Dial v. Martin

grounds without “it was evidence, outside support and was objection. We overrule the record.” argument, if it was offensive even inflammatory in its proper rules, so language reversal. warrant nature and frankly hut an Moreover, assumption stated it was making it, and was counsel usually apparently latitude within well exercising a somewhat counsel accorded wide pre- liberty speculative deduction juries. senting causes to affirmed. al. et al. MARTIN et

DIAL

No. 3492. Appeals Amarillo. Texas. of Civil

Court 21, 1931. Jan.

Rehearing Second On March Denied Rehearing 26, 1931. On March Motions Supplemental Motion Appellees’ Second Rehearing April 1, 1931. Amarillo, Lloyd Fletcher, and H. D. Austin, appellants.

Bishop, (cid:127) Jr., Proctor, Green, and David John E. Houston, Burney Braly and R. uf G. both Worth, Pate, & Hamilton Ham- Fort both of widow, Montgomery R. ranch. He survived Ger- Dallas, was his ilton, T. of J. Dial, Falls, trude A. above a two minor children Stanford, Wichita both mentioned, Britain, plaintiffs Morgan left Morgan, herein. He Emery & Don all of will, discussed, hereinafter appellees. which will be Amarillo, for probated May 11, 1918, and which was and his surviving Dial, wife, Gertrude A. HALL, J.C. appointed days thereafter executrix. Four dis- originally filed This suit appoint- entered an court order county, but of Hutchinson trict court Dial, Dial, ing W. H. deceased, as the father of J. O. to, finally agreement transferred joint executor with Gertrude county. in, of Potter district court tried Dial, December, 1918, A. Dial. G. L. trial, sustained the district a former At surviving partnership, member of the plain- general demurrer th'e defendants’ joined by father, Dial, (cid:127) W. H. as execu- appealed, and this petition. Plaintiffs tiffs’ court, tor, Dial, and Gertrude as executrix of A. defect finding a fatal that there Dial, deceased, executed J. O. defendant, parties reversed and delivered to T. Durham an oil and E. permit cause to remanded the conveying the mineral estate S.W.(2d) necessary parties. S make controversy. the lands in March On guardian Lloyd Fletcher, Thereafter, Dial, surviving partner, O. L. sold the Dial, David Elizabeth Dial and ad litem of controversy lands J. N. to H. Martin original peti- minors, amended filed a third Perkins, joined convey- and was parties. tion, making numerous additional Dial, ance his wife and Gertrude A. trial, defend- several of these Prior ants from conveyance who executed the for herself in- disclaimers, dismissed and were filed dividually and as executrix. The deed was proceeded action, the trial also executed H.W. Dial as executor. Lloyd Fletcher, guardian ad litem Eliza- Dial, minors, and Gertrude and David beth A. On March Gertrude A. in- right and execu- individual in her dividually executrix, guard- and as as well as her husband deceased trix of the estate plaintiffs herein, ian .of the minor and as minors, plaintiffs. guardian and After both sides closed of said minors, next friend of said bered 639 filed suit num- in of the introduction upon district docket judge testimony, directed the trial county court of Hutchinson trude A. Dial and Ger- entitled plaintiffs against jury in return verdict al. et N. H. Martin et al. George Perkins, Martin, N. H. J. J. favor of sought In that recover of the defendants Mrs. Gertrude suit A. Dial Martin, coun- of Wichita B. E. W. Hamilton lands involved county, ty, Pate, G. R. Dallas B. Hamilton of controversy in this and an- to set aside and Company, Oil Pro- Continental Gulf gas nul referred to. After oil and lease and the deed above Cline, Company, duction W. D. Panhandle filed, suit was and that Company, Refining Phillips Petroleum Com- priqr June, 1926, negotiations 16th to the Corporation, pany, Oil Buttram Goldelline compromise and of the for the settlement and on said date Newby. Company, R. Petroleum and Errett controversy opened, were judgment From in accordance with entered plain- Dial, guardián Mrs. of the minor prosecuted. verdict, appeal this tiffs, report probate made to the county, guardianship pro- appears Roberts where the in J. Dial It that 1914 C. and ceedings pending, stating were that she had into a O. Dial entered brother opportunity litigation raising an purpose dealing to settle the for in and cat- $212,500, paid partnership acquired one-half of which would be This the lands tle. involved in plaintiffs, praying controversy, and for author- the minor on which C. ity compromise. conducting manager, part- make Dial, said The court L. nership day application, charge heard the and on the same and was of and business authorizing guardian managing partnership property which, entered an order land, to consummate the settlement accordance to said consisted of in addition ,‘500 about application. April 8, with the terms stated conceded cattle. It is compromised died, 1918, then the said suit num- the lands in con- She Dial J. C. when money 639, and, paid, part troversy bered addition to the of the assets of the were gas lease, fully paid partnership; an oil and she obtained incum- that said lands were up years, twenty $50,000, for ten acres of the about bered to the extent of purchase part price. herein represented At land involved one-half said lease of the being death, partner- in her vested and the other half in time C. Dial’s the ship of J. June, cattle, On 2,250 her minor children. the 19th of head of which were owned 1926, agreed controversy an was entered being grazed lands and on the county partnership district court of Hutchinson in said lands which other certain 639, grazing purposes. part- and cause numbered which confirmed had leased nership adjudicated approved amounting and the settlement debts about owed other mortgages of the $100,000 in accordance with terms issues chattel on the secured agreement. According compromise attorney, and took cattle. J. C. judgment, management the defendants were. terms of of the active $106,250, same, delay, pay A. istence and to Gertrude without directed and to deliver in designated proof there- such shall bank made of the be existence justness $106,250 depository the sum and statements of of said debts sworn holding Da- Elizabeth and minors same of the those and the benefit by my Dial, oil and also deliver the be executrix herein- vid lease above judgment and that after mentioned. of this The terms referred to. appel- complied my “Third. I and so will and desire Dial, 1926, Mrs. On June lees herein. as reported county may property direct that all the die seized and I of which herein, guardian the minor possessed of, both real and Roberts court of personal, pass my A. beloved wife Gertrude agreed had been settlement Dial, payment just after the debts and the orders in accordance with consummated expenses probation of this incident to the court, prayed for a confirmation and of the will, subject, however, following con- en- approval The court of her action. and ditions: recites order of date tered an “(a) That shall her same be held and fairness heard as to the evidence support my and maintenance children settlement, and order- reasonableness support my and the and maintenance of wife ing confirmed. settlement be that said during widowhood-. Ger- Later, Mrs. December about widowhood, “(b) her That at the end Dial, trude A. executrix per- property, all of such both real guardian deceased, Dial, J. 0. sonal, pass simple, in fee vested be children, Elizabeth her minor friend of next my alike, who and share share N. suit filed this David issues, living time, such or their be other defendants H. Martin any there be. assignees to recover original and their suit hereby appoint “Fourth. I and constitute action, controversy. In this lands the the guardian my wife, beloved Mrs. A. Gertrude represented plaintiffs, their minor my sole executrix of last will and testa- litem, cancellation ad seek during during ment her widowhood réferred deed hereinbefore oil lease security such widowhood no bond or other to, as it sо far affects required executrix, of her as such They attack the involved. widowhood, the termination I direct agreed judgment No. entered in cause my appointed brother O. L. Dial be ex- annulled, pray that it be vacated and estate, personal, ecutor both real and possession of all recover title such, required him as bond and that no it testator herein that the wife have full control and the father, from their estate inherited of their which this will and of the the intention of they allege undivid- to be one-fourth testator constituting in the lands ed interest ranch management all of of belonging partnership, of which estate, personal, " testator’s real and both a member. father their deceased and and for the use benefit of herself the agreed judgment is effect the the of Since testator, during children of herself and the and both the oil and validate confirm widowhood, of that at the end said her but question deed, the the first and widowhood, property, that all said both of appellants, is whether the be considered personal, pass real and and be vested the record, to have were entitled said under the children the control and testator’s presented is issue vacated. This management of same be divested from the counter-proposi- by propositions and several the said wife of such widowhood control and testator at the end of the respec- of the briefs the tions discussed beyond placed her and be parties. tive management in the brother . preliminary the determination of As testator, living, heroin if named of he be question, proper for us to it is construe that living, and if not then in the nearest of male ascertain J. O. Dial in order to the will of the nature trude and the to testator; kin to said that at the end said i taken Mrs. Ger- of the estate widowhood named the executrix render an herein re- and undеr it A. Dial her children account, stating quired limitation, any, on the devise time, property amount of real and hand both at And, validity because the of the her. personal, and same filed that authority upon judgment depends also part probation as a this of the record guardian, it is Dial as executrix and Mrs. necessary will and that herein devisees take into consideration the becoming age, that the executrix execu- probate proceedings and orders as to bind be, may as the tor ment case likewise file a state- authority power and her relate showing property amount of both agreed judgment. the children personal real and on hand at such time but required party; Omitting immaterial that no bond be formal and either claus- honesty provided, relying upon es, as fol- testator herein and will of J. C. integrity parties herein named. lows: my “Fifth. desire no other I that ac- “Second. desire and direct tion, just paid direct, my upon proof and I so had in ex- shall be the Coun- debts be insurance ty return an estate than to executrix fit of the dren be insurance is be able to do so.” direct to diately maintenance position that a will should not be 434. et al. authorities the property, company herein devised shall be used for their educa- tion in in said children at her own cepting then it is directed division property such of her riage. Haring tion of insurance made dren’s interest 114 Thompson ating contingent remainders. dispose of and station ates a life in ed further that the the dicates that the of through that she be power pose terminable ciaries so as to hold of no other “Sixth. subject Court keep the the any property community will, language authority will, maintenance of children, policy, of money. Since she (Tex. payable and list of claims. executrix event she of and some testator’s any specific property upоn proof therein approve or in There is (a) in so far as the beneficiary construed as shall in the administration require the executrix is hold to divestiture policies I also direct 389, inventory except life, policies, policies, which, therein on required of authority Com. limited using approved over after construction. Sailer high school, who are remaindermen under of any way be Construction Id., the third clause Should, however, to the children. The rule property. of such she v. Shelton named, widowhood, she should elect testator intended life held nothing education, according to their held App.) other than his interest that are interest her by this will and testament same for the in Mrs. cited. Our construction 103 the same not owned but that is herself her or beneficiaries by of death and will bond for the the insurance tenants under wills cre to record estate is affected. of the testator under the educational by given Tex. second support and maintain and desire upon beneficiary affect the interest of children have herein whole, testator intended own means appraisement proper There her corpus payable in given S.W.