261 S.W.2d 867 | Tex. App. | 1953
Lead Opinion
The sole question to be determined in this cause is whether the statutory commission of the County Judge is due on certain money received by appellant as guardian. The money constituted the ward’s share of periodical distributions from the liquidation of a trust.
In 1924 Luke F. Wilson and his wife executed and delivered to Luke W. McCrory, Trustee, an instrument conveying the legal title to various real properties situated in different- counties in this state, which instrument is of record in the deed records of Archer County. The trustee was directed to manage, control, and ultimately dispose of all the trust properties, convert the same into cash, and annually distribute such cash to the beneficiaries named therein, one of whom, Margaret M. Corley, was the' mother of appellant’s ward, Edward McCrory Corley. Mrs. Corley was entitled to l/24th of the funds. The mother subsequently died, and the ward was and is her only issue and heir, and was and is invested with all her right and interest under the trust. It was stipulated that on the execution and delivery of the trust instrument the corpus of the trust estate was legally and equitably converted into personalty, the trustee retaining the legal title, and the equitable title vesting in the beneficiaries; the beneficiaries having no right to any of the corpus, but each was entitled only to a distributive share of the funds upon liquidation, and such is now the beneficiaries’ only right.
Appellant was, on and before December 30, 1935, and now is, the resident guardian of the ward under appointment of the County Court of Coles County, Illinois, and on that date she was appointed nonresident guardian by the County Court of Wichita County, Texas, and qualified as such on January 8, 1936, since which time she has’ been nonresident guardian of such ward.
Before the filing of this suit, appellant had paid to appellee Wichita County, Texas, as fees of the County Judge of Wichita County, the sum of $1,398.44, which was-one-half of one per cent of the funds paid to her by the trustee as the distributive share of her ward to February 10, 1951, and for the period from February 10, 1951, to the filing of this suit, one-half of one per cent of the money paid to her by the trustee is the sum of $572.52, which has not been paid to appellee.
It was further stipulated that there have never been any properties belonging to the estate of the ward situate in the state of’ Texas, within the jurisdiction of the County Court of Wichita County, other than the claim or right to share in the periodical distributions made by the trustee, and there has never 'been any property in the hands of
Appellant prayed for judgment for $1,398.44, which had been paid as the County Judge’s commissions, and a determination by the court that she did not owe the $572.52 representing one-half of one per cent of the distributions since February 10, 1951, and for a determination that no commissions will accrue from any such future distributions. Appellee prayed for judgment for said sum of $572.52 and that appellant take nothing by her suit. All relief sought by appellant was denied, and judgment was rendered for appellee for $572.52, and appellant perfected this appeal.
Article 3926, R.C.S., Vernon’s Ann.Civ. St., provides for a commission to the County Judge of one-half of one per cent of the “actual cash receipts” of executors, administrators, and guardians, upon the approval of the exhibits and the final settlement of the account of such executor, administrator, or guardian. The question therefore is: Are such distributions by the trustee to appellant “actual cash receipts” of the guardian in the meaning of said article ?
We have reached the conclusion that the question must be answered in the negative. The provisions of the statutes relating to commissions paid to executors, administrators, and guardians may be considered as indicative of the legislative intent expressed in Article 3926. In Willis v. Harvey, Tex.Civ.App., 26 S.W.2d 288, 289, writ refused, a County Judge claimed a commission on the amount of cash which was on deposit in a bank to the credit of the testatrix at the time of her death. In denying recovery, the court said: “It is thought the term ‘actual cash receipts’ should be held to specifically describe money received by the executor other than' the cash or corpus of the estate which was. on hand when the testator died, because the words used point to and imply that meaning. And, too, another section of the. statute, bearing upon the same subject-matter of compensation, makes it evident' that such was the meaning that the Legislature intended should be put upon the term used in the presently considered article. * * * By such sections (article 3689 and 3690) executors and administrators are. allowed commission on ‘all sums they may, actually receive in cash’ but which shall not, include ‘any cash which was on hand at the, time o,f the death of the testator or in-⅜ testate.’ Also by article 4310; .R.S., commissions are expressly denied to the guard- , ian on ‘Estate * * * first delivered.’ The express shutting out of a commission to executors and administrators on ‘cash * * * on hand at the * * * death, o.f the testator or intestate’ and to guard--1 ians ‘on the estate first delivered’ is to be; taken as an expression of legislative intent of the scope and purpose of article 3926.”
The “estate first delivered” to appellant. was the distribution made to her by the. trustee. The real property of the trustor was never delivered to her. Her only right was to receive for her ward,l/24th of what- ’ ever amount the trustee converted into cash. As guardian, she could not have claimed a commission on the estate first delivered.
