author: NYE, Chief Justice.

text:
    Maria OLIVAREZ, Individually and next friend of Nora Linda Olivarez, Appellants, v. BROADWAY HARDWARE, INC., Appellee.
    No. 1229.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 20, 1978.

      Thomas G. Sharpe, Jr., Brownsville, for appellants.
    Paul Q. O’Leary, Sanchez & Benton, Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from a summary judgment rendered in the 93rd District Court of Hidalgo County which sustained defendant Broadway Hardware, Inc.’s motion predicated on the doctrine of res judicata. Plaintiffs have perfected their appeal to this Court.

The record shows that Maria Olivarez, individually and on behalf of her daughter, Nora Olivarez, sued defendant, Broadway Hardware, Inc., for damages Nora sustained when a pellet rifle sold by the defendant discharged while in the hands of Nora’s brother. The pellet lodged in Nora’s right eye causing personal injury and damages. Plaintiffs’ petition alleged several grounds of strict liability to the effect that the rifle was inherently and imminently dangerous because it had no separate safety lock, and was defectively designed. In addition, the petition alleged negligence on the part of the defendant Broadway Hardware for selling the weapon without giving adequate warnings.

Prior to the filing of this suit, Maria Olivarez, (again as a plaintiff) had instituted a diversity suit in Federal District Court (individually, and on behalf of her daughter, Nora Olivarez), against the pellet gun’s manufacturer and distributor, Dianawerk, Mayer & Granmelspacher, and Winchester Western Division of the Olin Corporation, respectively. Plaintiffs contended in the Federal Court action that the rifle was defectively designed because an ordinary person viewing or holding the rifle could not determine whether it was loaded or cocked for firing; and that defendants failed to give adequate written warnings or instructions concerning the use of the pellet rifle which did not contain a separate safety lock. This federal suit was tried before a jury resulting in a take nothing judgment for the plaintiffs based on the jury’s general verdict. This suit against Broadway Hardware (the retailer of the pellet gun in question) followed.

Defendant Broadway Hardware’s motion for summary judgment was based on the proposition that the facts and issues placed in controversy in the plaintiffs’ suit against Broadway Hardware had previously been litigated in plaintiffs’ federal suit against the manufacturer and distributor and that the Federal Court’s final judgment was res judicata as to the issues represented in plaintiffs’ present suit. Defendant’s motion for summary judgment was supported by certified copies of plaintiffs’ original complaint, the Court’s pretrial order setting forth the factual contentions of plaintiffs Olivarez and defendants manufacturer and distributor, the jury’s general verdict and the judgment. Plaintiffs filed a reply in opposition to defendant Broadway Hardware’s motion contending that the principles of res judicata were not applicable in this particular case. After a hearing, the trial court granted defendant’s motion for summary judgment.

Summary judgment may be granted upon a proper plea of res judicata. DeBord v. Muller, 446 S.W.2d 299, 300-301 (Tex.Sup.1969). Applying the familiar summary judgment rules, such a judgment may be upheld only if the record establishes a right thereto as a matter of law and if there exist no genuine issues of material fact to be tried by the fact finder. Gonzales County Savings & Loan Association v. Freeman, 534 S.W.2d 903 (Tex.Sup.1976). The question before us on appeal is whether the movant, through proper summary judgment evidence, has met his burden to establish that as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of plaintiffs’ cause of action. Farley v. Prudential Insurance Co., 480 S.W.2d 176 (Tex.Sup.1972).

In two points of error on appeal, plaintiffs specifically contend that: 1) the former Federal District Court’s judgment is not a bar to the present suit against Broadway Hardware because Broadway Hardware was not a party to the former action; and 2) that there are material issues of fact concerning Broadway Hardware’s duty to warn. Defendant Broadway Hardware argues here that, as a retailer of the pellet rifle in question, it is in privity with the manufacturer and distributor who were parties to the prior Federal Court suit and, therefore, summary judgment was proper on the basis of either res judicata or collateral estoppel.

A statement of the traditional general principle of res judicata is as follows:

“[A] question of fact or of law, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action. State of Oklahoma v. State of Texas, 256 U.S. 70, 86, 41 S.Ct. 420, 422, 65 L.Ed. 831 (1920).”

Hammonds v. Holmes, 559 S.W.2d 345, 346 (Tex.Sup.1977); Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.Sup.1971); Marange v. Marshall, 402 S.W.2d 236, 239-40 (Tex.Civ.App. — Corpus Christi 1966, writ ref’d n. r. e.).

There is a difference between the effect of a judgment as a bar against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties or their privies on a different claim or a different cause of action. In the former case, a judgment rendered on the merits constitutes an absolute bar to a subsequent action. As stated by the Supreme Court in Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526, 527 (1930):

“It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.”

Collateral estoppel, often referred to as estoppel by judgment, also operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated in a court of competent jurisdiction from being relitigated in a subsequent suit between the same parties or those in privity with them. Swilley v. McCain, 374 S.W.2d 871, 874 (Tex.Sup.1964); Fireman’s Fund Ins. Co. v. Bybee, 322 S.W.2d 657, 659 (Tex.Civ.App. — Eastland 1959, writ dism’d w. o. j-)-

Originally, mutuality was essential to the invocation of collateral estoppel. Kirby Lumber Corporation v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946). However, the Texas Courts have apparently abandoned the requirement of mutuality and have retained the requirement of privity only to the party against whom the plea of collateral estoppel is made in the second case. See Hardy v. Fleming, 553 S.W.2d 790, 792 (Tex.Ciy.App. —El Paso 1977, writ ref’d n. r. e.). See also Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, 410 F.2d 718 (5th Cir. 1969), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969), and compare Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex.Sup.1971). So long as an essential issue of fact has- been determined and adjudicated, the judgment therein will estop the parties or their privies from relitigating the same issue in a subsequent suit even though the subsequent suit is couched as a different type of a cause of action. Benson v. Wanda Petroleum Co., supra at 362; Kirby Lumber Corp. v. Southern Lumber Co., supra at 388. The doctrine of collateral estoppel may, where numerous issues of fact are raised in the subsequent action, operate to bar only one or more issues of fact if such fact issues were previously determined in the prior action. On the other hand, if there is only a single issue of fact in the second action on which the judgment hinges, and that fact issue had been previously litigated, the doctrine will also bar in toto the second action. Hardy v. Fleming, 553 S.W.2d 790, 793 (Tex.Civ.App. — El Paso 1977, writ ref’d n. r. e.).

To determine the applicability of either of the above mentioned principles to this case, our threshold inquiry is to determine whether Broadway Hardware is in privity with the manufacturer and distributor of the pellet rifle in question. If we answer this inquiry in the affirmative, it is clear that the former federal judgment will bar plaintiffs from prosecuting this second action against Broadway Hardware. Abbott Laboratories v. Gravis, 470 S.W.2d 639, 640 (Tex.Sup.1971); Houston Terminal Land Co. v. Westergreen, supra. If we answer this question in the negative, we must then consider the extent to which Broadway Hardware can invoke the doctrine of collateral estoppel to the multi-faceted cause of action pled by the plaintiffs. For the reasons stated hereafter, we find that privity does not exist between Broadway Hardware and the former federal defendants. Therefore, the doctrine of res judicata is not applicable.

Generally, there is no prevailing definition of privity which can automatically be applied to all cases. Benson v. Wanda Petroleum Co., supra at 363; Marange v. Marshall, supra. Section 83 of the Restatement of Judgments (1942) states that a person who is not a party but who is in privity with the parties in an action terminating in a valid judgment is bound by the rules of res judicata. A comment to this section says in part:

“Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. * * * The statement that a person is bound ... as a privy is a short method of stating that under the circumstances and for the purpose of the case at hand he is bound by . all or some of the rules of res judicata by way of merger, bar or collateral estoppel.”

Privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts. Privity connotes those so connected in law with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. To determine the question of privity, we must consider the claims that were litigated in the previous federal suit and the relationship of the new defendant in the second suit, Broadway Hardware, to the former defendants, Winchester and Dianawerk. See Hammonds v. Holmes, supra.