(2d) Gertrude fairly and the a life 10, rules of no proceeds her second mar this life estate the other marriage, appears, named imme- Wills, will use 122 says power is no construction expense, will will will of the chil at the end again. him, that it cre relating delivery community susceptible institution companies my estate de that such insurance or benefi- S. W. 13; named than children, support, my descrip A. Dial support moneys dispose Furche Mulanax, be not herein, and §§ to dis passed of unless gree of of dis estate bene- such chil- Sub 369, her my ex- in to and in tion: widowhood, the testator herein tor have full control and proposition. of the testator’s nated as that pendent executrix. AVecannot assent to this be vested in the testator declares al, children her provisions under R. S.. art. would have the effect of property thorized to that, visions is to account shall be filed filed as personal, and directs that independent executrix, counts immediately dren der an account McMahan v. court. The will further liar to an S. W. tor, to that the tain strictions which are courts.” tion his own desires or said article 1995 our certain scribe in exercise Supreme Court said: Immediately “It In “If for the use and many instances, such widowhood.” probate system, without and the testator’s become the executors were to take should she her the 22 we the fourth clause we find both absolute control and discretion court and to estate, control remaindermen, over his control on hand S.W.(2d) Hughes were his and McMahan independent the intention of all of the herself and the pay them, Bain jurisdiction and hold The fifth McMahan observing substantially cease when will require remedies Tex. duty to following of the record in the his estate before she is au age. and estate, children, Parker v. Allison which the marry again, stating v. Mulanax hold, estate, will, v. Coats 338. that, ^[3496] benefit minor caprices, management Case, supra, contend to property deprive imposed upon extent of the executrix. both Mrs. requiring fear, render and leave un- and further clause, quoted qf persons and further (Tex. if considered and 153 W. at create such time, the amount of the who are thus together management her when provides may, effect, ,effect supervision making probate children, she wife the end of her real isDial procedure testator, during the account be Case, tend S. practically herself her of that de expression, holding Civ. shall she shall ren both according shall confusion as of these will that a testa- of the testa- will and of verified ac Com. of the wife this recita- it to and court Hughes suprа, under the Mrs. Dial charge that such interested pass real and provides provides an inde jurisdic- derange imposes appears him probate person- the re- would, marry above, alone, of all desig- in the main- pecu 303; chil pro pre- by to of v. Dial, held, prevented L. provision, con- the fathér of and J. has execut- C. C. lease, ed and also the deed hereinafter declare so as to the will struction of mentioned, consequence. no independent. be is of He was It will ob- be executors Dial, of re- named executor will J. C. under consideration the will served that appointed corpus but three quires of the es- the record shows Mrs. Dial hold days appointment of proceeds main- or four after the thereof to tate and out representations Dial, upon children, A. Mrs. Gertrude Shch well as herself. tain the wills Dial, probate judge J. be- usually designated that O. “non-interven- made to the are death, permit that he his wills,” his had said wanted fore which the statutes and tion the execution template with his act as wife. con- father ‍​​​​‌‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​​​‌​‌‌‌​‌‌​​‌‌​​​‌​​‍executor character wills of course, supervision This, basis for sufficient be no there shall super- appointment executor, necessity H. the and in minor of W. Dial arise for shall no capacity void, by probate his acts are and court. vision right event do affect the 3295, requires enter the clerk art. R. S. herein. probate judge’s a minute docket proceed- decrees, orders, judgments, and all day March, On the 11th C. thereof, estate, ings with the date joined Dial, wife, Dial, L. Mrs. Gertrude dependent Lelia and paper must be in an estate each filed and Dial, A. “for herself as in proper number. docket with numbered Article J. executrix estate of O. keep requires county clerks deceased,” warranty Dial, general executed a probate styled to enter minutes and a docket deed, Dial, I-I. “executor judgments, orders, de- all the full therein crees, joined Dial,-deceased,’’.also of J. estate 0. ns court, re- proceedings conveying grantor, lands herein involved required papers of estates all cord therein “paid $96,000, recited consideration of papers to be One law to be recorded. specified paid as hereinafter is, according probate minutes recorded payment the further consideration accounts, (7), all exhibits to article community debts the es of certain renting, hiring, reports and another wife,” of J. Dial tate deceased and requirements, under de- These or sale. named, grantees therein N. H. Martin and probate cited, impose upon cisions duties aggregating ap J. J. Perkins. notes Certain contemplated article proximately $96,000 are deed, which the instrument recites described a doubt as to the inten- create at least were which, a conflict and such tion of according supra, testator grantees. assumed and Some of Mulanax, Hughes v. to the case of by.C. interest, '3553, and which S. in such is: “No sale óf in or art. whole title, warranty general by the an made a shall be an contains grantors executor or signing an therein “C. L. administrator without order of follows: the court Dial, Dial,” authorizing Ereytag, “W. I-I. Executor of the Estate the same.” Matula v. Dial, deceased,” Dial, 357, 536; C. A. Ferguson of J. “Gertrude 101 Tex. 107 S. Dial, of J. C. De Executrix of ceased.” Estate (Tex. Mounts 281 S. W. Ball be It will noted that Mrs. Gertrude Sup.) v. v. Collins Moore by dispose this instrument A. Dial does Com. 280 S. W. 742. Wooten interest, and that the in her individual may instrument be held effective The transfer as a purports, -through Dial strument surviving C. L. interest, of her individual in the ab partner, dispose of’ all of the fraud, degree in no does it sence of af in the interest mineral estate. existing interest of her minor chil fect opinion, Dial, fact In our that W. H. dren. judgment. judg 19, 1926, The between the recital the consent conflict On June judgment testimony and was rendered Mrs. Dial’s referred to hereinabove ment county heard, in that no a ma evidence was of Hutchinson in the district court that, Dial et A. terial issue. The courts when a hold entitled Gertrude No. cause al. v. judgment party suit, re minor ais to a he is in a sense a al. This N. H. Martin et required day ward of cites, by part: in session court. The court is “This co(urt appoint competent attorney parties,” that Ger a and and reliable all the consent represent minor, entering individually Dial, as executrix and in a and con A. trude deceased, judgment require Dial, and as sent the court suf should of J. the estate satisfactory plain proof guardian tiffs, peared, ficient and ing the minor before enter next friend of and judgment ap against David one who is sui Dial and Elizabeth juris. plain opposing parties minor The said fact “also and came Also make David Dial. admissions or confessions favor Dial and Elizabeth tiffs came the and Dial the minor is not govern minors Elizabeth sufficient. rules which aptly through friend their next such matters are stated as and David person guardian, A. follows: Gertrude and ready attorneys, and announced and right 31 O. J. 254: “It and § is the appearance numerous of the for trial.” The duty protect of the the interests of judgment. also noted defendants party litigation, an infant on its own mo- the'parties judgment further recites The announced tion, plaintiff defendant, he or whether he a settlement to the court that proper whether the relief is asked in the subject approval agreed upon, been the pay plaintiffs pleadings or and whether the claim or court, whereby agreed to defendants properly pleaded defense be or not. In or- cash, $212,500 and to deliver protect fully interest, der to the infant’s gas five-year paid-up plaintiffs and oil general supervision court should exercise twenty in the lands out of acres lease guar- over the conduct next friend or herein, the terms and that volved litem, representative dian ad advise judgment agreement were to have defendants steps pleadings toas what to take or what pe plaintiffs’ lands described file, way infant’s so are no rights, tition, including and that mineral prejudiced abandoned, sacrificed or all removed, title he on their the cloud proper judg- defenses made for him before except nothing plaintiffs take would against ment is rendered him.” payment, twenty-acre cash lease “Although J. 263: § O. infant deed and lease theretofore executed that the capable sued, suing his inca- things adjudged and in as valid all should confirmed. court pacity requires protected, that he he and to judgment recites generally necessary that end it is that an in- to the fairness heard-evidence as litigant properly represented fant should be compromise, reasonableness may adequately one some who enforce and appearing it was to the best interest rights, protect throughout the whole liti- the settlement minor the should he although joined gation, there are adults ap consummated, it further litigants with infant.” pearing A. Dial Mrs. Gertrude has that interest “Ordinarily pre- 345: ac asserted cause of one-half sumption against permitted, an infa'nt can be therein, the said minors tion hut, contrary, every presumption on the is in- jointly, being entitled each a to a one-fourth one-half dulged Hence, against in his favor. in actions judgment interest, de entitling plaintiff infants all facts deposited $106,250 in the bank crees that designated judgment by proof, be sustained must of the two for the benefit therein necessity establishing the ease as children; remaining $106,250 minor be dividual against party an infant he cannot obviated Gertrude A. as her in to Mrs. by making plaintiff.” him a property; paid-up oil and that the twenty joint acres lease of be owned appears that Mrs. Dial and her ly Dial and her minor children. Mrs. brought the action which the con validity judgment trespass try further decrees the enteréd in sent par and the deed as title to recover their interest as heirs and including plaintiffs, quiets ties, the minor will devisees under the of J. C. Dial in the title lands involved. involved and to cancel defendants’ land the A pacity lease and deed conveyance allegations general which is void for grantor of ca want under ments were that such instru through to make it cannot obtained fraud and mis good representations. guardian represent general appear make “Confirmation It does not confirmed. that a op estate, appointed but or defeasible cannot ad litem had been voidable to upon the suit. aid an estate which void the While is the erate ” infirmity.’ guardian only law, a rule is that is ‘confirms its authorized hut Mayor, etc., Jose, represent litigation, ward in 24 Cal. of San to Branham v. 605. against' judgment for or Dial testified that entered ward Mrs. Gertrude rendering guardian an where the as such before the in action is court heard no evidence 176 apply 422; valid, Id., party 345, rule not is does Tex. Tex. 67 3 40. S. W. It any guardian by dispose an has interest follows that the consent where the effort her to through Stillwell v. ward. children’s interest in adverse to the land (Tex. App.) judgment 30 Civ. & L. Ass’n R. is as Standard Sav. S.W.(2d) ineffective as an at- tempt 690; convey by any S. art. 2159. to other form of contract. Whether she could sell as execu- guardian appellants attack trix under orders of the court is a- ship au proceedings insufficient us, matter not before since it is not shown guard Dial act Mrs. Gertrude thorize any requiring has condition existed her represent No. in cause the children ian 639. ter application to make for such sale or that unnecessary this mat to discuss It any application as executrix had ever been probate court of a The orders detail. made. powers pre scope are of its made within right money So the to this and the lease collaterally sumptively valid, and cannot be was an and her issue between Mrs. Dial ease affirmatively attacked, record unless injected children, by plead into her jurisdiction shows unauthorized exercise ings, directly regard and in to which their interest (Tex. particular Sloan v. Woods case. judgment conflicted, and a consent S.W.(2d) App.) 309. Com. 25 gave any void, her amount is unless judg properly represented attack the children were ground guardian upon Mrs. Gertrude ment ad litem. This was not done. 682, ; Rosser, enter into A. was authorized not Sandoval v. 86 Tex. 26 W. 933 S. judgment agreed Killebrew, interest con her because Fortune v. 86 23 Tex. 976; (Tex. and because no App.) of the minors with that flicted v. Williams Patterson Com. appointed. 132; guardian We think (Tex. ad litem was 288 S. W. Brown v. Brown Civ. By the App.) 1058, 1059; must be sustained. this contention 230 S. W. v. Kromer Fri conveyed day, in 671; her had not mineral she 10 P. Wash. 32 R. A. L. the, estate, Giddings, 301; but the deed mineral terest Messner v. 65 Tex. J.C. is, therein, 1163; pp. 1115, 1119, Heyman (Tex. recited for the considerations Pearce v. payment assumption

