Byrd v. Caruth , 520 S.W.2d 849 ( 1974 )

ON MOTION FOR REHEARING

Originally reversal and remand with instructions was ordered, it appearing that both plaintiffs and defendants filed motions for summary judgment in the trial court. See Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958) and Texas Rules of Civil Procedure Ann. 434. On further consideration it is concluded that a general remand should have been ordered. The pleadings and stipulations on file recognize that there are unresolved issues of fact relevant to allocation of income from unproductive assets to the Estate of Mattie Caruth Byrd under the provisions of the Texas Trust Act, Art. 7425b-35. Under this record a judgment for the plaintiffs, if summarily granted in the trial court, would necessarily have been confined to a construction of the will and its pertinent trust provision, a partial summary judgment at most. In Ackerman v. Vordenbaum, 403 S.W.2d 362 (Tex.1966) Judge Norvell said:

“The safer rule is one restricting the Tobin-Garcia doctrine to its factual situation and that disclosed in Gulf, Colorado & Santa Fe Ry. Co. v. McBride, that is, to cases in which motions for summary judgment have been filed by all the real parties at interest and the appeal is prosecuted from a judgment granting one or more of them.”

In the instant case only a partial summary judgment might have been granted the plaintiffs in the trial court; such circumstance distinguishes it from McBride and similar cases. Though the change in the remand order is deemed of no practical consequence (see 61 Tex.Jur.2d, Wills, § 218), it is proper and appellees’ motions for rehearing are sustained in part. The judgment of the trial court is reversed and the case remanded for new trial but the motions for rehearing are overruled in all other particulars.