# Morris v. Texas Elks Crippled Children's Hospital, Inc.

> Court of Appeals of Texas · June 4, 1975 · 525 S.W.2d 874

URL: https://www.frixlaw.com/law-library/cases/9645143

## Case

- **Full name:** Mary Beth Smith MORRIS Et Vir, Et Al., Appellants, v. TEXAS ELKS CRIPPLED CHILDREN’S HOSPITAL, INC., Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** June 4, 1975
- **Citations:** 525 S.W.2d 874; 1975 Tex. App. LEXIS 2680
- **Precedential status:** Published
- **Opinion:** Dissent by Ward
- **Judges:** Preslar, Ward, Osborn
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WILLIAM E. WARD, Associate Justice.
DISSENT
That which was written in the original majority opinion now becomes my dissent. Further, it appears that what Justice Walker said in Andretta v. West, 415 S.W.2d 638 (Tex.1967), concerning the question of limitations, should also be applicable in this case.
I cannot agree that Appellee “was entirely without knowledge of the existence of the Appellants, or their claim.” Since the Appellee claims record title to the entire ranch under deeds from the Executor of W. Denny’s Estate, Appellee must necessarily be on notice of the provisions of the will of Minnie Gay Denny which passed her interest in the ranch upon her death to W. Denny, and which is a part of the Appellee’s chain of title.
Neither can I agree that under the circumstances in this case placing the deeds of record gave Appellants notice of the repudiation of the constructive trust. Such act gave no notice to Appellants of their rights under the 1941 will and did not start the running of limitations. Davis v. Davis, 49 S.W. 726 (Tex.Civ.App.1899, writ ref’d).
The plea of not guilty would raise the issue of notice, but in any event, under the record in this case, the issue of notice or lack of knowledge was tried by consent. And while all would agree that limitations would normally begin to run from the time a constructive trust is created, there are exceptions to the rule. Briggs v. McBride, 190 S.W. 1123 (Tex.Civ.App.- — Amarillo 1916, no writ). Such an exception occurs where the cestui que trust has a reasonable excuse for failing to prosecute his claim within a reasonable time. Cole v. Noble, 63 Tex. 432 (1885). Such excuse can occur where the trustee lulls the cestui into a *885 belief that the trust continues, and where the cestui has no knowledge of the rights created for his benefit and there is no neglect in discovering such rights. Landram v. Robertson, 195 S.W.2d 170 (Tex.Civ.App. —San Antonio 1946, writ ref’d n. r. e.); Briggs v. McBride, supra; Bogert, Trusts and Trustees, 2d ed., § 953.
While the trial court may not have been compelled to accept as true the Appellants’ testimony concerning their first notice of their rights under the 1941 will, the trial court could not find from such testimony notice or knowledge at some earlier time. And until it was established that Appellants did have notice of their rights under the will or knowledge of facts sufficient to excite inquiry, then the statute of limitations would not be applicable.
For the reasons previously stated, I would reverse and remand the case to the trial court with directions to enter judgment as set forth in this Court’s original majority opinion in this cause.
June 4, 1975.
MAX N. OSBORN, Associate Justice.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645143. Public record. Not legal advice.