'177 parti- By been property propositions, appel has partnership never numerous the fact, not show duty does record L. the lants Dial, it was of C. tioned. that assert the Bros, partnership surviving affairs of partner, the use reason adjusted finally and settled. diligence up been ever able affairs of the have Moreover, to wind partition be- right, partnership; been no there has- that he had no either her chil- A. Dial co-operation Mrs. Gertrude tween alone or in Mrs. with H. Dial and W. are dren, joint his wife and, Dial, Dial and Mrs. Gertrude part since G. A. to continue Gertrude A. Dial nership raising warrantors with ranching and business of cat deed, court was years in the lease and tle for after four the death of J. C.' jurisdiction 639 to No. Dial; cause рower authority said without that he and no had invalidity validity of either or part decree as such survivor to renew notes Dial nor L.O. nership, when neither mortgage or the lease deed its assets secure such party. made a his wife had been notes and conduct the affairs of the firm just after the of J. C. death had attack the The further previously conducted, been and that such being it shows invalid because renewal notes for increased amounts and by agree held at a have been rendered term resulting unauthorized transactions in addi parties va suit ment of liability, way tional in no affected the sound. We this contention cation. think plaintiffs. of these-minor that, by 1915,provides consent of R. art. S. pleadings and the evidence which try any parties, civil all the case could not cause they attack these numerous transactions are except cases. But the divorce voluminous, good purpose and no can be consent, guardian, be- and their discussing served in them in detail. Suffice interest, not con- could of her adverse say it to which part raised such issues of fact sent them. required trial court submit that jury. of the case to the There are sev- judgment, Appellants as attack the exception by appellants eral bills of to the taken serting was ren invalid because that it is which, testimony exclusion if ad- approved judge claim had an who dered mitted, would have show tended to L.C. stipu against This J. G. estate of Dial. Dial, trustee, surviving partner this issue reference to lation of counsel with is as follows: discharged faithfully trust; and oth- might mismanagement ers have shown judge, presided- at said “That who said and losses as the result of his failure use judgment, at the trial time of who entered said winding diligence up part- reasonable nership same, was the rendition continuing carry and his affairs money claim, of a de- de- owner and holder years the business for four of J. after the death mand, against of J. introduced, C. Dial. 'evidence ceased, amounting to the sum of about testimony well as the witnesses ex- $400.00; claim was filed said that such cluded, gence charge negli- him with all tended to estate, of said Gertrude A. executrix mismanagement partnership approved, filed and list- and had her been affairs, and, finding of a the event claim, as a listed in ed valid -had been issues, him on such children’s interest duly inventory claims, list of charged the es sustained could with loss- County Hemphill filed ty, Dial, paid judgment; Court of Coun- by him under such circumstances. Texas, in the matter the estate J. C. 1048, pp. 1052. 47 C. deceased, said had not claim partnership of said is dissolved at the time of rendition Where a partners, one of and that said claim the death of sur viving partner partners right, A. Dial on or first or have the said Gertrude day August, 1926, about and, moreover, duty, proceeds up wind out de- it is business, eyes judgment.” is, from firm’s law, rived pur of the firm assets for trustee sustain facts recited here do not pose, and as such trustee is entitled to the judge Merely trial contention. because the possession of all firm assets. Gaut exclusive v. 94; parties creditor of one of the suit Co., 24 & 76 Reed Bros. Tex. Am. Dec. disqualify him, judge, unless he does Tex, 521; Camp, Ins. Co. v. 64 Crescent directly result of the liti- interested Bros., & v. Greer 58 Shivel Stewart Tex. Civ. gation. He must direct interest 207; App. 115, W. 123 S. Amarillo National litigated, the cause of action matter v. Harrell Bank Civ. S. W. necessarily so that the affect suit result will 858; v. Nunn Civ. Roberts 169 S. personal pecuniary him to his loss 1086. W. gain. City State, Cliff or 391, of Oak 97 Tex. v. 1; City Peacock, partnership provide 79 S. of Dallas v. articles of W. Unless the Kemp otherwise, surviving partner pro- 89 Tex. v. 33 S. Wharton must County Bank, App. up af- Tex. S. once to wind W. ceed Showalter, fairs, Tex. can be limited Nicholson because there for' continuance of the business 178 winding up. partner surviving wind must eral rule is carry purpose He cannot that sole partnership on up and account a reasonable time after the within business it to his business maining representatives personal of has been dissolved the death of one of the heirs and surplus firm, any existing re nor he can renew notes or associate payment binding of execute after the new notes or and in- in his hands liens debts, and, cumbering property, him to partnership to enable the firm that all such the effe'ctively obligations part up the exclusive v. affairs of are his Cock wind individual debts. 429; quiet Carson, nership, possession 45 Tex. v. Austin is entitled Crawford he 275, 279; There firm 293 assets. S. W. ‍​​​​‌‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​​​‌​‌‌‌​‌‌​​‌‌​​​‌​​‍Kendall of all of requiring Riley, 20; Chancellor, v. 61 17 S. in Texas 45 Tex. fixed rule Brown v. to be no seems 437; 29, personal property Jenkins, dispose Tex. Tootle v. 82 Tex. him first 519; partnership Altgelt paying purpose debts be v. Alamo National (cid:127)the any, estate, Bank, 1046, 252, 6; if 98 Tex. 83 the real S. W. 47 C. J. he can resort fore purpose. 1075. partnership We for that an case which find been able to that have not testimony might There is con equitable conver rule nounces by jury sustaining appellants’ sidered Texas, applies in re-conversion sion and contention C. L. Dial that not exercise did effect though intimation that we find an diligence winding up reasonable the busi Co.,& v. Richardson Baldwin in 33 Tex. reconstruction is the case not, appel ness of the firm. If he did then opinion rendered convey lants contend he could not their inter whether it We court. doubt property any purpose. est in the In other determine, necessary decision of words, surviving the contention is that per case, question of whether the partner rightfully convey cannot real estate sold. have first been to be that the surviv should sonal personal property, or even unless general rule seems The ing partner good making conveyances faith such for suffi equitable title to takes the cient consideration in a bona fide effort to necessary, pay estate, in order real firm up pay wind the affairs of the firm and to accounts, partnership firm and he settle debts and partnership obligations. We think this con purpose, deed his that sell it for appellants tention is sound. The further in conveying only equity purchaser, appellees herein, knowing sist that that compel power holder of has the who the partnership property, land involved was title, legal minor would acquired interest, either under the lease case, convey such title to in this deed, or the unless O. L. Dial executed such surviving them, though it is held part instrument in a bona fide effort settle partner unless neces cannot sell real estate nership connection, they affairs. In this fur partnership sary pay af settle debts or ther insist that the-lease was made without purchaser fairs, ing partner, a surviv of land from adequate consideration; its execution partner that was notice necessary was not winding up part toward authority ship property, of of curities W. to know bound nership affairs; that it was executed after partner 2 Law its sale. Modern as-to such a reasonable time—for all of which reasons it 626; Partnership (Rowley) Se Western did divest the minors of their interest in Iowa, Atlee, 151 N. Co. v. the estate. We think bearing the evidence Frey, 447, 300; Armor v. 253 Mo. upon these contentions is sufficient to have re Poster’s §§ Bates on Part. quired the trial court to submit the issues to Rep. Appeal, Pa. 15 Am. jury. They insist that the deed Mar charged part could; tin and Perkins not be made L.O. nership property surviving partner ad could been sold Dial as because he had eight vantageously within months after the the up failed and refused to wind affairs partnership, affairs of death, part of J. C. and had formed another up surviving part nership, wound which had taken over the assets of time; ner, Bros., in within that firm C. of Dial and therefore he was winding possessed up power аffairs as he was stead of le not authority vest do, carry gally surviving partner; bound to he continued to ed the deed business, partner and formed a the firm ship, new shows that Mrs. Gertrude Dial W. H'. Di taking father, authority join W. H. in, and al were without and in doing conveyed as members of the new Mrs. Gertrude Dial so no interest to which firm; capacity they entitled; in such incurred ad the minors were deed was indebtedness, applying profits purpose winding up ditional not made for the arising payment partnership, but, from the business to the of affairs of the old as recited debts; consideration, renewed of the in some was executed for the obligations by promissory purpose, part, paying old community binding against

