author: JOE SPURLOCK, II, Justice.

text:
    Joan Ann MUHLBAUER, Appellant, v. Maureene Lee MUHLBAUER, Independent Executrix of Estate of John E. Muhlbauer, Appellee.
    No. 2-84-145-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 28, 1985.

      Jonasue Ammons, Hurst, for appellant.
    Law Office of Don Driver, Don S. McDaniel, Port Worth, for appellee.
    Before JOE SPURLOCK, II and HILL, JJ.
   OPINION

JOE SPURLOCK, II, Justice.

This appeal is from a contest in the probate court in which the court denied the probate of a purported will. The appellant, Joan Muhlbauer, is the surviving spouse of the deceased, John Muhlbauer. The appel-lee, Maureene Muhlbauer, is the daughter of the deceased and step daughter of appellant.

In December of 1970, John Muhlbauer executed his first will leaving his estate to his three children. He was unmarried at that time. In August of 1976, he married the appellant and remained married to her until his death. It is alleged that he executed a second will in January 1979 in which he revoked any prior will and designated appellant as the primary beneficiary, with his estate to be divided equally between his three children and her four children should she not survive him. Upon his death, appellee filed the 1970 will for probate and the probate court admitted the will to probate. Appellant filed her contest later along with her application for probate of the 1979 will. After trial on the contested issue, the court ruled that the 1979 will had not been executed with all of the formalities and solemnities required by the code and declined to accept the 1979 will for probate. From that order, this appeal was taken. For reasons stated hereinafter, we affirm.

Appellant, in eleven points of error, complains that the trial court committed error in its ruling. The points of error are not in such form, nor with such particularity as to actually advise this court of the error committed by the trial court below. We believe that appellant is attacking an implied finding made by the court that appellant’s evidence was insufficient to admit the will to probate, i.e. that the court’s ruling is against^ the great weight and preponderance of the evidence.

In her first two points of error, appellant complains that the judgment of the trial court should be reversed and rendered in her favor as the court committed error in entering a judgment refusing to admit the 1979 will to probate by finding that the same was not signed with all the formalities and solemnities required by sec. 59 of the Texas Probate Code and because the court found that the testator did not request assistance in signing the will as required by that same section. Her third and fourth points of error discuss the testimony at trial and argue with the court’s finding in that regard. Her fifth point of error is that if this court finds the evidence inconclusive, then the fact that one of appellant’s witnesses’ memory failed him should not have lead to the conclusion of the trial court that it deny the 1979 will. It would add nothing to the jurisprudence of the State of Texas to discuss appellant’s remaining points of error.

It is clear that the burden was on the appellant, as proponent of the instrument offered for probate, to prove the execution of a valid will. See Mossier v. Johnson, 565 S.W.2d 952, 957 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.) and In re Estate Rosborough, 542 S.W.2d 685, 688 (Tex.Civ.App.—Texarkana 1976, writ ref’d n.r.e.). When a party having the burden of proof appeals from an adverse fact finding in the trial court, the point of error should be that the matter was established as a matter of law, or that the court’s finding was against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). We construe appellant’s points of error as asserting that the court’s ruling in the present case was against the great weight and preponderance of the evidence.

The matter was tried before the court without a jury and after trial there was no request made for findings of fact or conclusions of law. The court did comment upon the evidence at the time it made the order in this case, and the record of testimony together with the court’s comments are before us.

In a trial to the court where no findings of fact or conclusions of law are filed or requested, the judgment of the trial court implies all necessary findings of fact in support thereof. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). These implied findings may be challenged by “no evidence” and “insufficient evidence” points and where such points are raised, the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Id.

Where the challenge to a finding is framed as an “insufficient evidence point,” we are to consider all the evidence, both that in support of and contrary to the challenged finding, to determine if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); City of Lubbock v. South Plains Electric Cooperative, Inc., 593 S.W.2d 138, 143 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.).

Where the implied findings of fact are supported by the evidence, it is the duty of the appellate court to uphold the judgment on any theory of law applicable to the case. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Ellis v. Waldrop, 627 S.W.2d 791 (Tex.App.—Fort Worth 1982), rev’d on other grounds, 656 S.W.2d 902 (Tex.1983). This is so regardless whether the trial court articulates the correct legal reason for the judgment. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939); Rheiner v. Varner, 627 S.W.2d 459, 462 (Tex.App.—Tyler 1981, no writ).

The particular question in this case revolves around the interpretation of the statute in question. TEX.PROB.CODE ANN. sec. 59 (Vernon 1980). This statute provides in part as follows:

Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, ...

The language of this statute “has been construed to mean that a will may be executed by a testator who is unable to write his name, by making his mark and instructing some other person to write his name.” Guest v. Guest, 235 S.W.2d 710, 713 (Tex. Civ.App.—Fort Worth 1950, writ ref d n.r. e.).

In the case on trial, appellant attempted to show that the testator executed the will in her presence and that she, at his request, placed her hand over his and guided his hand in making his signature to the will in question. At the trial, she called the attorney who had prepared the will and who also signed the same as a witness in her presence and in the presence of the testator. She also called the law partner, at that time, of the attorney who prepared the will, who appeared and testified as a witness to the execution of the will. In considering this case and in considering whether or not there was sufficient evidence for the court to have concluded that the request was not made by the testator and at his direction, it is necessary that we review portions of the testimony. This testimony gives the background necessary to understand fully the circumstances and facts of this case. During the trial, the attorney who prepared the will and who signed as a witness was called and examined as follows:

[By counsel for appellant]
Q. At or about the time of the execution of the 1979 will could you tell me the approximate physical condition as it appeared to you of Mr. Muhlbauer?
A. Well, I only drafted one will for him. So, the will in ’79, he was in a wheel chair and to the best of my memory his hands, I don’t know if they shook. He didn’t have all of the control that I have, for example. But mentally there was no question. He was in excellent shape. He knew exactly what he wanted.
Q. Do you remember the exact ceremony of execution?
A. The what?
Q. When the 1979 will was executed do you remember that exact day?
A. I remember what happened, with him signing the will because my concern was could he even sign his name.
Q. Were you physically — Were you concerned with his physical condition as to whether he could mechanically move his hand to sign—
A. That was my only concern, mechanically, if he could execute it with his own hand.
Q. Uh-huh.
A. And he did.
Q. When you were present at that execution ceremony did you sign as a witness on that will?
A. Yes. I did.
Q. Mr. Foster, I’d like to ask you to review what has been marked as Applicant’s 1, and would you please tell me if you can identify it?
A. Yes. This is the will that I dr awed —drafted. It’s my signature.
Q. Is that your signature appearing in the witness blank?
A. Yes.

From this we can determine that, on the occasion in question, the attorney/witness was concerned that his client would not be able to execute the will in his own handwriting, that is physically, mechanically move his hand. At this time though, the witness testified that the testator did execute it with his own hand. Further direct examination of the witness revealed the following:

Q. Very well. Mr. Foster, I’d like to talk with you about the specific act of signing that document. Do you remember Mr. Muhlbauer having a pen in his hand?
A. Yes. I do.
Q. Can you tell me about that?
A. Well, all I — To the best of my recollection Mrs. Muhlbauer was asked to put her hand on his to steady his hand while he held the pen in his hand and signed it. That was the only concern, could he hold, you know, keep a steady hand.
Q. So Mrs. Muhlbauer guided his hand.
A. Uh-huh.
Q. Was it with his consent that she guide his hand?
A. Yes. I asked her to. If I recall, I said, “Can you” — My main concern was, could he execute the instrument. And he said his hand moved but if we could hold his hand — I don’t know if he said, “She would,” or what, but we asked her to do it. And I don’t remember if he asked her or I asked her.
Q. But it was with his consent.
A. Oh. Yeah. No question about that.

The witness at this time states he is unable to remember whether the testator asked the appellant to guide the hand of the testator or whether he, the attorney, asked her.

Upon cross-examination by the attorney for appellee, the witness was asked to compare the signatures made on the will in 1970 (which was prepared by the same attorney/witness and signed by the testator in his presence) and the signature made on the 1979 will. At that time, the following exchange took place:

[By counsel for appellee]
Q. I’m going to show you what has previously been admitted in probate as the last will and testament of John Edward Muhlbauer.
A. Okay.
Q. It was recorded in volume 1409, page 837. Would you look that over, please?
A. Yes. This is a will that I apparently drafted in 1970.
Q. And is — Are you listed as the notary on that instrument?
A. Yes.
Q. And are you familiar with Mr. Muhl-bauer’s signature?
A. All I’m doing is I can see it. Yeah.
Q. And as the notary you swore that he signed that in front of you; didn’t you?
A. That’s right.
Q. And so is that his signature there on that document?
A. I would have to say, “Yes, absolutely.”
Q. Does the signature on that document appear to be substantially different from the one on the will dated 1979?
A. I have to put them together because I didn’t even remember this will.
Q. Let me show you what has been admitted into evidence as proponent’s exhibit number 1 and ask you to compare those two, please.
A. They don’t look the same.
Q. All right.
A. It was a different type of pen but it doesn’t look like the same writing either, From this testimony, it is obvious that the attorney/witness/preparer of the wills, believed that the two signatures were not in the same handwriting, although he had been in fact the notary public on the signature made in 1970. The record contains the samples of the two signatures which the witness compared and which the court observed and they are reproduced herein:

The cross-examination of the witness continued as follows:

Q. Let me return these to the Court. Now, in 1979, when Mr. Muhlbauer came in to sign the new instrument, did he read that instrument before he signed it?
A. I feel certain he did for the simple reason that I always had them read it before I would let them sign it.
Q. Do you have any independent recollection of this specific occasion where Mr. Muhlbauer actually read the instrument?
A. I have no specific recollection other than I just know my practice. I always did that.
Q. Okay. And to your knowledge this wasn’t any different but you don’t specifically remember; is that correct?
A. No. No. With all the wills I did, I just know my procedure.
Q. You don’t remember one way or the other then.
A. No. I mean, I would have to say, “He did,” but I have no specific recollection of it.

