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Archive for February 12th, 2014
Weather Contingency for February 13 Capstone Webinar
As you are probably aware, the Washington, D.C. area is expecting a significant winter storm event Wednesday the 12th into Thursday the 13th. While we hope we are able to move forward with the Capstone technical webinar scheduled for Thursday as part of the Electronic Records Management Automation agency presentation series, we will follow these […]
Posted by Arian Ravanbakhsh on February 12, 2014, under Email Management, Upcoming.
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I am become nerd, destroyer of cool.
So, we're back.
I've been on a self-imposed "Battlestar Galactica" ban since the March finale; before seeing the extended cut of the finale, and before even listening to the commentary for that episode, I wanted to watch the whole thing over again. And to add an extra level to my re-watch, I plan to write reviews of every episode.
You read that right. Every episode. Granted, that might not happen, but the rules for the rewatch are simple enough. A review for each episode, and I can't watch the next one until I write the review, and I can't skip the bad episodes. There aren't many, but that will mean I will have to re-watch "The Woman King."
(That sound was me shuddering).
And a note to first time BSG readers; these aren't the reviews for you. I plan (there's that word again) to write about the show with the ending in mind. If you haven't seen the show, you will be spoiled on stuff that happens at the end. You've been warned.
The BSG reviews and the 'Battlestar' brain are back. Let the fun begin.
And if you aren't in love with the show like I am, don't worry. The movie reviews are still going to be there too.
Imagine a world on the brink of disaster; the people go about their lives, living and dying, loving and fighting, laughing and weeping. They are willfully ignorant of the world beyond their borders and the darkness that's in their immediate future. They built their destruction decades ago, then forget about it, and when the world crashed at their feet, all they can think of is what they might have done differently.
It is their story; it is our story.
Our story begins at the end of the world. We meet the Colonials, and their issues, and then poof, the 12 Colonies are gun and our Ragtag Fleet is on the run from the Big Bad Cylons. There are some surprises, some mysteries (like who left that note for Adama) that may or not be answered, but it's a start.
I'm getting more sold on the idea the some Deity keeps wanting us to succeed, keeps trying to tell us to not frak with God's territory. It's something I hadn't really thought about, but the Cycle is about the Colonials learning as much as it's about God's faith in the people. God believes that someday we'll get it right, so God tests them and pushes them, almost wipes them out, then starts over, with nothing but hope to guide them.
"God is love," Caprica Six tells Gaius, and she's right; God, or the gods, love us so much that he/she/it/they will leave us alone to carve out our own destinies, but that force will interfere just before we all die to start again.
I didn't pay too much thought to the religion angle the first time around; looks like I've got to now. And with religion comes Gaius's journey, another point that I need to watch more closely. It's easier this time; the hatred just isn't as strong now that I know his full story.
What surprises me most about re-watching the Miniseries is that while I still think it's a good start to a great show, and I feel in love with it from the get-go, it's only a harbinger the good that is to come. I already know how it ends, but I can't wait to go through it.
Sure, I know what's coming, and it's hard to watch some of the parts now. Seeing Billy and Dualla, alive and happy and hopeful, was probably the hardest part; they both have such rough exits ahead.
As much as I'm looking forward to re-visiting my beloved series, I have to say I was bit bored with the miniseries; some of it is that I've seen it a lot, but some of it is also that I'm anxious to get going with the rest of the episodes, the ones I haven't seen more than once or twice.
So here we go. It's good to be back.


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This post contains recommendations from a CPL librarian. To get your own customized recommendation, just fill out the May We Suggest form — you can expect results within 10 days. All suggestions can be found on the May We Suggest blog or by liking May We Suggest on facebook.
May We Suggest (On Facebook)?
If you're on facebook and like books, DVDs, and all the other great things Canton Public Library provides, you'll probably be interested in our May We Suggest facebook page. We post recommendations from our expert staff: romance books, comedy DVDs, nonfiction and advice titles, and more. Along with that, we'd like to know what you're reading and whether you recommend other people to read it too. Join us on facebook for great recommendations.
Jan 31, 2011
- Brad Czerniak
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Aquaplaning is a nightmare for drivers. Heavy rain can create a layer of water between the road and a car's tyres, deep enough to rob the tyres of their grip and make the brakes useless so that the car skims along. Often the driver doesn't notice until it's too late. But car maker DaimlerChrysler has come up with a way of giving drivers early warning of aquaplaning (W0 02/46008). The system continually checks engine speed against the vehicle's actual movement and stores a value that represents "normality". Any sudden deviation from this value could mean a loss of traction due to aquaplaning. A sound warns the driver to ease back on acceleration because the brakes may no longer be working.
To continue reading this article, subscribe to receive access to all of newscientist.com, including 20 years of archive content.


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Ms. Ernestine RobinsonDirector of Human Resources & Administrative ServicesPhone: (904) 470-8151E-mail: firstname.lastname@example.com
Ms. Linda FosterSecretary of the College/Clerk of the BoardPhone: (904) 470-8013Fax: (904) 470-8039 E-mail: email@example.com
EWC values diversity and is an equal opportunity employer. EWC will make reasonable accommodations for qualified disabled applicants or employees.
Edward Waters College is accredited by the Southern Association of Colleges and Schools Commission on Colleges to award the baccalaureate degree. Contact the Commission on Colleges at 1866 Southern Lane, Decatur, GA 30033-4097 or call 404-679-4500.Edward Waters College is an African Methodist Episcopal Church-related institution of learning.
© 2015 Edward Waters College
1658 Kings Road, Jacksonville, FL 32209-6199 • (904) 470-8000 • 1-888-898-3191


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Enchantment Perfume
By AMC Beauty for Women
Enchantment Perfume by AMC Beauty, This fragrance is a wonderful flowery scent great for casual wear . Enchantment was created for the abc show all my children and for the fans of erica kane, played by susan lucci. This fragrance isn't overpowering, but has solid staying power like erica has shown her fans over the years. All products are original, authentic name brands. We do not sell knockoffs or imitations. ... Read More
- U By Adolfo Dominguez
- U2 Brands
- Udv Chic Issime
- Udv Gold Issime
- Udv Pour Elle
- Ulric De Varens
- Ulrich Lang New York
- Ultima II
- Ultrared
- Ultraviolet
- Ultraviolet Aquatic
- Ultraviolet Aurora Borealis
- Ultraviolet Fluoressence
- Ultraviolet Intense
- Un Air D'amour Pour Madame
- Un Air De Arabie
- Un Air De Damas
- Un Air De Damas Tubereuse
- Un Air De Paris
- Un Air De Samsara
- Un Bois Sepia
- Un Bois Vanille
- Un Jardin Apres La Mousson
- Un Jardin En Mediterranee
- Un Jardin Sur Le Nil
- Un Jardin Sur Le Toit
- Un Matin D'orage
- Un Parfum Des Sens Et Bois
- Un Zest De Rose
- Unbelievable
- Unbound
- Unbreakable Bond
- Unbreakable Joy
- Unbreakable Love
- Unconditional Love
- Unforgettable
- Unforgivable
- Unforgivable Black
- Ungaro
- Ungaro For Her
- Ungaro Party
- Uninhibited
- United Colors Of Benetton
- United Colors Of Benetton Gold
- Universal Studios
- Unknown
- Unmistakably Mackie
- Unpredictable Desire
- Unpredictable Girl
- Unpredictable Lady
- Unruly
- Untold
- Urban Motion
- Usher
- Usher For Women
- Usher Ur
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I placed an order and it went very well. I got the product in good shape and love the way fragrancx.com works.
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- Clean & Fresh
- Draws Compliments
- Great Smell
- Long-Lasting
- Not Overpowering
- Sensual
- Sexy
Best Uses
- Anytime
- Daily Use
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other people like it


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The final defendant to be sentenced in the killing of Baltimore County police Sgt. Bruce A. Prothero was given life without the possibility of parole yesterday by a judge who compared the crime to a "Wild West" shootout.