The only relationship between Broadway Hardware and the defendants in the prior Federal Court action is that Broadway Hardware is the retailer in the chain of sale of the pellet gun in question. Broadway Hardware was not a party to the prior action and did not participate in the defense of that action. This type of relationship is not sufficient to meet the technical requirements of privity. The comments to Section 83 entitled “Privies — General Rule” of the Restatement of Judgments (1942) state that the following categories are included within the definition of “privy”: 1) “those who control an action although not parties to it (see § 84)”; 2) “those whose interests are represented by a party to the action (see §§ 85-88)”; and 3) “successors in interest to those having derivative claims (see §§ 89-92)”. We have examined each of the categories and their respective sections and find that none of them apply to the relationship between Broadway Hardware and the prior federal defendants. We conclude that the doctrine of res judicata does not apply to completely bar plaintiffs’ claims against Broadway Hardware because the necessary unity in identity (privity) between Broadway Hardware and the prior defendants is absent.

In spite of the absence of privity, Broadway Hardware is entitled to invoke the doctrine of collateral estoppel to preclude plaintiffs from relitigating the liability issues which were essential to the Federal Court judgment. The doctrine of collateral estoppel eliminates a portion of plaintiffs’ law suit, but it does not completely bar all of plaintiffs’ present cause of action against Broadway Hardware as we shall demonstrate.

The plaintiffs, Maria Olivarez and her minor daughter, Nora, were the parties plaintiff to the prior adjudication in Federal Court. The cause in the original federal action was not submitted on special issues and so the jury’s general verdict necessarily encompasses either a finding that at least one of the essential elements necessary to establish liability on any of the stated grounds was lacking, or that defendants established all of the essential elements to at least one of their affirmative defenses that would preclude any recovery for the plaintiffs. The general jury verdict then, insofar as the liability issues were concerned, necessarily encompasses a finding that plaintiffs failed to establish one or more of the essential elements to the following claims asserted in that suit: 1) that the pellet gun was negligently designed; 2) that the pellet gun was negligently marketed because it was sold without adequate written warnings and/or instructions; 3) that the pellet gun was inherently dangerous because it was defectively designed; 4) that the pellet gun was inherently dangerous because it was sold without adequate written warnings and/or instructions; and 5) that one pellet gun was inherently dangerous because it had no separate safety lock. No useful public policy would be served by permitting the plaintiffs to reliti-gate these identical issues in the present suit. Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, supra; Hardy v. Fleming, supra.

Additionally, Section 96 of the Restatement of Judgments (1942) precludes reliti-gation of some of these issues because Broadway Hardware would have had a right to seek indemnity against the manufacturer and/or distributor for any amount paid by Broadway Hardware (the retailer) to the plaintiffs had these claims been litigated and a judgment had been entered against Broadway Hardware on the claims to which this section applies. See General Motors Corp. v. Simmons, 21 Tex.Sup. Journal 57, 61 (Tex.Sup.1977); 3 Frumer & Friedman, Products Liability, Section 44.-02[3][b] (1978); Restatement of Restitution §§ 86-102 (1937).

Broadway Hardware, the one asserting the plea of collateral estoppel, was not as we have held, a party, or in privity with a party to the prior litigation. Nevertheless, Broadway Hardware is entitled to invoke the doctrine of collateral estoppel. This doctrine does not, however, completely bar all of plaintiffs’ present suit because there remain some issues pled by the plaintiffs which were not litigated in the prior federal action nor essential to that judgment. In the present suit, plaintiffs’ pleadings, to which defendant filed no special exceptions, are sufficient to state a cause of action against Broadway Hardware in negligence. Plaintiffs’ petition alleges that Broadway Hardware was negligent when it sold the pellet rifle to the plaintiffs by failing to give adequate warnings. ' In both suits plaintiffs’ pleadings state similar grounds of recovery in negligence against the prior defendants and the present defendant, Broadway Hardware. In essence, plaintiffs allege a single injury that resulted from the concurrent acts of negligence and by strict tort liability by all three defendants. However, in Texas a plaintiff can bring successive actions against joint tort-feasors subj'ect only to the limitation that the plaintiff can recover only a single j'udgment. Borg Warner Gorp. v. White Motor Co., 344 F.2d 412 (5th Cir. 1965); Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962); Austin Road Co. v. Pope, 216 S.W.2d 563 (Tex.Sup.1949); McGehee v. Shafer, 15 Tex. 198 (Tex.Sup.1855). The issues left to be tried then, relate to the general allegations of negligence on the part of Broadway Hardware in selling the pellet gun without an adequate warning.

In general a retailer is under a duty to exercise reasonable care to prevent inj'ury due to a known -danger. See 2 Frumer & Friedman Products Liability § 18.02; 1 Frumer & Friedman § 8 (1978). Sections 399 and 388 of the Restatement of Torts 2d (1965) impose liability upon a retailer for physical harm caused by the use of the product in the manner for which and by a person for whose use it is supplied, if the retailer: 1) knows or has reason to know that the product is or is likely to be dangerous for the use for which it is supplied, and 2) has no reason to believe that those for whose use the product is supplied will realize its dangerous condition, and 3) fails to exercise reasonable care to inform them of this dangerous condition or the facts which make it likely to be dangerous. Whether a retailer’s failure to warn constitutes negligence rests largely upon the circumstances of each case and the question of proximate cause rests largely on the circumstances relating to foreseeability. These issues generally raise questions of fact which should be decided by a Court or jury. McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App. — Tyler 1974), writ ref’d n. r. e., 518 S.W.2d 528 (Tex.Sup.1975); Upper Valley Aviation Inc. v. Fryer, 392 S.W.2d 737 (Tex.Civ.App.— Corpus Christi 1965, writ ref’d n. r. e.). See also Frumer & Friedman supra at § 8.03.

To affirm the trial court’s summary judgment insofar as it relates to the issues of whether Broadway Hardware negligently failed to warn the plaintiffs and whether such failure proximately caused Nora’s injuries would be to hold that (under these circumstances) a retailer has no duty to warn purchasers. This we cannot do. Recently, the Supreme Court in abolishing the no duty concept in “premises cases” reaffirmed the general principle, that where negligence is in issue, the reasonableness of each actor’s conduct must be determined with regard to the circumstances. See Parker v. Highland Park, Inc., Vol. 21 S.Ct. Journal 188 (1978).

Here the defendant Broadway Hardware failed to meet its burden by showing that there were no genuine issues of material fact as to each controlling issue raised by plaintiff’s pleadings. Here, issues of fact exist as to acts of negligence on the part of Broadway Hardware (which are severable from the acts of negligence of the federal defendants) as to the alleged failure under the circumstances, to adequately warn the plaintiff, as. well as the attendant other factual issues of foreseeability and proximate cause. The determination of these issues could not have been essential to the general jury verdict rendered in the Federal Court action which absolved only the federal defendants of any liability based on negligence. The determination of Broadway Hardware’s negligence, if any, cannot be resolved by the principle of collateral estoppel based on a former action in which the severable negligent acts of only the other federal defendants were at issue.

We, therefore, conclude that all of the remainder of plaintiffs’ claims against Broadway Hardware are barred by the doctrine of collateral estoppel and because of § 96 of the Restatement of Judgments We must point out that plaintiffs have not alleged any independent ground of recovery in strict tort liability against Broadway Hardware for selling an inherently dangerous product. The prior Federal Court action necessarily adjudicated the issues of whether the pellet rifle in question was defective at the time it left the hands of the manufacturer and/or distributor. Plaintiffs did not allege a change in the condition of the pellet rifle after it left the manufacturer or distributor which would have rendered it defective only when it left the hand of the retailer, Broadway Hardware. See Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.Sup.1969); Gravis v. Abbott Laboratories, 462 S.W.2d 410, 415 (Tex.Civ.App. — Cqrpus Christi 1970), modified on other grounds, 470 S.W.2d 639 (Tex.Sup.1971). The only issues of fact remaining to be determined relate to the above mentioned severable acts of negligence, as narrow as they may be.

Plaintiffs’ cause of action against Broadway Hardware for negligently failing to warn is severed from the other claims stated in their petition. The judgment of the trial court is accordingly reversed as to this negligence claim and is remanded to the trial court for trial. The judgment in all other respects is affirmed.

AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.

      . “(1) Where two persons are both responsible for a tortious act, but one of them, the indemni-tee, if required to pay damages for the tort, would be entitled to indemnity from the other, the indemnitor, and the injured person brings an action against the indemnitor because of such act, a valid judgment
      (a) for the defendant on the merits for reasons not personal to the defendant terminates the cause of action against the indem-nitee;
      (b) for the plaintiff binds him as to the amount of recovery in a subsequent action by him against the indemnitee, but does not bind the indemnitee in any respect. * * * ”


source: Caselaw Access Project

license: Public Domain

text:
    Leona NAJVAR et al., Appellants, v. Annie VASEK et al., Appellees.
    No. 1237.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 20, 1978.

