Elizabeth Terry Duncan and the State National Bank of El Paso, Independent Executors of the Estate of Ernest Allen Duncan, Deceased v. United States
247 F.2d 845
5th Cir.
1957
Check Treatment

*3 BROWN, RIVES, Before JONES and Judges. Circuit Judge. BROWN, JOHN R. Circuit problem is fol- The here whether the lowing Dun- in the Estate of Dr. items can: through1 principally purchased 16 I. stocks Item & Co. account Hutton 1,783.97 & Co. account Hutton II. Credit balance Item Paso, Bank, ac- National El balance III.

Item State 6,636.33 Duncan count name E. A. property separate in As the nature as the be treated should decedent, terest of the or com erty as decedent or surviving munity, law Texas determines under property of and decedent impact Hopkins tax, determined Federal estate The Commissioner widow. Bacon, In property. U.S. S.Ct. that each Lang Commissioner, refund, L.Ed. § 28 U.S.C.A. suit Estate’s jury Court, 82 L.Ed. (1), U.S. 58 S.Ct. without 1346(a) rages conclusions, up- controversy findings im around and on formal sep- considerable memorial statutes2 and contention Government’s held the property. arate 2. The statutory reciprocal, asserts, definitions are Estate (26) e., during (20), (16), which is received cover- found, i. that subitems purchases qualifies is unless ture as (29) “Over-the-Counter” were separate property. through This account. Hutton & Co. not Tex.Ann.Oiv.Stat., rec Art. apparently as detailed Vernon’s inaccurate (29) Community Property: Keystone (26) All “Sec. 1. show ords purchased property acquired by either the husband except Industries Selected (not during marriage, or wife on March Hutton indicates) property either, printed which record as respectively. $1869.58, be deemed the common shall $3400 wife; the husband and all price on October-Novem ef- possess shown, value at fects the husband and death wife ber marriage may (16) American Re at tlxe time the be dissolved for subitems fixed Loomis-Sayles regarded (20) shall common effects or $4850 at search gains, contrary (25) Hugoton Prod unless Subitem be satisfac- $9793. at proved torily dividend not a stock ucts through Tex.Ann.Civ.Stat., Art. Vernon’s see infra. body which, though, of Texas law without without contradiction and estab- doubt, puts fact, on lished in- favors the as an absolute 194.8, asserting during years (1947, one a contention of come the three heavy 1949) three-year bur- in husband wife this short only, $16,- den. available3 investment was that, 737.19. The result would be showing simply showing purpose made. case was The Estate’s neither nor forthrightness, gifts

And, in- with a candid circumstances from which separate property record does sists that to the com- extent husband’s not, munity inferred, applica- cannot, indicate the facts as *4 or could origin money produced only presumption turns of the tion by III, presumption I, purse, II Items and the sow’s ear a silk into gold by operates wizardry, even make all to fills it with alchemist’s prop- by property: acquired riage, “All afterward Husband’s and per- husband, erty devise, descent, gift, and in- both real of the as also the or by acquired, sonal, before him claimed shall owned or thus crease of all lands acquired marriage, property afterwards wife and that of the be the descent, devise, by gift, as also the If $ # # acquired, shall all lands thus increase of * * * They property. were married October Dur- be his 1948, 1949) (1947, years ing marriage full For the shall have the the husband disposi- control, management, total net income the including capital gains sole (or losses) in the separate property, both real tion of his by prior to personal.” held the husband stocks marriage, tributions, Tex.Ann.Oiv.Stat., for con- of deductions the total Vernon’s Art. taxes, separate property: income state federal “All

Wife’s spending personal, erty wife, net available for and the real both investment was follows: mar- owned or claimed her before item $5,221.62 $6,968.02 $7,177.80

Net Income Less: Contributions, Federal, State and 1,200.29 1,084.30 943.76 Taxes Net income available $4,137.32 $6,024.26 $5,977.51 spending-investment for year disregard- maximum total available The was: For the short altogether gains ing 1946 1947 598.10 $ from the sale 4,137.32 6,024.26 property, premarriage the net income professional dividends, interest, in- deducting 5,977.51 $3,588.62. After come contributions, federal income state and actually paid totaling $2,394.88, taxes only $1,193.74 sumptions pre- all of the was available. This assumes that income spending permit nor re- was used would neither available cumulate Items to ac- holding I, quire all was earned in II III since the during' marriage. living expenses and household months amount last two ($598.