Wesley Moore, 25, showed no emotion as Baltimore County Circuit Judge James T. Smith Jr. sentenced him, but the victim's widow sobbed quietly during the hearing.


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Denver, CO (PRWEB) February 08, 2013
Dr. Tanya Atagi, Medical Director of Atagi Plastic Surgery & Atagi Skin Aesthetics in the Denver suburb of Lone Tree, Colorado, invites the public to attend "Beautiful Balance: Breast Enhancement Seminar" on February 21 at 6:00 p.m. The event will feature an information session followed by questions and answers, refreshments, giveaways, special event offers and an opportunity to personally meet Dr. Atagi and her staff.
According to Dr. Atagi, "This seminar will be a great opportunity for guests to learn all about the various types of breast enhancement procedures. I will cover traditional breast augmentation with silicone or saline implants as well as the latest procedure, natural breast augmentation, which is fat transfer to the breasts. I will also discuss breast reduction surgery for both men and women."
In addition, Dr. Atagi, whose surgical training is enhanced by her background in art, design and engineering, will discuss why it is critical to consider the patient's entire body contour when planning breast surgery. "That is why we are calling the seminar 'Beautiful Balance,'" said Dr. Atagi. "The breasts are a critical component to a person's overall appearance. For a beautifully balanced look, it is essential that the breasts compliment a person's complete shape."
"Beautiful Balance" will be held at Atagi Plastic Surgery & Atagi Skin Aesthetics, on February 21, at 6:00 p.m., at 10099 RidgeGate Parkway, #430, in Lone Tree, Colorado. The event is free of charge, but reservations are requested, as seating is limited. Guests are invited to bring a friend.
About Atagi Plastic Surgery & Atagi Skin Aesthetics
Atagi Plastic Surgery & Atagi Skin Aesthetics is known throughout the Denver metropolitan area and beyond for stellar service from a highly skilled and experienced team. Atagi Plastic Surgery & Atagi Skin Aesthetics is located on the Sky Ridge Medical Center campus and offers a serene, spa-like atmosphere in which to pursue cosmetic surgery or skincare services.
Established in 2003, Atagi Plastic Surgery & Atagi Skin Aesthetics offer a broad list of services, including breast enhancement surgery, tummy tuck, laser skin rejuvenation, BOTOX, chemical peels, liposuction, eyelid surgery, laser hair removal and physician grade skincare. To learn more about Dr. Atagi and for a full list of services call, 303.327.7300 or visit http://www.atagimd.com/index.htm
About Dr. Tanya Atagi
Dr. Atagi is the Medical Director of Atagi Plastic Surgery & Atagi Skin Aesthetics in Lone Tree, Colorado in the Denver area. One of only a handful of board-certified, female plastic surgeons in Colorado, Medical Director Dr. Tanya Atagi is a fellowship-trained plastic surgeon who received her undergraduate and medical degrees from Stanford University, plastic surgery training at Barnes-Jewish Hospital, Washington University in St. Louis, and completed specialized aesthetic fellowship training in Denver. Now highly regarded in her field, she has published papers on nerve regeneration, implantable medical devices, as well as breast enhancement and the safety of implants.
Since opening her practice in 2003, Dr. Tanya Atagi has consistently been honored by her physician colleagues as a "Top Doctor" in Denver's 5280 Magazine. Atagi Plastic Surgery & Atagi Skin Aesthetics is located at 10099 RidgeGate Parkway, #430 Lone Tree, CO 80124. For more information call 303-327-7300 or visit http://www.atagimd.com.


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A limited run with an exquisite top wood, comfortable neck and stage-ready electronics.
The Yamaha Mango Top Acoustic-Electric Guitar (model APX500IIEW) is a 2013 limited-run model featuring exotic mango figures on its top board. It shares all of the benefits of the Yamaha's APX series with the added feature of a beautiful top. The APX Series places emphasis on playability with a stylish thin-line profile and slim neck that ensure the performance experience is perfect. This model features a body and neck of nato. The fingerboard and bridge are rosewood. It comes equipped with System 65 electronics for an amplified acoustic sound worthy of the studio. Case sold separately.
System 65
System 65 features an undersaddle piezo pickup developed by Yamaha. Controls include a 3-band equalizer, an adjustable mid-range frequency control, and a precision chromatic tuner for optimum sound tailoring. The system is powered by easy-to-obtain AA-size batteries (sold separately) that provide a stable power supply for improved sound quality. Controls for the under bridge mounted piezo pickup are mounted on the instrument's side for optimum access. The battery compartment is also located on the side, close to the neck, to provide easy replacement.


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NYC Parks Events Calendar
Get up, get out, and do something! Just about any day of the year, you can find something fun, informative, and healthy to enjoy at an area park. Feel free to browse the listings below, or use the search tools to find an event that matches your interests and location.
Viewing 1,691–1,700 out of 17,852 events
from October 11, 2012 (x) to April 25, 2026
Thursday, July 10, 2014
Bryant Park Juggling
at Bryant Park, Manhattan
12:00 p.m.–1:00 p.m.
Test your coordination and dexterity with free juggling lessons. All skills are welcome and equipment is provided.
Category: Games, Kids
Central Park Tour: Southern Welcome Tour
at William Tecumseh Sherman Statue (in Central Park), Manhattan
12:00 p.m.–12:45 p.m.
Travel from Grand Army Plaza, past the Pond and Gapstow Bridge, and stop at the Dairy on this trip through the southern Park highlights.
Category: Education, Nature, History, Tours
Rockaway! Exhibit from MoMA PS1: The Surf Club
at Rockaway Beach Surf Club (in Rockaway Beach and Boardwalk), Queens
12:00 p.m.–6:00 p.m.
Rockaway!, a free public arts festival sponsored by the Jamaica Bay-Rockaway Parks Conservancy (JBRPC) to celebrate the reopening of Fort Tilden and recognize the ongoing recovery of…
Category: Art
Broadway in Bryant Park: STOMP, Rocky, Wicked, If/Then
at Bryant Park Lawn (in Bryant Park), Manhattan
12:30 p.m.–1:30 p.m.
The best of musicals on and off Broadway showcase their hits, plus lots of surprises from other Broadway shows. Hosted by 106.7 LiteFM DJs. Keep checking our Events Calendar…
Category: Concerts, Theater, Free Summer Theater
Summer in the Square: Lunchtime Jazz with The New School
at West Side Seating Area (in Union Square Park), Manhattan
12:30 p.m.–2:00 p.m.
Enjoy your lunch in the park with live music performed by students from The New School for Jazz and Contemporary Music.
Category: Concerts
Focused Fun Dance Fitness
at Poe Park Visitor Center (in Poe Park), Bronx
1:00 p.m.–2:00 p.m.
A full body workout with various genres of dance choreography, and an emphasis on positive mental motivation and creative expression through dance.
Category: Dance, Fitness, Kids
Adaptive Activities
at McCarren Play Center (in McCarren Park), Brooklyn
2:00 p.m.–3:00 p.m.
A sampling of adaptive sports. An excellent opportunity for adults and seniors with disabilities to play and learn modified sports. Recreation center membership is required. Visit…
Category: Accessible, Sports
Stories In The Garden: Plant, Grow And Blossom
at Wave Hill, Bronx
2:00 p.m.–3:00 p.m.
Each week, Wave Hill educators share some of their favorite nature stories. These stories––classics and more––will come to life through interactive readings,…
Category: Nature, Kids
Rock Your Seat
at Greenbelt Recreation Center (in Blood Root Valley), Staten Island
2:30 p.m.–3:30 p.m.
Experience the sound of music as you workout to the beat without leaving your seat. Recreation Center membership is required to participate.
Category: Accessible, Fitness, Seniors
Volunteer with the Garden Crew
at Sherman Creek Park (in Sherman Creek), Manhattan
4:00 p.m.–6:30 p.m.