      Terrell S. Mullins, Wilbur H. Baber, Jr., Hallettsville, for appellants.
    Armond G. Schwartz, Hallettsville, for appellees.
   OPINION

NYE, Chief Justice.

This is a will construction case. Plaintiffs (the appellants herein), Leona Vasek Najvar, Emily Vasek Najvar and Robert Vasek, the only heirs-at-law and descendants of the testator, Frank Vasek, brought suit seeking a declaration that the devise of real property contained in the will had lapsed and should pass to them under the laws of descent and distribution because the sole devisee, Bohumil Vasek, the testator’s brother, had predeceased the testator. The defendants, Mrs. Annie Vasek, Eugene Va-sek, Alvin Vasek, Jr., and Julia Vasek Schil-bab, widow and children of Alvin Vasek (the son of Bohumil Vasek, the testator’s brother), answered by general denial and by cross-action seeking a declaration that the will made Alvin Vasek a substitute devisee. In the alternative, the defendants alleged that the language of the will created a trust for the benefit of Alvin and that the property should therefore go under the will to them. Trial was to the court which found in favor of the defendants and awarded them title and possession of the real property. Plaintiffs have perfected their appeal to this Court.

The testator, Frank Vasek, died domiciled in Lavaca County, Texas, on or about September 21, 1967. The last will and testament of the testator, dated March 12, 1941, was admitted to probate on January 16, 1969. In order to clarify the various portions of the testator’s will, we add our comments to each section to bring into focus the dispute between the parties. The will of Frank Vasek contains the following major provisions.

“I.” (Payment of Debts).
(The Attempted Disinheriting of Testator's Children).
“II. I hereby direct the sum of one dollar to each be paid to my children, Emily, Robert, and Leona, by my executor hereinafter named out of my personal property within one year after my death.”
(The Sole Legatee, Testator’s Second Wife).
“III. After the payment as enumerated in paragraph one and two, I hereby give and bequeath all my personal property, of every kind and nature, be it money, cattle and any and all personal property, after payments are made therefrom as enumerated in paragraph one and two to my beloved wife, Agnes Vasek.”
(A Life Estate in the Real Property to the Second Wife).
“IV. I hereby direct my wife, Agnes Vasek, shall use, occupy, and derive benefit from all the real estate, the same being my separate estate, during her natural life and after her death.”
(The Remainder to the Devisee, Testator’s Brother).
“I give and bequeath all the real estate on my die (sic) seized and possessed of to my beloved brother, Bohumil Vasek; to have and to hold unto him the said Bohumil Vasek, his heirs and assigns in fee simple forever.”
(The Disputed Portion of Testator’s Will). “It being my wish however for my beloved brother to keep the property for his son Elvin.”
(The Appointment of Testator’s Brother,
Bohumil, as Executor).

At trial the undisputed facts and stipulations were:

1) The only surviving heirs-at-law are the testator’s children who are the plaintiffs, appellants herein.

2) Agnes Vasek, second wife of the testator, predeceased her husband by some ten days.

3) The bequest of personal property contained in paragraph III had lapsed and passed intestate to the plaintiffs because the testator was predeceased by his wife.

4) Bohumil Vasek, brother of the testator, predeceased the testator by more than four years.

5) Alvin Vasek was the son of Bohumil Vasek and nephew of the testator and was the same person known as Elvin Vasek and is the same person last named in the disputed fourth paragraph of the will.

6) Alvin Vasek was alive at the time of the testator’s death, but died subsequently in 1971 (after the death of his father, Bo-humil Vasek, and his uncle, the testator).

7) Alvin Vasek was survived by his widow, and three children, who are the defendants and appellees herein.

The parties agree that this lawsuit only concerns the disposition of the testator’s real property. The dispute in the trial court and here on appeal is the proper construction to be given to paragraphs II and IV of the will.

The plaintiffs contended at trial and here that the devise of real property contained in paragraph IV had lapsed because the devi-see, Bohumil Vasek, had predeceased the testator and because there was no residuary clause in the will, the testator died intestate as to his real property. The defendants, wife and children of testator’s nephew, contended that paragraph II clearly evidenced that the testator intended to disinherit his children, the plaintiffs, and that to construe the will in the manner sought by the plaintiffs would completely contravene the testator’s express intention.

During the course of the trial, the defendants introduced evidence of a strained relationship between the testator and his children and of an extremely close relationship between the testator and his brother, Bohumil, and his nephew, Alvin. On the basis of this parol evidence and the terms of the will, the trial court entered judgment vesting title to and possession of the real property in the defendants. In support of its judgment, the court filed numerous findings of fact and conclusions of law to the effect that the plaintiffs were disinherited under the will. The trial court filed findings to support its construction of the will on three theories:

1) The provision of paragraph IV of the will “it being my wish, however, for my brother to keep the property for his son Elvin” should be construed to be a substitute devise to Alvin Vasek in the event that Bohumil Vasek predeceased the testator.

2) The language of paragraph IV created a trust in favor of Alvin Vasek.

3) There was a gift by implication to Alvin Vasek under the general plan of distribution drawn from the four corners of the will.

4) Finally, the court found that the plaintiffs had waived the right to contest the bequest to Alvin Vasek by filing the will for probate and by plaintiff Leona Vasek Najvar qualifying as Administrator with the Will Annexed.

In point of error one, the plaintiffs complain generally that the trial court erred in admitting into evidence over their objections parol evidence concerning the testator’s intent in drafting his will because the will was clear and unambiguous and therefore the testator’s intent should have been gleaned only from the four corners of the will. Defendants, on the other hand, contend that parol evidence is always admissible, regardless of any ambiguity in the will, to permit the court to gain perspective and to place itself in the testator’s position at the time the will was drawn. For this reason, defendants contend that there are only two issues in this case: 1) whether the extrinsic evidence of the testator’s situation when the will was executed was admissible; and 2) does this evidence support the trial court’s findings that the testator intended to disinherit the plaintiffs and give the property to defendants by intestate succession through the nephew, Alvin Vasek?

The respective contentions advanced by the plaintiffs and defendants do not agree entirely with the rules relating to parol evidence in a will construction case. The cardinal rule in construing a will is to seek and enforce the intention of the testator. Philleo v. Holliday, 24 Tex. 38 (1859); Moore v. Wardlaw, 522 S.W.2d 552 (Tex.Civ.App. — Austin 1975, writ ref’d n. r. e.); Gonzalez v. Gonzalez, 457 S.W.2d 440 (Tex. Civ.App. — Corpus Christi 1970, writ ref’d n. r. e.). To that end extrinsic evidence may be admitted to discover the testator’s intent as to the sense of the words actually used in the will. Stewart v. Selder, 473 S.W.2d 3 (Tex.Sup.1971); In Re Estate of O’Hara, 549 S.W.2d 233, 238 (Tex.Civ.App. — Dallas 1977, no writ); Moore v. Wardlaw, 522 S.W.2d 552, 558 (Tex.Civ.App. — Austin 1975, writ ref’d n. r. e.); Bailey v. Price, 495 S.W.2d 378, 380 (Tex.Civ.App. — Eastland 1973, writ ref’d n. r. e.); 10 Texas Practice, Section 561 (1968). Even though the court may receive and consider such evidence concerning the situation of the testator, the circumstances existing when the will was executed, and other material facts that will enable the court to place itself in the testator’s position at the time the will was executed, in the last analysis, the intention of the testator must be found from the words of the will. Stewart v. Selder, supra at p. 7. The only purpose or justification for the admission of extrinsic evidence is to explain and arrive at the testator’s meaning which is set forth in the words of the will. When there is no dispute as to what the written words in a will mean, extrinsic evidence cannot be received to: show that the testator intended something outside of or independent of such written words; to add words to those in the will; contradict the language in the will; or to take words away from those in the will. This is so 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. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888-889 (1960); see also Stewart v. Selder, supra.

