*1 ship signatures on Article accounts. Her these such evidence under 3716. rea- by were witnessed several this of trial best known accounts sons for course are the convalescent center nursing staff of acting in best to counsel Moore confined, including where Mrs. Littell why we of his client. But this interests her private nurse who looked after originally: wrote Obviously, years. if Mrs. Littell several position it is Apparently, Moore’s this or had was “confused” about previously established rule fairness have overreached, could eas- petitioner been application have no in discussed should is testi- ily such evidence. There obtained principal where circumstance mony officers at the two institutions from from which the transaction survivorship these two accounts were where fiduciary materially profited has has opened nothing there was unusual recognize unwilling since died. We are elderly opening type an account woman exception approve or such an es- paid during so that her bills could her here, i. rule in a vacuum such as tablished All of this by confinement her next kin. e., no has been where evidence fairness issue, very testimony raised a fact at the actually there has tendered and where least, as to whether Moore breached his opportunity judicial been no consider- by relationship per- with his aunt fiduciary respect or to the admis- ation joint survivorship mitting open her to sibility of evidence under Article accounts. 3716. Nevertheless, testimony there is from the essence, it us repre- case as reaches Chancery Master fiduciary-fairness sents an assault $4,015.67 received Moore from monies rule heretofore embraced this Court. Littell was not accounted belonging Mrs. adhere the rule its for Moore. This uncontroverted here our origi- for the reasons articulated in finding mony, together jury opinion. nal gift Mrs. did make a to Moore of Littell not The Motion for accounts, survivorship supports the the two judgment of the trial court. J., BARROW, concurs. I concur in the affirmance of trial GARWOOD, J., sitting. not court’s BARROW, Justice, concurring. I judg- concur the affirmance of the agree trial I do court. record establishes breach of fiduci-
ary relationship matter law merely accepted
because Moore the transfers joint Mrs. Littell him tenant with ADAIR, Petitioner, Virginia survivorship rights her in the funds two There savings accounts. is evidence that MARTIN, Jim Carl Martin physical- from time Littell Mrs. became Raymond Martin, Ire Executors of ly incapacitated hip a broken in 1967 E. De the Estate of James 1972, until alone took her Moore ceased, Respondents. physical care her as well as her financial B-8627. No. kin designated As her next of affairs. her relative who looked after dur- of Texas. confinement, ing long paid all her Moore 30, Jan. 1980. her her needs. bills and saw to other Rehearing March On allegation There is no of undue influence capacity or lack of mental in the execution necessary Mrs. Littell of the forms to joint two
convert the accounts survivor-
514
had not complied with the child support requirements of the decree divorce and at the time of his death was indebted her in $6,477.94. the sum of moved She that the judgment against Court render for such Texas pursuant Family Code. The trial court rendered prayed for, as and awarded the additional $1,500 attorneys sum of as fees. The Court reversed this rendered judgment for the estate. It was support rationale of the Court payments constitute a do not debt but personal obligation a enforceable con- tempt proceedings or rendition of a judg- against defaulting father during his lifetime. 582 S.W.2d Section 14.09 of the Texas provides for the these remedies enforce- support obligations: ment of child (a) may Any order of the court en- forced by contempt. (b) A may court enforce an order for Hawn, Vidor, Davis, Michael Buddie J. L. support 308A provided as in Rule of the petitioner. Texas any Rules of Civil Procedure or Dies, subsequent
Stephenson, Thompson promulgat- & version of the rule Marlin ed Thompson, Orange, respondents. Court.
(c) party any On the motion of entitled STEAKLEY, Justice. payments receive for the benefit of a child, may the court proceeding This is a instituted against defaulting party for any a wife, mother of the three owing amount after 10 days’ marriage, children of the execu- defaulting party notice to the his fail- estate of the tors of the deceased husband ure or out the carry refusal to terms of and father. Its a was to obtain may order. The be en- for court-ordered child forced available by any means for the that were payments at the time judgments enforcement of debts. the death of the father. (d) compelled A parent may be Virginia Adair and James E. Martin were fy fully ability to regard They in 1955. married were divorced the child. granted Virginia 1960. The divorce decree Texas Probate Code Section 37 of the custody of their Adair full three minor chil- provides: James E. pay dren and ordered Martin to dies, leaving a person When a lawful per in the sum of week $30.00 will, devised or be- all of his estate age eigh- attained until the children “the . queathed . . shall by on years, respectively.” teen Martin died or lega- vest in the devisees immediately 11,1974. George August Roland ;. subject, tees of such estate . . al, co-independent qualified as executors however, debts of August August his estate on 1974. On the testator . 14,1975, Virginia pro- Adair instituted this Bramhall, ceeding against alleged them as v. 556 such. She case of Smith writ ref'd n. during (Tex.Civ.App.1977), his lifetime James E. Martin S.W.2d 112
515 curiam, (Tex.1978), upheld such per e. 238 r. S.W.2d for a proceeding for writ Smith Bram There the trial court hali, same nature here. we do so here. estate of rendered Ap- judgment of the Court defaulting parent pursuant to Section peals that of the trial court *3 of 14.09(c). Upon appeal, the executor the is affirmed. error point of the estate asserted one delinquent the for invalidity judgment of they payments because had child FOR REHEARING ON MOTION prior to the judgment
not been reduced to al., Respon- parent. The of the Court Civil of dents, Motion for have filed their Appeals judgment affirmed and wrote: which, things, our attention among other debt for this case the deceased owed urged they is that nine called fact support; claim was made child points Appeals Court of Civil before the refused; for which was executor Court; by that which were not considered filed and suit was then to collect same. by Respon- points are characterized to The trial court was authorized Respondents points dents as “factual judgment for the debt for plaintiff to they feel are entitled have considered support against the child deceased’s Exec- This Appeals.” appears the of Civil Court utor. points to be true as to some but all 556 S.W.2d subject to consideration be “unpaid also child Court wrote that to Appeals Court of Civil in the remand judgment support is thus debt which now that Court which is ordered. opinion Per may be taken.” In our Curiam previous judgment to We adhere to our denying application for writ of error of the Court Refused, the extent notation, No Reversible Error, Appeals is We withdraw Civil reversed. we wrote that this action should not interpreted approving portion be this conclusion of our which affirms Appeals. We said that modify Court of the trial court. We 14.09(c) Section of the Texas the extent that the cause provides only unpaid support may Appeals. is Court of Civil remanded be and enforced reduced respects, In all other the Motion Rehear- debt, judgment for a the same means as a ing not that such sums are debts. judgment of the Accordingly, the agreed We thus with the decision Appeals is cause court-or- Appeals Court of Civil remanded to that Court for determination dered child claims could reduced points error not heretofore con- delinquent after the death of sidered. would con- parent, and stitute a claim the estate agree, parent. We did how-
deceased
ever, characterization prior to its reduction debt drawn precise and issue here, application for writ
parties in the reply, the Court Civil whether holding party enti- that a erred support payments is
tled receive child taking
precluded defaulting parent.