Garden Crew meets to maintain and revitalize the ornamental and native plantings around Sherman Creek and Swindler Cove.
Category: Nature, Volunteer
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Related Information
- Get information on upcoming events directly in your inbox by signing up for our Email Newsletters.
- Know about an event that's not on the calendar? Send us a tip!
- Planning an event and considering hosting it in a park? Make sure to read our Planning an Event page.


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Just as important as selecting the proper notebook for
recording your scientific experiments is how to take good notes. Even an experienced scientist can benefit
from reviewing good notebook keeping techniques from time to time. In this How-To we talk about what should go
into your notebook, what shouldnt and how to make a good entry in your
We have all heard the phrase A picture is worth a thousand words before. When we are presented with unfamiliar, large or otherwise cumbersome data it can be beneficial to construct a graph a diagram of the data to help us visualize patterns and trends in numbers. By making a picture of the data we are able to use our visual senses to help our analytical mind interpret data. Making graphs by hand is also a good kinesthetic exercise, allowing us to become more familiar with the information that we have collected.
Choosing the right notebook for your scientific experiments can make all the difference in how you feel about your experiments and how enjoyable the experiments can be. What you need in a lab notebook depends on the level you are working at, the environment that you will be working in, the convenience and ease of use of the notebook, and the cost.


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Students at Stanford's d.school are encouraged to solve problems by applying design elements to them. Courtesy of Stanford d.school
Parker Gates, a teacher of design thinking at the Institute of Design at Stanford, also known as d.school, wants to ignite innovation in Nashville.
He and his partner Anna Love-Mickelson are bringing two Stoke.d workshops to Nashville this year that are modeled after the executive education programs he teaches in Palo Alto, California. Stanford University's d.school, created by IDEO founder David Kelley, is not a design school in the traditional sense, but rather focuses on creative problem solving.
"Our mission is to create innovators, not necessarily innovations," said Gates, who is a former IT director at e+CancerCare in Nashville. "The most important thing we can do is teach others to be innovators, how to have creative confidence and how to create cultures where innovation can thrive."
The purpose of the workshops is to dispel myths of how innovation happens, to teach that innovation is not a lone genius model or a once-in-a-lifetime event, but that methods exist that can spur innovative thinking, he said.
Design thinking works for more ambiguous problems, Gates added. For example, design thinking is less about creating a new alarm clock and more about redesigning how a couple wakes up at different times without disturbing the other.
Last year, in a project with JetBlue (NASDAQ: JBLU) participants were tasked with helping the company improve the boarding experience for disabled passengers. The group discussed problems that exist with those who have experienced them firsthand, brainstormed solutions and built low-resolution prototypes to test with users, which led to more developed prototypes that are being tested at a few JetBlue gates.
Jamie McGee covers tourism, entertainment and technology for the Nashville Business Journal.
If you are commenting using a Facebook account, your profile information may be displayed with your comment depending on your privacy settings. By leaving the 'Post to Facebook' box selected, your comment will be published to your Facebook profile in addition to the space below.
Sign up to receive Upstart Business Journal's free daily email newsletter, weekend edition and breaking news alerts.


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Should tanning salons / booths / beds be legal? Why? If so, should then should their be an age limit or time limit?
Is it the same as alcohol (liver damage & drunk driving), tobacoo (cancer), or drugs (a whole list of issues)? Is it a personal choice as many of the above are considered?
3 Answers | Add Yours
For me, this is a personal choice. If we can make tanning beds illegal, then we would also have to ban lying out in the sun too much. It's too intrusive on the part of the government to ban something like this. As for an age limit, I think there should be a limit but that people under the limit should be able to do it if they have parental permission.
If alcohol and tobacco are still legal I don't see any possible way you could outlaw tanning beds. I think their should be warning labels and media campaigns by concerned citizens, but I don't think it is our most pressing problem in the country today.
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Details and Shopping
Customer Favorite
- FP Exclusive :
- Only sold thru Free People
Beautiful dress with sheer floral lace upper bodice and fitted waist. Square neckline in the front and rounded drop neckline in the back. Zips up the back. Chest portion is lined.
*95% Rayon, 5% Spandex
*Machine Wash Cold
*Machine Wash Cold
Measurements for Small:Length: 34 1/2"
Bust (all around): 29"
Waist (all around - relaxed): 26"
Sleeve Length: 19 1/2"
Rated 3.7 out of 5Â by 6 reviewers.
Rated 3 out of 5Â by smcmenemy1856 Cute, but not the best quality. This dress is very cute and flattering. I'm usually a size large, but I bought it in medium (It was the only one left at the store). The medium fits well - the dress is quite stretchy and comfortable. My complaint is that the material that the sleeves are made of is not the best quality. The tiny wisps of elastic can fray easily and become visible if you are not careful. The sleeves slide off my shoulders. Also, all the parts of the dress (sleeves, bust, and skirt) are made of different materials that are different shades of black. 7.12.2013
Rated 2 out of 5Â by windsorw No..... Black&Lace is like an irrisistable combo to me, but this dress does disappoint me a lot. I tried it on and the fit is really awkward. The shoulders part doesn't right, and it's a bit tight around my chest. Also, the fabric of skirt looks cheap and has no shape. I still like the top part of the back, though, but not enough for me to want to keep it. 7.8.2013
Rated 4 out of 5Â by Candela Pretty but too big I so wanted to love this dress--it is pretty and the materials are good quality; however, the fit is weird. I tried sizes M, S, and XS, and they were all too big :-( Sadly, these are going back. 6.14.2013
Rated 4 out of 5Â by cjmarie28 So cute but too big! I loved everything about this dress from the square neckline to the lace sleeves to the zipper to the length, but it did not fit me at all through the body. I tried on an XS and it was still a few inches too large through the waist. For reference, I am 33.5"-27.5"-35". Beautiful dress. I would have bought this in a heartbeat if it only fit! 5.21.2013
Rated 4 out of 5Â by HowSwell perfect tried this on in the store which was $69 and the small fits perfectly and im a medium! I think that they're making their clothes a little looser now which is nice and comfy. 5.16.2013
Rated 5 out of 5Â by LoneLocust Beautiful I love this dress. I got my usual size S, and it runs perfectly true to size. I'm 5'11" (1.8m), and it's a bit shorter on me than the model, and the sleeves are about 3/4. The zipper is very cute but unecessary as the rest of the dress is quite stretchy, so it's easy to pull over the head. The lace of the sleeves has a bit of a 3D texture that is very pretty. "Fitted at waist" as listed is a bit of an exaggeration. It's more of an empire waistline. Love it. Exactly as pictured. It looks well-made, and the materials are good. Totally recommended. 4.10.2013
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Aurelia Mitchell died on March 18, 1940, leaving a will by which she created a trust for children of hers and descendants of her children. The income from this trust was payable to her children, excepting a daughter, and to the children of the excepted daughter during the lives of these people and afterward to their descendants until 21 years after the death of the survivor of the group to whom the income was first payable. When the term of the trust ended, the property in trust was to be divided among the descendants of the group first entitled to income. For convenience, we shall refer to beneficiaries who have become entitled to income as life income beneficiaries and to the rest of the beneficiaries as remaindermen. The trust estate included Aurelia Mitchell's one half community interest in a 400 acre tract of land in the M. G. White League in Liberty County, together with oil and gas leases on this interest made by her, and it is the trustees' disposition of oil and gas royalties from this land although not under these leases, which caused this suit to
The trial court, after the mandate had been returned, rendered a judgment which, among other things, purported to construe the will of Aurelia Mitchell and in consequence declared proceeds from the sale of oil, gas and other minerals belonging to the estate to be corpus of the trust and not income. Because of the nature of the litigation the proceeds just referred to included oil and gas royalties paid under mineral leases. This part of the judgment was amended. This judgment provided further, in substance, that issues arising on an accounting of the trustees and between them and others liable to them in consequence of their accounting were severed and docketed separately, and by the amendment mentioned provided still further, in substance, that in the part of the suit thus severed the trustees might litigate the question (if it had not been decided by the Supreme Court) whether income payable included the oil and gas royalties paid to the trustees under the Sun Oil Company lease. This lease existed, and oil and gas was being produced therefrom, at Aurelia Mitchell's death and at the trial of which the judgment now on appeal was rendered. The aforesaid judgment, rendered after return of mandate, also appointed the American National Bank an additional trustee.