Later testimony reveals that the testator was in fact blind and unable to read. The appellant testified that the secretary read the instrument to him one time before he signed it. As regards the particular question required to be answered under sec. 59 of whether or not the testator requested his wife to sign the will at his direction, the witness testified as follows:

[By counsel for appellee]
Q. Why didn’t you ask your secretary or one of the other witnesses to hold his hand instead of Mrs. Muhlbauer; do you recall?
A. No. Don, this is the specific circumstance. I just remember that I want to make sure that he was able to sign the will.
Q. All right. And to the best of your memory did you suggest Mrs. Muhl-bauer?
A. No. I can’t say that.
Q. All right. Did Mrs. Muhlbauer suggest that she hold — be the one to hold his hand—
A. I can’t—
Q. —or do you remember?
A. No. I do not remember. In fact, you know, but for him being in a wheel chair I probably wouldn’t remember the incident.
Q. And at the time that he made the will do you recall whether or not he made any comments about being angry or upset with his children?
A. No. I don’t.
Q. All right. Now let me ask you just one or two more questions about his physical condition. Were you aware that he had M.S.?
A. I don’t remember what he had. I’m sure they told me at the time. I would have, I’m sure, known but I don’t remember that.
Q. To the best of your memory was he able to walk?
A. I would say, “No.” He was in a wheel chair.
Q. All right. And to the best of your memory was he even able to lift his hands or arms up?
A. I can’t recall that clearly, Don. I mean, that was my concern, could he . even write his name. I remember that. Q. You didn’t happen to tape record the execution of the will, did you?
A. Oh, no. Never did.

After further redirect and cross-examination, the court made the following inquiry of the witness:

BY THE COURT: Mr. Foster, did you — Do you recall if you inquired as to whether the testator could sign his mark or an “X” without assistance?
A. No. I didn’t ask him about — It’s my memory, I was concerned could he write his name and it was to do with his hand. And I remember that they held his hand.
BY THE COURT: You spoke earlier, if I remember the testimony, that it was at your — and I don’t want to put words in your mouth — your suggestion or request that Mrs. Muhlbauer hold his hand.
A. No. I — If I said that — I just remember that it was suggested. I don’t remember if I did or — I do not remember the incident that clearly but I remember that — And I can’t swear that she held his hand. It seems like she did. This has been a long while ago. But someone held his hand as he — And I believe it was Mrs. Muhlbauer. I mean, that is, if I had to say which, I would say, “Yes.” “She did.” But—
BY THE COURT: But you can’t state of your independent recollection whether it was at his direction that she hold his hand—
A. No way.
BY THE COURT: —or sign his name for him?
A. No way. No. I can’t.
BY THE COURT: And you’re not sure that she, in fact, held his hand.
A. I believe she did.
BY THE COURT: You do.
A. I believe she did. I will say, “Yes.”
BY THE COURT: Very well. Any further question of this witness.

This testimony viewed in its best light is equivocal about who did or did not request that the wife assist the testator, and in fact, whether or not there was a request made for someone to help him. It establishes absolutely that the testator was not given the opportunity to make his mark or an “X” if he were not able to in fact write his name.

There is contained in the record other testimony concerning the circumstances on the day of the signing. The appellant, widow of the deceased, was present at the time of the signing of the alleged will and was called as a witness in her behalf. She testified in part as follows:

[By counsel for appellant]
Q. Do you remember the signing ceremony?
A. Yes. I do.
Q. Who else was present?
A. There was a secretary, a woman, and there was Mr. Foster. And Mr. Dee-gan was there.
Q. Uh-huh.
A. And the woman who typed up the will, read the will to my husband as he could not read it, himself. And she read it to him and asked him if everything was okay. He said, “Yes.” And when it came to the signing of the will, he knew he couldn’t sign it. He couldn’t pick up the pen so he turned to me and called me and asked me to help him sign the will. And I asked then, I said, “Is it legal for me to help him sign the will?” They said, “Yes, as long as his hand was on the paper, he had the pen in his hand and I guided his hand,” which is exactly what I did.
Q. You have seen a copy of the 1970 will, have you not?
A. Yes.
Q. And you have seen the original of the 1979 will.
A. Yes.
Q. There is no question that there is a material difference in signatures.
A. Right.
Q. How do you account for that difference?
A. Because, like I said, I had to help my husband sign the 1979 will so that it would be different from the 1970 will. Q. Are you saying—
A. I was guiding his hand. He didn’t have the strength to guide it himself. I had to guide it so it would be more, you know, the signature definitely would be different.
Q. Did your husband direct you to help him sign the will?
A. Yes. Yes. He looked over his shoulder and called me. I was behind him at the time when they were reading the will and everything.
Q. Did this occur in Mr. Foster’s office.
A. Yes.

Upon cross-examination, when appellee’s attorney asked about the purported will and the circumstances of the will itself, she answered as follows:

[By counsel for appellee]
Q. All right. Are you the one that brought up the subject of wills?
A. Yes. I am.
Q. Did he inform you that he already had a will?
A. No. He did not.
Q. Were you aware that he had another will?
A. No. I was not.
Q. Now, let me ask you some questions now about the execution of the document dated 1979. When Mr. Muhlbauer signed the name with your hand on his hand, was his hand actually on the pen?
A. Yes. It was.
Q. Did he know he was signing a will?
A. Yes. He did.
Q. How did he know that?
A. It was read to him by Mr. Foster’s secretary before he signed the will.
Q. All right. And why did it have to be read to him?
A. He was legalaly [sic] blind.

From this evidence, it seems that the testator, about whom there was no evidence that he had any argument with his own children, was making out a will leaving to his third wife all of his estate, and that he was in fact blind and unable to read the same and that it was necessary that he have his wife guide his hand in order to sign the will. The appellant’s testimony shows that the will was read to the testator only once and further reveals:

[By counsel for appellee]
Q. All right. How long had he been legally blind?
A. He had been legally blind for a good many years. I don’t know exactly when he was declared legally blind.
Q. All right. He did not actually read the will, himself, did he?
A. No. It was read by Mr. Foster’s secretary.
Q. Did he ask any questions about the will after she read it?
A. No. Everything seemed to be satisfactory to him.
Q. How many times did she read it to him?
A. Once.
Q. In the course of the reading did he stop her and ask any questions?
A. No.
Q. Did he ask any questions of Mr. Foster before he signed that will?
A. I don’t believe so. I don’t remember.
Q. I’m asking you about the typed up document that you offered for probate.
A. The typed up document was read to him once.
Q. Now, is it your testimony that he was physically unable to sign his name?
A. Yes.
Q. Was he physically able to make a mark?
A. No.

At this point, the attorney for appellee inquired as to other physical characteristics of the testator, especially in regard to his inability to physically make his mark. The testimony by the appellant was as follows:

[By counsel for appellee]
Q. Did he — In 1979 did he smoke?
A. He smoked a pipe.
Q. All right. In 1979, when he smoked the pipe, didn’t he use one of his hands to hold the pipe and place it back and forth in his mouth?
A. Yes.
Q. All right. And you’re saying that he was able to take a pipe and put it in his mouth and take it out but was not able to make a mark on a document.
A. Right.
Q. And, in fact, he also wore a watch; didn’t he?
A. Yes.
Q. And the reason that he wore a watch was so that he could turn his hand up and look at the time, isn’t that correct?
A. Only if he held it within a few inches of his eyes.
Q. All right. And how did he do that?
A. He had use of his right arm.
Q. All right. Didn’t he sign with his right hand?
A. Yes.
Q. And when he used this right arm what did he do? Did he pick up his left hand and bring it up, the watch up—
A. Yes.
Q. —to his eyes?
A. Yes.

Appellant also testified about other matters that she had assisted the testator with during his life. Some of these instances testified about on cross-examination were:

[By counsel for appellee]
Q. You testified earlier also that you helped Mr. Muhlbauer sign other things; didn’t you?
A. Whatever he had to sign. Yes.
Q. For example, all of his life insurance policies.
A. Whatever he wanted changed, which was just one.
Q. Didn’t you change several of his life insurance policies to name you as the major beneficiary—
A. He didn’t have—
Q. —instead of his—
A. —several.
Q. —children? Would you let me complete my question, “instead of his children?”
A. He didn’t have several.
Q. How many did you sign?
A. Two of them.
Q. All right. And in both of those they had previously named his children as primary beneficiaries and you signed his name changing the named beneficiary to you; didn’t you?
A. Yes. I did.
Q. And on those instruments did he also hold the pen and you guide his hand? A. Yes. He did.

In regards to the particular signature on the instrument itself, when asked about the signing the appellant testified as follows:

[By counsel for appellee]
Q. Well, let me ask you one or two questions about that. The document you have before you that has been offered as proponent’s exhibit number 1, look at the initials, there, at the bottom of the page. What do they say?
A. “J. M.”
Q. And do they appear to you to be signed with a certain flair?
A. No. Not really. Just—
Q. All right. It’s your testimony that you made those initials while Mr. Muhl-bauer’s hand was on the pen.
A. Yes.
Q. All right. And look at page two.
A. Right.
Q. All right. A signature that purports to be John Edward Muhlbauer.
A. Right. That is where my husband and I both signed.
Q. All right. And once again, it’s your testimony that you signed this with his name — with his hand on the pen?
A. Yes. I do.
Q. May I ask you a question, please? Why isn’t there any squiggles or lack of control or anything like that in the signatures if his hand was also — two hands on the pen?
A. My husband’s hand — fingers did not have very much strength. All he did was just rest his hand on there and get the pen between his fingers and let me do the guiding for him.
Q. So it’s your testimony that you were able to hold his hand on top of a pen and move his arm and hand and sign a signature like on that document.
A. All I had to do was move his fingers.