We believe that the expression “actual cash receipts” has a more restricted meaning than “cash actually received.” In the first expression, “actual cash” describes “receipts,” while in the second, “actually received” describes “cash.” Cash may be capital, or the corpus of an estate, while the word “receipts” is synonymous with “income,” “issue,” “product,” “yield,” “returns,” and “proceeds.” Gibbs v. Barkley, Tex.Com.App., 242 S.W. 462; Ladd v. Upham, Tex.Civ.App., 58 S.W.2d 1037; Dittemore v. Cable Milling Co., 16 Idaho
But if it could be said that the' ward’s estate “first delivered” to appellant consisted of ownership in the properties conveyed by the trustor to the trustee, rather than in the share distributed to her by the trustee, the funds distributed would nevertheless' be the corpus of the ward’s estate. It would be the same estate in a different form, and would be only once received. Gilbert v. Hines, Director of U. S. Veterans’ Bureau, Tex.Civ.App., 32 S.W.2d 876; 21 Tex.Jur., p. 352, sec. 95.
Nor is appellee helped by the provision of Article 3926 to the effect that the County Judge’s commission accrues “upon the approval of the exhibits and the final settlement of the account of such executor, administrator or guardian” In Lyles v. Oheim, Tex.Civ.App., 142 S.W.2d 959, 963, it is said: “If the Legislature had intended that the commission in controversy was to compensate the county judge for the approval of the exhibits, it would have said so, as it did in subsequent sections of the same article. We -think the expression used by the article, * .* * upon the approval of the exhibits’, etc., denotes the time when the commission can be demanded; that is, the item may be demanded and collected when the exhibits are approved.” Compensation is allowed the County Judge for approving exhibits, approving bonds, and making other orders, but this compensation is no part of, but is distinct from, the commission of one-half of one per cent of the “actual cash receipts” of executors, administrators, or guardians.
We hold that the money paid to appellant by the trustee did not constitute “actual cash receipts” of the guardian in the meaning of Article 3926, and that in this case no commissions accrued as fees of' the County-Judge. The judgment of the trial court is therefore reversed and judgment is here rendered that appellee' take nothing by its prayer for- $572.52, and that appellant recover from appellee the sum of $1,398.44, being the amount heretofore paid on account of the claim for commissions of the County Judge.'
Lead Opinion
The sole question to be determined in this cause is whether the statutory commission of the County Judge is due on certain money received by appellant as guardian. The money constituted the ward's share of periodical distributions from the liquidation of a trust.
In 1924 Luke F. Wilson and his wife executed and delivered to Luke W. McCrory, Trustee, an instrument conveying the legal title to various real properties situated in different counties in this state, which instrument is of record in the deed records of Archer County. The trustee was directed to manage, control, and ultimately dispose of all the trust properties, convert the same into cash, and annually distribute such cash to the beneficiaries named therein, one of whom, Margaret M. Corley, was the mother of appellant's ward, Edward McCrory Corley. Mrs. Corley was entitled to 1/24th of the funds. The mother subsequently died, and the ward was and is her only issue and heir, and was and is invested with all her right and interest under the trust. It was stipulated that on the execution and delivery of the trust instrument the corpus of the trust estate was legally and equitably converted into personalty, the trustee retaining the legal title, and the equitable title vesting in the beneficiaries; the beneficiaries having no right to any of the corpus, but each was entitled only to a distributive share of the funds upon liquidation, and such is now the beneficiaries' only right.
Appellant was, on and before December 30, 1935, and now is, the resident guardian of the ward under appointment of the County Court of Coles County, Illinois, and on that date she was appointed nonresident guardian by the County Court of Wichita County, Texas, and qualified as such on January 8, 1936, since which time she has been nonresident guardian of such ward.
Before the filing of this suit, appellant had paid to appellee Wichita County, Texas, as fees of the County Judge of Wichita County, the sum of $1,398.44, which was one-half of one per cent of the funds paid to her by the trustee as the distributive share of her ward to February 10, 1951, and for the period from February 10, 1951, to the filing of this suit, one-half of one per cent of the money paid to her by the trustee is the sum of $572.52, which has not been paid to appellee.
It was further stipulated that there have never been any properties belonging to the estate of the ward situate in the state of Texas, within the jurisdiction of the County Court of Wichita County, other than the claim or right to share in the periodical distributions made by the trustee, and there has never been any property in the hands of *869 the guardian in this state except at the times of such distributions, and such funds were immediately removed to Coles County, Illinois, the domiciliary jurisdiction of the guardianship; and that there has been no occasion for the County Judge of Wichita County to exercise any jurisdiction in the guardianship matter except with regard to the removal of such funds to Coles County, Illinois, approval of the bonds thereon, and approval of the guardian's annual accounts.