When the aforesaid judgment after mandate was rendered, the plaintiffs were the remainderman not entitled to income, although in the petition the plaintiffs were described as a class in terms broader than the class actually existing. The defendants were the trustees, Leon and Vick Mitchell, sons of Aurelia Mitchell and original income beneficiaries. After the rendition of the judgment after mandate, these trustees made all beneficiaries of the trust parties to the suit, both the life income beneficiaries (including the survivors of the original group) who were not parties to the suit before that time and all others, and answers were filed by most of these people. Of the pleadings filed by the parties it is enough to say that the questions discussed in this opinion are supported by the pleadings; but specifically, these issues are raised by the pleadings of the appellants Mary Prophet and Agnes King and their husbands, Agnes and Mary being daughters of testatrix and among the original life income beneficiaries; and said issues are also raised by the pleadings of Cornelius Mitchell and his group of appellants, who include at least two of the original life income beneficiaries, children of testatrix, one being the said Cornelius.
The cause was tried to the court without a jury. The judgment rendered decreed another severance in the cause, leaving certain issues undecided. This judgment also fixed the amount of the trustees' indebtedness to the trust, mostly as reimbursement for sums paid as income out of oil and gas royalties from the 400 acre tract referred to above but also in smaller part for payments not accounted for. Still further, the judgment determined the sums of money which each of the income beneficiaries had received from the trustees and awarded the trustees a recovery of these sums from the beneficiaries for the benefit of the trust, with some limitations, not necessary to be repeated, on the methods of enforcement as against certain minors. The trustees were also adjudged the right to withhold income from these beneficiaries, excepting said minors, both to reimburse the trust and trustees Leon and Vick Mitchell. Still further, the judgment decreed that proceeds of oil, gas and other minerals were corpus of the trust estate and not income, and this provision is to
From this judgment the trustees and some of the life income beneficiaries and descendants of another of these beneficiaries have appealed. Findings of fact and conclusions of law were made and filed by the trial court, and a transcript of the evidence has also been filed.
We make the following holdings, which will adjudicate the appeal.
The questions concerning the effect to be given the Supreme Court's judgment, by way of res judicata or otherwise.
This suit, as filed, was No. 13,751 in the trial court. Finding 11 of the trial court's original findings reads: "None of the beneficiaries under the will of Aurelia Mitchell who was then entitled to share in the distribution of income from the Aurelia Mitchell Trust estate was a party to Cause No. 13,751, Raymond Mitchell, et al. v. Leon Mitchell, et al., in the District Court of Liberty County, Texas, except Raymond Mitchell, Leon Mitchell and, Vick Mitchell."
This finding is certainly correct in fact as regards named parties, for the only persons named as parties were the three mentioned in the finding.
Furthermore, the finding is correct in law. Raymond Mitchell brought the suit as a member of and for a class. In this petition he described this class as "all of the grandchildren and great grandchildren of Aurelia Mitchell, deceased, adults and minors, representing such of the minors who have no legal guardian of their estates as their next friend, and in behalf of all of the yet unknown grandchildren and great grandchildren of Aurelia Mitchell, deceased, who may be beneficiaries under the terms and provisions of her last will and testament. This suit is brought by the plaintiff under Rule 42, Rules of Civil Procedure in behalf of a class of persons so numerous as to make it impracticable to bring all of them before the Court, the living grandchildren and great grandchildren of Aurelia Mitchell now numbering approximately 200 persons."
However, the object of the suit was to stop the practice, followed by trustees Leon and Vick Mitchell, of paying oil and gas royalties to the life income beneficiaries; and because the plaintiffs alleged in paragraph 2 of the petition that oil and gas "is now being produced" from certain land of testatrix (the 400 acres referred to above) and alleged further in paragraph 6 "that during the year 1947 oil and gas was discovered and has been produced in large quantities from the aforesaid property", we construe the petition as referring only to the royalties from the 200 acres leased to Gainer in 1946 by the lease which the trial court refers to in Finding 8 of the Original Findings. That the Supreme Court also construed the petition as referring only to this tract is shown by the quotation hereinafter made from that part of their opinion at 244 S.W.2d 805 and the results of this construction are pointed out in part IV of this opinion, in our discussion of the quotation. Plaintiffs sought to recover from the trustees $100,000 for wrongful payments and excessive commissions, and also sought an accounting, alleging that they could not be certain as to "the exact amount of money heretofore collected by the defendants as rentals and royalties for the estate of Aurelia Mitchell; but they believe the defendants have collected sums far in excess of — ($100,000.00)." The figures are cited to indicate the value of the property which the plaintiffs proposed to take away from the income beneficiaries and appropriate to their own benefit by having it classified as corpus of the estate instead of as income. The facts show that some members of the class whom Raymond Mitchell purported to represent actually were among the income beneficiaries to whom the trustees had made payments from oil and gas royalties and so had
There were a large number of income beneficiaries included in the class for whom Raymond Mitchell purported to sue. First, there were the seven children of testatrix' daughter Theresa who were named in the will among the original income beneficiaries. Second, there were the seven children of testatrix' son Fuhr Mitchell who, on their father's death, had succeeded to his share of the trust's income. We note that Vick Mitchell, sued originally as trustee, was alleged to have succeeded Fuhr Mitchell as trustee on the latter's death. Third, another of testatrix' sons and one of the original income beneficiaries, Sostan Mitchell, has died, leaving two children to whom his share of the trust's income passed, and since the trustees made payments to these children and since the judgment appealed from has awarded a recovery of these sums from these children, we infer that they, too, were life income beneficiaries when the suit was filed. We note that on the first trial, Leon Mitchell testified that Sostan Mitchell was dead. Some of these sixteen persons are appellants among the group of appellants headed by Cornelius Mitchell.
The next question then is, whether the life income beneficiaries, those just referred to, and also the testatrix' children surviving, were parties defendant to the suit by virtue of representation by Leon and Vick Mitchell, either as trustees or as life income beneficiaries, for these two were also sons of testatrix, named in the will among the original group of life income beneficiaries. We conclude that Leon and Vick Mitchell did not, in their capacity as trustees, so represent the life income beneficiaries as to make said beneficiaries parties to the suit (although as we pointed out in American National Bank v. Biggs, Tex. Civ.App., 274 S.W.2d 209, Leon and Vick Mitchell rightly did defend their construction of the will, made in good faith on advice of counsel and with reasonable grounds for their construction, and this action was in the interest of the income beneficiaries). There is nothing in the will which purports to give the trustees that power of representation, and therefore the rule is to be applied which precludes the trustee's representing beneficiaries where the beneficiaries' rights between themselves are in question. As we have pointed out, the plaintiffs in the suit as brought by Raymond Mitchell were beneficiaries by way of remainder, and the object of the suit was to deprive the life income beneficiaries of valuable oil and gas royalties and appropriate these royalties to the remaindermen's own benefit by putting said royalties into the corpus of the trust. The consequence, as we have also pointed out, was both to subject the income beneficiaries to potential loss of this property and to potential liability for the sums paid them out of this property. See Bogert on Trusts and Trustees, Section 593, and the citations made in the second paragraph following.