At the conclusion of her testimony, the court made the following inquiry of the appellant:

[By the Court]
Ma’am, did I understand you to say that in your opinion Mr. Muhlbauer could not make an “X”?
A. Right.
BY THE COURT: He did not have the sufficient strength with which to write— A. Right.
BY THE COURT: —a mark of any kind.
A. Right. He had already tried and he couldn’t do it.
BY THE COURT: The Court has no further questions.

The other witness to the signing of the will, also an attorney, was called and testified about his recollection of the signing as follows:

[By counsel for appellant]
Q. Do you have any questions as to the certainty of whether that is your signature?
A. No question at all. This is definitely my signature.
Q. Do you recognize any of the other signatures on that page?
A. Yes. I do. I recognize “Charles L. Foster, Jr.”
Q. In what capacity is Mr. Foster signing, there?
A. He signed as witness.
Q. So let me ask you again, you do not remember that specific signing ceremony.
A. No. I do not. * * * * * *
Q. You stated that Mrs. Brown was your secretary.
A. Yes.
Q. Do you recognize her signature?
A. I believe that is her signature. I am certain that is Mr. Foster’s. I saw him sign a number of things and that appears to be Virginia Brown’s signature.
Q. But you’re not certain as to Virginia Brown’s signature.
A. I couldn’t — I couldn’t say with certainty.
Q. Let me see if I understand your practice. Was it your practice to satisfy yourself in your own mind that the testator knew what they were doing?
A. Yes. It was.
Q. Would it have been your practice to sign the will if there were any questions in your mind?
A. If there were any questions in my mind at all, I would not have signed the will as a witness. And by “questions,” if I may expound on that, I would say questions as to one’s understanding or competency to sign.

Upon cross-examination by appellee’s attorney, the witness said in response to questions:

Q. All right. Was this in C.L.’s office?
A. I believe so. I’ve done one recently and that jogs my memory but I have done more than one in that manner.
Q. All right. The question is, though: Do you remember one in C.L.’s office?
I can’t say that I remember — I do not remember this specific one.
Q. All right.

The above reproduced testimony is the significant testimony appearing in the record. Upon the conclusion of the testimony by appellant, appellee made a motion that the will not be admitted into probate and the court in granting such motion made the following observation on the record:

The Court can’t help but narrow in on a single issue, ... whether or not this will was executed with the formalities and solemnities required by law. And the particular matter that concerns this Court is the very explicit language, ‘by his direction’. For the record I would like to state it doesn’t say, ‘with his acquiescence’ or ‘at the suggestion of the drafting attorney.’ It says, ‘by his direction,’ meaning the testator’s direction.
The court stated further:
Based upon the evidence I’ve heard this Court feels that the proponent of the 1979 will has failed to carry her burden of proof that it was executed with the formalities and solemnities required by law because this Court does not have sufficient evidence to find that it was signed by another person by the direction of the testator.

We agree with the careful trial court in his assessment of the evidence and of the requirements of the law. There is not much case law in the State of Texas interpreting this particular provision of the probate code. It is clear that the language of the statute is directory in nature and provides only that the will be signed by the testator in person or alternatively only by another for him by his direction and in his presence. The evidence before the court in this case did not establish that fact. Appellant argues that the court should have, if it discounted the testimony of the interested witness, the widow, followed the logic of the Texas Supreme Court in the case of Massey v. Allen, 248 S.W. 1067, 1070 (Tex.Comm’n. App.1923, opinion adopted), where the court observed “[t]he authorities outside of this state are apparently unanimous in holding that, if the witnesses to the will are produced in court and are forgetful of all the facts, the law in such cases will supply the defect of proof by presuming that the requirements of the statute were duly observed, unless the contrary is proved and we cite a few of them”. We observe that in the Massey case the issue was that one witness was dead at the time of probate and the other witness was unable to recall whether or not he signed the will nor whether the testator was present when the witness signed the document, his memory having completely lapsed. Massey, 248 S.W. at 1068. That question is not before us. The issue before us is whether or not the testator specifically requested that another sign the will for him at his direction. The only person so testifying was the wife, the interested party, and the court in a trial before it is the sole judge of the credibility of the witnesses and the weight to be given their testimony. We do not find authority in Massey for the proposition that where there is insufficient testimony to supply evidence that a specific request was made, that a defect of that proof will be cured by presuming that the requirements of the statute were observed. That does not to us appear to be good law under the facts of this particular case.

Appellant urges further as authority the case of Trezevant v. Rains, 19 S.W. 567 (Tex.1892) rev’d on other grounds, 85 Tex. 329, 23 S.W. 890 (1892), and the case of Davenport v. Minshew, 104 S.W.2d 951 (Tex.Civ.App.—San Antonio 1937, writ ref’d). We note that neither of these two cases is authority for the question presented here. In Trezevant, the testatrix was completely prostrate and attempted to sign but being too weak she specifically requested her daughter to assist her. Trezevant, 19 S.W. at 568. She was too weak to make a mark of any kind and her daughter executed the will in her behalf, in her presence, at her specific request. Id. The court ruled the signature sufficient. That ease stands specifically for the proposition provided for in sec. 59 of the Probate Code under consideration here, but the facts recited there are not the facts of our case. The testimony in the present case is that the testator could manipulate his hands for pipe smoking and to use his watch, although legally blind. The court impliedly found no believable testimony that he ever specifically requested any person to assist him, and there is testimony that he was never asked to make his own mark. In the Davenport case, the distinguishing characteristic was that although the testator could not sign his name because his hands shook severely, he could at least make his mark and did so beside his name which was signed by the drafting attorney. Davenport, 104 S.W.2d at 952. Again, those facts are not the facts of this instant case. Appellant has cited us to no other authority controlling the interpretation of sec. 59 of the Code and we have found none ourselves.

We conclude that there was sufficient evidence for the trial court to find that the will had not been executed properly in conformity to the requirements of law and that such a finding is not against the great weight and preponderance of the evidence. In this connection, we note this issue has been well settled and that an instrument which purports to be a will is not valid as a will where it is not signed with the testator’s name by himself or by someone else by his direction, even though his name be recited in its body. Armendariz De Acosta v. Cadena, 165 S.W. 555 (Tex.Civ.App.— El Paso 1914, writ ref’d.). We hold that the statute in question requires that the signing of the will by another person for the testator must be done in pursuance of the previously expressed direction of the testator. Here, the trial court found insufficient evidence to conclude that the requirement of the statute had been met. We hold that the evidence was sufficient to support the trial court’s implicit finding in this regard and that such a finding is not against the great weight and preponderance of the evidence. Accordingly, we overrule points of error one through eleven and affirm the judgment of the trial court.

Judgment affirmed.


source: Caselaw Access Project

author: DIAL, Justice.

license: Public Domain

text:
    Roel CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-00077-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 28, 1985.
    Roger Reed, Pope, Guerro & Reed, Rio Grande City, for appellant.
    John A. Olson, Dist. Atty., Rio Grande City, Rudy Gutierrez, Dist. Atty’s. Office, Hebronville, for appellee.
    Before ESQUIVEL, BUTTS and DIAL, JJ.
   OPINION

DIAL, Justice.

This is an appeal from a conviction in a jury trial for the offense of murder. TEX. PENAL CODE ANN. § 19.02(a)(1) (Vernon 1974). The judge assessed punishment at fifty years’ confinement in the Texas Department of Corrections.

The homicide occurred in Mari’s Bar in Falcon Heights. An argument between the appellant Castillo and the deceased Larry Hinojosa escalated from insults and threats to blows. Ultimately, Castillo drew a pistol and after firing into the ceiling, shot Hino-josa twice.

The appellant testified that the deceased made a movement, and “I was scared he was going to pull a weapon out and kill me. I shot twice towards him.” When asked if he was trying to hit the deceased when he shot, the appellant answered, “Not intentionally.” The appellant’s testimony contains three other instances where he maintains that the shots were not fired intentionally.

The jury was charged on the law of murder, voluntary manslaughter, and self-defense against a deadly attack. Appellant contends the trial court erroneously denied his request to instruct the jury on the lesser included offense of aggravated assault.

It had long been held in Texas that when a deadly weapon per se was used in a deadly manner and death resulted, there was no need to give a charge on aggravated assault even though the defendant testified that he did not intend to kill the deceased. Womble v. State, 618 S.W.2d 59, 65 (Tex.Crim.App.1981); Simpkins v. State, 590 S.W.2d 129, 134 (Tex.Crim.App. 1979); Cain v. State, 549 S.W.2d 707, 713 (Tex.Crim.App.1977), cert. denied, 434 U.S. 845, 98 S.Ct. 149, 54 L.Ed.2d 111 (1977).

This case was tried in September 1983, for an offense alleged to have occurred February 13, 1982. The trial judge obviously followed the rules of law as he understood them to be at the time the case was tried.

On September 28, 1983, the Texas Court of Criminal Appeals rendered the en banc decision in Harrell v. State, 659 S.W.2d 825 (Tex.Crim.App.1983). The court explained that the rule that intent to kill will be presumed where a deadly weapon is used was based upon article 45 of the 1925 Penal Code, which had been repealed by the current Penal Code, effective January 1, 1974. Id. at 827. No similar provision appears in the present Penal Code. The court stated:

We hold the repeal of that statutory provision abolishes the rule derived therefrom, that when a deadly weapon per se is used in a deadly manner and death results, a charge on aggravated assault is not required even when the evidence otherwise raises the issue.

Id. at 826. The conviction in Harrell was affirmed because the court found that the appellant there testified that he shot the deceased intending to cause him serious bodily injury and this constituted an act clearly dangerous to human life under TEX.PENAL CODE ANN. § 19.02(a)(2). Id. at 827.