individually, have obtained from land and which not and were rents, royalties, the received and all of as revenues Dial the interest of J. C. or the estate belong plaintiffs. rightfully of Dial which sums to insist that minors. further They plaintiffs convey into as in “That now surviv- here and tender so not even could money paid partner and ing consid- this court Perkins the said sum of Martin and to pay any money actually paid grantees’ assumption all to sums of or eration of the by plaintiff® against existing any old firm received and from to them indebtedness assumption hereby Bros.; equity is de offer to with and said do to Dial that such minors’ con where ask the court to into a consideration fendants and take not interests are valuable by purports payments The sideration said said defendants involved. lease Bros., plaintiffs executed to and was said minor and others said the act be about minors, equi making accounting eight 0. in J. after the death months adjustment judgment plaintiffs and de hereinbefore table between Dial. The consent pay attempts lease fendants defendants as and to the said mentioned to validate may appear, sums where the their interest and all deed. be done This could represented. money may рroperly The tes- to make be due them and children were payments money timony strongly chil- held now show that the out tends prop- belonging plaintiffs.” been said in land has not defendants dren’s interest the in the various They reconvey erly safeguarded interest transactions further offer to their divesting twenty-acre by relinquishment in resulted in it have or which is claimed assignment may them ’as be sufficient divest them title. of title. appellees not could is clear that rule, Hickman, The as stated Graves v. acquire property belonging to the that, petition 59 Tex. is when the avers a Bros., of the de heirs of ceased or which willingness pended repay money all ex sums of assuming, interest, partner had an ignorance plaintiff, averring for the paying, con even a consideration accounting true amount and asks an be surviving part veyance, which debts for plaintiffs defendants, tween is suffi it firm, new personally of a members or the ner necessity cient tender a minor without the organized carry any, on if the testimony which had making specific formal tender of sum. solely responsible. business, If judgment orders The interest children’s any part that all show should paid depository, and, into the bank selected court $96,000 had Perkins Martin and the assumed to able to the estate informed, so far as we are charge legitimately pay was not passed money none of the possession has ever into the Bros., then the con of Dial guar of either the or their transfer, far as the sideration so Fletcher, dian ad litem not and the children could concerned, interest failed. is has children’s required pre condition restore appellants Mrs. recover, actually contend that Gertrude cedent they unless it was shown qualify independent money Dial refused to utrix. The record shows exec- had received the or a part by it, that she executed dissipated been independent Vogelsаng Null, deed referred to as executrix. them. v. 67 Tex. independent Having 451; (Tex. App.) held she Salser v. Barron Civ. executrix, did the or- Tender, p. and that she not secure Hunt 146 S. W. entitling her to make ders of the court a further rule There is where the trans deed, absolutely void, far in so of the chil- action is the minors are not concerned, whether required dren are immaterial a con to restore consideration as repudiated accepted having prayed she trust under the relief for. dition Hibernia 171 P. 677. Lee v. Savings Soc., will. Cal. & Loan insist can We entertain serious doubts whether the successfully maintain this suit without not tendering plaintiffs required plead should be to even and which the amount received tender, for the reason a suit judg to them the district court decreed title, trespass try form of filed their to be unnec ment. Restoration has been held guardian ad litem to recover for them their essary petitioner where the is a minor who petition the lands described Wisdom the consideration. v. has wasted damages. and to recover It is true in 220 S. W. 210. We Peek Civ. lease, ask the cancellation of mineral opinion by plain the offer cline tiffs deed, judgment as incidental re- pleadings in their sufficient tender alleged lief, because these instruments are plaintiffs case. The the facts under to be clouds their title. As we under- alleged in this connection that the defendants suit, technically it is stand the one for paid guardian their heretofore under have the $106,250; but, rescission, whatever cancellation and pretended consent the sum of case, we think the offer the nature said now defendants have equity required. that should be do large money possession sums in ex admitting guardian, i» did amount not err cess lease, deed, and the from mineral have derived the oil evidence defendants Altgelt judgment, but, been issues submit- & tbe bad D. Sullivan Co. jury, an in- should been S. ted to tbe struction ing W. 333. there they were not bind- tbe effect that announced, Under the rules plaintiffs. The admission tbe go were entitled to into the transactions of inventory appraisement in filed evidence tbe dealings partner- C. L. Dial and his with the to have estate of C. Dial tbe J. seems ship property, both before and after the death harmless. C. and tó lead the con- witness cerning such without restriction. matters however, erred, court We think tbe permit plaintiffs’ refusing to call counsel The in to record does not show that C. D. propound expert witness, qualified witness stand and Dial had as an O. Dial to tbe concerning leading questions permitted man bis to him therefore he should not have agement testify of business the firm’s to conduct as to the market of the cattle value appears testimony with Dial. It in of J. O. fall of C. L. since the death out member of charge 1018. The of managing Dial, he was the in contradiction that which he details conversations having Bros., parties, clearly Dial of firm had with inadmis third hearsay. ground ap all the ranch and It of the sible partnership. kept peared gations evidencing no that he He testified that of the obli some notes _ showing Bros., he had how conducted firm of books business, Dial upon memory. depended px-ior his but been executed the death of J. O. to keep partner duty managing to is the were shown to have been marked “paid.” permitting his an accurate account of transactions with The court did not err in keep partnership, and, testify fails for if he to O. L. Dial to with to these reference account, respecting particular they paid. such items all doubts notes and to how and when were against ordinarily will him resolved Permitting Dial Mrs. Gertrude to accounting. he has to on Where failed testify accept that she refused to exec sole accounts, keep him, managing accurate the burden rests will, error, utrix under the á matter of is harmless. As partner', that he show law, only qualify she could ex duty fairly, impartially, performed has and general statute, ecutrix under the and her honestly, par respecting and all doubts 'subsequent conduct that established the fact ordinarily items will be resolved ticular executrix, although signed she did act as she against him. 47 1245. Under the O. J. cir independent the deed as executrix. There cumstances, showing G. L. has the burden permitting testify error in no her to application assets of firm she executed the oil and because Mr. debts, payment firm Administra Marcum’s father-in-law, Dial," her wanted her to exe Marcum, Ky. 1101, 401, S. 154 W. tor v. doing it. Her cute motive so is immateri presumption every must be in reasonable ; executing being al the effect of her act in Musgrove, dulged against him, McKleroy v. only inquiry material far so as the chil 003, Doubt as to 203 Ala. lidity 84 So. 280. the va testimony, dren’s interest concerned. The must he claims be re credits which however, may have been admissible con Henry (Ky.) against him. Kirwan v. solved with circumstances under nection (Tex. a Navarro v. Lamana 16 S. App.) attorney’s deed in she executed the her office duty partner The W. 922. 179 S. Canadian, upon raised at by issue fraud analogous to such a business is in control of pleadings. her Raymond Vaughan, 128 of a trustee. proceedings guard The 4 L. 21 E. R. A. 15 Am. St. Ill. N. ianship Rep. of David and Elizabeth 112. county, were admitted in evidence Robei-ts duty “It of the survivor make objection appellants’ counsel, over the as to firm a full disclosure assets and fair objection mainly proceedings because representative partner, the deceased to the to of assets had been instituted set aside orders representative respect account pending appeal still in the dis which come into, survivor’s objection trict court. This would ex not representative pay hands and over orders, for clude the reason that partnership share net estate’s as presumed against are to be valid col duty disclose, sets. pay The account and to attack, though they might lateral afford to, regard- over are sometimes referred grounds postponing ed of this trial duty as, as trustee.” ex the survivor’s G. finally validity case until their termined, had been de ap 639; Id., 1078, § J. § no effort but was made pellants postpone upon1 ground, surviving partner “If assumes presume this court cannot will be carry partnership on the business without au invalid. held thority, during he is liable debts incurred excluding and if he executes firm he ceased rights surviving partner are that of a Partnership, partner. Gilmore practically same as of a com the the Partnership, ; Row- § 924 2 2 Bates on note munity disposing survivor reference to with 4 Partnership, 47 ley’s of Law Modern property winding up affairs, of the accounting will not An 1159. J.O. 'they amongst cases, them cite numerous appears is that there it unless be necessity (Tex. ordered McDowell Civ. Clemmons v. action, the court should nor for such S.W.(2d) (2d) App.) 12 Id. Com. S.W. accounting futile. would be it an where order We adhere an 955. still to the rules years have twelve that The record shows they Case, nounced no the but have Clemmons passed that the death of O'. the J. since application case made the before us as personal, firm, real and both of assets the pleading Ap appellants’ the and evidence. of, disposed that long since been have quarrel pellants with have no those cases this -only property court which the the community holding sur or a that survivor plain-* dispose effectively isof the could case viving partner right dispose has the of Dial testi lands. O. in the tiffs’ interest fied that been property pay debts, they do insist that original all firm the debts had right posses neither would have to take any showing kept paid, no books he property of busi sion ness for continue the accounts, ei had no of ther but which, transactions gain private of еxclusion those Brothers, against firm of Dial for or have it distributed. entitled to memory, entirely to his he trusted case, Spencer according In of et al. v. Pet the case record al., S.W.(2d) 1102, by the to tit et affirmed him with reference have failed seems to some Dial, quired Court, S.W.(2d) Supreme 79;8, important Mrs. Gertrude matters. that, wife, upon might of general rule, re death if the held father takes have under the community possession accounting, of all but even she could an remedy long property and carries on had after so the business as it not resort time. The children previously chargeable been with before death are not conducted buying accounting, wife, property, selling her his of other have an since her interest failure because, exchanging original property, theirs, and exe is adverse notes, testimony, cuting accounting according she have without ever his to some wrongfully firm, for their interests from new 'inherited into a entered took into property mother, possesion of old their he becomes trus constructive ; upon appellees burden rests not state tee that no the children firm Dial Bros. The do of community necessary, property, why accounting any other is to trace the into reason only suing property acquired and, the father in busi children are since the real to ness transactions. estate devised The rule is further an their interest them their father’s and duty will and revenues nounced therein that it is the of the affairs community appellees, up royalties we to' realized survivor wind necessity accounting. dispatch, What the estate with for an of reasonable see no regard said, however, liable; renders him without a failure to do so his is here fully right cannot under such circumstances to examine into vendees of L. Dial man minor children the transactions of agement and his defeat the claims of ground they partnership purchasers after dis bona of affairs were fide partnership property of from the solution of the the death trus constructive purpose throwing light apply J. rules in that C. tee. announced case necessity propriety peculiar of the lease force to the instant O. case. dispose any appellees. property any Dial lands to con L. did and sale any justified consequence ing pay nor take action O. L. in dis ceded toward eight partnership posing purpose the estate -until after the debts of real paying- partnership debts, death of O. sur from the Dial. As months then up viving partner, ‘ippellees acquired good title, he trustee to wind partnership within a inquiries affairs of the reasonable become other immaterial. ' expiration a reasonable Austin v. time. After the time, Crawford according Spencer 275, 279, "became, v. to-the is said: Case, trustee a constructive Pettit children’s interest erty. themselves, partner “As between neither partnership prop any power has whatever to act for dissolution. This bind surviving general rule is the other after elemen partner in the name no contract make can tary. regards And, persons, third partnership. exe Neither can he old dissolution all works an absolute revocation or renew old time fact which by Ashworth, after was executed ‍​​​​‌‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​​​‌​‌‌‌​‌‌​​‌‌​​​‌​​‍sued on jury, the court should have submitted to the & firm of S. A. White and, the dissolution finding upon a the absence of is that clearly settled, that Co. to be sue, law seems The