It is evident from reading the record that the parol evidence introduced pertained to the circumstances of the testator prior to and at the time the will was dated in March of 1941. This evidence established that the testator spoke only broken English, preferred to speak in his native language, Czech, and could not read English. The will in question was drafted by a layman who spoke fluent Czech. The testator was divorced by his first wife, Rosie, and at the time of the divorce, the plaintiffs, (testator’s children), went to reside with their mother, Rosie. After the divorce, Rosie and the plaintiffs lived in the house on the farm and the testator lived in a barn on a portion of the land because he had no other home. In 1936, the testator married Agnes Schindler Yasek (the legatee named in the will), who went to live with him with her two children by a previous marriage. The evidence also indicated that the relationship between the testator and his previous wife and children deteriorated. They did not visit each other and the children did not recognize him. On the other hand, the evidence indicated that there was an extremely close relationship between the testator and his brother, Bohumil, and his nephew, Alvin. Alvin and Bohumil helped the testator build a home for his new family. In addition, the testator, Bohumil and Alvin worked together on the farm, drank beer and played dominoes together. Because the testator and his second family owned no automobile, Alvin would often provide transportation to and from town. There is testimony in the record that the relationship that existed between the testator and his nephew, Alvin, was more like a father-son relationship than uncle and nephew.

The plaintiffs, on appeal, do not complain specifically of any of the above mentioned evidence but complain generally that none of it should have been admitted by the trial court. We find that the trial court admitted this evidence on the basis that pertained to the circumstances surrounding the execution of the testator’s will. The plaintiffs on appeal have made no attempt to show that this evidence is not relevant as such. We do agree, however, that the extrinsic evidence tending to show the strained relationship between the testator and the plaintiffs and an extremely close relationship between the testator and his nephew, Alvin, cannot support the trial court’s final construction of the testator’s will. Although extrinsic evidence was admissible to shed light on the testator’s intent, as to the words actually contained in the will, such evidence should not have been relied upon to rewrite or enlarge the express provisions of the will.

There is some evidence in the record to support the trial court’s finding that the testator intended to disinherit his children. This finding may be further strengthened by clause II of the will in which the testator left each of his three children only $1.00 out of the proceeds of his personal property. Before considering whether the trial court’s construction of the will can be upheld on any of the three theories relied upon by the trial court, it is helpful to mention what a testator must do in Texas if he wishes to disinherit his lawful heirs.

Texas does not have a “forced heirship” statute protecting children against disinheritance by either mother or father. See 9 Texas Practice, § 162 (1968). In order to disinherit an heir, however, a testator must effectively dispose of his property to another under the provisions of his will. As stated many years ago by the Supreme Court in Philleo v. Holliday, 24 Tex. 38 (Tex.Sup.1859):

“ . . . The right of the heir is defeated only by a substitution of some person to take in his place, and not by a declaration, or express intention, that he shall not take. Hence, though the heir is expressly disinherited, as if a man by his will should declare that his heirs or next of kin shall have no part of his estate, and not direct who shall have it, still the heir would take, not under the will, but under the law; for there must be in the will a devisee, to supplant the heir. . . ” (Emphasis added).

If the testator fails to make an effective disposition of his property to another, the property will pass to his heirs at law under the laws of intestate succession even though this might be against the testator’s intention, however plainly manifested. Poole, et a 1, Trustees of Calvary Missionary Baptist Church v. Starke, 324 S.W.2d 234 (Tex.Civ.App. — Fort Worth 1959, writ ref’d n. r. e.). Accord, Adams v. Masterson, 415 S.W.2d 535 (Tex.Civ.App. — Dallas 1967, writ ref’d n. r. e.).

The central issue in this case is whether, assuming that the testator did intend to disinherit his children, the terms of his will effectuated this intent. We must determine whether or not any of the three theories relied upon by the trial court (substitution, trust, or implied gift) will support the trial court’s construction of the will as disinheriting his lawful children and vesting title to the land in question in the heirs of Alvin Vasek, his nephew. If it did not, then title to the property in question vested in plaintiffs under the laws of descent and distribution.

In point of error two, the plaintiffs contend that the trial court erred in holding that the devise of real property to the testator’s brother, Bohumil Vasek, did not lapse because paragraph IV of the will created a substitute devise to Alvin Vasek. The defendants argue that because the testator did not intend for the plaintiffs to inherit his realty, he intended that the title to the real property vest in Alvin Vasek because the trial court correctly held that the word “wish” was mandatory and that portion of the will passed title to Alvin as a substitute devisee.

At common law a devise in a will to one who predeceases the testator lapsed unless the will provided for a substitutional legatee or devisee. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888, 890 (1948); see 10 Texas Practice § 573 (1968). Texas has an “anti-lapse” statute which prevents the lapse of a devise or bequest if it is made to a “child or other descendant” of the testator, and the devisee or legatee, who died during the lifetime of the testator, leaves “children or descendants” who survive the testator. Tex.Prob.Code Ann. § 68 (1956). This statute, however, does not apply and will not prevent a devise or bequest from lapsing in situations, such as in this case, where the devisee or legatee is a collateral relative and not a child or descendant of the testator. Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212 (1947); Chadwick v. Bristow, supra; Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841 (1935). A lapsed testamentary gift will pass by intestate succession unless the will contains a general residuary clause or provides for a substitute devisee or legatee. Bittner v. Bittner, 45 S.W.2d 148, 152 (Tex.Comm’n App.1932, judgm’t adopted).

Where there is no general residuary clause in the will, (as in this case), in order to prevent a lapse, the testator must declare, either expressly or in terms from which it can be clearly determined, what person or persons he intended to substitute for the legatee or devisee dying during his lifetime. The terms of the will must clearly show that the testator intended that the gift should not lapse and that the testator clearly designated the persons or persons he intended to be the substitute legatee or devisee. Bittner v. Bittner, supra; Morton v. Hill, 355 S.W.2d 269 (Tex.Civ.App.— Eastland 1962, writ ref’d n. r. e.); Coleman v. Jackson, 126 S.W. 1178, 1180 (Tex.Civ. App.1910, writ ref’d n. r. e.); accord, Rossi v. Rossi, 448 S.W.2d 162 (Tex.Civ.App.— Houston [14th Dist.] 1969, writ ref’d n. r. e.); Tabor v. National Bank of Commerce of San Antonio, 351 S.W.2d 126 (Tex.Civ.App. — San Antonio 1961, no writ); Lightfoot v. Poindexter, 199 S.W. 1152, 1160 (Tex.Civ.App. — Austin 1918, writ ref’d); Hagood v. Hagood, 186 S.W. 220, 226 (Tex.Civ.App. — Fort Worth 1916, writ ref’d).

Here it is undisputed that the testator’s brother, Bohumil Vasek, predeceased the testator by at least four years. Under the provisions of paragraph IV the testator bequeath a life estate in the land to the testator’s wife with the remainder in fee simple to the testator’s brother, Bohumil. The phrase “to have and to hold unto him the said Bohumil Vasek, his heirs and assigns in fee simple forever” are not words of substitution but designate that the testator intended to bequeath to his brother, if living, a remainder in fee simple. See Willis v. Snodgrass, 302 S.W.2d 706, 711 (Tex.Civ.App. — Texarkana 1957, writ ref’d n. r. e.); 10 Texas Practice § 573, p. 363 n. 1 (1968). See also Pool v. Pool, 300 Ill. 557, 133 N.E. 273 (1921); Farnsworth v. Whiting, 102 Me. 296, 66 A. 831 (1906); In Re Spier’s Estate, 224 Mich. 658, 195 N.W. 430 (Mich.1923); In Re Reynolds Will, 109 Miss. 453, 178 N.Y.S. 821 (Sur.Ct.N.Y.1919), aff’d mem., 192 App.Div. 937, 181 N.Y.S. 951 (N.Y.1920).

The only other language in paragraph four which could be construed to limit the bequest of a fee simple remainder in Bohumil, or to otherwise create a substitute devise to Alvin is the following sentence: “It being my wish however for my beloved brother to keep the property for his son Elvin.” The expression, “it is my wish”, is precatory in its nature and not mandatory. It cannot be construed as mandatory, unless, from the reading of the entire will (from the four corners), and by considering the circumstances and situation of the testator and beneficiaries, it becomes clear that the intention of the testator was to create such a mandatory bequest. Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363 (1944); Haltom v. Austin National Bank, 487 S.W.2d 201 (Tex.Civ.App. — Austin 1972, writ ref’d n. r. e.); Ricketts v. Alliance Life Ins. Co., 135 S.W.2d 725 (Tex.Civ.App.— Amarillo 1939), writ dism’d jdgmt cor.). Extrinsic evidence, along with the language of the will, can be considered in determining whether “wish” should be given to a mandatory construction rather than its usual precatory construction.