We also conclude that Leon and Vick Mitchell did not, in their capacity as income beneficiaries, represent the other members of this group. They were not sued as representatives of a class. They filed no pleading and did no act purporting to be in representation of a class. Instead, they alleged that the children of
We do not have the question, whether any income beneficiary was bound by the Supreme Court's judgment because of reasons and grounds other than those we have discussed. The following citations pertain to matters we have referred to above: (a) Rights against an income beneficiary to whom a part of the corpus has been paid because of a mistaken interpretation of the declaration of trust: Scott on Trusts, Sections 254, 254.1, and 254.2; Bogert on Trusts & Trustees, Section 191, p. 208; Section 814, p. 205; Restatement of Trusts, Section 251 and Comments (c) and (e); Section 254 and Comments (a), (d) and (e); Section 256 and Comment (c); 90 C.J.S., Trusts, § 345, p. 608, §§ 352, 353, 354, p. 627, §§ 436-437, p. 839. (b) Necessity for the joinder of the income beneficiaries as parties if they were to be bound by the judgment, and the trustees' lack of capacity to represent them as a class in defending the suit. Galveston H. & S. A. R. R. Co. v. Butler, 56 Tex. 506; Hudson v. C. Eisenmayer Milling & Elevator Co., 79 Tex. 401, 15 S.W. 385; Lyon-Thomas Hdw. Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 27 S.W. 100; Cotton v. Coit, 88 Tex. 414, 31 S.W. 1061; Cavers v. Sioux Oil & Ref. Co., Tex.Com.App., 39 S.W.2d 862; Powell v. Parks, 126 Tex. 338, 86 S.W.2d 725; Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, at page 382; Whitsett v. Whitsett, Tex.Civ. App., 201 S.W.2d 114; Johnston v. Stinson, Tex.Civ.App., 215 S.W.2d 218; Franz v. Buder, 8 Cir., 11 F.2d 854; Baird v. Peoples Bank & Trust Co., 3 Cir., 120 F.2d 1001; Talbutt v. Security Trust Co., D.C., 22 F.Supp. 241; Shirk v. Walker, 298 Mass. 251, 10 N.E.2d 192, 125 A.L.R. 620; Speakman v. Tatem, 45 N.J.Eq. 388, 17 A. 818; Mitau v. Rodden, 149 Cal. 1, 84 P. 145, 6 L.R.A.,N.S., 275; McPherson v. Parker, 30 Cal. 455; Stevens v. Melcher, 53 Hun 636, 6 N.Y.S. 811, at page 818; Lee v. Taylor, 186 App.Div. 199, 174 N.Y.S. 203; Elam v. Garrard, 25 Ga. 557; Dill v. McGehee, 34 Ga. 438; Fish v. Berkey, 10 Minn. 199, Gil. 161; Johnson v. Long, 235 Ala. 283, 178 So. 54, at page 58; 65 C.J. 899, Sec. 795; 90 C.J.S., Trusts, § 390.
The income beneficiaries omitted from the suit as brought, and at least some of the appellants here are of that group, are not bound by the judgment of the Supreme Court and are free to litigate their right to the oil and gas royalties and the proper interpretation of the will. This is true not only of the rules of res judicata but also of other rules concerning the effect to be given a judgment. There are new parties to the suit who are not bound by the Supreme Court's judgment. As will appear hereinafter, there is a great deal of evidence now in the record which was not proved on the trial appealed to the Supreme Court. Too, all parties interested in the result of the suit are now parties to the suit, and rights of third parties are not involved in the suit. So rules which pertain to the doctrines of stare decisis and the law of the case on a second appeal are also not to be applied against the omitted income beneficiaries so as to deny them the right to litigate again the questions decided on the first appeal. Thus is Frankland v. Cassaday, 62 Tex. 418, at page 420, the Commission of Appeals stated this about the rule of stare decisis: "The application of this rule, however, contemplates that the facts on the second appeal shall be substantially the same, or rather, perhaps, that they shall not be such as to affect materially the legal questions involved under the first appeal." And see Goodwin v. Hidalgo
The action of the Supreme Court in overruling the trustees' motion for rehearing, in which the trustees assigned the absence of beneficiaries as a ground, has no bearing on the questions we have discussed. The ground of the court's action is not clear, no opinion having been filed on rehearing and the plaintiffs having stated several arguments in reply to this ground, but at the very most the court's order implies only that the omitted beneficiaries were not indispensable to rendition of a judgment against the trustees. The fact that the trustees might have been bound by the Supreme Court's judgment if the second trial had not occurred or had taken a different course is not material to the question, whether the omitted beneficiaries themselves are bound by that judgment.
However, it is a necessary consequence of all these conclusions that the trustees also are not bound by the Supreme Court's judgment so far as the judgment rendered on this appeal is inconsistent with those previously rendered against the trustees. For all interested parties are before the court and the trustees could not perform both judgments as rendered; they could not administer the trust as the will provides. If the life income beneficiaries establish any rights against the remainderman on this proceeding, the trustees must perform the last decree and deal with oil royalties and other funds as the last decree directs. This matter, and matters related to it, are discussed in part V. of this opinion.
Questions respecting the application of the "open mine" doctrine.
The facts pertaining to this group of questions are remarkable. As we have stated, Aurelia Mitchell owned in fee an undivided one half of the 400 acre tract. Beginning with a lease dated June 28, 1916, on the western 200 acres of the 400 acres, Aurelia Mitchell participated in the execution of thirteen oil and gas leases covering parts of the 400 acres. Every part of the 400 acres, at one time or another during the period between the lease of June 28, 1916, and the death of Aurelia Mitchell on March 18, 1940, was subject to one or more of these leases. Cash bonuses paid for these leases exceeded $50,000. The following table showing these leases is taken from the original brief of Mary Prophet, et al.:
Portion of the 400 Lease acre tract covered Number Date Executed by the lease 1 June 28, 1916 West 200 acres 2 March 9, 1917 South ½ of East 200 acres 3 March 22, 1917 North ½ of East 200 acres 4 August 24, 1920 West 100 acres (extended in 1924) 5 January 5, 1921 100 acres immediately East of the West 100 acres 6 June 1, 1923 10 acres immediately East of the West 200 acres 7 December 9, 1924 50 acres immediately East of the West 100 acres 8 January 3, 1925 20 acres immediately East of the West 150 acres 9 February 26, 1925 25 acres immediately East of the West 170 acres 10 March 5, 1925 30 acres immediately East of the West 195 acres 11 March 12, 1925 15 acres immediately East of the West 225 acres 12 January 15, 1926 45 acres immediately East of the West 150 acres 13 April 18, 1935 150 acres immediately East of the West 150 acres
Leon Mitchell also testified as follows:
The trial court has made these findings of fact:
On the evidence and the findings stated, the questions to be determined are, whether the "open mine" doctrine would be applicable to any part of the 400 acres if the will does not preclude this, and if so, to what parts of said 400 acres. By "open mine" doctrine we mean the rules of decision which give to a life tenant, as income, rovalties from the minerals produced from the land subject to his life estate. For an encyclopedic annotation concerning the rights of life tenants and remainderman to royalties see 18 A.L.R.2d 98.
First: We note the following statement in Youngman v. Shular, Tex., 288 S.W.2d 495, at page 496: "In determining whether the `open mine' doctrine applies, no distinction is made between a life tenant who holds a conventional life estate and one who holds a legal life estate."
Second: We have concluded, for reasons stated below in part III of this opinion, that the "open mine" doctrine should be used to determine what the beneficiaries' rights to the oil and gas royalties are.