The testimony of the appellant in our present case was to the effect that he did not intentionally do any harm to the deceased. The evidence having raised the issue, under Harrell, a charge on aggravated assault would be required. For this reason the judgment must be reversed.

Since the issues raised in other grounds of error are not likely to reoccur on a subsequent trial, we will not discuss them here.

The judgment is reversed and the cause is remanded to the trial court for a new trial.


author: ASHWORTH, Justice.

text:
    CITY OF THE COLONY, Texas, Appellant, v. CITY OF FRISCO, Texas, Appellee.
    No. 2-84-047-CV.
    Court of Appeals of Texas, Fort Worth.
    March 7, 1985.
    Henderson, Bryant & Wolfe and Thomas C. Akins, Sherman, for appellant.
    Abernathy, Roeder & Jouette and Richard Abernathy, McKinney, Philips, White, Davidge, Griffin, Shelton, Eames, Word & Duncan, and Mike Griffin, Denton, for ap-pellee.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

ASHWORTH, Justice.

City of The Colony, Texas (Colony) appealed from a judgment declaring an annexation ordinance of the City of Frisco, Texas (Frisco) had been validated by a validation statute.

Judgment affirmed.

In 1966 the City of Frisco, Denton County, had a population of less than 5,000. That year Frisco passed its Ordinance 179 which is the primary issue in this case. Such ordinance annexed a strip ten feet in width along the center line of highways surrounding Frisco. The area included in the annexed strips was approximately 87 square miles while Frisco as it then existed had an area not in excess of one square mile. During submission of this cause, a map was used for illustrative purposes. While this map was not an exhibit in the trial, the attorneys agreed that it fairly represented the areas involved. Such map is reproduced in this opinion for assistance to the reader. [See Appendix.]

The ten foot strip annexed ran along the center of Farm-to-Market Road 720 west to Farm-to-Market Road 423; then north to U.S. Highway 380; then east to Farm-to-Market Road 2478; then south to State Highway 121; then southwesterly to Farm-to-Market Road 423; then north to Farm-to-Market Road 720. There were no other cities or towns in the area that were affected by such annexation.

In 1977, Fox and Jacobs, real estate developers and builders, requested Frisco to release property in the southwest section of the area encompassed by the ordinance. The purpose of the requested release was to enable development of the section and its incorporation as City of The Colony. Frisco released the area requested but retained its boundary along State Highway 121 and Farm-to-Market Road 423. In addition, Frisco retained a five foot strip of extraterritorial jurisdiction (E.T.J.) along the east and north boundaries of Colony.

After incorporation, Colony had no way to expand because of the encirclement by Frisco. In February of 1978, Frisco and Colony agreed that Frisco would release its annexation as it bordered Colony on State Highway 121 and Farm-to-Market Road 423. Again, in October of 1978, the cities agreed that Frisco would release some more property along State Highway 121 and adjusted its five foot strip of E.T.J. Also, in June of 1979, the boundaries were again adjusted by agreement, moving Colony’s line to the east.

The City of Eastvale sued both Frisco and Colony in 1979 and 1980 alleging that Frisco Ordinance 179 and the 1978 boundary agreements were invalid. Frisco and Colony stood together in defending the suit, and the trial court held the ordinance had been validated and the agreements were valid.

In 1982 Colony passed Ordinance 228 annexing 50 acres north of its northern boundary. This attempted annexation by Colony infringed upon land which by Frisco ordinance was subject to its E.T.J. Frisco then brought the instant suit for declaratory judgment seeking to have Colony Ordinance 228 declared void because it violated Frisco’s E.T.J. and the boundary agreements.

After a non-jury trial, the court ruled: Frisco Ordinance 179 had been validated; certain ordinances of each city were valid; certain ordinances of each city were invalid; the boundary line agreements were valid; and that Frisco should recover attorney’s fees.

Colony’s first point of error contends Frisco’s Ordinance 179 cannot be validated by TEX.REV.CIV.STAT.ANN. art. 974d-28 (Vernon Supp.1985) because annexations extending beyond the annexing city’s E.T.J. cannot be validated.

At the time Ordinance 179 was enacted, Frisco had an E.T.J. of one-half mile and could only annex property within its own E.T.J. The Municipal Annexation Act, TEX.REV.CIV.STAT.ANN. art. 970a, secs. 3.A.(1) and 7.A. (Vernon 1963). Frisco Ordinance 179 was clearly invalid at the time it was enacted. We must now determine if such ordinance has been validated.

The pertinent sections of the validating statute, art. 974d-28, are as follows:

Sec. 4. (a) The original boundary lines of each municipality covered by this Act and any extension of those boundaries adopted before January 1, 1975, are validated in all respects, even though the action adopting the original boundaries or an extension of them was not in accordance with law.
(b) Without limiting the generality of Subsection (a) of this section, it is expressly provided that an attempted annexation that occurred before January 1, 1975, may not be held invalid because it did not comply with the Municipal Annexation Act, as amended (Article 970a, Vernon’s Texas Civil Statutes), or any other applicable law, or because the territory the municipality attempted to annex was not contiguous or adjacent to the then existing boundaries of the municipality, or because the municipality was not petitioned for annexation by the owners or residents of the annexed territory.

Id.

It is noted that such statute was amended subsequent to the decision in City of Waco v. City of McGregor, 523 S.W.2d 649 (Tex.1975). In such case, McGregor enacted an ordinance annexing a strip of land 261 feet wide beginning at its city limit and extending along a highway for a distance of five miles and then encompassing a tract of land owned by McGregor and used as a municipal airport. Id. at 650. McGregor conceded the ordinance was void because the five mile strip was not contiguous or adjacent to its city limits. Moreover, the strip was not owned by McGregor and neither was it within its E.T.J. Id. at 654. McGregor contended, however, that the annexation had been validated by the 1967 validating statute, TEX.REV.CIV.STAT. ANN. art. 974d-12 (Vernon Supp.1985), which provides:

See. 2. The boundary lines of all such cities and towns, including both the boundary lines covered by the original incorporation proceedings and any subsequent extensions thereof, are hereby in all things validated. No boundary extension of any kind shall be deemed invalid by failure to comply with requirements of publication, whether such requirements are imposed by statute, general law or charter, and such extensions are hereby in all things validated. In the event of multiple annexations covering the same territory, the proceedings prior in time shall prevail despite any irregularities hereby validated.

Id. at 652.

The court held that the validation statute was not intended to and did not validate the annexation of either non-contiguous or nonadjacent territory and that the attempted annexation of the strip had not been validated. Id. at 653. In its opinion, the court states: “The question is not one of the power of the legislature — we do not doubt that the legislature could validate an attempted annexation such as this.” Id. at 652.

The 1979 validation statute expressly provides an attempted annexation may not be held invalid because the territory was not contiguous or adjacent to the then existing boundaries of the city. In McGre-gor, it is stated that the legislature has the power to validate such an annexation. Id. at 652. Frisco Ordinance 179 was validated by the 1979 validation statute (art. 974d-28), and appellant’s first point of error is overruled.

Appellant’s second point of error contends the validating statute cannot validate annexations which annex land that is not adjacent and contiguous to the annexing city. In our discussion of appellant’s first point of error, we have examined the 1979 validating statute and have noted its precise words stating an annexation may not be held invalid because the land attempted to be annexed was not contiguous or adjacent to the city’s boundaries. We have seen that McGregor has stated the legislature has the power to validate such an annexation. Id. at 652. We hold these authorities dispose of appellant’s second point of error and the same is overruled.

Appellant’s third point of error is directed toward the trial court’s finding that Frisco Ordinances 364 and 368 were validated by the 1984 validating statute. The contention is that the validating statute does not purport to, and does not, validate ordinances which attempt to extend the E.T.J. of a city.

Ordinances 364 and 368 were extensions of E.T.J. Ordinance 364 was passed in 1974 and extended Frisco’s jurisdiction west of State Highway 423; such jurisdiction was released in 1977. In 1974, Ordinance 368 extended Frisco’s E.T.J. east of State Highway 423 and was released in 1977. Appellant fails to state how the finding affects the trial court’s judgment. We fail to see how the validity or invalidity of such ordinances has any effect on the trial court’s judgment or this appeal, and appellant’s third point of error is overruled.

Appellant’s fourth point of error contends the boundary line agreements between Colony and Frisco are unenforceable because there was a failure of consideration and therefore the trial court erred in ruling such agreements are valid. As admitted in appellant’s brief, the reality of its fourth point of error depends on a reversal of the trial court’s ruling under appellant’s first, second, or third point of error. We have found no error on the part of the trial court in treating such points of error, and therefore, appellant’s fourth point of error is overruled.

Appellant’s fifth point of error again attacks the trial court’s ruling that the boundary line agreements between the cities are valid. In support of this point, appellant argues that the five foot strips of E.T.J. provided for in the agreements are not adjacent and contiguous to Frisco’s corporate limits.

Appellant’s position is that the same adjacency and contiguity requirements exist as to the five foot strip of E.T.J. provided for in the agreements as exist to long narrow strips of annexation. No cases have been cited which support appellant’s position, but it urges the word “contiguous” should have the same meaning and application in regard to E.T.J. cases as it has in annexation cases. We hold it is not necessary to this opinion to address the question of whether the validation statute applies to invalid ordinances establishing E.T.J.

The Municipal Annexation Act, art. 970a, sec. 7.B-1, TEX.REV.CIV.STAT. ANN. (Vernon 1963), provides that adjacent cities may accomplish mutually agreeable adjustments in their boundaries of areas that are less than 500 feet in width. The two cities to this suit entered into agreements adjusting their boundaries, Frisco taking care that future expansion of Colony would be subject to Frisco’s approval. While the statute addressed changes in boundaries and does not specifically provide for agreements as to E.T.J., sec. 8 of the Act provides that no city may be incorporated within the area of the E.T.J. of any city without the written consent of the governing body of such city. It necessarily follows that adjacent cities may enter into agreements with regard to their E.T.J.’s.