Appellant prayed for judgment for $1,398.44, which had been paid as the County Judge's commissions, and a determination by the court that she did not owe the $575.52 representing one-half of one per cent of the distributions since February 10, 1951, and for a determination that no commissions will accrue from any such future distributions. Appellee prayed for judgment for said sum of $575.52 and that appellant take nothing by her suit. All relief sought by appellant was denied, and judgment was rendered for appellee for $575.52, and appellant perfected this appeal.
Article, 3926, R.C.S., Vernon's Ann.Civ.St., provides for a commission to the County Judge of one-half of one per cent of the "actual cash receipts" of executors, administrators, and guardians, upon the approval of the exhibits and the final settlement of the account of such executor, administrator, or guardian. The question therefore is: Are such distributions by the trustee to appellant "actual cash receipts" of the guardian in the meaning of said article?
We have reached the conclusion that the question must be answered in the negative. The provisions of the statutes relating to commissions paid to executors, administrators, and guardians may be considered as indicative of the legislative intent expressed in Article 3926. In Wills v. Harvey, Tex.Civ.App.,
The "estate first delivered" to appellant was the distribution made to her by the trustee. The real property of the trustor was never delivered to her. Her only right was to receive for her ward 1/24th of whatever amount of trustee converted into cash. As guardian, she could not have claimed a commission on the estate first delivered.
We believe that the expression "actual cash receipts" has a more restricted meaning than "cash actually received." In the first expression, "actual cash" describes "receipts," while in the second, "actually received" describes "cash." Cash may be capital, or the corpus of an estate, while the word "receipts" is synonymous with "income," "issue," "product," "yield," "returns," and "proceeds." Gibbs v. Barkley, Tex.Com.App.,
But if it could be said that the ward's estate "first delivered" to appellant consisted of ownership in the properties conveyed by the trustor to the trustee, rather than in the share distributed to her by the trustee, the funds distributed would nevertheless be the corpus of the ward's estate. It would be the same estate in a different form, and would be only once received. Gilbert v. Hines, Director of U.S. Veterans' Bureau, Tex.Civ.App.,
Nor is appellee helped by the provision of Article 3926 to the effect that the County Judge's commission accrues "upon the approval of the exhibits and the final settlement of the account of such executor, administrator or guardian". In Lyles v. Oheim, Tex.Civ.App.,
VOLKER v. CURLEE.
Addendum
This is an action by James Curlee against Frederick Volkmer to recover damages for personal injuries sustained in an automobile collision. Trial was before a jury which, in response to special issues submitted, found the defendant, Volkmer, guilty of several acts of negligence proximately causing the collision. The jury also found the plaintiff, Curlee, guilty of contributory negligence in failing to keep a proper lookout, which they found was a proximate cause of the collision. The trial court, after receiving such verdict, upon motion of the plaintiff, disregarded the finding of the jury on contributory negligence and entered judgment for the plaintiff against the defendant in the amount of $18,000, the amount found by the jury. The asserted error of the trial court in rendering such judgment forms the basis of this appeal.
The collision occurred at a right-angle intersection. Appellant, Volkmer, defendant below, was traveling west on Koop Settlement Road. Appellee, Curlee, was traveling north on Farm-to-Market Road No. 234. The actual impact took place at about the center of the intersection, the front of appellant's automobile striking the right side of appellee's automobile. There was a stop sign erected about 20 feet from the intersection on Koop Settlement Road, controlling traffic on that road entering the intersection. Appellant testified that he was traveling about 35 or 40 miles per hour as he approached the intersection, that he applied his brakes pursuant to the traffic control sign but for reasons for which the could not account his automobile failed to respond. He further testified that he did not see appellee's automobile until the very moment of impact. Appellee testified that he first saw appellant when he (appellee) was 50 to 75 feet from the intersection. Appellee was traveling 55 or 60 miles per hour. When he saw appellant's automobile, it was in motion back of but close to the stop sign. He testified that he did not have time to do anything to avoid the collision because it occurred, as he expressed it, 'just in a flash.' The only other evidence pertinent to the question involved consisted of a verbal description of the intersection and two photographs portraying the intersection from the direction in which each party approached it.
Appellee, in support of the action of the trial court, argues that the testimony of appellee conclusively shows that he kept a proper lookout. He concedes that since this is the testimony of an interested party, the jury was entitled to disbelieve and disregard the testimony either in whole or in part. However, contends appellee, to diregard his testimony would leave the record completely silent upon the issue of lookout and the jury would have no evidence upon which to base an affirmative finding that appellee failed to keep a proper lookout. Appellant, on the other hand, *872 contends that there was sufficient and ample evidence to raise and support the defensive issue on lookout and that the trial court improperly disregarded the jury's finding thereon. Each litigant, in able and well-prepared briefs, cites numerous authorities in support of his contentions. As might be anticipated, none of the cited authorities presents a fact situation identical with the one here presented and is consequently of value only in the general principles of law discussed. It is our undertaking to apply these general principles to the facts in this case.