this court not to would be authorized partnership', aof one way. after the dissolution of the tions hold either obliga impose partners cannot new join The Mrs. fact that Gertrude Dial vary firm, upon or or the form nothing ined the execution the lease adds already existing. (3 Kent’s character-of those against validity to its as her children. Nei 72.) held, partner It is also that Com. one any ther nor she the children had voice partner cannot, dissolution of after the winding up partnership affairs. firm, ship, a note name endorse prior fi,rm. (Hum pay debt of the even to- Before the lease can be be to held Chastain, phries 247].) Ga. valid, [4s 166 Dec. v. It Am. it must further be shown that its ex may held, regarded necessary winding part is also ecution general authority settled, one up partnership to business, as and the bur dissolution, partner, upon a to settle the busi upon den claim under him establish L.C. Dial and would be who those firm, to does not him authorize ness of the give facts, to these firm, name of for a note in debt, rules understand the announced in the given one the Spencer Case, supra. renew before firm dissolution.” or to v. Pettit To same Moody Roy Butler, effect 63 Tex. is v. Whitaker, v. Ferguson 92 Tex. 48 S. W. & Coal Co. Lubbock Grain L. & S. W. Waterman S. Co. v. Robins it is said: Civ. S. W. 360. general au- in this state “It is settled may upon thority party have dissolution one appellees next The insist this court, of the firm does to settle the business refusing erred in to hold as a matter give him a note name authorize for firm to law that the deed involved this contro pre-existing part- debts firm or renew a conveyance versy is a valid existing” citing nership'debt then numerous appellants, asserted, because, — it was shown Texas cases. partnership that there were numerous debts unpaid, many appellees Bros., a still ’of knew that had not business, renewed; partnership engaged firm, had had been cattle affairs question up using poses. Upon grazing pur- not been wound cuted. when the deed lands in was exe death one C. member It is not denied that L. Dial had extremely right firm, belong even the real doubtful whether the the to sell isit purpose surviving partnership partner ing could execute an oil land; entering paying partnership upon pasture debts all óf the thus was done time, altogether for- within a reasonable but into a different and business authority years ranching. eign If that four is he had raise the issue sonable not a rea to that of belonging time, his lands failure to with to so deal with the act might partnership, him a in tee. renders he taken such time constructive trus dissolved the have They town, gone -livestock, further insist that the moved some debts satisfy livery into stable business with the horses claimed Dial it is sold land dairy pay milk with off were debts of old started a cows. ly Bros., opinion con- new debts but were either the of this firm Dial tracted court anote H.W. Ms father the record in relation thereto. C. certainly He would Dial. and Gertrude is, appellants, The contention on the pay partnership right land to sell have the that the consideration for the lease and the debts, partnership anything so valid inadequate fraud, deed is as to so amount to submit- have been which should was an issue acquired under such instru- jury, this court would ted to the dollars, ments were worth millions several holding either law a matter of erred way and, true, certainly if this is contention deed. reference with materially validity appel- would affect the lees’ title. there, Appellees’ is that contention debts, partnership money pay that the may any no While there not have b.een partnership belonging had be testimony cattle directly excluded which tended to money fed, with which there was show diligent L.O. Dial had not been feed, buy to- have sold executing imposed further the trust him as sacrificing them. surviving partner, have resulted replete cattle would the record is sharply contest contentions jury might Bach these from evidence which the have con ed, court nor trial negligent. and neither this cluded He sold none right pass them. anything has the of the cattle to amount to for several months, might and it is matter of common appellees knowl issues that these insist edge every that there is a market for cattle pertinent suit suit and if this have been day year, surviving partner the same truth L. Dial between O. the heirs ceased such issue fully grazing priv said of legal representatives real estate and de- ileges. justify accounting, He seeks to dis partner but that failure to pose of wholly cattle because he claims as between immaterial testimony upon point His appellees. itch. As hereto- minor purchaser contradicted a disinterested said, witness. fide the issue of bona fore testimony knew not in this case. His further is: been owned land had keep any “I did not books at that time rel of one dissolved death had been which of the any ative making sale that I was I further partners. discloses The record keep any expen did not books relative to partner they had died deceased knew the moneys expended or disbursed ditures — surviving testate; left minor children depended me entirely upon at that I time. occupy no favor- They more therefore him. my memory, so far as the status and condi Spencers in position did the than able Pettit concerned, tion of this loans and business and on the * n * Case. through the banlr. After (J. Dial’s) death, his C. I not did assume full statement not assent doWe cattle, land, assets, control of all duct sets and the con evidence shows uncontroverted that the O. embracing the cattle business the as fact, .of did, proceed dili with due in L. Dial partnership. H. W. Dial and part winding up gence nership up loase, the affairs in A. Dial had Gertrude control that connec of said execution to the' time * * * have'any I tion. refreshing wouldn’t means of any record does sustain my recollection as to cattle what exists same condition such assertion. with reference might I I in 1919. have sold some cows sold prior diligence his use of or steers I remember but don’t whether it was more than four the deed execution of to the years I or remember do not whether Dial. As stated of J. G. the death after spoke cow and steer trade that I here notwithstanding opinion, original re in the Roy was in with Williams 1920 or 1921. contrary peated tion, mo assertions » n * no n 00 n 0f kept cake, expenses I tending to show that is evidence there hired, grass men lease and all the incidental partnership on for business was carried expenses and I am unable tell the Court Dial, years after death J. G. about four jury average and expenses what was the ranch evidence which tends to is other and there year year things. from for those Mrs. H. O. L. show that Some were worse than I winters others and attempted form a new A. Gertrude expenses don’t know what the were.” business, using partnership in ranch per interrogated the new firm the land He the assets a reference to original great firm. This number of sonal transactions evidenced authority clearly notes, mortgages, data, Sev have to do. and other would written exception were evi is claimed h'as re- it paid, all of firm debts had not been and he divesting Having in them title.” re- amongst in included them a debt himself in connection viewed record with the mo- $10,000 original the sum of about for cattle say to-show, tion, we that it not tends ly put salary into the and Ms conclusively shows, interests operating his services in the ranch at the rate safeguarded. properly judg- not been A have years. per period of $75 month for a four rep- in ment was entered which were not eighteenth proposition appellants’ in The by guardian any a ad resented litem or one original brief is the trial court in erred equity recognize a would else whom court allowing testify, L. over the witness G. Dial to proper representative. Appellees as a insist objections timely appellants, that he “clearly that this statement reflects brother, agreement an with his J. C. ability diligence, good if not the faith per draw month for run $75 he integrity, of the mother of and dren.” Also thеse chil- ranch, kept ning his wife house their uncle and their men, and that he had nev and cooked er been art. grandfather, judges, county two district a think, therefor. We under R. S. lawyers. judge, and two statement 3716, testimony was inadmissible. reflecting up- intention of not made with the Co., 565, 98 Tex. Rascoe v. Walker-Smith any ability. honor or It is on one’s sustained 728, Lumpkin Montgomery 729; v. facts, and, any by reflection, they if the facts make such W. 661. Civ. 25 S. just have will to reflect. We facts. This in did not make the court has not It is asserted the motion that “C. L. charged, know, testify kept for movants he as counsel well Dial did not no books or any any parties guilty showing transactions, accounts turpitude, regretted against it moral when is to be either for or firm of Dial Broth- reputable lawyers, attempt memory.” in an to file ers. trusted his That he We motion, quoted literally testimony a must meritorious resort to such have from his charges just says above, keep as we have discussed. As un- we that he did not entirely up- concluded, depended any their interests will not be for as that he books general binding memory. a no decree can be ren- rule on his person party to dered the suit.” a who is not a in- unfair and several Another one of the is in the motion statements contained correct that this holding A further statement of the mi- rule erred page 273, 276, Id., page had, § found on on the terms nor under 126, 1225, 280. In 9 O. J. rule as will, made We a vested remainder. § syllable opin- obtains in suits for and rescis- holding. cancellation There is not sion is also specifically rule in is stated. The Texas held that be so We construed. ion which can. citing 91, 182, in 47 C. § stated there was con- the terms the will under more than further statement of the rule in 972, Texas cases. find a dozen We tingent held that the remainder. further We Jur. power 7 Tex. gave Dial no to dis- Mrs. will Gertrude 54, 55, §§ numerous citations of au- corpus property. pose press age The ex- See, also, 517; L. R. Black thorities. man- control and recital is that she Cancellation, 639, on Rescission & manage §§ property. and con- Power to 657; (4th Pomeroy’s Eq. Ed.) Jur. 114. an executor to sell and trol does not authorize convey. v. In addition case of Blanton As we understand the issues Hutch- original opin- Mayes, ion, county 58 Tex. cited inson ing case and the effect of hold- C. Kennedy just to, rule announced the same authorities referred wife, 109 S. Pearson Dial and his Dial, ties, v. well Mrs. Gertrude Petree, necessary indispensable par- Anderson v. 39 Tex. Wells Stoekdale, judgment is also the rule 62 Tex. 54. This without which the is not void- jurisdictions. Thompson judgment in other Con- able but void. The fact that the Wills, § struction of The office inde- entered was when consent it, represented by pendent sarily implies, any legally executor carries with neces- were not one au- power dispose represent merely empha- sell thorized to them estate, invalidity independent judgment. devised action sizes of such the by court. It is difficult executor who under- evidently say: Movants “This court an is at the stand how time same inadvertently copy judgment did tenant, power express with no life entry actually appears as it from the record. implied dispose property, sell or can entry judgment referred independent executor. copied opinion the court as day court is session follows: 'This court is further contended that we erred parties.’ consent of all the holding that, L. Dial in wife because C. judgment actually appears as it rec joint and Mrs. A. Dial were Gertrude day ord reads as follows: ‘This court in ses deed, in the lease and and the warrantors parties, sion consent -of all the came on partition Mrs. fact that no was made between ” heard, to be etc.’ Reference to the record children, Dial and her the district court of shows that our “is” the word should not be coffnty jurisdic Hutchinson was without quotation, but what difference does invalidity validity or tiоn to decree of the deed either extremely make unless counsel'desire to be lease. hypercritical. judicially This court knows essence,' county In its the Hutchinson suit that the consent was not rendered proceeding equity. C. J. regular term, because must take correctly rule stated as fol- judicial notice of the fixed statute terms lows: holding necessary district courts. The general pleading equity is a “It of rule judgment is that the was inference rendered persons materially all who are interest- agreed term, appear since it does not at subject- of in ed event suit or the the proceeding spe had a term matter, numerous, however should be made during cially called or the extension of parties, plaintiffs either as or as defendants. regular judgment the term. Since was ren everywhere recognized and This rule is it is by consent, necessarily dered and at a term in or stated more similar terms in al- less parties, rights the of held consent of the every subject par- most case the wherein children, the who could consent to the equity in has ties under discussion. been proceeding, way special by in are no affected practice code remains the same. rule the judgment, if their in such a mother’s prin- in The reason for the is found the rule theirs, think terest was adverse to and we ciple public policy in enforced courts of was. equity finally that; should and decree com- say pletely per- this in its all court determine movants the subject-matter opinion pro all of the in held orders and sons have the decided so authority safely ceedings parties obey may of which Mrs. that upon the and act under county multiplicity of Hutchinson case the decree and a suits filed the were.valid subsisting. circuity proceedings proceedings We did and still avoid- say necessary thing. bring What ed. To this end it all hold such we did probate partiеs made of a court the before as otherwise that the orders the court presump appellants scope powers were call- its have filed a motion within the collaterally ing tively valid, not be our attention to some state- and could inadvertent affirmatively attached, and re- the