It is clear to us from a reading of the will that the testator intended to bequeath Bohumil a remainder in fee simple. He merely expressed a wish that Bohumil would not sell or otherwise dispose of the property during his lifetime but would eventually leave or give the property to his son, Alvin. Had Bohumil survived the testator it would create a conflict with, and would strain the meaning of, the words used in paragraph IV to say that the testator imposed a mandatory limitation upon Bohumil’s discretion to exercise the rights attendant to ownership of title in fee simple, including the right to dispose of the property in any way that he might choose. See Ricketts v. Alliance Life Ins. Co., supra. Had the testator intended to create a life estate in Bohumil and a remainder in Alvin, or to otherwise effectively limit the fee simple title bequeathed to Bohumil, it was within his power to do so. It is apparent from the initial language in paragraph IV creating a life estate in his wife that the testator knew how to create a life estate. Had it been his intention to create such a life estate in his brother, Bohumil, he knew how to do so.

Our conclusion that the word “wish” cannot be given mandatory construction is further supported by the other provisions of the will which are couched in forceful terminology: “I hereby direct”, “I hereby give and bequeath”, “I hereby direct . and after her death I give and bequeath”, and “I hereby appoint”. These phrases clearly indicate that the testator understood and could distinguish between mandatory and precatory expressions. The extrinsic evidence does not support defendants’ contention that “wish” should be given a mandatory construction. The evidence only indicates that the testator had a close relationship with both Bohumil and Alvin, but there was no evidence that the testator preferred Alvin to Bohumil or vice versa. The evidence does not indicate that the testator intended any other result other than that which he clearly expressed in paragraph IV, i. e., to bequeath a remainder in fee simple to Bohumil with the “wish” or hope that Bohumil would keep the property and finally bequeath it to his son, Alvin.

Even if the testator did intend to disinherit his children, such an intent cannot be substituted for an intent to place mandatory restrictions upon the clear bequest to Bohumil for the remainder in fee simple or to create a substitute devise in Alvin. In order to effectuate an intent to disinherit his children, the provision of his will must effectively put title in another. This he failed to do. He did not provide for a substitute devisee in the event Bohumil predeceased him. The testator failed to recognize either the contingency of his second wife (paragraph III) or Bohumil (paragraph IV) predeceasing him. In both instances the testator failed to provide for a substitute bequest or devise. The reference to Alvin in paragraph IV does not clearly indicate the testator intended Alvin to be a substitute devisee in the event Bohumil predeceased the testator. Plaintiffs’ point of error two is sustained.

Closely related to the issue of substitution is the question of whether the language in paragraph IV created a trust of the real property for the benefit of Alvin Vasek. In point of error number three, the appellants contend that this language is insufficient in law to create a trust. For many of the same reasons that the will did not create a substitute devise in Alvin, we agree that the will cannot be construed to create a trust in his behalf.

There are no particular form of words that are required to create a trust. Technical words expressly creating a trust are not essential. It is sufficient if the intent to create a trust appears reasonably clear from the entire instrument construed in light of the circumstances which attended its execution. To create a trust by will or any other instrument, it must identify the person, the property, and the purpose of the trust. It is not absolutely necessary that the legal estate be devised into specific terms to the trustee, so long as the intent to create a trust is otherwise clear. Gonzalez v. Gonzalez, 457 S.W.2d 440, 447 (Tex.Civ. App. — Corpus Christi 1970, writ ref’d n. r. e).

Looking to the testator’s will as a whole, the only language even remotely suggesting that a trust was intended is the single precatory sentence “It being my wish however for my beloved brother to keep the property for his son Elvin.” It is evident that this precatory language did not limit the bequest to Bohumil (which lapsed), but merely expressed a hope, an opinion or a request, see Rich v. Witherspoon, 208 S.W.2d 674 (Tex.Civ.App. — Dallas 1948, no writ); 61 Tex.Jur.2d § 261, p. 408 (1964); Paton v. Baugh, 265 S.W. 250 (Tex.Civ.App. —Dallas 1924, no writ). The judgment of the trial court awarding the title and possession of the land to the heirs of Alvin Vasek cannot be supported under the trust theory relied upon by the trial court either by the evidence or the words of the trust. Appellants’ point of error three is sustained.

In point of error six, the appellants contend that the trial court erred in holding that there was a gift by implication to Alvin Vasek. Implied gifts are not favored in Texas and are to be strictly construed in accordance with certain rules: 1) there must be so strong a probability of an intention to make a gift that an intention contrary to that imputed to the testator cannot be fairly supposed; 2) the language relied on to support the implied gift must be clear, and the implication must be necessary to carry out a plainly expressed intention; and 3) an implied gift cannot rest on conjecture. Neinast v. Brauckmuller, 401 S.W.2d 113, 116 (Tex.Civ.App. — Houston 1966, no writ); Gallagher v. O’Brien, 158 S.W.2d 345, 347 (Tex.Civ.App. — San Antonio 1941, no writ); Gay v. City of Fort Worth, 4 S.W.2d 268, 271 (Tex.Civ.App.— Fort Worth 1928, writ dism’d); 61 Tex. Jur.2d § 255 (1964)1 Reviewing all of the extrinsic evidence and the will from all four corners we hold that the judgment of the trial court cannot be upheld on an implied gift theory. Plaintiffs’ sixth point of error is sustained. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960).

In view of our disposition of these points of error, we conclude that plaintiffs’ remaining points of error (four, five and seven) should also be sustained. The plaintiffs are heirs at law of the testator, not beneficiaries under the will, and as such, they did not waive their right to seek a construction of the will.

We, therefore, conclude that the judgment of the trial court must be REVERSED and judgment here RENDERED vesting title to the land described in paragraph IV of the testator’s will in favor of the plaintiffs.

REVERSED AND RENDERED.


author: HAYES, Judge.

text:
    Miguel LAFFOSSE, Appellant, v. Consuelo LAFFOSSE, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1978.
    Rehearing Denied April 14, 1978.
    Nick L. Pearl, Radcliff, for appellant.
    Paul M. Lewis, Lewis, Bland & Preston, Elizabethtown, for appellee.
    Before HAYES, VANCE and WINTER-SHEIMER, JJ.
   HAYES, Judge.

Appellee Consuelo Laffosse filed a petition for a legal separation in Hardin Circuit Court and appellant Miguel Laffosse counterclaimed for a dissolution of the marriage. The trial court granted the legal separation and use of certain real estate of the parties, and required appellant to pay maintenance. Appellant claims the trial court erred in failing to dissolve the marriage.

The parties were married in Puerto Rico in 1951. He is a retired Army enlisted man presently employed by the U. S. Civil Service Commission as a dental lab technician. She is unemployed. They own property in Florida and Kentucky.

The trial court in its “Order and Judgment”, which we will treat as a findings of fact and conclusions of law under CR 52.01, made the following findings, inter alia, “2. Grounds to dissolve the marriage have not been established and it would be in the best interest of the parties that a legal separation be granted between the parties.”

The trial court gives no reasons for his above finding and conclusion. The trial court obviously found, although it did not state so, that the marriage was not irretrievably broken as required by KRS 403.-170.

Generally, the law in states which have no-fault divorce statutes is that the determination of whether a marriage is irretrievably broken or not is a judicial function based upon the evidence in the case. See In Re Marriage of Collins, 200 N.W.2d 886 (Iowa 1970); Nooe v. Nooe, 277 So.2d 835 (Fla.1973); McKim v. McKim, 6 Cal.3d 673, 100 Cal.Rptr. 140, 493 P.2d 868 (1972); In Re Dunn, 13 Or.App. 497, 511 P.2d 427 (1973). Also Petrilli’s Kentucky Family Law, § 23.30 (1974 Supp.) commenting on KRS 403.170 states, “This section is not intended to allow divorce by agreement of the parties but makes the determination of whether the marriage is irretrievably broken a judicial function after hearing and upon the evidence.”