The parties to this suit entered into agreements concerning their boundaries and E.T.J. Appellant’s fifth point of error is overruled.

Appellant’s sixth point of error alleges the boundary adjustment agreement of February 13, 1978, is invalid because it attempts to place a five foot strip of Frisco’s E.T.J. through Colony’s corporate limits.

Appellant contends that Kenneth C. Knudsen, a planner/cartographer employed by Hunter Associates, testified that the February 13, 1978 agreement provided a five foot E.T.J. strip of Frisco to run through the corporate limits of Colony. While it is difficult to follow Knudsen’s testimony from the record because of the use of several maps as exhibits, we will assume for purposes of this opinion that he did so testify. However, J. Travis Roberts, Jr., a consulting engineer and President of Hunter Associates, testified there were no overlapping boundaries or inconsistencies in the property descriptions. If there was a conflict in the testimony of Knudsen and Roberts as to the location of the five foot E.T.J. strip, it was resolved by the trial court on the basis of Roberts’ testimony. Appellant’s sixth point of error is overruled.

Appellee presents twenty-one cross points of error in which theories of res judicata, collateral estoppel, judicial estop-pel, election, waiver, equitable estoppel, laches, permitting Colony to file a trial amendment and denying Frisco a continuance, were raised. Eight of these cross points complained of the trial court’s error: in denying Frisco’s application to find that Ordinance 179 had been validated by eight separate validation statutes; in finding Ordinance 179 was invalid when passed; and in holding Colony’s Ordinance 236 was valid.

In view of our holdings on appellant’s points of error, we find there is no necessity to address appellee’s cross points.

Judgment affirmed.


text:
    Ex parte Marsha (Childress) SIMPSON, Appellant.
    No. 2-84-320-CR.
    Court of Appeals of Texas, Fort Worth.
    March 14, 1985.
    Danny D. Burns, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Russell Saunders, Fort Worth, for appellee.
    Before ASHWORTH, JOE SPURLOCK, II and HILL, JJ.
   OPINION

ASHWORTH, Justice.

This is an appeal from a habeas corpus proceeding in the 213th District Court held for the purpose of setting bail for appellant for each of three separately indicted and pending felony cases. The trial judge, after a lengthy hearing, set bail in the amount of (1) $100,000 in cause no. 0206877R, manufacturing of amphetha-mines of less than 200 grams, enhanced by two prior felonies; (2) $50,000 in cause no. 0225310D, felony failure to appear, or bail jumping, enhanced by two prior felonies; and (3) $100,000 in cause no. 0243800, possession of amphetamines of less than 200 grams with intent to deliver, enhanced by one prior felony. The date of the offense alleged in the first cause is February 9, 1982; the date of the second alleged offense is November 28, 1983; and the date of the third offense is October 28, 1984. Appellant claims that the amounts of the bonds are excessive.

We affirm and deny the relief sought.

The proof shows that, on the date alleged in the third indictment, appellant was arrested in Dallas County following an automobile accident as the result of which she is charged with involuntary manslaughter. At the time of that arrest, appellant was shown to have been a fugitive from justice since November, 1983. The arresting officer had difficulty in establishing appellant’s identity since she stated her name was Belinda Elaine Free and offered an altered driver’s license bearing that name. In her purse was another altered driver’s license in the name of Leatrice Reeves Hale along with other I.D. cards in the name of Marcia Bishop and Lea Hale. Both drivers licenses bore appellant’s photograph.

Testifying in her own behalf, appellant stated that she hadn't had an address “for a while” and in the past 18 months had lived in 30 or 40 motels. She stated that she had disabling injuries from the auto accident, that she had tried to make the bonds without success. She owns no property other than jewelry which might sell for $5000 and she would have to rely on her family for help in making the bonds. She further testified that a $5000 bond in each case is the most she could make.

In her sole ground of error, appellant claims: “The trial court erred in failing to reduce the bail bonds in the present case to a reasonable amount.” To support such claim, she argues that the court was acting under a clear mistake of fact and law, in that he set $50,000 as a proper bond amount for the bail jumping case thereby adopting $50,000 as the maximum amount of bond in a third degree felony enhanced, and he set a bond in double that amount for the other two cases, which also are third degree felonies, enhanced. We are cited to no authority for the proposition that, having found $50,000 to be appropriate for one case of third degree felony enhanced, the trial court may not exceed that sum in setting bond for another third degree felony, likewise enhanced, but for a different type of offense, committed at another time, under different facts and circumstances.

Appellant also attacks the sufficiency of the pleadings in one indictment and the practice of using the same conviction more than once for the purpose of enhancement. As to the latter claim, we observe that TEX.PENAL CODE ANN. sec. 12.46 (Vernon Supp.1985), effective June 7, 1979, provides: “The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes.”

Appellant’s attack on the substance of one of the indictments in the record must be rejected, because it has been frequently held that questions as to the sufficiency of an indictment may not properly be raised upon a habeas corpus hearing. Johnson v. State, 645 S.W.2d 921 (Tex. App.—Fort Worth, 1983); Ex parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (Tex.Crim.App.1961); Ex parte Heartsill, 118 Tex.Cr.R. 157, 38 S.W.2d 803 (Tex.Crim.App.1931).

Regarding appellant’s claim of excessiveness of the bonds, we are mindful of TEX. CODE CRIM.PROC.ANN. art. 17.15 (Vernon 1977) which provides:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.

The burden of proof is on the person seeking the reduction of bail to show that the bail set is excessive. Ex parte Rodriguez, 595 S.W.2d 549 (Tex. Crim.App.1980). There is no precise standard for reviewing bail bond settings. Ex parte Pemberton, 577 S.W.2d 266 (Tex.Crim.App.1979).

We have reviewed the entire record and have considered all the factors which the reported cases hold as appropriate to consider in establishing the amount of a bond undertaking and we cannot find that the trial court abused its discretion in fixing bail in these three causes. See Ex parte Miller, 631 S.W.2d 825 (Tex.App.—Fort Worth, 1982, pet. ref d).

We affirm the judgment of the trial court.


author: WINTERSHEIMER, Justice. STEPHENS, Chief Justice,

text:
    James H. NOBLE, Movant/Appellant, v. Virginia MEAGHER; Hon. Ray Corns, Judge, Franklin Circuit Court; Drexell R. Davis, Secretary of State; Margaret McPherson, Clerk, Breathitt County; Anna M. Baker, Clerk, Powell County; S. Kenneth Lindon, Clerk, Wolfe County, Respondents/Appellees.
    Supreme Court of Kentucky.
    Feb. 28, 1985.

      Lester H. Burns, Jr., Burnside, for mov-ant.
    Michael R. Moloney, Margaret H. Kan-nensohn, Lexington, for Virginia Meagher.
    Michael A. Stidham, Jackson, for Breath-itt County Clerk.
    Ann Z. Stewart, Frankfort, for Drexell Davis.
   WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which affirmed the judgment of the circuit court holding that candidate Noble did not meet the required residency qualifications for the position of district judge in the Thirty-ninth Judicial District composed of Breathitt, Powell and Wolfe counties.

The critical issue is whether KRS 118.176 applies to non-partisan judicial races and whether the suit challenging the residency qualifications of Noble was brought in the right court.

Three candidates were entered in the primary election of May 29, 1984, in the Thirty-ninth Judicial District for judge. Noble received 52 percent of the vote, Meagher, the incumbent, received 28 percent, and William P. Bach received the balance. Both Noble and Meagher were certified for nomination and their names were printed on the ballot for the November election.

On October 4, 1984, only 32 days from the scheduled general election on November 6, Meagher filed a complaint in the Franklin Circuit Court alleging that Noble was not eligible to be a candidate for district judge because he did not possess the required residency qualifications pursuant to Section 122 of the Kentucky Constitution. After a hearing of evidence, the circuit court on October 15, found that Noble was not a resident of the district and ordered the Secretary of State to strike his name from the judicial ballot. Noble appealed to the Court of Appeals which affirmed the decision of the circuit court in regard to residency. Appeal was then taken to the Supreme Court and on October 30, 1984, after accelerated briefing by both sides, Justice Roy Vance issued an opinion and order permitting the election to proceed with both names on the ballot but reserving the final determination to the full Court.

This Court reverses the decision of the Court of Appeals because the Franklin Circuit Court did not have jurisdiction to consider this pre-election suit. KRS 118.176 applies to non-partisan judicial elections and it requires that a challenge to the qualifications of a judicial candidate must be brought in the county or counties which comprise the judicial district.

I

Meagher argues that KRS Chapter 118A governs judicial elections and that KRS 118A.010(6) prevents KRS 118.176 from applying to judicial candidates. We do not agree. In 1984, the General Assembly amended and re-codified KRS 118.176 to extend the coverage of the statute to include any candidate seeking nomination or election in a primary or general election. We interpret the amendment to apply to candidates for judicial office. Previously, the statute had applied only to a challenge of any candidate seeking a partisan nomination or election as an independent. The 1984 amendment was passed as emergency legislation because it was thought that there was no method for challenging the qualification of some candidates. Kentucky Acts 1984, Chapter 413, § 3. The amendment was clearly intended to fill that gap. KRS Chapter 118A contains no provision for challenging the qualifications of a judicial candidate and the application of KRS 118.176 is not prohibited by the express wording of KRS 118A.010.

It is the holding of this Court that the only proper procedure for challenging the qualifications of a judicial candidate before the election is the procedure set out in KRS 118.176.