- disbursed the wife funds estimate drawn The Government’s 10) though % conservative, purpose al- of the State National Bank for this out IH) on, apportionment, (Item were not established in later we ($1,193.74). amount. whole include making marriage of all presumed belong the maximum $81,688.84. community, turn into4 “proving the burden of separate property it is the of either is on situation, course, does call * * * party asserting it. in order application presumption the initial property during show that I, at least insofar as the in Item stocks separate property is the wholly II balance Item is due spouses, one of the the fund with which partly payments made such acquired must be (Item III). bank account Dr. Duncan clearly shown to been have accounts, had several is un- bank but it person *,” of such Mor disputed that the III account was Item Hastings, ris 70 Tex. 7 S.W. deposit professional used for the of all 649, 651. McQueen, Harkness v. earnings Tex. personal income and re- Civ.App., 629, 633; Robb v. ceived separate him from his of or whether Robb, Tex.Civ.App., 92, 95; 41 S.W. Edel community. estate or the It Brown, stein equally expenditures for admitted that 1126, 1130, affirmed 100 living Tex. expense and household *5 129; Ervin, Ervin v. 60 Tex.Civ. periodic out of this checks App. 537, 1139, 128 S.W. deposited writ error drawn Dun- on it and to Mrs. dismissed; Thomas, checking Thomas v. Tex.Civ. can’s account in another bank. App., 210, 212, 277 S.W. And, great importance writ of here, error all de- dismissed; Finley Pafford, v. posits Tex.Civ. of cash in Hutton account were App., 163, 164, 104 S.W.2d writ error made drawn on this checks dismissed; Vincent, Hardee v. 136 Tex. Item III. 1073; 1072, 147 99] S.W.2d Lindemood v. While this does indeed raise a sub- Evans, Tex.Civ.App., 166 S.W.2d burden, law, stantial the Texas word refused; writ error Walker- recognizes action, presump- that the Coker, Smith Co. v. Tex.Civ.App., 176 be, here, can tion and is overcome. 1002, 1007, S.W.2d refused, error want emphatic, Texas law is for merit; Gibson, Gibson v. Tex.Civ.App., presumption property pur “The that 289. during chased is communi ty property very cogent, only mixing is and can The act of or com mingling repelled by proof separate be clear and conclusive prop erty may money it that was with the individual or have upon substantial effect property resulting partners. property. For, of one of the Where “It is a well * * * property preserved has not been in established rule that where ** * kind, specie or in permits has un the husband or wife her or dergone changes, separate property mutations and in is it to become so com- dispensable, mingled to maintain property its that character, clearly identified, it be and indis it cannot be putably identified,” Chapman commingled erty traced and so becomes * * Allen, equal *,” v. 15 Tex. Taylor With v. Suloch Oil emphasis, property acquired during Co., Tex.Civ.App., S.W.2d required Actually outlay accepted, cash would following tlie Commissioner undisputed community property: bo more for the record shows reported, the Estate Return and the Checking account, El Paso National Bank in the names of Dr. E, 4,828.19 or Mrs. A. Duncan $ Checking account, Southwest National Bank in of Mr. names 4,007.35 or Mrs. E. A. Duncan Shari) 100 shares 2,500.00 Dohme 7,275.00

300 shares Gleaner Harvester Corn. character; yet retain its dismissed, judgment cor- of error writ * * * but, separate property where Brown, rect; v. Edelstein changes, undergone has mutations of com- particularly true supra. This is * ** “Generally in since, order hold it as spouse] mingled accounts bank able to [the estate must then be ac- bank law that a speaking, it is changed identify con trace in its consisting separate and com- count munity dition, and, if commingled it is not all shown to be man- in such wife, separate property, distinguished her order can be ner neither protect regarded from her husband’s creditors aas must be from the other community sepa prove be how Buss, must able much account,” v. Smith * *,” Phillips rate and much how 566, 144 Tex. S.W.2d Coker, supra; Walker-Smith v. Co. Vitemb, Cir., Where 235 F.2d 11. v. Schwethelm, changes Schwethelm through v. Tex.Civ. goes 911; Finley Pafford, App., v. S.W.2d exchanged used in and thus sold supra. proof property, the acquisition of other origin “clear and funds must Phillips Vitemb, Cir., And v. Robertson, conclusive,” 7 Tex. Love v. Where, principles. F.2d reflects these “ * * * case in which for it Phillips Vitemb, supra, as in there was necessary means to trace the it was showing no of a maximum * changes, mutations and beyond which, fact, fund no communi- ‘clearly and have been done this should ty exist, deposits estate could the acts of Allen, indisputably’ (Chapman Tex. partial withdrawals were treated as *6 278, 283). should means invested The commingling a and the withdrawals as separate traced back to the have been presumptively community. But it was estate, indefinite channels not pre- not there held or stated that connectedly changes, but unknown and sumptive character of with- Garey, 49 Tex. plainly,” v. Schmeltz drawals would continue when on satis- supplied.) 