The Court of Appeals in Smith v. Smith, Ky., 497 S.W.2d 418 (1973) held that when the husband objected to the wife’s request for a legal separation and the husband asked for a divorce, and the court found that the marriage was irretrievably broken, the trial court was required under KRS 403.140(l)(c), (2) and KRS 403.170 to dissolve the marriage rather than grant legal separation. The appellee distinguished the Smith case by arguing that in the present case, the trial court did not find the marriage irretrievably broken, but found just the opposite. We agree in part with the appellee. It is true the Smith case can be distinguished from the present case as appellee contends; however, if the trial court clearly erred by finding that the marriage was not irretrievably broken, then under CR 52.01 his findings may be set aside. Then if the evidence admits of but one conclusion, that is that the marriage is irretrievably broken, the Smith case would apply. We so hold.

A perusal of the record in this case makes it clear that the marriage was irretrievably broken. Both parties testified under oath that the marriage was irretrievably broken and in addition we cite the following testimony under oath by the ap-pellee in answer to questions propounded by her own counsel:

Q228. Now you don’t want the court to grant a divorce-or to dissolve the marriage here, do you?
A. No sir.
Q229. Because you have rights as a surviving widow from your retired husband? A. Yes sir.
Q252. As a dependent of your husband, you have a right to free medical care and prescriptions, is that right?
A. Yes sir.
Q253. And that was another reason that you didn’t want the court to dissolve the marriage, is that right?
A. Yes sir.

In addition the wife stated she desired no conciliation conference and had been in the hospital as the result of beatings and choking inflicted upon her on numerous occasions by the appellant.

The record leads to but one conclusion. The appellant is the appellee’s security blanket only in so far as her financial needs, and she, by securing a legal separation instead of a dissolution of marriage, can prevent the umbilical cord from being severed, even though the parties’ marriage is irretrievably broken.

The trial court’s finding that the marriage was not irretrievably broken was clearly erroneous. He should have found to the contrary based upon the record. Therefore, Smith v. Smith, supra does apply and the judgment herein is reversed and remanded with directions to the trial court to enter a decree dissolving the marriage and justly distributing the parties’ property in accordance with existing Kentucky law.

All concur.


author: HOGGE, Judge.

text:
    Onsby JOHNSON, Appellant, v. Faye (Brehm) JOHNSON, Appellee. Faye (Brehm) JOHNSON, Cross-Appellant, v. Onsby JOHNSON, Cross-Appellee.
    Court of Appeals of Kentucky.
    March 24, 1978.

      James B. Todd, Pikeville, for appellant and cross-appellee.
    Lawrence R. Webster, Pikeville, for ap-pellee and cross-appellant.
    Before HOGGE, PARK, and REYNOLDS, JJ.
   HOGGE, Judge.

This is an appeal from a judgment and decree of divorce. The appellant herein challenges the propriety of the division of marital property and the award of maintenance. The appellee/cross-appellant also challenges the division of marital property and further says that it was error for the trial court to fail to award legal interest on the deferred payment of the appellee’s portion of the marital property.

With respect to the division of marital property, the appellant contends that the division was neither “just nor reasonable.” The appellant and appellee were married for nearly thirty years and, during that time, reared three children to adulthood. The trial court found total marital property amounting in value to $184,900, which included the appellant’s partnership interest in a limestone business, and awarded to the appellee property and money totalling $52,-000. The appellee/cross-appellant takes the position that the marital property should have been divided equally between the parties,,

KRS 403.190 vests in the trial court wide discretion in the division of marital property. The court is directed to consider “all relevant factors” including those enumerated within the statute. It is apparent from the court’s findings and from the record, the court complied with this statute in its division of the marital property.

In view of the total award of marital property to the appellee, which was less than one-third of the total, we cannot agree with the appellant’s contention that the court failed to consider appellant’s property acquired before marriage and used in the purchase of the residence. From the evidence in the record as to contributions of the appellee in the acquisition of the marital property including that of homemaking, we cannot agree with the appellant that the court erred in its division and award of marital property to the appellee. This court may not disturb the findings of the trial court in a case involving dissolution of marriage unless those findings are clearly erroneous. Adams v. Adams, Ky., 412 S.W.2d 857 (1967). The court’s findings are supported by substantial evidence and are not clearly erroneous. Accordingly, that portion of the decree and judgment relating to the division of marital property is hereby affirmed.

Next, the appellant contends that the ap-pellee is not entitled to an award of maintenance. The decree awarded to the appellee maintenance in the amount of seventy-five dollars per month until she reaches the age of sixty-two years or remarries, whichever event should first occur. In making an award of maintenance the trial court is directed to first, determine whether the spouse seeking maintenance is capable of providing for his or her “reasonable needs” and, second, in determining an amount, to consider “all relevant factors.”

In this case, the appellee is employed as a sales clerk with a monthly income of approximately $200 per month. There was testimony to the effect that her basic needs required monthly income amounting to approximately $450. At the same time, the appellant’s income from his partnership interest in Johnson Brother’s Limestone Company appears to be sufficient to negate the possibility that an award of maintenance in this amount would impose an undue burden upon him. Therefore, that portion of the decree wherein the court awarded maintenance to the appellee in the amount of seventy-five dollars ($75) per month is hereby affirmed.

The last issue raised in this appeal concerns the deferred payments by the appellant to the appellee for her interest in the partnership property. The trial court valued the appellant’s partnership interest in Johnson Brother’s Limestone Company at $158,000. In lieu of compelling an actual division of the partnership property, the trial court awarded to the appellant $24,000 payable at the rate of $150 per month until the balance is paid. It is the appel-lee/cross-appellant’s position that the sum of $24,000 should bear interest from the date of judgment until paid. KRS 360.040 provides that a judgment shall bear legal interest from its date.

In Clark v. Clark, Ky., 487 S.W.2d 272 (1972), the trial court had allowed a husband to make deferred payments on the wife’s share of joint-effort property after the marriage was dissolved. While the issue there was whether the interest would run on the payments from the date of the initial judgment of divorce or from the final judgment, the court did state that interest on the deferred payments should have been allowed from the date of the final judgment. Young v. Young, Ky., 479 S.W.2d 20, 22 (1972), states that “[t]he intent of the statute is that interest ordinarily should run from the date when each payment became due and payable . . .”

We do not believe this suggests a contrary rule. That case involved interest running from the dates alimony and support payments became due. These sums were due and payable to the ex-wife and dependent children on the dates on which the individual payments were to be made; whereas, the value of a wife’s share of a joint-effort estate exists at the time of final judgment. The amount is fixed and the entire amount is owed, even though payments on that sum are to be made later in an installment form, due to grace permitted by the trial court.

We hold that the trial court erred in ordering that all monthly payments were to bear interest at six (6) percent annum from the date due until paid, rather than ordering interest to run from the date of judgment.

The judgment is affirmed on the appeal and affirmed in part and reversed in part on the cross-appeal with directions to modify the judgment in accordance with this opinion.

All concur.


author: GANT, Judge.

text:
    Ralph HAY, Appellant, v. Robert HAYES and Viola Hayes, Appellees.
    Court of Appeals of Kentucky.
    March 24, 1978.
    Sandra D. Freeburger, King, Deep & Branaman, Sebree, for appellant.
    Aubrey R. Mooney, Providence, for appel-lees.
    Before GANT, COOPER and PARK, JJ.
   GANT, Judge.

Appellant was the owner of a 28-acre tract of land in Webster County, Kentucky, subject to a life estate in his father. Some six years after acquisition, appellant was in default on a $2,500 mortgage on this property and his father, on his death bed, exacted a promise from appellee, Viola Hayes, a cousin, that she would try to keep this property “in the family.” After the death of the father, Viola went to her son, the other appellee, who borrowed $2,500 on his truck and paid off the mortgage, the appellant conveying the aforesaid property in fee simple to the appellees. Almost four years later, appellant brought this action against the appellees seeking to have this transaction construed as either a mortgage or a constructive trust with breach of fiduciary relationship. The appellant also alleged a settlement agreement by the appellees’ attorney.

Appellant then proceeded to take the deposition of appellees, who, in essence, admitted an oral agreement after the execution of the deed that if the appellant would pay them all sums which had been paid by appellees on the payoff of the mortgage, together with interest on their own loan, taxes, insurance, and all other costs, within two years of the date of the deed, they would reconvey the property to the appellant. Appellees further established by their deposition that no payment of any kind had been made for almost four years, that ap-pellees had collected some oil royalties from the property, that the land had been farmed by a tenant who was already farming the property at the time of the deed and who had divided the proceeds with the appellant, appellant failing to turn the money over to the appellees. Without any further proof on behalf of the appellant, either by himself, the attorney who prepared the deed, or any other witnesses, either by deposition or affidavit, the appellant moved for a summary judgment on the theory that the admission by the appellees of the oral agreement aforesaid entitled him to recover on his theory of the case as a matter of law. Appellees did not move for a summary judgment. After briefs were filed in the lower court, that court denied the motion for appellant and entered summary judgment for the appellees on its own motion.

