. Any error committed is thus waived. Ashford v. State, 502 S.W.2d 27 (Tex.Cr.App.1973); Mortier v. State, 498 S.W.2d 944 (Tex.Cr.App.1973); Northcutt v. State, 478 S.W.2d 935 (Tex.Cr.App.1972).

Appellant next contends that the evidence is insufficient to support a conviction for murder. He argues that the evidence, all of which is circumstantial, shows only that appellant recently “possessed” the murder weapon, was found with it fourteen hours after the murder, and had made a threat against the deceased several years prior to the murder. We do not agree that the evidence is as insignificant as appellant contends.

Without going into great detail, the record reflects that appellant was the stepson of the deceased who, at the time of his death, was married to appellant’s mother. The deceased had at one time broken his wife’s jaw in a fight and the physical abuse continued until the evening preceding his death. On the occasion when his mother’s jaw was broken, appellant came to kill his stepfather but did not do so because of something his mother told him according to his stepbrother when they were discussing why their half sister ran away from home because of fear of a whipping. On the evening preceding his death, deceased was in a bedroom by himself, his wife and teenage daughter were in another bedroom, and his young son was in another bedroom. Appellant called his mother on the telephone that evening about midnight and was told of the current difficulties that his mother and stepfather were having. His mother told appellant that she “didn’t care what he did to him (the deceased)” and that the door would be open. After the telephone conversation, deceased’s teenage daughter protested to her mother that what she was doing was wrong, went to her father’s room and saw him awake in bed with a pistol (“I took it from that that he knew what was going on”), and went to her room and hid in the closet for about thirty minutes because she was scared. Thereafter, shortly after five o’clock the next morning, shots were heard and Reagor was found dead in his room. He had been shot four or five times with a shotgun and there were four spent shotgun shells found in the room. A thirteen year old witness testified that at about five o’clock on the morning of the shooting, before the squad cars arrived, he had seen a large car parked on the street near his home in the vicinity of the murder.

As previously noted, appellant was arrested about fourteen hours after the murder and it was later found that he had in his possession the keys to the brown Cadillac in which the murder weapon was found (although he denied any connection with the car when he was arrested). Appellant gave a false name to the arresting officer and also attempted to give his key ring to a companion at the scene of the arrest. The arresting officer testified that appellant was normally quiet and polite when arrested, but was uncharacteristically visibly upset when he was unable to give the keys to his companion.

It was positively determined that the shotgun found in the trunk of the brown Cadillac fired the four spent shells found in the deceased’s bedroom. That shotgun, which had a distinctively colored stock and forearm, was seen by witnesses in appellant’s possession in his house on two occasions prior to the killing.

It is well established that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt and proof amounting only to a strong suspicion is insufficient. Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973). However, it is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Flores v. State, supra; Herndon v. State, 543 S.W.2d 109 (Tex.Cr.App.1976). It is not required that the circumstances should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, but the hypothesis intended is a reasonable one consistent with the facts proved and the circumstances, and the supposition that the act may have been committed by another person must not be out of harmony with the evidence. Flores v. State, supra; Jones v. State, 442 S.W.2d 698 (Tex.Cr.App.1969). Each case must be tested by its own facts. Flores v. State, supra; Moore v. State, supra; Indo v. State, supra.

We find that the evidence here does exclude to a moral certainty every other reasonable hypothesis except appellant’s guilt and thus overrule this ground of error.

Appellant next complains that the prosecutor committed reversible error in his argument to the jury during the punishment hearing when he invited the jury to apply the parole law in assessing punishment. The record reflects that the following colloquy occurred:

“MR. KEASLER (Prosecutor): . . The fourth reason is to get this man, this man here (indicating) off the streets for as long as it takes to serve a sentence of life. Just get him off the streets.
“MR. CAMPBELL (Defense Counsel): Your Honor, I object to any reference as to how long it takes to serve a sentence of life as being improper.
“THE COURT: I will sustain it in as far as how long it takes to serve life or any other sentence the jury may decide to impose. The length of the sentence is within the exclusive jurisdiction of the jury. How long it takes to serve it, as the charge so states, comes within the purview of the Board of Pardons and Paroles and the Governor and cannot be considered by the jury and hence cannot be argued by counsel.”

Any error committed was cured when the trial judge sustained the objection and gave a proper explanation to the jury. Appellant thus received all the relief he sought and all that he was entitled to. Stokes v. State, 506 S.W.2d 860 (Tex.Cr.App.1974); Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974).

The State’s motion for rehearing is granted, the judgment of reversal is set aside and the judgment is affirmed.

VOLLERS, J., not participating.

ODOM, Judge,

dissenting.

I dissent to the majority’s decision to overrule Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234. The majority opinion erroneously asserts that Maldonado gave no reason or authority for requiring the State to challenge in the trial court the defendant’s standing to contest a search and seizure. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), in the very same passage quoted by the majority, states the reason and stands as authority for the holding of Maldonado:

“[I]t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.”

As was stated in Maldonado, the State should not be allowed to contest the defendant’s standing for the first time on appeal because this deprives the defendant of the opportunity to present evidence showing standing. If the State had raised the issue at trial, appellant in this case would have had an opportunity to present evidence on the issue. The majority deny him that opportunity and in doing so deprive him of due process of law.

I respectfully dissent.

ROBERTS and PHILLIPS, JJ., join.

      . The record does not reflect whether this “pound” was a police impoundment area, a lot belonging to the City of Dallas, or a private auto pound.

      . We also observe that the State’s challenge to appellant’s standing for lack of connection with the vehicle is in conflict with its position on appellant’s challenge to the sufficiency of the evidence in another ground of error. On that issue the State places major emphasis on appellant’s connection with the vehicle in which the murder weapon was found. The State may not take “advantage of contradictory positions.” Jones v. United States, 362 U.S. 257, at 263, 80 S.Ct. 725, 4 L.Ed.2d 697; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

      . There was another basis for the holding in Maldonado other than the one which is in conflict with the holding in the instant case.