49, (Emphasis 61. factory proof, posi- it was demonstrated tively absolutely that there was no com- strong, presumption, The while munity funds, proceeds, or or income subject yet disputable one and a presumptive from which the so-called adequate being proof is made. if rebutted community interest come. could recognized in reverse fashion for This “ * * satisfactory And that proof what was done here in unless there ways. First, several separate how income tax re- much much as to how community decedent, years pur turns of dur- used in the were * * * ing marriage, wife, well, his it cannot be showed of a stock chase * ** earnings receipts. their all of [there is] determined analysis which And in we make all them whatever separate interest * * belonging Bailey, 553, treated as of this is community. *,” to the v. Tex. Smith this, though 628; Vincent, And even 627, Hardee v. 554, 1 S.W. 1072, part 99, of was demonstrated on 1074. the face 147 S.W.2d Tex. papers principles present and other of the returns gains to be “Applying these proceeds from plaintiffs sale of his below should case, think we stocks, greater certainty, premarital shown, and there nowas de- how with have n living admittedly original expenses proceeds her duction much this fund and out of account and in the used stock goods presumptively have which are dis- should further She on. levied Barrington Barrington, clearly v. how much of these bursements. shown more 297; Coggin Tex.Civ.App., separate property, v. her proceeds were 47, community Coggin, 204 S.W.2d profits, or were 'much how Moore, husband,” Tex.Civ.App., 192 Epperson Moore of herself estate * 929, There was thus no “The other “pre- 2d Jones, 65 Tex. undergo changes from which whatever source property-may $43,421.62 could contributions sumed” his mother’s The estate. pos- (note The total of could decedent’s income come. sibly these tax returns supra) $16,737.19, exceeded have 1948 show sales of acquired supra. $18,519.56 stock awith cost basis of years in the 1919 to 1937 which establishing proof And with anot of Dr. positive certainty maximum commu- Duncan and his And first wife. in the funds, equally nity overwhelm- there was year marriage, the second stock nothing ing leaving proof surmise produced gain capital had $11,- sales speculation had sub- husband $130,000 725.06. These alone exceeded been, had means stantial highly liquid assets of a were, stock these and had to be used squandered character. That was not acquisitions. dissipated during marriage the second starting Estate, example, with is established the Estate return which ($135.49) in credit the last balance showed the value of stocks and trading (cash, Co. Hutton & $58,513.86 plus bonds at those here in margin) just prior to none on question $73,290.54,plus at the bank ac- urge must be considered seems to that it (note 4, counts and two other stocks starting then But as ignores and there. supra) $18,610.54 $150,- for a total proof to con- the absolute 414.94. exceedingly trary. ac- was an active It trading year done each in this bought, sold in which Dr. Duncan count stock account was likewise demonstrated selling many securities, traded and many to have far exceeded the limited maxi- he inherited or earlier had $4,137.32, mum $6,024.26, $5,977.51 means of taking purchased, re- down the cash or years 1947, for the investing proceeds in other stocks. (note 3, supra). In this marriage, year example, in of his For period a total de- cash beginning the credit balance posits made to the Hutton account. January had on he *7 period bought And for the same stocks August 30, 1946, (when by the balance totaled while those sold total- (many $135.49) sold traced was specifically stocks $93,280.38. And, impres- ed more even estate of first from his the sive, positively sales of the stock shown proceeds wife) producing to sufficient prior to have been owned the to second by pay $35,000 and him check marriage, proceeds the of which were nearly $21,054.61. The ex- worth stock in withdrawn cash or reinvested in the trading admittedly sepa- tent directly stock traced to those now claim- period properties for this totaled rate community, $79,- ed as alone totaled over $52,127.79. 