Appellant submits that this summary judgment was premature and entered without ten days notice to the appellant as required by CR 56.03. Appellant admits the right of the court to enter such judgment on its own motion but argues that reasonable notice should be given. The rules themselves provide for no particular notice in such instances.

The case in this jurisdiction which is closest in point is the case of Collins v. Duff, Ky., 283 S.W.2d 179, 183 (1955). In that case the court said:

It is our opinion that in this kind of situation, where overruling the defendant’s motion for summary judgment necessarily would require a determination that the plaintiffs were entitled to the relief asked, a motion for summary judgment by the plaintiffs would have been a useless formality. (Emphasis added).

The key to this case is the portion italicized above and that distinguishes it from the present case. In Collins v. Duff, id., the sole issue was the residence of a decedent and the jurisdiction of the court. Once this was determined, there was simply no other determination to be made. In the instant case, there were numerous issues of fact to be ascertained at the time of the motion for summary judgment. The only issue raised by this motion for summary judgment was whether the deposition of the appellees contained a judicial admission that the transaction was a mortgage.

A typical case where the motion by one party would not necessarily determine the relief asked for would be the negligence case in which contributory negligence was a defense. After the defendant has taken the depositions of the plaintiffs, he might move the court for a summary judgment to the effect that the plaintiffs were contribu-torily negligent as a matter of law. Determination of that issue would not “necessarily . . require a determination that the plaintiffs were entitled to the relief asked.” There would still remain the issue of primary negligence, ownership and other issues which would remain unanswered, just as in the present case.

The rule in Kentucky is set out in Collins v. Duff, id., when the determination of the sole issue necessarily requires a finding for one of the parties. In those other cases in which a determination of an issue is not dispositive of the case, it is our opinion that the rule in this jurisdiction should be that which was laid out in the case of Bowdidge v. Lehman 252 F.2d 366, 368 (6th Cir. 1958) in which the court, referring to Federal Rule 56 C, which is the same as Kentucky CR 56.03, stated as follows:

However, Rule 56(c) provides that a motion for summary judgment requires service “at least ten days before the time fixed for the hearing.” We think the spirit of the rule requires the same notice and hearing where the court contemplates summary dismissal on its own motion. Since attorney for appellant was given neither notice nor opportunity to be heard upon the question of summary dismissal the judgment was erroneous.

Accordingly, the summary judgment herein is reversed and this case is remanded to the lower court for further proceedings consistent with this opinion.

All concur.


author: STEPHAN, Judge.

text:
    William S. TELLMANN, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF ST. LOUIS COUNTY et al., Defendants-Respondents, and St. Louis County, Missouri, Intervenor-Defendant-Respondent.
    No. 38691.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 10, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.

      Charles R. Oldham, St. Louis, for plaintiff-appellant.
    Merle L. Silverstein, Clayton, for defendants-respondents.
    Andrew J. Minardi, Associate County Counselor, Clayton, for intervenor-defend-ant-respondent.
   STEPHAN, Judge.

This is an appeal from a judgment of the Circuit Court affirming a decision of the Civil Service Commission of St. Louis County. Appellant William D. Tellmann was a nonprobationary merit system employee of St. Louis County and operations manager of the division of data processing. His appointing authority was Robert J. Rollins, Director of the Department of Administration. While employed in the division of data processing during the fall of 1973, Tellmann formed the Tellmann Paper Stock Company for the purpose of supplementing his income by buying and selling scrap paper. His sources included his own division and various other St. Louis County offices which, prior thereto, had been throwing away scrap paper. In a conversation with the supervisor of building maintenance, Tellmann was told that he could simply take the paper without payment. Tellmann suggested that, in lieu of payment to the County, he make contributions to a Girl Scout troop. This practice was agreed to and followed.

In December of 1973, Tellmann’s activities came to the attention of Mr. Rollins who, through Tellmann’s immediate superi- or Kenneth L. Vaughn, directed that Tell-mann should cease collecting the paper until procedures were established and approved by appropriate authorities. Thereafter, the practice was revised and Tell-mann ceased picking up paper from data processing but continued to pick up paper at the probate court, the hospital and police department, paying for it by checks to the county treasurer. Tellmann was invited to submit a bid on the scrap paper generated by data processing. He did so, but was not the highest bidder. The contract for data processing scrap went to another company. The invitation to Tellmann came in the form of a letter dated February 20, 1974 from the director of purchasing which warned him that the contractual relationship could be a conflict of interest as proscribed by § 203.030 of the St. Louis County ordinances.

In May, 1974, Rollins became aware that Tellmann was continuing to buy scrap paper from the police department. After several conversations with the county counsel-lor, Rollins determined the arrangement was a conflict of interest as defined by § 11.080 of the county charter and that, under the terms of that section, Tellmann’s office was forfeited. On May 10, 1974 Rollins so notified Tellmann by letter, and Tellmann was relieved of all duties as of that date.

Tellmann filed a petition for appeal to the Commission which held a hearing on the matter. In spite of a motion filed by Rollins as the appointing authority challenging the jurisdiction of the Commission, the Commission found that it had jurisdiction to hear the matter, found that Tellmann benefited from the purchase of waste paper from the county and that he had continued to do business with county agencies after being directed to cease such purchases. The Commission directed that Tellmann should be reprimanded but that he should be restored to his position as of the date of its decision, July 26, 1974, with a loss of salary from May 10 to that date.

Tellmann then filed a petition for review against the Civil Service Commission in the Circuit Court of St. Louis County, in which the County was allowed to intervene as a defendant. The trial court reviewed the case in accordance with Chapter 536 RSMo, ruled that the Commission had jurisdiction to hear the appeal, and found that there was competent and substantial evidence on the whole record to support the Commission’s decision. Tellmann appeals, asserting that the declaration of forfeiture by Rollins constituted a denial of due process and is, therefore, a nullity. He further contends that the Civil Service Commission does not have the authority to adjudicate the validity of a forfeiture because a forfeiture is not a disciplinary action.

The Civil Service Commission briefed only the question of whether it had jurisdiction to adjudicate an appeal such as that filed by Tellmann. Although the County did not appeal from the judgment of the trial court, the County advances the contentions that under the charter Tellmann’s position could properly be declared forfeited without a hearing, and that the Commission did not have jurisdiction to entertain an appeal from such a declaration of forfeiture. The County argues alternatively that, if the Commission had jurisdiction to adjudicate the matter, there was competent and substantial evidence to support its findings. The County also asserts that it was error on the part of the Commission to impose only a reprimand and loss of back pay since the only permissible punishment for conflict of interest under the charter is forfeiture of office.

With respect to whether the Commission was authorized to hear Tellmann’s appeal, we believe that whatever label is affixed to the proceeding before the Commission, Tellmann was entitled, at some point, to a determination before an impartial tribunal as to whether he had been guilty of a conflict of interest as charged in Mr. Rollins’ letter of May 10, 1974 and as proscribed by § 11.080 of the county charter. This is true whether the issue is examined from the constitutional viewpoint of procedural due process, Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) or from the aspect of practical and orderly implementation. In State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363 (banc 1930) the court, in holding that a constitutional provision providing for forfeiture of public office for nepotism was self-executing, acknowledged the necessity for a mechanism of implementation. There the court noted at page 366:

“Section 13 pronounces a forfeiture upon the commission of the act condemned. If anything more is required, section 3, article 6, of the Constitution, invests the Supreme Court with power to issue writs of habeas corpus, mandamus, quo warranto, etc. There a method is provided in the Constitution for removal of an officer who has forfeited his office under section 13, . . . ”

What then is the proper method here? Appellant contends that it is the procedure contemplated by § 106.220 et seq. RSMo 1969 which provides, as pertinent here, that a person appointed to a county office who fails to devote his time to the performance of his duties, or who willfully or fraudulently fails or refuses to perform any of his duties shall forfeit his office. The forfeiture is, under the terms of those sections, sought in circuit court and prosecuted by the prosecuting attorney or the attorney general.