record reference to the record unless ments questing lars, findings particu- unauthorized in been an further some there had showed that particular response jurisdiction and in motion have the to the we exercise probate passed opinion that the corrected our' upon statements and former Wewere of case. face, requested upon not, proceedings show their the matters what has been did authority in Dial to enter said. In all both in Mrs. heretofore motions are other matters a to the consent want again judgment, have but we overruled. record, and we find reviewed the application Rehearing. On Second Motions Por permis she asked in which By permission court, judgment, compromise into a sion to enter she asserts terest of supplemental for re- have filed motion in one-half owns a that she hearing, duly considered, which has been through money to be realized things and is in all overruled. stated, judgment. As heretofore consent given appellants disposed Permission has been interest of all her had we think she before when it rehearing. and, entered, also to judgment file second motion for was ever In this motion it is erred. appeared that we contended surviving holding in not that C. D. Dial as claiming in what a half she was might partner power compromise, oil through to execute a valid obtained gas covering belong- appeared, lands and lease and interest then her adverse ing prior partnership to the death of make her to authorized _ court should not have insisting J. C. and that the trial cоurt reform We therefore the settlement. holding fundamental error in hold- original opinion committed ing to the extent partner, surviving C. D. in of application orders made and law, right power, invalidity had no as a matter of pursuance show thereof particular upon in- execute the oil and lease proceedings face. Since its whole controversy pur- void, upon volved and that the proceedings face are the the thereon ported binding upon lease is not the interest court based judgment district of volved. in- minor lands reason void. further is for say that, we because further Movants agreed formerly belong- It is that the lands on an court should held that trial the Bros, ing devoted jury that neither the instruct other trial ranching purposes are the lands involved judgment deed, lease, was bind nor the in this suit. The which was executed plaintiffs, ing minor then following contains the recitals: reverse and render should either court cause or direct lessor, “That the said and considera- to instruct trial court tion of the sum of ten dollars cash hand another minor for the a verdict trial hereby paid, receipt ed, acknowledg- of which is developed: If the same evidence if agreements covenants reference trial with another evidence hereinafter contained on the lessee to be lease,-deed, same is the paid, kept performed, has record, think we reflected as is now demised, granted, let, leased and jury should instruct the court presents demise, does these lease and let not know whether We do invalid. are lessee, unto said sole not, but, fully developed or case has purpose mining operating oil had, and tes that it showed the records gas, laying pipe lines, building tanks, uncontradicted, timony extent as to the power thereon, stations and structures recovery royalties, land, the children’s produce, products, save and take care of etc.,- to reverse and not hesitate would all that of land certain situated tract but, here, in the condition which render it the to do so. County Hutchinson, Texas, State de- us, authorized we are not reaches record follows, [Here to-wit: follows scribed Spencer case of As held description plain- of land as described in Pettit, supra, D. Dial burden is 11,044 petition, aggregating acres.] tiffs’ claiming him to make full under and those agreed is this “It shall remain lease the of the condition of fair disclosure and estate years of partnership for a term from force five this business while and the long gas, as thereafter as management date and oil or and control. It would under them, produced is or either of from said appear con record that he was a from the by trustee, and, the lessee. land in the matters since structive solely peculiarly quired and with premises about are “In the said consideration knowledge, appellants the had the agrees: in his lessee covenants and right him while he on the wit to lead lessor, “1st. To deliver to credit of the ness stand. pipe lines to which free of cost wells, equal grouhd may one-eighth motion We find no other connect his fully produced which has not heretofore been discuss- of all oil saved from tie and premises. ed, and is overruled. leased one-eighth pay gas of lessor to the The contention of “2nd. To with gas gas is'that, where reference well each the lease for the from even if it had by only marketed, same it, been while is found and made one authorized to execute premises, lessor and is est off the sale of any is used the real estate or of inter any gas such surviving part from free of cost therein in shall have well for sense that lights in the by ner inside is stoves authorized law sell real estate. during dwelling principal surviving partner and, on sаid land right, house That a has the making indeed, duty, connections his own said time it is his to convert the assets expense. firm, including estate, risk and of at his the well real into cash up payment for of debts its af gas produced wind pay from lessor for “3rd. To fairs, has heretofore been premises discussed and is any at and used off well Rowley, settled Law of per year, authorities. Modern for the of-dollars time rate during Partnership, 837, 626, 849, used, § § shall be time equally The rule is well payments settled that the sur months each three be made said viving partner except cannot sell real estate in advance. necessary pay when the debts of the dis land, or on said “If well commenced partnership firm solved or in settlement pro- other spective lands leased the lessee contemplates affairs. The law that all sales day field, or 30th oil on before the the assets of the dissolved firm sur November, on or before the and finished viving partner, as well as other sales made November, 1921, day shall 30th by trustees, shall be made for cash. sur lessee, parties unless the terminate as or or before six months both viving partner law, is, construction of from date shall holding purpose trustee firm assets in trust pay lessor, in the Na- to his credit paying firm debts and set Texas, Amarillo, Bank of Commerce successors, tional up tling winding affairs. $2761.00,which the sum of or its regard- depository bank shall continue Trusts, Perry in 1 It said on ownership land, change of said less 221: operate a rental to cover the shall may protection “In order that one claim privilege aof well for of the commencement purchaser, money fide bona must have In like man- from this date. twelve months actually paid conveyance been and the tak- payments tenders the ner and like en before notice is received of the If trust. further de- commencement of a well money paid, is secured but noticе of periods number for like of same ferred purchaser the trust convert will into a successively. And it is understood months money paid trustee and so if the conveyance but the agreed consideration recit- the first and ed the executed, weight is not of au- payment, herein, covers down thority destroy of purchaser.” that notice the trust will granted said privilege date when protection aforesaid, payable also rental is first especially period This is option extending true with reference to the lessee’s aforesaid, constructive trustees. It contended that con- and all other appellees paid no consideration for the ferred. execution; that, lease at the less there is a ment of time its un well drilled on the above the first “Should necessity pay sell hole, then, dry in that be a described land debts, surviving partner is not event, is not commenced on if a second well lands; authorized to sell firm if he ex- months from the land within twelve money pay debts, needs firm he cannot sell period piration the last rental for which payments, on or for credit deferred even if this lease shall termi- has rental nate payments are the deferred rendered secure parties, as to both unless lessee and certain. must be admitted that expiration of or months said twelve before stipulations lease, according to the above set payment shall resume the of rentals out, In an exploration is an “unless lease.” “unless lease” the manner as amount same tlie the rea! consideration is and de agreed provided, it is hereinbefore upon oil, velopment gas, of the leasehold for payments resumption rent- Davis, other minerals. In Texas Co. v. preceding provided last as above als 304, 306, S. Tex. 254 S. W. payment governing paragraph hereof Supreme Court said: thereof, shall continue and the effect rentals grant plainly purpose “The though inter- there been no force securing gas], [for a test land oil payments. ruption rental successful, which, if ing and was to result the min- owns a less “If said lessor marketing minerals, of valuable land than the entire and un- described above joint profit grantors grantee, therein, simple then fee divided assigns.” heirs or royalties provided herein and rentals shall the; Also: “The vital for consideration only proportion paid lessor the the royalties grant production.” was on mineral to interest bears the whole and un- merely “Testing preliminary fee.” And: was divided production, say agreements end aim and more which was the real accurate to that such tending parties.” of all to cause unfaithful fidu- conduct illegal they are, effect, ciaries are because appellees; will be observed that It agreements wrong persons or defraud the lease, option the of either under the whose interests the fiduciaries have in years drilling the or at time within five charge.” abandoning payment annual rentals or contract, As we construe lease,” the $10 lessee an “unless the lease. Under is neither payment says down ceived pay which C. D. Dial he re drill a well bound to nor Dial, when the lease lessor, was executed rentals, was as could and O. only paid. cash years, consideration ever compel appellees, during The re five mainder of the consideration well, compel was the antici a nor could he them to of their right to drill pay pated royalties to be received the lessees annual in the rentals event Since, decided to drill. the drill, under terms because had a failure to lease, they drill, paid were not bound to lease. time $10 abandon the of the execution of the lease is at the tendency deprive only of the contract sum prospective roy their really a consideration could be ‍​​​​‌‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​​​‌​‌‌‌​‌‌​​‌‌​​​‌​​‍called which aside from pending option appellees alties years, for testing.' development The an fiv.e possibility year per of a per forfeiture of payment acre of 25 cents nual period. the lease at the end of that The 25 for the a consideration held to be cannot be per being paid privilege cents acre lease, for expressed but, lease, it postponing development, part payment consideration, en of which the abled consideration, according express postpone drilling to the from the lessee instrument, not, terms of the primary does in our year year during of five term opinion, anything validity op add lease, years, and, stated in the “shall instrument. privilege [de cover the erate as rental to ferring] for the commencement of well After a careful consideration of the lease day,” from and further twelve months terms, and its we-have it is concluded that herein, states, “the first consideration recited utterly rights void so far as it affects the payment, only privi covers not down plaintiffs, and, of the minor ecuted without because was ex lege granted first date when said rent adequate one consideration aforesaid, payable but also the les al is who conveyed be held a constructive trustee. period extending option afore see’s interest of none the minor any and all other conferred.” said and appellants appellees. Thus Texas Oil specifically purpose states the lease Since Gas, pp. 66, 67, 44, 45; Stephenson & §§ parties pay the annual intent (Tex. App.) 271; Stitz Civ. 235 S. W. Sum $2,761, are not authorized to con we Weiss, ment of Gas, 346, 109, 107; mers & § § Oil any part payment as of the real strue such (Tex. App.) v. Claborn Civ. 219 S. W. instrument. its Under consideration terms, option, 885; (Tex. App.) Ford v. Cochran 223 S. Civ. lesseеs, could, appellees, as 1041; Curry W. 229 W. Texas Co. v. annually per acre, by paying cents Jacobs, S. Robinson v. 113 Tex. development years, postpone for five and then 231, 254 S. W. Caruthers v. Leonard lapse. and let the lease If it refuse to drill should Com. 254 S. 779.W. held that C. L. Dial was construc From the above authorities and a consid- trustee under the rules announced tive lease, eration of the we have concluded Case, Spencer lease as v. Pettit then the surviving partner, O. L. had no au- appellants an minor herein is the nullity. absolute question, thority the lease in to execute tendency or If the effect of such convey any that it is ineffective to interest of instrument, executed under such circum minor involved in the this suit. To the land stances, wrong perpetrate a is to extent, appellants’ second appellants, equity will condemn transac rehearing motion for is sustained. regard tion has been done without what lessee. Appellees’ Supplemental On Second Motion Rehearing. As said 13 O. 348: “Contracts, object tendency appellees or still another mo- have filed rehearing, necessary constitute fraud or is to breach of tion find it to" we ground, duty only trust or breach of one who consider first which it fiduciary relation, finding in a confidential stands are insisted that erred in illegal constituting tending and void cash consideration G. L. the surviv- persons. ing partner, lease, $10, a fraud on third constitute While for the oil agreements that such it is often said are and that real consideration against public policy policy agreement explore develop because it is the was the leasehold fidelity discharge of of their law secure estate. assert persons holding finding contrary duties such this to the uncontradicted positions confidence, tfyat yet evidence, of trust and which shows cash considera- hy $2,751 paid lessee for was tion lease.