Third: If the rights of the income beneficiaries were conventional life estates not limited by the written instruments involved so as to exclude the doctrine, the "open mine" doctrine would clearly be applicable to the Sun Oil Company leasehold in the west 100 acres of the 400 acre tract, and the
Fourth: We come now to the lease referred to in Finding 10, supra. This lease would cover the 200 acres now covered by the lease to Gainer referred to in Finding 8. Finding 10 has not been attacked by the parties, but such a lease was not proved and the finding is wrong, and so we cannot be sure what lease the trial court had in mind. Of this 200 acres, the eastern 150 acres was leased to Sun Oil Company in 1935 by lease No. 13, supra, and the certificate of Mr. Montgomery, manager of the Title and Rental Department of the Sun Oil Company having jurisdiction of this lease, states in substance that the lease was kept in force by delay rental payments until April 18, 1945, but lapsed on that date. This certificate is in evidence as proof of its contents and is not contradicted. The other 50 acres of the 200 acres covered by the lease referred to in Finding 10 is the Yount-Lee 50 acres, leased by lease No. 7 of the table above, and the trial court made no finding as to when this lease ended, although Finding 10 necessarily implies that it did end before testatrix' death. Recitals in Mr. Owens' certificate of tabulations, which seem to have been accepted as competent evidence if grounds of objection not pertaining to competency were not valid, show that Yount-Lee transferred the lease to Morrow on August 1, 1935, who transferred it that day to Stanolind Oil & Gas Company; that Stanolind operated the lease until November 1, 1938, and on that date assigned it to Texas Pipe & Supply Company which, on that date, "assigned the operation of the property to G. R. C. Oil Company, Inc." Texas Pipe & Supply released its interest, not describing that interest, by an instrument dated November 28, 1939, not quite four months before testatrix died, and Stanolind, for reasons not explained but seemingly inconsistent with Mr. Owen's statement of transfer to Texas Pipe & Supply, released its interest, not describing that interest, in sands below 4,000 feet, by an instrument dated June 5, 1940, not quite three months after testatrix died. No release from G. R. C. Oil Company is in evidence. Leon Mitchell, Trustee, gave some testimony indicating that the Yount-Lee lease had not wholly expired before testatrix' death. He testified first that there were some wells on the Yount-Lee 50 acres when his mother died. Next, that new wells were drilled on this 50 acres after his mother's death. "Q. They were drilled on the same tract of land that was producing oil at the time of your mother's death? A. Yes." However, he testified later: "Q. After the Yount-Lee 50 acre lease next adjoining the Sun Company 100 acre lease, after that expired, did you and your mother, as Trustee, lease to the Sun Oil Company 150 acres? A. We did. "Q. That lease is in evidence? A. Yes, sir." This Sun Oil Company 150 acre lease is lease No. 13, supra, made in 1935. At that time, according to Mr. Owens' certificate, which seems to be based on the Sun Oil Company records, the Yount-Lee lease was being operated by Stanolind; and the table of oil runs from the Yount-Lee leasehold by Sun Pipe Line Company shows that during the four years beginning with 1935 and ending with 1938, Sun Pipe Line Company took 57,815.67 barrels of oil from this 50 acre tract. Leon Mitchell's last statement is evidently wrong, as his recollection after so many years might well be,
The fact that the Yount-Lee lease may have expired before testatrix died does not necessarily affect our determination of the question, whether the "open mine" doctrine is applicable, or not, to the Yount-Lee 50 acre tract. That this tract produced oil and gas under the Yount-Lee lease during testatrix' lifetime is undisputed and the trial court has found that it did, in Findings 14, 15 and 16, above. By way of illustrating these findings, we note that the table at S. F. 782 shows that the Sun Pipe Line Company took 496,074.03 barrels of oil, worth $466,308.46, from this tract during the period beginning with 1929 and ending with 1938. We note further that Mr. Jones' certificate at S. F. 783, et seq., shows that 19 producing wells were drilled on this tract during 1927, 1928 and 1929. A few months after testatrix died, Leon Mitchell, Trustee, and other descendants of testatrix made an oil and gas lease on the Yount-Lee 50 acres to Luckel for a primary term of 60 days, and still later, in 1946, this 50 acres was included in the lease to Gainer referred to in Finding 10. It is the western 50 acres of the Gainer leasehold and production of oil and gas has been made from it under the Gainer lease.
It has been frequently held that where the onwer of the preceding estate of inheritance had opened and worked a mine and then ceased to work it under circumstances showing that he had not decided to abandon the mine and use the land for another purpose, the "open mine" doctrine applied to the mine just as it did to a mine which was worked continuously, and that the succeeding life tenant was entitled to the royalties from production started up again after the life estate had vested in possession. The cessation in mining was considered to be only temporary, and temporary cessation was considered to be ineffective to end the operation of the "open mine" doctrine. See Gaines v. Green Pond Iron Mining Company, 33 N.J.Eq. 603; Billings v. Taylor, 10 Pick., Mass., 460, 20 Am.Dec. 533; Neel v. Neel, 19 Pa. 232; Andrews v. Andrews, 31 Ind.App. 189, 67 N.E. 461; Cypress Creek Coal Company v. Boonville Mining Company, 194 Ind. 187, 142 N.E. 645; Hook v. Garfield Coal Company, 112 Iowa 210, 83 N.W. 963; Tomlinson v. Humpich, 198 Ky. 474, 248 S.W. 1016.
We see no reason why the rule concerning temporary cessation should not be applied to the Yount-Lee 50 acre tract, bearing in mind the character of the land and the long use of the land for oil and gas purposes made by testatrix. The 50 acre tract adjoined a producing 100 acre tract, the Sun Oil Company 100 acre leasehold. The rest of the 400 acres to the east of it had been frequently leased for oil and gas purposes and at least the 150 acres immediately to the east of it was under testatrix' lease when testatrix died. It was, itself, for a long period of time, highly productive of oil and gas, and its sands were not exhausted during testatrix' lifetime, as the production from the tract under the Gainer lease shows. The value of the land was for oil and gas purposes, long known to and acted on by testatrix, to produce income. When we consider all of these circumstances and others stated above and the findings quoted above, it seems to us to have been clearly proved that testatrix had no intention of abandoning her use of the 50 acres for oil and gas purposes. The expiration of the lessee's right under the
Whether the production under the Gainer lease from this 50 acres has come wholly from new wells the evidence does not show; but it is a consequence of the decision in Youngman v. Shular, supra, that this matter is immaterial. Because of the rule about temporary cessation, the original opening of the mine, the original drilling of productive wells on the land, would seem to have the same effect as the existence of the owners' lease in force at the time of his death and of the vesting in possession of the life tenancy.
Fifth: We turn now to further consideration of the lease referred to in Finding 10, supra, and to the testatrix' lease to the Sun Oil Company in 1935 on the 150 acres immediately east of the Young-Lee 50 acre tract, being Lease No. 13 of the table above. This is the eastern 150 acres of the tract leased to Gainer by the lease referred to in Finding 8. The 200 acres covered by the lease referred to in Finding 10 covers the entire Gainer leasehold. According to Finding 10, the lease referred to therein was made by testatrix and terminated after her death, without production. According to the evidence, testatrix' aforesaid lease to Sun Oil Company terminated on April 18, 1945, having been kept in force thereto fore by delay rental payments. A little more than a year after the Sun Oil Company 150 acre lease ended, descendants of testatrix, including her trustees, began the execution and delivery of a series of leases to Gainer covering the 200 acres referred to in Finding 10 and the Sun 150 acres. There are 8 of these leases in evidence, seven made in 1946 and one made in 1948. The trustees' lease to Gainer referred to in Finding 8 is one of these and was ratified by the trustees pursuant to a decree of the trial court in another cause.
The situations presented by the 200 acre lease referred to in Finding 10 and the Sun 150 acre lease are the same (excluding the Yount-Lee 50 acres from the 200 acres or treating that lease as expired before testatrix died,) namely, a lease by testatrix for oil and gas purposes, in force when testatrix died but terminating without production, followed after an interval by a lease from her trustees. We may disregard all of the leases except the one made by the trustees, referred to in Finding 8. The first question to be decided is, whether the trustees' lease should be considered as opening a new mine in land to which the "open mine" doctrine has previously had no application, or as being only a renewal, continuing in existence a previous condition or use of the land? If the former, the "open mine" doctrine is inapplicable to the 150 acres immediately east of the Yount-Lee tract. And there is another question, namely, whether the fact that the trustees' lease is based, at least in part, on a decree of the trial court authorizing that lease, makes the "open mine" doctrine inapplicable. We assume, for the purposes of discussion, that the decree was necessary to make the lease effective.