Without determining whether Tell-mann is a county officer or whether the acts with which he was charged fall within the proscriptions of § 106.220, suffice it to say that the method of removal provided by the sections in question does not preclude the use of other methods. State ex inf. Roberts v. Buckley, 533 S.W.2d 551, 553 (Mo. banc 1976); State ex inf. Danforth v. Orton, 465 S.W.2d 618 (Mo. banc 1971). Moreover, it was held long ago that enactment by the General Assembly of removal procedures similar to those contemplated by § 106.220 et seq. does not preempt removal procedures set forth in a city charter. State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758, 763 (1908). Cf. State ex rel. Mincke v. Sartorius, 231 Mo.App. 807, 95 S.W.2d 873 (1936) and State ex rel. Davis v. Peters, 94 S.W.2d 930 (Mo.App.1936).

Both the appellant and the County contend that the Commission erred in treating Tellmann’s appeal to that body as a review of a disciplinary action. We may note that forfeiture of office is the ultimate measure of discipline which could be administratively imposed upon appellant and that, therefore, the case was correctly so treated by the Commission. The County argues that Article VII of the charter, which establishes the merit system and the Civil Service Commission, is a body of law separate from § 11.080, which prohibits certain activities by officers and employees and provides penalties for violations of those prohibitions. We do not believe that the charter was meant by its drafters to be carved up into its constituent articles and sections, each to be read and interpreted separately.

That the charter was meant to be read as one organic instrument is apparent on its face. For example, § 11.080 itself presupposes interaction among and action by various agencies of the governmental structure created by the charter: it authorizes the council to permit stock ownership by county employees in widely owned corporations doing business with the county or, in certain instances, to do business directly with the county; it provides for legal action against anyone offering or paying any form of compensation to any county employee in connection with any county business, which necessarily involves action by the legal officers referred to in Article V; it authorizes the council or the supervisor to declare void any contract made in violation of the section; and, although the section is “self-enforcing”, it authorizes the council to supplement its provisions by ordinance.

As the section does not direct whether the prosecuting attorney or the county counselor shall carry out the authorized legal actions, this question would have to be answered by reference to Article V and implementing ordinances. Similarly, the failure of the section to spell out methods of enforcing its forfeiture provisions requires reference to Article VII which relates to personnel practices, implementing ordinances and rules, all within the various strictures of due process, including the right to a hearing.

Given the facts of this case and particularly Mr. Rollins’ unilateral determination on May 10, 1974, that Tellmann had engaged in activities that required forfeiture of his office, we are of the opinion that the Civil Service Commission properly accorded Tellmann a hearing under the power granted to it by § 7.030(3) to hear appeals as provided by ordinance.

The implementing ordinance, § 202.180, permits the Commission to promulgate rules, inter alia:

“For the hearing by the Commission of any appeal from an employee who is dismissed or demoted after completing his probationary period of service, or who is suspended for more than thirty days in any one year. Both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard publicly. At such hearings technical rules of evidence shall not apply. If the Commission finds that the action appealed from was taken for any political, religious or racial reason, or any other reason not based on the employee’s lack of merit or ability, the employee shall be reinstated to his former position or a position of like status and pay, and may be reimbursed for any loss of pay resulting from the action appealed from.”

Rule XVII, § 4, promulgated by the Commission, sets forth grounds for suspension or dismissal, and one of them is that the employee “has violated any of the provisions of Section 11.080 of the Charter relating to conflict of interest; . . . ”

Section 6 of the Rule provides in part: “No employee who has permanent status shall be dismissed from his position except for cause. The employee and the Director, within seven calendar days after the effective date of dismissal, shall be furnished with a statement in writing setting forth the reasons for the dismissal, effective date of dismissal, and any other appropriate information. Within ten calendar days from the date of the mailing to him by registered mail at his last known address or serving upon him personally such notice of dismissal, an employee who is so dismissed may reply, as a matter of public record, to the charges in writing, and may demand during this period, a public hearing before the Commission.”

The Commission obviously believes that it may hold hearings to determine whether a violation of § 11.080 has occurred, and we are thus supported in our view of the charter by such administrative interpretation. L & R Distributing, Inc. v. Missouri Department of Revenue, 529 S.W.2d 375, 378-379 (Mo.1975). However, as previously indicated, if a hearing were not otherwise provided for, it would be mandated by principles of due process.

Thus we can, with qualification, accept appellant’s contention that the Commission’s review of the case was directed toward the question of whether the action of the appointing authority in removing an employee with recognized merit and ability was justified, the qualification being that proof of a conflict of interest in violation of § 11.080 establishes an absence of “merit”. The issue before the Commission was whether Tellmann violated that section by engaging in the activities set forth in Mr. Rollins’ letter of May 10, 1974. Appellant does not challenge the trial court’s ruling that the Commission’s decision was based on competent and substantial evidence and, indeed, could not reasonably do so.

The County did not appeal the ruling of the trial court that the Civil Service Commission had jurisdiction to hear Tellmann’s appeal nor the affirmance by the trial court of the Commission’s disposition of the matter. Rule 84.13(b) provides in part, “No appellate court shall reverse any judgment, unless it finds that error was committed by the trial court against the appellant . . ” (Emphasis added.) Thus, the principal issue here is whether error adversely affecting Tellmann was committed. In this connection, see Grimes v. Armstrong, 304 S.W.2d 793 (Mo.1957) which was a suit, inter alia, to try title to real estate. One defendant counterclaimed in ejectment. Judgment was entered for defendants on plaintiffs’ petition, but the counterclaim was dismissed upon the trial court’s finding that defendant had failed to show plaintiffs were in possession of the land in question. Concerning the disposition of the counterclaim, the Supreme Court said at page 800, “Defendant has not appealed, and we may not review that ruling.” Similarly, in Jenkins v. Meyer, 380 S.W.2d 315, 323-324[17] (Mo.1964) the trial court had awarded half the value of certain certificates of deposit to the appellants on the theory that appellants were tenants in common with the purchaser of the certificates. Respondents argued that appellants were entitled to nothing; and, although the Supreme Court expressed its agreement with the respondents’ position, the Court affirmed because respondents had not appealed. See also Wagner v. Wagner, 465 S.W.2d 655, 657[1] (Mo.App.1971); King v. King, 382 S.W.2d 819, 820[1] (Mo.App.1964); and Red — E-Gas Company v. Meadows, 360 S.W.2d 236, 237 (Mo.App.1962). It may well be that the sanction that should have been imposed by the Civil Service Commission was forfeiture and nothing less. State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363 (banc 1930). However, the point is not properly before this court, and the failure to preserve it prevents its review.

That the penalty imposed amounted to a suspension without pay for a period of some eleven weeks rather than forfeiture of office, if an error, is one of which appellant cannot be heard to complain. In this respect, appellant’s position is analogous to that of a defendant in a criminal case who receives less than the minimum sentence for the crime of which he is convicted, State v. Ridge, 204 S.W.2d 747 (Mo.1947), or a defendant in a civil action who contends that the award of damages to plaintiff was inadequate. Swiss-American Importing Company v. Variety Food Products Company, 471 S.W.2d 688, 691 (Mo.App.1971). The error, if any, was in appellant’s favor.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      .Pertinent portions of that section read as follows:
      “1. No officer or employee of the county, whether elected or appointed, shall in any manner whatsoever be interested in or receive any benefit from the profits or emoluments of any contract, job, work or service for the county.
      2.The provisions of this section shall be broadly construed and strictly enforced for the purpose of preventing officers and employees from securing any pecuniary advantages, however indirect, from their public associations, other than their compensation provided by law.
      3. Any officer or employee of the county who willfully conceals any such interest or violates any of the provisions of this section shall forfeit his office. . . . The requirements and penalties of this section shall be in addition to all other provisions and penalties provided by law. .
      4. This section shall be self-enforcing but the council may supplement its provisions and extend prohibitions against conflicts of interest by ordinance not inconsistent herewith.”

      . The Commission claims such jurisdiction on the strength of Article VII, § 7.030(3) which authorizes the Commission to “Hear appeals as provided by ordinance in case of disciplinary actions by appointing authorities, and from decisions of the personnel director in cases involving examinations and examination ratings;

      . Jenkins was later overruled on other grounds. In re Estate of LaGarce, 487 S.W.2d 493, 500-501 (Mo. banc 1972).