Consequently, the proper forum in which to challenge Noble’s qualifications would have been the circuit court of a county in which he was alleging residence in order to qualify for the office of district judge.

Section 153 of the Kentucky Constitution provides that the General Assembly shall have exclusive power over elections. Section 117 states that judges shall be elected from their respective districts or circuits on a non-partisan basis as provided by law. The legislature has enacted a general law specifically dealing with challenges to a candidate. KRS 118.176 is the statutory remedy for challenges to the qualification of a candidate. The courts of this Commonwealth have long recognized that the judicial branch has no inherent power to pass on the validity of elections or the eligibility of candidates, but only has such power as given by the General Assembly or possessed at common law through a quo warranto proceeding. See Craft v. Davidson, 189 Ky. 378, 224 S.W. 1082 (1920); Ratleff v. Tackett, 209 Ky. 588, 273 S.W. 441 (1925); Wilson v. Tye, 122 Ky. 508, 92 S.W. 295 (1906); Nichols v. Pennington, Ky., 118 S.W. 382 (1909); Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753 (1915).

The statutes must be strictly complied with because compliance with certain statutory steps are jurisdictional requirements. See Brock v. Saylor, 300 Ky. 471, 189 S.W.2d 688 (1945); Ritchie v. Mann, Ky., 500 S.W.2d 62 (1973). Where a statute fixes the forum in which these statutory proceedings may be brought, only such fora have jurisdiction to hear and dispose of the matter. See Gallagher v. Campbell, 267 Ky. 370, 102 S.W.2d 340 (1937).

All election disputes involve the application of particular statutes. It is a well established rule that the statutes must be strictly construed. For application of this principle involving election contests, see Dodge v. Johnson, 210 Ky. 843, 276 S.W. 984 (1925) and Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954 (1933). It is important to distinguish between an election contest and a pre-election lawsuit. The only pre-election suit that can be brought is by a voter prior to the primary election. Fletcher v. Wilson, Ky., 495 S.W. 787; Wells v. Lewis, 300 Ky. 675, 190 S.W.2d 28 (1945). This action is technically not an election contest.

Dempsey v. Stovall, Ky., 418 S.W.2d 419 (1967), is not applicable in this situation because the jurisdiction of the Franklin Circuit Court to hear that case was never raised or considered, nor apparently did the statutes involved specify where such action should be brought.

The General Assembly has provided the procedure for challenging the eligibility and qualifications of a candidate in KRS 118.176 effective April 11,1984. This reco-dification of the law in 1984 did not alter the application of prior case law or the purpose of the legislation.

As a result of the judicial constitutional amendment adopted in 1975 by the people of this Commonwealth, our present judicial branch was organized. Responding to the electoral mandate, the General Assembly in 1976 enacted various items of legislation including KRS Chapter 118A regarding the election of judges.

KRS 118A.010(6) provides that no provision of Chapter 118 existing on March 10, 1976, except KRS 118.015 through .045 shall apply to judicial elections. All other provisions of the election laws not inconsistent with this Chapter shall be applicable.

KRS 118.176 was not specifically repealed and was relied upon in cases discussed herein after 1976. As stated earlier, in 1984, the General Assembly believed it had left a gap in its 1976 program and adopted a new provision as an emergency legislation to be effective April 11, 1984, and closed an apparent gap in the law so as to provide the exclusive remedy for challenges to judicial elections. The law does not provide any opportunity to name the Board of Elections or the Secretary of State so as to create jurisdiction in the Franklin Circuit Court. The forum and the procedures have been precisely stated by the General Assembly, and the courts of this Commonwealth have been consistent in holding that such a procedure is the exclusive remedy. See Wooton v. Smith, Ky., 155 S.W.2d 466 (1941); Thomas v. Lyons, Ky., 586 S.W.2d 711 (1979).

This Court in Fletcher v. Wilson, Ky., 495 S.W.2d 787 (1973) and Fletcher v. Teater, Ky., 503 S.W.2d 732 (1974), decided that the question of the qualifications of a candidate to appear on the ballot should be challenged before the primary election, not afterwards. Meagher was aware of the questions concerning Noble’s residence before the primary. She testified that she had considered a lawsuit for sometime, but the filing of such an action was not her highest priority. She also testified that she believed that if she came in third in the primary, there would be no reason to file a lawsuit. Additional Kentucky eases on this subject may be found in Burkhart v. Blanton, Ky.App., 635 S.W.2d 328 (1982), involving a challenge to a school board candidate; Dickey v. Bagby, Ky.App., 574 S.W.2d 922, 923 (1978), involving the residency issue raised before the primary in a city election; Hall v. Miller, Ky.App., 584 S.W.2d 51 (1979), regarding the election of a mayor in a non-partisan contest.

A number of older cases deal with whether it is the right of a voter or an opposing candidate to institute a pre-pri-mary challenge. The present wording of KRS 118.176 gives that right to either person. The procedures and the policies are unchanged. The challenge to a candidate’s right to appear on a ballot must be lodged before the primary. Consequently, we must disagree with the opinion of the Court of Appeals that there are no time limits in making such a challenge in a proper forum. The challenge to the qualifications under KRS 118.176 before a general election is permitted only in cases in which there was no primary. See Stewart v. Burks, Ky., 384 S.W.2d 316 (1964), and Burke v. Stephenson, Ky., 305 S.W.2d 926 (1957).

II

Although the Court of Appeals determined that KRS 118.176 applied to challenge the qualifications of a judicial candidate, it found that the strict application of the statute would result in an injustice affecting the credibility of the judicial system. It then proceeded to affirm the decision of the circuit court on the alleged merits of the dispute. We cannot agree that the circuit court was correct in applying KRS 116.035(1) as the correct guide to determine residency.

The proper statutory standard to determine the residence of a non-partisan judicial candidate is set out in KRS 118.-015(7), which states that the word “residence” used in reference to a candidate shall mean actual residence of the candidate without regard to the residence of the spouse of the candidate. Here the trial court found against a background of divergent testimony that candidate Noble’s residency was outside the district. The trial court used the wrong residency statute as a measure. The judgment would be erroneous as a matter of law in that regard.

A careful examination of the record, which includes more than seven hours of testimony from 38 witnesses, indicates that much of Meagher’s evidence was in regard to the residence of Noble’s wife, including her deed, voter registration and household utilities. Noble, for his part, presented evidence of his own intent to remain in Breathitt County, his motor vehicle and drivers’ license there, his taxes and utilities, as well as his living accommodations in Jackson. The principal focus must be on the residence of the candidate as distinguished from the location of his family.

It should be noted that the inclusion of the Secretary of State does not elevate this suit so as to permit jurisdiction in the Franklin Circuit Court. The Secretary of State was performing only a ministerial action in regard to certifying candidates for the ballot, and he had no interest in the suit other than proceeding under the laws as ordered by the courts.

III

This Court is not insensitive to or unmindful of the necessity for all elected public officials to be qualified pursuant to law for the positions they fill. It must be noted that Kentucky law provides that Meagher, as a candidate, as well as the Attorney General and the Commonwealth Attorney for the district all have standing to bring an ouster action under the usurpation statutes, KRS 415.030, 415.040, 415.-050, if they have legitimate grounds to believe that Noble is holding the office of district judge without the proper qualifications. See, Wells, supra, and Friley v. Becker, 300 Ky. 749, 190 S.W.2d 355 (1945).

IV

It is the holding of this Court that KRS 118.176 applies to non-partisan judicial races. It is our further holding that challenges to the qualifications of candidates to appear on the ballot must be made before the primary election. The proper place to challenge Noble’s qualifications would have been the circuit court of the county in which he was alleging residence in order to qualify for judicial office.

The decision of the Court of Appeals is reversed and the order of the Franklin Circuit Court is vacated.

AKER, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur.

STEPHENS, C.J., dissents by separate opinion in which GANT and LEIBSON, JJ., join.

STEPHENS, Chief Justice,

dissenting.

I respectfully disagree. The majority opinion erroneously interprets KRS 118.176 and misconstrues its application to the facts of this case with the result that a vital constitutional mandate, that of residency, is ignored, permitting the movant James Noble to hold the position of District Judge in a jurisdiction in which he does not reside.

Our analysis begins with the basic premise that Noble is not a resident of the Thirty-ninth Judicial District. The trial court, as a fact finder so rules. The majority declares that the circuit court was erroneous as a matter of law by relying on KRS 116.035(1) to regard Noble’s spousal residence in finding that Noble failed to meet his residency requirements, whereas it should have instead used KRS 118.015(7) and focused on the candidate’s “actual residence.” What the majority fails to note is that, even if the lower court had applied the “correct” standard of KRS 118, it still could not have found Noble to be a resident of his district.

In a careful consideration of all the testimony presented at trial, it is quite obvious that the “actual residence” of Noble is in Winchester, where not only his entire family resides but wherein several key witnesses, including two judges, testified that Noble said he resided, and where other witnesses observed him residing. To assume any trial court could have found Noble was a resident of Breathitt County on mere testimony that he “lived in his law offices” with a refrigerator, hot plate, and sofa bed, is beyond belief.

The majority’s first and principal reason to allow Noble to remain in office despite his residency, is that the Franklin Circuit Court lacked jurisdiction by failing to meet the herein requirements of KRS 118.176. No authority, however, says that KRS 118.-176 is applicable to judicial candidates, and such a conclusion by the majority is completely contrary to the legislative history of that statute and all other judicial election laws.