We hold that the trustees' lease to Gainer, with its subsequent ratification by the trustees pursuant to the trial court decree, is to be treated as a renewal, that is, as only a continuation of the previous status or condition of the land leased which existed at testatrix' death, both as to the Yount-Lee 50 acres and as to the 150 acres immediately to the east thereof.
Must the royalty come out of the very lease made by the testatrix in order to constitute income payable to the life tenant? In Daniels v. Charles, 189 S.W. 192, by the Court of Appeals of Kentucky, which we have referred to above, the contract of the husband and wife to lease land for coal mining had actually expired before the husband died, and the wife's new lease, purportedly made under this contract, was not made until several years after the husband's death. The Court said that if the contract had been in force the wife would have been entitled to the royalties, but they denied her the royalties because the contract had expired before she made her lease. The decision is not in point on the facts since the contract expired before the husband died and no rights under the "open mine" doctrine vested in the wife at the time of his death, but the court's language, if not limited to the facts, might deny the life tenant rights under the "open mine" doctrine even under the facts pertaining to the 200 acres and 150 acre leases by testatrix now being discussed. However, such a limitation on the "open mine" doctrine seems inconsistent with the rule which determines the life tenant's rights as of the time his estate vests in possession, and we see no reason why such a limitation should be made. If the lease by the owner of the preceding estate of inheritance makes the "open mine" doctrine applicable to production under that lease when no production is made until after the life estate does vest in possession, we see no reason why the trustees' lease should not be treated as renewing, continuing, the condition created by the testatrix' lease.
Sixth: This leaves for consideration the rest of the 400 acre tract, on which no lease was in force when testatrix died. This part is the eastern 100 acres. According to the trial court's findings and the evidence we have summarized which explains and makes clear what those findings mean, testatrix had plainly shown an intention to use her one-half interest in the 400 acres for mineral purposes and nothing else, and under some forms of language used to state the "open mine" doctrine, conduct such as this might well be held enough to make that doctrine applicable to the entire tract. Thus in Swayne v. Lone Acre
Our conclusions deny effect to the trial court's finding No. 1, that the 400 acres was considered to be a unit, but regardless of testatrix' mental attitude, she actually leased only specific parts of this unit; only these specific parts were devoted to mineral uses by her affirmative act; the profit, the found, was always created in specific parts of the 400 acres, at different times; any conversion to personal property was always made with reference to specific tracts leased. (This repetition refers to certain forms of expression used in decisions to state the reason for the "open mine" doctrine.) And see Westmoreland Coal Company's Appeal, 85 Pa. 344.
The interpretation of the will.
In substance, testatrix' will devised in trust all of her property "in Liberty County — including oil and gas leases — the income from said trust to be for the benefit of my children (Theresa Perkins, a daughter, was excepted) and my grandchildren by my daughter Theresa —." The will provided further: "It is my desire, as far as possible, that this part of my estate be allowed to accumulate for the benefit of my grandchildren and great grandchildren, provided, however, that after payment of my debts, the income from said property shall be paid to my children and the children of Theresa Perkins, share and share alike, that is, one share jointly to all of the children of Theresa Perkins, and one share to each of my children except Theresa Perkins." Other parts of the will provide for payment in succession to these beneficiaries. It is not necessary to state other parts of the will.
On the first appeal, in Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803, 805, the Supreme Court held that the royalties paid to the trustees under the Gainer lease referred to in Finding 8 of the trial court, were part of the corpus of the trust estate and not income payable to beneficiaries. The court's discussion of the matter or interpretation is in general terms, but the court made the following statement preliminary to their discussion:
"This controversy involves royalties arising from Aurelia Mitchell's one-half interest in 200 acres of the Liberty County land covered by the oil and gas lease executed by her testamentary trustees to C. S. Gainer, Jr. During her lifetime another 100 acres, off the west side, had been leased to the Sun Oil Company. Still another 100 acres have not been
This statement qualifies and limits the general nature of the discussion following, and shows that the court acted on a state of facts profoundly different from that proved on the second trial, that the court excluded the "open mine" doctrine from their consideration, that the court did not determine the parties' rights to royalties paid under the Sun Oil Company lease on the western 100 acres of the 400 acres, and that the question actually decided by the court is only one of the questions which the facts proved on the second trial present for decision. The extraordinary difference between the facts on which the Supreme Court acted and those proved on the second trial will appear from a comparison of the evidence and findings stated in this opinion with the statements in the Supreme Court's opinion. To illustrate, the Supreme Court's statement that "prior to Aurelia Mitchell's death the 200 acres covered by the Gainer lease had not been leased or drilled, and rights acquired under the `open mine' doctrine are not applicable here" is incorrect, as applied to the facts in this record. The table of leases set out above shows that twelve of these leases, in all of which testatrix was a lessor, covered parts of the Gainer leasehold, and that at one time or another every part of the Gainer leasehold was under a lease made by testatrix. There is no dispute as to this important fact. The bonuses for these leases exceeded $48,000. In addition to these matters and to repeat, new parties have been brought into the case who are interested in the questions decided by the Supreme Court but are not bound by that court's judgment, and are also interested in all of the other questions involved in the appeal now pending before us and the case actually involves land not involved in the Supreme Court's opinion. We must, therefore, determine again, from the facts now in proof, what right the beneficiaries of the trust have to oil and gas royalties from the 400 acre tract.
As we have stated, it is our conclusion that the "open mine" doctrine should be used to determine the beneficiaries' rights to oil and gas royalties, first as a circumstance supporting our interpretation of the direction to pay income from the property devised, which included oil and gas leases, and next as the basis for our conclusion respecting the Yount-Lee 50 acres and the 150 acres immediately east of it. The "open mine" doctrine has frequently been applied in determining what income a beneficiary of a trust is entitled to. See Scott on Trusts, Sec. 239.2; Bogert on Trusts & Trustees, Sec. 828, pp. 294 to 299, inclusive; Page on Wills (Lifetime Edition), Sec. 1162; 18 A.L.R.2d 160, Section 21 et seq. The use of a rule of decision to determine the testatrix' intention respecting the meaning of "income" is exemplified in the Supreme Court's own opinion at 244 S.W.2d 806 where the Court used for that purpose the rule concerning new mines on land not previously mined. Then, there is no expression of intention in the will which precludes our using the doctrine (the expression of desire for an accumulation may be reconciled with our interpretation of the word "income"); and as statements made in this opinion show, application of the doctrine is but an extension of testatrix' own course of conduct,
Turning next to the quotation made from the will: The word "income" is not defined except by implication from the statement "income from said trust" and from the subsequent statement "income from said property." Since the latter form of expression is made in connection with the statement of desire for accumulation and is so definite that misunderstanding by testatrix was unlikely, we will construe it literally, that is, as meaning income from the property devised in trust, which included oil and gas leases, as the language quoted shows. And as we have stated, there were at least two of these leases, the Sun Oil Company lease on the western 100 acres and either the lease referred to in Finding 10, or the lease to Sun Oil Company on the 150 acres immediately east of the 50 acres. It would seem then, also as we have stated, that the direction to pay out the income from these leases would include the royalties paid under these leases, for such would be the natural and obvious meaning to give the word "income"; and this result is perfectly consistent with the result of an application of the "open mine" doctrine to this 100 acres. We think the direction to pay and the "open mine" doctrine are circumstances mutually supporting; the doctrine as a circumstance indicating the proper construction of the direction to pay, and the consistency of the latter with the operation of the doctrine as showing the applicability of the doctrine to a trust like this.
We have held that the "open mine" doctrine is also applicable to the 200 acres immediately east of the Sun 100 acres. The lease in force on this 200 acres or on the 150 acres east of the Yount-Lee 50 acres was also devised in trust, and if royalties
The members of this court are not satisfied that oil and gas royalties which may be paid out of production from the eastern 100 acres of the 400 acre tract ought to be distinguished from the royalties paid out of production from the western 300 acres of that tract, but the "open mine" doctrine does not apply to the eastern 100 acres and the expression of desire for an accumulation cannot be given effect, so far as the record before us shows, except as regards land not subject to the "open mine" doctrine. The result seems artificial but the desire for accumulation would otherwise be nullified.