Courts are without authority to set aside jury verdicts particularly on questions of negligence and proximate cause in damage suits upon conflicting facts. The undisputed facts must be ample and clear and the circumstances most exceptional to justify such action. Chief Justice Hickman, while on the Eastland Court of Civil Appeals, stated the rule in the case of Jones v. Gibson,
"Undoubtedly, facts might exist in a given case which would be so conclusive in their nature as to establish, as a matter of law, that a certain act of negligence was the proximate cause of an injury; but such cases are indeed, rare, and an examination of the authorities will reveal but few instances in which facts have been so interpreted."
In the case of Liberty Film Lines, Inc., v. Porter,
'The general rule inversely stated is, that the jury's province is invaded in holding a given act of negligence not to be the proximate cause of an injury as a matter of law, unless it appears that reasonable minds could not differ in the manner of the negligent party's 'foreseeability'; in other words, that the plaintiffs ought not to have foreseen or anticipated that the jury complained of, or one of similar nature, would result from the negligent act. Jones v. Gibson, supra; 30 Tex.Jur. Negligence, Sec. 63, p. 724.'
Many other authorities might be cited, all leading to the conclusion that finding by a jury on proximate cause may be disregarded only when one of two conditions exist: first, there must be no evidence to support the finding; or second, the finding must be so contrary to the overwhelming preponderance of the evidence as to be clearly wrong.
We have very carefully examined the record in this case insofar as it is material to the issue presented on this appeal. From this examination we feel that the following conclusions may properly be reached.
Even if we disregard appellee's testimony to the effect that he was 50 to 75 feet from the intersection when he first saw appellant and that appellant at that time had not reached the stop sign, the further undisputed evidence presented by the photographs and the physical facts of the impact, in themselves, negative forseeability. The photograph of the intersection from the direction from which appellee approached clearly shows the stop sign on Koop Settlement Road. The fact that appellee's automobile was struck broadside by the front of appellant's automobile shows conclusively that appellee entered the intersection before appellant entered it. By deduction it must be concluded that at any time when appellee could have been appellant, appellant was bound to have been back of the stop sign. To hold then that appellee's failure to keep a proper lookout was a proximate cause of the collision in question, we would perforce have to hold that appellee should have foreseen that appellant would not comply with the stop sign and would unlawfully enter the intersection. This we are not prepared to hold under the facts in this case.
In the case of Seinsheimer v. Burkhart,
Upon casual examination, the holding in the Seinsheimer case might seem to be contrary to the holding of this Court in the case of Edson v. Perry-Foley Funeral Home,
Appellant testified that as he approached the intersection he observed the stop sign. He applied his brakes expecting to stop and was surprised when he failed to stop, and even after the event could not explain his failure to stop. It must be inferred that as appellant approached the intersection his speed was such and his control of his vehicle was such that he anticipated bringing his vehicle to a stop. And for the jury to hold that the failure of appellee to keep a proper lookout was a proximate cause of this collision, it would be necessary for the jury to find that appellee should have foreseen the occurrence of an event, the happening of which appellant himself cannot explain and the opposite of which appellant anticipated. To so find would be contrary to the experience of mankind.
We feel that in finding that the failure of appellee to keep a proper lookout was a proximate cause of the collision in question, the jury failed to note the absence of the essential element of foreseeability and, therefore, such finding is a matter of law clearly wrong. The trial court properly disregarded such finding and rendered judgment for appellee. Since no other action by the trial court is complained of by appellant, the cause is affirmed.
Despite the forceful and analytical argument made by appellant in his motion, we do not agree that our opinion is in conflict with the cited cases. We did not hold, as a matter of law, that appellee was not required to foresee or anticipate the possibility that appellant's vehicle might not stop as required by the stop sign. On the contrary, it was our undertaking to distinguish this case from the cited cases, by pointing out that the appellant, charged though he was with the burden of proving both negligence and causation on this defensive issue of proper lookout, not only failed to offer any proof from which a finding of proximate cause could be made, but by his own testimony which we have referred to, and by which he is bound under any view of the evidence, expressly negatived the element of foreseeability essential to a finding of proximate cause.
Neither did we hold that the finding of the jury was so contrary to the overwhelming preponderance of the evidence as to be clearly wrong, although we construe Hopson v. Gulf Oil Corp., Tex.Sup.,