Our state judiciary is a very special creature in that our Constitution declares all judges members of the same Court of Justice. No provision of the Constitution implies that any judge’s powers or authority are limited to the district in which he or she is elected and thus it has been said that judges have “equal capacity to act throughout the Commonwealth ...” Richmond v. Commonwealth, Ky., 637 S.W.2d 642 (1982). Judicial elections have been distinguished from other types of elections in our statutes and accordingly KRS 118A has been the exclusive Chapter governing judicial elections since the Court of Justice became a statewide office in 1976. The Chapter contains a pointed preclusion of the application of certain other election statutes, specifically KRS 118.176, to judicial elections. Thus, when the legislature modified KRS 118.176, a general election statute, to eliminate references to “party” elections, one can hardly assume that it meant to override the KRS 118A preclu-sions, and that judicial elections would now fall under its mandates. If the legislature had intended such a drastic reversal in statutory application, an express repeal would certainly have been in order. It is certainly farfetched to conclude, as did the majority, that the change was intended to close a “gap in the law so as to provide the exclusive remedy for challenges to judicial elections” without so much as a simple statement to effectuate such.

Having determined that KRS 118.176 is not applicable here, proper jurisdiction was in Franklin Circuit Court. Since all judges are now state officials, not local, the Secretary of State was the necessary party defendant to whom the Court would direct orders to perform the relief demanded in the complaint. Thus Franklin Circuit Court was the proper place to seek relief for a complaint naming the Secretary of State.

The majority is reluctant to rely solely on the holding that KRS 118.176 precluded jurisdiction and proceeds on several other theories to deny Meagher jurisdiction.

The majority first counters the Court of Appeals’ use of Dempsey v. Stovall, Ky., 418 S.W.2d 419 (1967) to assume jurisdiction. In my opinion, the authority granted the Court under Dempsey is clear. There, as here, the Court, noting the importance of the issue at bar, granted advice to the Secretary of State as a party to the litigation. Thus, even if jurisdiction was improper in the Franklin Circuit Court, the Court of Appeals correctly assumed jurisdiction under Dempsey.

The majority next challenges Meagher’s lawsuit by asserting that since she sat on her rights, such action not being “her highest priority”, she was precluded from filing. It relies on the decisions of Fletcher v. Wilson, Ky., 495 S.W.2d 787 (1973) and Fletcher v. Teater, Ky., 503 S.W.2d 732 (1974), which hold that the qualifications of a candidate to appear on the ballot should be challenged before the primary election, not afterwards. These decisions dictate an opprobrious burden on candidates and should be overruled. It is judicially legislating to read a time-limit requirement into KRS 118.176 where no such wording exists, and the result is an unconstitutional burden on our election system.

Though the majority claims that Meagher still has a channel for challenging Noble’s qualifications through an ouster action under KRS 415.030, 415.040, and 415.-050, such a contest is not available here. What Meagher has challenged are Noble’s constitutional qualifications under Sec. 122, not Noble’s statutory “bona fides.” Such constitutional challenge cannot be taken after the election is held, so the decision here today is binding on that issue.


author: COMBS, Judge.

text:
    Charles Ralph ORMS, Mike Ghrist, Jeff Fryrear, Gene Waldridge, William Burke, Steve Hatler, Don Camfield, Bernie Lammers, Jr., Rose Deel, Paul Netherly, Jr., Tom Jenkins, Alex Fugatte, Fraternal Order of Police, Louisville Lodge # 6, Appellants, v. CITY OF LOUISVILLE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 19, 1984.
    Discretionary Review Denied by Supreme Court April 5, 1985.
    Henry A. Triplett, Bennett, Bowman, Triplett & Vittitow, Louisville, for appellants.
    Frank X. Quickert, Jr., Frank Burke, David Leightty, Louisville, for appellee.

      Before COMBS, DUNN and GUDGEL, JJ.
   COMBS, Judge.

This appeal concerns the application of Kentucky’s overtime compensation statute, KRS 337.285, to a City of Louisville policy which required its police officers to report fifteen minutes before they began their daily tour of duty. The Fraternal Order of Police, Louisville Lodge # 6 and a group of police officers sought to recover, in a class action, compensation for this time. The Jefferson Circuit Court entered a summary judgment for the City.

The facts are undisputed. The City of Louisville employs its police officers under collective bargaining agreements it enters with the Fraternal Order of Police. These agreements have generally provided that a police officer is to work eight hours a day and to be paid time and a half for all hours worked over forty per week. The City’s policy required that the officers report fifteen minutes early “to familiarize themselves with activity which has occurred in their absence.” In essence, the police officers’ claim is that each officer should be compensated for one and one-fourth hours overtime per week for the entire period not barred by the statute of limitations in which both the policy and KRS 337.285 were in effect.

The City argued and the trial court agreed that the following clause in the agreement absolved the City of liability:

For overtime in excess of thirty (30) minutes, the member shall be paid the overtime rate for a full hour. Overtime of less than thirty (30) minutes shall not be paid.

The police officers rely upon the following provision in KRS 337.385(1) to argue that this defense is invalid:

Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action.

The contract provision in question was a result of collective bargaining and there is no claim of overreaching. It is reasonable providing that officers receive compensation for an hour of overtime when they work thirty-one to fifty-nine minutes overtime, in exchange for no compensation for overtime of one to twenty-nine minutes. The provision does not determine the “wage rate” but the time. In effect, the City and the officers have defined “hour”. Their definition is fair, reasonable and not inconsistent with statutory provisions.

This Court will not impose an inflexible, arbitrary interpretation to upset a fair and reasonable arrangement. See Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942).

The judgment of the Jefferson Circuit Court is affirmed.

All concur.


author: COOPER, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. CABINET FOR HUMAN RESOURCES, Commonwealth of Kentucky, Edwin Dick and Herbert Dick, Appellees.
    Court of Appeals of Kentucky.
    Dec. 7, 1984.
    Discretionary Review Denied by Supreme Court April 4, 1985.

      David L. Armstrong, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellant.
    Barbara McAdam, Stanley Stratford, Cabinet for Human Resources, Frankfort, Tod Megibow, Paducah, Gail Robbins, County Atty., Mayfield, for appellees.
    Before COOPER, McDONALD and WILHOIT, JJ.
   COOPER, Judge.

This is an appeal from a judgment of the circuit court reversing a ruling of the district court which held that the appellee, Cabinet for Human Resources, Commonwealth of Kentucky, could be required to exercise control over the financial resources of a person adjudged retarded, under the language of KRS 202B.060. On appeal, the issue is whether the circuit court erred, as a matter of law, in so ruling. Reviewing the record below, we reverse and remand.

The facts relative to this action are as follows: In July of 1983, the co-appellee, Edwin Dick, was adjudged by a jury to be mentally retarded. The jury determined that involuntary hospitalization or placement in a mental retardation residential treatment center would be the least restrictive mode of treatment for him. Furthermore, it determined that he was partially disabled in managing his own financial resources. As a result, the district court committed the co-appellee to the care of the appellee, Cabinet for Human Resources, for a period not to exceed sixty days in which he was to be placed in a mental retardation residential treatment facility. As part of its order, the district court ordered the appellee to act as a limited conservator for the co-appellee under the provisions of KRS 387.680, 387.690 and 387.-700. It ruled that existing statutory power be expanded to allow the appellee to exercise complete control over the co-appellee’s financial resources and to exercise control as to where he would reside and an availability of appropriate treatment programs.

The appellee appealed to the circuit court arguing that there was no statutory authority which required it to serve as a conservator for one adjudged to be mentally retarded. The circuit court agreed, ruling that the appellee could not be required to serve as a limited guardian and limited conservator if it had not applied for such appointments, and if it were not willing to serve as such. The appellant, Commonwealth of Kentucky, moved for discretionary review of the circuit court’s order. This was granted, and it is from the circuit court’s order that the appellant now appeals.

On appeal, the principal issue is whether, under the existing statutes, the appellee can be required to serve as a conservator for an individual incapable of managing his financial resources if it is unwilling to serve and if it had not sought such an appointment. In its judgment, the district court held as follows:

IT IS NOW THE JUDGMENT of this Court that the Respondent, Edwin Dick, is a disabled person within the meaning of K.R.S. Chapter 387, who is partially disabled in managing his personal affairs and partially disabled in managing his financial affairs.
It appearing to the Court from testimony at the trial of the father, Herbert Dick, and the testimony of Charles Rogers, an employee of the Cabinet for Human Resources, that there is no person able or willing to serve in the capacity as guardian or conservator and the Commonwealth Attorney for Graves County having entered a motion to appoint the Cabinet for Human Resources as limited guardian and limited conservator and the Court being sufficiently advised,
IT IS HEREBY ORDERED that the Cabinet for Human Resources shall serve as limited guardian and limited conservator of the person and estate of Edwin Dick.
IT IS FURTHER ORDERED by the Court on motion of Helen Varney, as an employee for the Cabinet of Human Resources, that the powers of limited guardian and limited conservator under the provisions of K.R.S. 387.680, '387.690 and 387.700, shall be expanded to include the authority to exercise complete control over all his financial resources and to exercise control over his personal affairs in determining where he shall reside and an appropriate treatment program that shall be made available to him.

In reversing the district court’s judgment, the circuit court ruled as follows:

The question on Appeal is whether or not the District Court had the legal authority to appoint and require the Appellant to serve as limited guardian and limited conservator of the person and estate of Edwin Dick.
The Appellant takes the position that there is no statutory authority for its appointment unless it applies for and is willing to serve as the fiduciary.
The Court, in reading the statutes cited, is of the opinion that there is no statutory authority for the Court to require the Appellant to serve as fiduciary when it has not applied for appointment and is not willing to serve as such. A private individual who is unwilling to serve cannot be required to serve. A public agency might be required to serve, but not when the statutes say otherwise as in the instant case.
The Court notes in passing that KRS 387.740 raises the possibility that the Court itself might exercise the powers of a limited guardian or limited conservator. The Court also notes that under KRS 395.390 and KRS 395.395 that there is a possibility the Public Administrator and Guardian could serve as fiduciary, if Graves County has such. If not, there is a possibility the Sheriff might serve. This is dictum merely.