*was executed and lessees ing writtеn contract so with reference to thus sum acre here in the for $2,750 fied: leged us the third 750.00 acre. rental for three but that is tion of the This al credit on our note. rental 750.00. at * * ^[*] The “Mr. Durham was 25 n credit the time we of well it end of contract, per 25 n was Maybe It will $2,751, for every an acre as rental each applied shown, He year annum, That an acre that I received on the bank. The year paid the second merely contract, bank — witness. paid for each twelve time it for that lease. That it was it, the consideration lease privilege it is the a-year years, 1919, (the is, seen (the land) first gave they gave according our notes provides. provides They may was original lessee) is, $2,751.00 where no mistake is al prerogative year, opinion. is, from the original consideration, original gave Dial Brothers credit Haynes due.” gave rental was deferring was fact, but at the end of 20 and 21. C. L. Dial months, us credit for it nitely him the lease. and-they gave instead have time The construc year consideration says sold, paid is true of the court is, the sink- cents Brothers paid $2,- the rent- terms payment paid and the I think. and the paid hy n 25 testi- They $2,- an an fundamental error ther the to file briefs. thorized inspect ing upon appellee’s motion to dismiss we de are authorized to affirm the trial appellant. lee. lant to file damental error if fundamental error does have following: day of this term. The rules termined to damental error Courts of Civil HICKMAN, Samuel C. appeal party. inspected court, H. interpreted the record This case has not been briefed S.W.(2d) 811, v. J. Garrett, either benefit on account of the failure of briefs was overruled but should reverse that inspect the'record, A Harris, M. Under C. J. this record and it discloses the motion Appeals, appears Radford Gro. appeared, appellant thereof. appear dismiss the Colorado, determine whether to vest a discretion in by appellee Lovington, M., when thereon. after hplding Supreme appear. Accordingly, judgment Tex., have appellant so inspection, appeal, Co., at a former we are to dismiss Should N. been defi judgment Court in if fun appel- appel could pass fails Tex. fun au for we we ei no The other contentions contained the mo- alleged for rent The action was to be due tion are overruled. contract, under a written the fore- upon personal prop- of a lien closure contract erty, given to rent. The secure the case tried the court without the aid of a before jury, findings and no of fact or conclusions petition up- requested. declares law on an indebtedness for amount within the county jurisdiction court, alleges PELFREY v. JORDAN. personal value of the No. 839. sought to be $566.12. foreclosure was Appeals Court Civil affirmatively petition Texas. Eastland. therefore discloses that jurisdiction trial court had to hear March allegation No essential the cause. determine petition. judgment is omitted from the regular during term rendered by appellant, court, after answer filed less than amount that claimed in for an appears petition. It therefore that no fun- error was committed damental rendi- and, judgment, of this since can con- tion question in other the absence of a sider brief, order that the our of affirmed. trial court be notes executed Dial these ju- in favor of the be resolved must long Gertrude A. C. Dial. after the death of J. probate therefore court. We risdiction partner surviving A cannot sell will, Dial, under the that Mrs. conclude purpose paying assets independent executrix. not an community debts individual day December, partner, 12th theOn deceased at least until all of the ai^ conveying lease, the mineral es paid. Rowley oil firm’s debts Part. legally Dur Thomas lands involved pay tate of Nor can he § 631. sell to il debts executed, ham, “This recites: incurred after dissolution. Cock agreement day Carson, and entered into the 30th made Tex. 429. November, between Since Mrs. Gertrude A. Dial was not Brothers, composed a firm O. L. Dial and appointed independent executrix, Dial, Dial, Dial, be by D. W. II. C. Execu J. C. cause no orders of the tor, court were A. Executrix for and Gertrude obtained, authorizing her ever under as executrix Dial, deceased, of I-Iutehinson of J. estate general laws the lands purports sell con County, Texas.” This instrument veyed, conveyance inoperative the deed lessee, and void Durham, convey oil and her children’s inherit gas scribed, real therein de under in and father, assign authority C. ed from their deceased. R. Durham to