490.42. From was this the of all. estate Nor 12, (who September died first wife posi When facts demonstrate 1945) tively conclusively absolute owner of he became the that on the as $57,980.92. liquor properties every at sumption valued that cent of 1944, had September he inherited invested, of In was was a funds it fraction Only ($35,- community property, by of cash the one withdrawal as found the Dis- 1946, 000), Court, was ever March made. totaled $683.82. trict These were deposits Except commingled of cash the ac- in the account but were in- proceeds supplement of sales to count cluded the maximum for each of the stocks, purchase only supra. years, new to the which three any significance accounting items of Income other detail and tax returns also estab- February $5,- positively acquired 1949 transfer of were: lished that no stocks account”; 28, 1946, to decedent’s “short 557.77 the after October date of the “put-calls” April marriage, transfer to were sold in second 30, 1949, $356.25; During and November trans- or 1948. some of such (cost $16,904.87) or from “short account” $739.89. to fer basis stocks sold stock, admittedly $2,084.23. received on Dividends a at of loss general acquired, Cir., pur- property thus F.2d whose of the cost of the pose longer protect community especial- is to presumption has basis the no the ly where, indeed, flying passage of fact, years, in the face after titles might imperiled by difficulty facts, far dif- of ob- This it is overcome. taining proof equivocal situations nature from the uncertain ferent concerning it mar- fiscal circumstance business affairs mere where the riage long wife, im- wealthy an husband or husband and general Consequently, de- after the event. pecunious wife followed marriage community prop- clining maximum has been that extent fortune after erty form, purchase, insufficient, over- was available for or the to in that held question, presumption. accumulation of Schmeltz come the e., Rippy, character, Garey, 49; Rippy Tex. will take on i. commu- 49 Tex. nity, of error unless with the Civ.App., writ it can be shown 49 S.W.2d Tex.Civ.App., positiveness refused; Hilger, indicated that it was the York v. naught here, spouse left means was of a which 1117. For very penny of used. speculation. last If the is account- possible all being woefully short applied, ed for and falls find When we do not this pay sufficient evidence this with which demonstrates has been certainty husband kind in same Texas law. demanded under extensively trading prior may of this be illustrated effect actually the sub- used deposits and which is of cash several transactions price purchase February stantial In in the account. Hutton presump- newly acquired property, 1947, deposit National from the State showing, tion, absolute of that in the face On Bank account was made $500. demonstrated pre- When it is principles, must fall. familiar sumably community. $500 (apart con- possibly it could of that went Part gifts) from the come temporaneous have a stock which into the hand, community and, other on the separate, but Estate as treated ample separate equally established This least remained. $234.32 at $234.32 specifically em- ($3584.68) available and purchase price means were went into the requirement, much” ployed, (subitem “how I Item stock for the first Coker, Co.v. Walker-Smith Express. 15) As Adams for 200 shares of 1008, supra, been has stock, minimum to this *8 adequately met. ownership be would 234/3584. conclu- this not think that we do But purchase graphic is the October More the supports action which full the sion (17), Groups 21, 1947, of Se- subitem holding in effect took District $5,000.38. curity stock for Investment presumed to be not be all could that since purchase, the credit bal- Just this before be considered to all must be trading premar- in decedent’s from ance might e., separate. This opposite the —i. riage (and stocks the ordinary an presumption the follow were cash) $1,449.- deposit was of $500 one merely controlling proce- which, one commingled deposit the bank 91. A presumption is aspects, once the dural $5,000. for It was made was way, account stands as matter the the out of balance was what the bank shown never the burden though with never existed one any other of asserting time the to at the fact estab- party on the (Item except of death at the time significance time has a trans- this But it. lish supra). But $6,636.33, without more cending a of III is itself rule this facts, impossible it as Commissioner, positive Cir., erty, McFaddin substantially deposit stocks States, or the this v. United Howard to F.2d it, say approximately neither the actual credit with balance to community.6 $17,714.46 any part purchase it nor of to sub- it was which was (24) $6,221.09. item General for Motors Again, a of zero credit balance any At least to the of remain- extent January 1, 1948, as of which continued ing community balance of “unused” purchases down the time the first to of (maximum $5,977.51, funds pra), su- note May part of sub- made