Since only something in the nature of income can be accumulated, the direction to pay income is inconsistent with the statement of a desire for accumulation, unless "income" be defined so as to permit an accumulation of something; but the expression about accumulation is both precatory in form and qualified by the words "as far as possible". It would seem that language as indefinite as this, when followed by a positive order to pay out income from the property devised in trust, was not intended to qualify the literal meaning we have given the latter statement and to exclude from income the payments of royalties made under the oil and gas leases devised in trust, or from renewals thereof, which are, after all, not mentioned in the will. It seems to us that the testatrix' desire for an accumulation can be reconciled with the direction to pay income and both can be given effect by limiting accumulation, so far as oil and gas royalties are concerned, to royalties from lands not under lease when testatrix died, and at least the eastern 100 acres of the 400 acre tract was not then leased. Such royalties would be governed by the Supreme Court's holding in the first appeal that royalties from the trustees' lease on land not leased before was a part of the corpus of the trust estate.
These conclusions adjudicate the beneficiaries' rights to oil and gas royalties produced from the 400 acre tract. Of these conclusions, those pertaining to the 200 acres now covered by the Gainer lease are in conflict with those of the Supreme Court on the first appeal, but this conflict has occurred because of the new parties and the difference between the facts proved on the two trials of the cause.
Other Questions.
Of the various points assigned in the brief of Cornelius Mitchell, et al., we overrule Point 3 on its merits. Their points 4, 5 and 6 assign error to the admission of certain documents but the action was harmless to them and these points are overruled for that reason. Their points 8 and 9 are not decided. We do not understand their point 10. We find no discretionary powers in the will concerning the payment of income and so we overrule Point 10. As regards the points assigned in the brief of trustees Leon and Vick Mitchell, we do not decide point 8, except as regards monies these trustees did not account for, and we do not decide their counterpoints first and second. The two points assigned in the brief of the
Insofar as the judgment of the trial court declares oil and gas royalties from the 400 acre tract to be part of the corpus of the trust estate, said judgment is affirmed as regards the eastern 100 acres of the 400 acres and other Liberty County lands devised in trust except that now to be mentioned, but is reversed as regards the western 300 acres of said 400 acres; and judgment is here rendered declaring oil and gas royalties from said 300 acres to be income, payable to the life income beneficiaries of the trust.
Further, insofar as the judgment of the trial court has adjudged appellants Mary Prophet and husband and Agnes King and husband and the group of appellants headed by Cornelius Mitchell, et al. to be liable in money, to the trust or to the trustees or to any other person, and has authorized the trustees to withhold income from them, said judgment is hereby reversed and judgment is rendered that all other parties take nothing against said appellants.
It is a result of these two adjudications that the trustees can not perform the trust, can not administer the trust in accordance with the will of testatrix. It is an additional result that if the awards of money recovery against the beneficiaries who did not appeal are left in force, with the provisions authorizing the trustees to withhold income payable to said beneficiaries, money will go into the corpus of the estate which will pay an income to the appealing beneficiaries, in flat conflict with the theory on which the appealing beneficiaries have contested and won this appeal; and if the non-appealing beneficiaries are released from their obligations to reimburse the trust, then the trustees have been deprived of their right of recoupment from said beneficiaries. The case is not one where a judgment has been rendered solely for the appellee; all of the money recoveries awarded by the judgment were primarily for the reimbursement of the trust estate and secondarily, for the reimbursement of the trustees. Under the circumstances, it seems to us that the awards of money recoveries against the non-appealing beneficiaries and the provisions authorizing the trustees to withhold income from them must also be reversed and, still further in consequence, that the award of a money recovery against the trustees must be reduced by the amount of the sums awarded against the beneficiaries, the appealing one and those not appealing.
However, the trustees Leon and Vick Mitchell failed to account for $28,002.87, and judgment against them for this amount is affirmed.
Provisions of the trial court's judgment not inconsistent with the foregoing will be affirmed.
The above opinion was prepared by Justice Walker while he was a member of this court. It was not completed and ready to be filed until today, when it is filed by the present members of the court as their opinion in the case.
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Prestige Medical Imaging, LLC filed as a Domestic in the State of California on Wednesday, December 22, 2010 and is approximately five years old, as recorded in documents filed with California Secretary of State. The filing is currently active as of the last data refresh which occured on Sunday, June 22, 2014.
Michael Drobot serves as the Member and has interests in other corporate entities including Coastal Express Pharmacy, Inc., West Coast Surgery Center Management, Inc. and twenty-one more corporations. Michael's past corporate affiliations include Pspm-Pt, Inc., Mac Health Group, Inc. and twenty-one others.
Michael D. Drobot is also the registered agent for the company. Also known as a statutory or resident agent, the registered agent is responsible for receiving legal notifications regarding court summons, lawsuits, and other legal actions involving the corporate entity.
Key roles for Prestige Medical Imaging, LLC
Michael D. Drobot
|Filing Type:
|State ID:
|Date Filed:
|Wednesday, December 22, 2010
|Registered Agent
|Michael D. Drobot
Comprehensive Insight Plus Report
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|The D&B Comprehensive Insight Plus Report for Prestige Medical Imaging, LLC combines D&B's proprietary statistical scoring with business, payment and financial information all in one report.
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|The D&B U.S. Company Profile contains basic information such as address and telephone number, executive names and titles, line of business and SIC codes, D-U-N-S Numbers, organization status, and year and location of incorporation for Prestige Medical Imaging, LLC.


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Audio Samples
Album Summary
Notes & Reviews:
Bomtempo wrote a subtantial body of music, and enjoyed a brilliant carreer in Paris & London in the early 19th century. His two symphonies represent the maturing of the composer - the 'First' is clearly an inspiration of Haydn & Mozart while the 'Second' clearly recalls the epic scope of Beethoven's Eroica.
But the music � oh, what music! Bomtempo�s music is heavily based on Portuguese folk dance rhythms -- he must have been a very good dancer! Especially in the second symphony, dance rhythms predominate, and the last movement is based on what seems to be the Portuguese dance foclore, with a one-two-three, one-two-three, tuurrn, tuurrn rhythm over and over. I�m no expert in Portuguese dances, but a friend was born there, and his description of this dance matches the music perfectly. The Algarve Orchestra, based in Southern Portugal, relishes this music, and plays it perfectly � you can sense that they are dancing in their places even as they play! Even though they are a newly-founded orchestra, their playing is absolutely first-rate, and is one of the special features of this recording.
Unfortunately, Naxos has fallen down on the recorded sound here. Over the last ten years or so the Naxos sound has usually been absolutely first-rate. One example of the Naxos high -quality recorded sound is their CD of Tyberg�s Symphony No.3 � the sound is perfectly live and present. But here in the Bomtempo recording the sound has a �bottom of the barrel� quality, with very little openness or dynamic range. I think I even detect a bit of electronic reverb. It�s a disservice to this music, and to the orchestra. Such wonderful music deserves a first-class recording.
But the music itself shines through, and after the first five minutes the ears adjust to the cramped sound. Even with this disadvantage the CD gets a high recommendation, on the merits of the music and performance alone. Get on your dancing shoes, and come dance with me!
Submitted on 05/01/14 by Catriel
Also Purchased
Works DetailsBomtempo, J. Domingos : Symphony no 1, Op. 11
- Conductor: Alvaro Cassuto
- Ensemble: Algarve Orchestra
- Running Time: 23 min. 57 sec.
- Period Time: Classical
- Form: Orchestral
Bomtempo, J. Domingos : Symphony no 2
- Conductor: Alvaro Cassuto
- Ensemble: Algarve Orchestra
- Running Time: 42 min. 1 sec.
- Period Time: Classical