Although, at first glance, KRS 387.530 appears to restrict the appointment of a limited guardian or limited conservator to either an individual or entity which specifically applies for such an appointment — “a petition for a determination of partial disability or disability and the appointment of a limited guardian, guardian, limited conservator, or conservator, may be filed by any interested person ... ” — KRS 387.-600(1) seems to leave open the possibility of the district court appointing any interested person or entity notwithstanding the failure of that person or entity to specifically request such an appointment. Subsection (1) of that statute states, in part, as follows:

(1) The court may appoint as limited guardian, guardian, limited conservator, or conservator any suitable person or any entity, public or private, capable of conducting an active guardianship or con-servatorship program. The court shall not ordinarily or customarily appoint the department for human resources or any other person or entity, public or private, that is directly providing services to the respondent unless no other suitable person or entity is available and willing to be appointed. Appointment of the department for human resources shall be consistent with the provisions of KRS 210.290.

KRS 210.290 states as follows:

(1) The cabinet for human resources may be appointed and act as executor, administrator, guardian, limited guardian, conservator or limited conservator as provided in this section. In this capacity the cabinet may transact business in the same manner as any individual and for this purpose may sue and be sued in any of the courts of the state. Bond shall not be required of the cabinet.
(2) Whenever a resident of the state is adjudged partially disabled or disabled and no other suitable person or entity is available and willing to act as limited guardian, limited conservator, or conservator, the cabinet, acting through its designated officer, may apply to the district court of the county in which the adjudication is made for appointment as limited guardian, guardian, limited conservator, or conservator for such partially disabled or disabled person.

Under the statutes in question — enacted in 1982 and apparently subject to no judicial construction as of this time — the appel-lee can either apply to the court to be appointed as a limited guardian or conservator, or can be appointed by the court to act in that capacity. The assumption underlying the statutory scheme seems to be that the appellee would willingly take any such appointment. The question of whether it can be required to accept such a role is not specifically addressed by the statutes. In attempting to determine the legislative intent behind a specific statute, or statutes, it can be presumed that the legislature intended to achieve a reasonable result, rather than an absurd result. See George v. Scent, Ky., 346 S.W.2d 784 (1961); Pewee Valley Fire Prot. Dist. v. South Oldham. Fire Prot. Dist., Ky.App., 570 S.W.2d 290 (1978). Subsection (1) of KRS 387.600 states:

... the court shall not ordinarily or customarily appoint the department for human resources or any other person or entity, public or private, that is directly providing services to the respondent unless no other suitable person or entity is available and willing to be appointed.

From such language, it seems evident, at least to this Court, that in a situation in which no one can be found to act as a limited guardian or conservator, the Cabinet for Human Resources can be appointed as a matter of last resort, regardless of whether it applied for or sought such appointment. To construe the statute otherwise would be to effect an absurd result: if no person or entity were available and willing to be appointed, could the court “appoint” the Cabinet for Human Resources only if it were available and willing? If it were not willing, would the court have any effective appointive power? Although the appellee argued before the district court that it could not assume responsibility for the co-appellee’s affairs if it were merely designated as a limited conservator, the district court ruled that powers of a limited guardian and limited conservator under KRS 387.680, 387.690 and 387.700 could be expanded to include the authority to exercise complete control over an individual’s financial resources. From the record, it appears that the motion to expand such powers was made by an employee of the appellee. The district court thus recognized the practical problem that would result if the appellee were merely designated as a limited conservator over the co-appel-lee’s finances.

Here, there is no question that the co-ap-pellee lacks a willing individual or entity to assume either a guardianship over him or a limited conservatorship to manage his financial resources. Without either guardian or conservator, the co-appellee is in a desperate situation. Given the provisions of KRS Chapter 202A, it is clear that the legislature intended to see that mentally retarded individuals are cared for by the state. And, given the language of KRS 210.290 and KRS 387.600(1), we hold that the appellee can be forced to accept an appointment as limited guardian or conservator if the district court finds that there is no other available and willing individual or entity to assume such roles. Consequently, we reverse the judgment of the circuit court and direct it to reinstate the opinion and order of the district court.

The judgment of the circuit court is reversed with directions that it reinstate the judgment of the district court.

All concur.


author: HOWERTON, Judge.

text:
    Charles Lewis McCLURE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 15, 1985.
    Paul Isaac, Public Advocate, Frankfort, Kim M. Wilkie, Fayette County Legal Aid, Inc., Lexington, for appellant.
    David L. Armstrong, Atty. Gen., Greg Holmes, Asst. Atty. Gen., Frankfort, for appellee.
    Before COMBS, HOWERTON and LESTER, JJ.
   HOWERTON, Judge.

McClure appeals from a jury verdict finding him guilty of first-degree sexual abuse and sentencing him to five years in prison. He claims that the trial court committed reversible error by allowing hearsay statements into evidence. We disagree and affirm.

McClure was originally charged with first-degree rape and first-degree sexual abuse of a five-year-old girl. The incident allegedly occurred one evening while McClure was staying at the child’s home.' When the child’s mother returned home about midnight of the evening in question, she found her daughter in her underpants with her shirt on backwards and “white stuff” on her legs. In response to a question as to what occurred or the origin of the “white stuff,” the child allegedly replied, “Well, Charlie did it, Mamma.” The child also allegedly then told her mother that McClure had gotten on top of her and “was hunching.”

Prior to trial, McClure made a motion in limine objecting to the proposed testimony of the mother, Patty Sutter, a friend who arrived at the home soon after the mother on the evening in question, and Detective Gerald Staed, the first policeman to arrive at the residence, as inadmissible hearsay. The court ruled that the statements made by the child, as related to the three potential witnesses, would be admissible at trial, under the res gestae exception to the hearsay rule.

At trial, the Commonwealth agreed to drop the first-degree rape charge and pursued only the first-degree sexual abuse charge. The court then heard the testimony of the three witnesses concerning the story which the child related to them. The Commonwealth presented no evidence other than the testimony of these three witnesses to support its case against McClure. In his defense, McClure denied any sexual activity with the child and denied knowledge of the origin of the “white stuff” on the child’s legs. The jury found McClure guilty of first-degree sexual abuse and sentenced him to five years in prison.

On appeal, McClure claims that the court erred by admitting the testimony of the three witnesses concerning the statements made by the child. We disagree. The real test for deciding whether to allow spontaneous declarations as evidence under an exception to the hearsay rule is stated in Preston v. Commonwealth, Ky.App., 406 S.W.2d 398 (1966). It provides:

The true test ... is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue....

In this case, we are dealing with statements made by a five-year-old child to her mother, her mother’s friend, and a detective.

McClure relies on Roland v. Beckham, Ky., 408 S.W.2d 628 (1966), for the idea that spontaneity is the most important consideration in determining the existence of the res gestae exception to the hearsay rule. Roland involved statements made in response to inquiries following an automobile collision. Although spontaneity is an important factor in whether to allow hearsay statements into evidence, we do not find Roland to be dispositive in this case.

We do not know how much time had elapsed between the incident and the time the child’s mother arrived at home, but it was shortly after her arrival that she questioned the child about her appearance and the presence of the “white stuff.” Approximately 30 minutes elapsed between the time the mother arrived at home and the witness, Patty Sutter, arrived and questioned the child. An additional 15 to 20 minutes elapsed between that'time and the time that the detective questioned the child. The total elapsed time, however, is not fatal to this case.

A one-hour time lapse was acceptable in Cook v. Commonwealth, Ky., 351 S.W.2d 187 (1961), when a rape victim told her husband of the incident upon his arrival at home. The res gestae exception has also been applied in a number of cases from other jurisdictions involving declarations by an infant, some of them being more than 24 hours after the event. State v. Rodriquez, 8 Kan.App.2d 353, 657 P.2d 79 (1983), four-hour lapse of time; People v. Pottruff, 116 Mich.App. 367, 323 N.W.2d 402 (1982), five-year-old’s statement to mother within 24 hours; and Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974), three-year-old girl’s statement to her mother on the following day.

The attitude of the federal courts concerning this situation has been somewhat summarized in U.S. v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. den., 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). In that case, a nine-year-old child was the victim of an attempted rape and assault. On the subject of the hearsay exception, the opinion reads, at 85-86:

The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of rule 803(2). Nor is it controlling that Lucy’s statement was made in response to an inquiry.... Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements.

Iron Shell held that the child’s responses to questions from a police officer approximately one hour after the assault were admissible at trial as an exception to the hearsay rule.

We are faced with a serious problem in proving child molestation cases. On the one hand we are dealing with an infant of tender age who in some cases, as in this, does not testify in court. Caution must be taken to insure the truth and accuracy of their stories. This case is not the strongest on record, as the only proof of guilt was the testimony of the three witnesses. Their statements repeating what the child told them were corroborated somewhat by their observation of the child and the “white stuff,” but no analysis of the “white stuff” was presented at trial. However, we are not confronted with any issue concerning the sufficiency of the evidence and, if the testimony was admissible, the evidence was sufficient to convict McClure.

To further compound the problem, children who have been subjected to molestation and sexual abuse may not say anything for a very long time, or ever, because of threats made by the perpetrator. This child did not spontaneously volunteer what had happened to her; she explained in response to questions from her mother. We recognize also that a parent may be an intimidating force when questioning a young child, leading to utterances which, if accepted as evidence, could convict an innocent person.

We believe the trial court was in a proper position to determine the credibility and admissibility of this evidence, however. The determination of what evidence falls within the res gestae exception to the hearsay rule must be based on the facts and circumstances of the particular case. Lawson, The Kentucky Evidence Law Handbook, 2d Ed., § 8.60 (1984). We find no reversible error or abuse of discretion by the trial court in its determination.

The judgment of the Payette Circuit Court is affirmed.

All concur.