for demonstrating way there is no of (22) (15) Express items Adams go community that such funds did not totaling General American Investors give any- it, into partially that stock to $8,105.59, deposit contemporaneous a way, character. $8,106.94 for was made. At least year’s extent of that maximum communi- inAs these it illustrations ty impossible ($6,024.26, 3, supra), the note presumptive to tell deposit commingled community deposits from the used, par were not tially unless, least, was payment be done cannot at gyrations purchase price without the detail as of specific stocks, to of token, that bank impossible that, character same it is state to specific parts of all or of es- that was to the maximum of extent extent, Consequently, funds, they tablished. go to that ratably did not into the least, impossible say purchase at to that these of all of For these stocks. by presumably example, stocks ty communi- in the illustrative transaction community. above, funds were not of 1948 deposit $8,106.94 of was Subsequently, made. deposits four more 1949, apparently In because the credit totaling $11,617.26 ag were made monthly balance on several of Hutton’s gregate deposits $19,722.85 conflicting statements showed balances figures, impos all Since we have is (e.g., it is $4,739.06; $12,456.- sible to determine to what extent $3,969.95; $11,714.46 $3,969.- 87 and 95), maximum funds for 1948 deposit $5,000 was made March ($6,024.26, 3, supra) were used 1949. There an actual credit purchase one these stocks. $12,813.12 produced balance then of al- might All have been exhausted on wholly February most the sale purchase, might ratably ap first plied or all specific premarriage stocks. throughout year. As this deposit, With the the total credit balance demonstrated, neither is nor can now be was then which was used in presumption it does not overcome the April March and subitems which that, law (26) Keystone, affords to (29) Industries, Selected extent, propor full all (30) Television Fund at a tionately community property. $7,241.58. total cost Since there is except figures, no evidence these posi- We need not determine what impossible say presumptive be, tion would whether it would be community deposit $5,000 was not affected ing claim- circumstance one *9 purchase used in community the of these stocks at rather than claim- one proportionate ing least to the separate property, versa, extent or vice were deposit (5000/17813 $7,241.58) community of if not made to fix full the effort ownership deposit to the (5000/- specific full extent pieces of 7241). deposit next up point The in 1949 was where the maximum com- August $6,000 2, for munity which then made funds exhausted for were Assuming community possibility available, 6. all of 1947 funds were then one be: would $4,137.32 1947 maximum presumed Less used on first 234.32 deposit 21,

Available for Oct. 1947 Community fraction would be: $5000.38 of 3903/5000 854 missed; par- Vaughan, years. The Norris v. 152 Tex. one or all of the three 491, Dakan, comprehen- 676; 260 S.W.2d v. the Dakan ties here made battle on see, I, 305, 620; II 125 items Tex. 83 of these S.W.2d sive claim that all separate. Community Property Texas Law of and III were by Law, Huie, Estate’s W. O. Uni- They Professor of all related since were versity 13, Law, Item of theory Texas of Vol. was that the bank School seq., III, Tex., p. character Vernon’s Civ.Stat. VII et mark the was essential to 8,3, stock apportionment for is deposits §§ between an of the cash used determining I) ownership the two purchased, (Item estates actual II). (Item remaining ratio that funds from each source credit balance used, Bongio, Gleich Tex. v. proper approach, it With Tex., 881; Tian, S.W.2d Broussard v. then for us determine 405; Hartman, 295 S.W.2d Hartman v. com by applying maximum interest 480; Tex.Civ.App., v. Moor S.W.2d munity three of these whole means to the Moor, 24 Tex.Civ.App. 255 S.W. will proportionate interest items. The 231, where the maximum contribution maximum,7 then be the ratio established, positively equitable is thus cost $17,332.83, to the sum bears principles recognized, will v. Dakan II plus I Items of stocks in Item Dakan, supra, prevent a forfeiture III. separate estate, Hart- v. Hartman - be, is, en- must as it This treatment supra; man, supra; Farrow, v. Farrow ap- tirely Texas consistent Barrington Tex.Civ.App., Barrington, v. concept proach. whether the For 290 S.W.2d 297. by for of reimbursement9 way pay for assets This no im separate property is in used to result community, by peded, by Estate, or are deemed as claimed which become 112, 11 prior proceeding. Huppman, 73 Tex. need state' court We Schmidt v. Kallison, 175; not, Tex.Civ. v. Blumer under cases the Govern cited10 S.W. Sibley, Sibley 898; ment, sufficiency v.