Notes

notes App.) of certain 158 S. Civ. W. 242. executed, had her she divested which she had enough appellees It is not including lands, her her of all interest in the self say right the children’s of action yet by will, under life estate pleadings against money judgment. ment, recovery their mother of the she received under the recovering an in she insists properties including parties, her terest children —and entering judg In into' the consent Unless recover one-half. did peril. They acted at their through the deed she to execute was induced they acquiring property knew in which any part fraud, entitled to she not was interest, and, through the children had an the twenty- $212,500 in! the interest nor instrumentality judgment they disposed judg acre lease which acquired property have who from some one expressly of fraud ment. issue convey it, was not authorized are and, adjudicated, had she executed unless responsible primarily to the children its result fraudulent these representations instruments value. defendants, on judgment $106,200, think which the court We is void she had been ground only children, brought to the further cancel the lease and the executed that it was could have decreed with, twenty gether entire lease acres deed which had been wife, parties land, had C. L. Dial and been even if the minors of the parties had not been made suit. suit. This case was reversed before because all of A the nature of consent parties two instruments only parties contract, and those will bind judgment now under consideration contracting represented capable by who are parties made We held the action. legally one to contract some authorized to cancel a that required action written instrument Judgments, pp. 1399, on Ereeman for them. parties that all in dispose attempting In chil- 2774. made, parties to strument should he land, she exceeded dren’s suit, requirement jurisdic powers given will of her husband. her tional. in addition to the authorities there By manage and was to control its terms she 54; cited, add § 7 Tex. Jur. Eree- support and children’s interest for the Judgments (6th Ed.) 322; man Runck of herself and the children dur- maintenance App.) (Tex. S.W.(2d) Gates Civ. marriage. ing her life or until her She was v. Hood Christian Civ. S.W. to sell as executrix authorized under the (2d) Cox v. Sinclair Gulf Oil Co. independent executrix, was not will. She as life 265 S. W. not sell in- she could tenant claiming remaindermen. Power to is true that C. Dial is not man- terest any. age does not authorize execu- an interest devised to control convey. Mayes, children, Blanton v. and her 58 Mrs. to sell Gertrude tor

evidenced notes mortgages wife; which had been secured upon'the chattel debts of J. O. Dial and his that it was cattle, thereby attempt firm and had further ineffective as the children’s subject many ed to the assets of firm the old and interest because of the notes recited in payment represent incumber assets there as consideration expenses gen- and debts of the new firm. the indebtedness new firm L.O. Dial

such continuance notes The court did err in authority continuing testimony McIntyrе without the in the course of the value of Paul business, he, partnership firm, lease, not the because he was not shown payment.” qualified testify upon issue, liable for their O. J. to be testimony discussed, we excluding Bor the reasons hereinabove did err directing a mar- think verdict Bishop the court erred reference Grover appellees. re- The therefore leasehold mineral ket value contending remanded. versed the cause are land. lease and for the amount sitting. JACKSON, J., inadequate amount as to grossly is so land rep- minors, who were upon the fraud to resented Rehearing. On Motion for transactions. in those HALL, C. J. appel appellees contend suit, rea appellees in not insist that erred maintain cannot lants holding ac as a matter law that the oil has been there son that controversy The gas Bros. counting general -was business lease involved appellants. maintain cannot heirs valid as the minor is that rule accounting, can for an an action original briefs, insist the the representatives the de done

notes cute new ones. implied authority partners in either of the appellees purports claim lease under obliga to bind the new others to contracts or Bros., composed a firm of Dial to be the act tions, binding or to create new cause * n n Dial, by Dial. The D. of lease recites E. and J. C. C. firm. And is true even where This dead. that J. O. firm, consideration is debt prevent from claim alone would although act is one which would otherwise but, ing purchasers, from aside bona fide scope partnership have been within the knew this the shows record business.” lands, leasing a former holding Instead a matter member which one law children, valid They eight months. dead than for more strongly opinion incline to the lawof that there was knew a matter that as a of law is matter ineffec void and Bros. such firm Dial tive, though by O. even it had been executed Tudor, 24 Tex. As White said in surviving partner L. Dial as within a rea : 76 Am. Dec. 126 whether sonable time. But a he acted within evidence, that ‍​​​​‌‌‌​‌​​​​​‌​​​‌‌‌​​​‌​​​​​‌​‌‌‌​‌‌​​‌‌​​​‌​​‍the note “It is clear from is an reasonable issue of

notes introduced almost without that he his canceled statement was eral prove give L. Dial tended C. not remember and did could dence attempted any any conduct the affairs of definite idea with had original reference to the death of brother. firm transactions. cross-examination On he said: after matters, gave my depositions I reference to of these “At With the time in this urged purely appel- from the I contentions are ease did not have the records before me that standpoint, morning. and the motion fair- does not have been exhibited to lees’ me They I case, ex- are records that know of derstand the law of this Mrs. Dial had isting. turned over to them about no I them interest whatever when the Hutchinson years ago county yet filed, set- this other three when suit was she recovered paid by appellees. over Gertrude tlement. Turned them to Mrs. one-half of the amount No attorneys.” charged attorneys one has Dial’s either her or her turpitude with moral in relation thereto. foregoing excerpts from be seen will is, correct, The most can we are keep books; a that he did not made no nent record set of that he there has tive counsel are a been mistake of law as to the rela- entry any perma- book or other parties, appellees’ for which expenses of either his or of the partially responsible. purchases cattle; depend- sales or that he entirely upon his ed recollection and such So far as the consideration for the deed is way canceled notes and checks data concerned, the recital of the consideration as came to him from the various banks with therein 'contained is sufficient to show that jury which he transacted business. entirely the land ment of pay- was not sold might that this which not such have found partnership debts. We dis- degree diligence the volume of busi- fully original opin- cussed this matter ness and the of assets intrusted to amount ion, unnecessary go and deem it further pru- man him of reasonable demanded that into it. ability dence and business Such would have used. finding Whether the firm been tantamount indebtedness would have $150,- finding negligence time of the death of J. C. Dial was and a want of dili- 000, $100,000, less, by ap gence part. course, accept or as is on his if we contended Of pellant, sharply unsupported question is another made in the mo- contested statement jury, should be submitted tion shows” and we “the uncontradicted evidence stating original opinion erred at the time the lease was exe- cuted, many outstanding, unpaid, partnership amounting the to the sum of owed other there debts owing by $100,000 mortgages and unrenewed debts Dial the firm of secured Bros., might negli cattle. there be some merit in sev- Because C. L. Dial was contentions, gent keeping eral the uncontra- a record of these transac any proper thing. books, tions and a to evidence does not show dicted It does set it is difficult many notes, what show them executed tell indebtedness was at the time If, long acquiring Dial. of J. after the death J. 0. O. Dial’s death. Whether charged property lees, therein, appel- these interest could question. sharply consideration, paid, contested as pay, any properly charge sumed to able to the debts not holding attacked the of this firm, clearly then has there testimony strongly “the tends court that show extent, a failure of consideration to that the children’s interest would not be affected the land children’s safeguarded properly has not been rious transactions which sulted the va- thereby. isIt true that L. Dial testified that

Case Details

Case Name: Dial v. Martin

Court Name: Court of Appeals of Texas

Date Published: Jan 21, 1931

Citation: 37 S.W.2d 166

Docket Number: No. 3492.

Court Abbreviation: Tex. App.