App., an as determine its S.W.2d adversary significance suit, writ Tex.Civ.App., of such 286 S.W.2d or the Hartman, dismissed; generally v. matters. Hartman suits on Federal tax error 480; brought Farrow Tex.Civ.App., it was construe the will 253 S.W.2d For 255; Farrow, de to determine whether Dr. Duncan’s v. Tex.Civ.App., 198 Hudspeth, Hudspeth widow vise of an absolute fee title to his * * “* * * * refused, may N.R. properties of error writ S.W.2d Tex.Civ.App., 204 E.; Coggin Coggin, joint names, stand in our or be vested Thomas, joint jointly, Tex.Civ. Thomas v. in us * whether tenants S.W.2d * * dis- of error writ or as in common App., tenants 277 S.W. Appeals’ 9. yearning, figure the total of Civil This plus supra, Moor, Tex.Civ.App. 150, Moor v. simplicity ($1,193.74) net income law all gone 1946 as whole seems to have unheeded: “Our sources all governing though rather all it were law complicated enough apportionment is, $598.10 on a as it than the ingraft upon principle as used the Com- and to basis two-months’ $16,737.- made the total contended [reimbursement] here missioner appellant bring would about untold com- plications, the effect of which cannot be community funds *10 of all whole Since the 8. foreseen.” process, by this subitems is exhausted Saulsbury (20) States, Cir., (1C) Loom- 10. United Research and v. American 5 though is-Sayles included certiorari be even 199 F.2d denied will 345 U.S. 1342; Loggie the Hutton ac S.Ct. 97 L.Ed. not (25) Hugoton, Thomas, Cir., 636; 152 F.2d But Wolf subitem v. count. dividend, pointed Smyth, Cir., out reasons 223 F.2d sen New stock separate clearly Commissioner, Cir., infra, is and man v. F.2d altogether. excluded should be Court, community property. The included between the total of interest decedent’s nothing declaring, in community so that and property, decided and on hand, surviving particular else. assets involv- the one Whether and widow’s the (including III) I, ed separate II were Items and one-half interest in the the community was not decided. Estate on or the trial had no benefit inventory sure, copies presumptions and To be of the of the kind which exhibits, appraisal statements, determining ownership. formal assistance in availability did gories. the two cate- Whether community list whole of the significance no payment had But this showing properties what other than debts under Tex.Rev. Art. Vernon’s Civ.Stat., brought would considered Executors and Trustees in for estates both surviving pass ab- widow either to the some character administra- of beneficial solutely, surviving for life with or to trust tion her so that the widow’s share depending upon part the of the remainder over should bear a seek charges, made, did not the will. It construction of these on record as particular implied asset to determine whether rested in and fact on facts inventory findings or clearly in the should be as listed not shown have been otherwise, kind erroneous, and no evidence rule 52 Civ.Proc. Fed.Rules com- (a), to show here was offered involved 28 U.S.C.A. acquisition payment plete partial ap- judgment The result is that the cost either pealed re- cause from is and the modified means. for recom- manded to the putation Court District owing Hugoton consistent (25) of the refunds subitem As to principles expressed. here clearly with the Co., be is stock this Product pro rata excluded from estate, Reversed and remanded. 8, supra. was a It stock Rehearing On Petition during mar second dividend received riage previously Divi held. stock on course, community, are, dends PER CURIAM. normally name is that in stock dividend Rehearing The Petition denied. rearrangement only. a mere It is sup- in view of the statement But bookkeeping structure corporate formal brief,1 porting we think it advisable to ownership, equity increase with no emphasizing doubt eliminate Accounting Financial Hills, State community-separate proportionate es- In circum (1957), 4.3. such ments § ownership in each of the subitems tate owner stances, if the stock isit I, comprising and III Items II has been springs separate. ship which it out opinion (see especially our notes fixed Cir., Weiss, 131 F.2d 631. Scofield text). and related On and 8 remand ascertaining only open Finally, question matter left on computing apportionment amount of refund now as an deduction small attorney’s pro in view of this limited modification due fees for executor’s judgment appealed from. as of proceedings related matters bate bought holding “Thus, such for from accounts Judge pro rata on remand should the District make an effort property, the bank ac conflict Texas to allocate direct says brokerage count, the stocks law which this shaE done.”