(concurring).
I concur because of the jury’s answers to Special Issues No. 2-B, 3-B, 4-B, 5-B, and 6.
The jury found in answer to Special Issues No. 2-B, 3-B, 4-B, and 5-B, the Swenson sisters did not understand the nature and subject matter of the respective transactions and the consequences of their acts. I agree the evidence established as a matter of law that a fiduciary or confidential relation existed between S. T. Swenson and his sisters, Clara J. Swenson and Alma B. Swenson. It must be kept in mind that the transactions involved a confidential relationship and an inter vivos gift. I think under the facts of this case, Special Issues No. 2-B, 3-B, 4 — B, and 5-B, were ultimate and controlling issues, there was some evidence to support the jury’s findings, the evidence was not factually insufficient to support the findings, and the answers were not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. Archer v. Griffith, 390 S.W.2d 735 (Tex.Sup.1964); Bohn v. Bohn, 455 S.W.2d 401 (Tex.Civ.App.— Houston (1st Dist.) 1970, writ dism.).
In answer to Special Issue No. 6 the jury found that the Swenson sisters did not place the deed dated July 14, 1970, conveying 1761 acres of land to the Stephens County Museum, Inc., in control of Stephens County Museum, Inc., with the intention that it should become operative as a conveyance of the land therein described. *689There is evidence in the record that the conveyance was for a special purpose. I am of the opinion there is some evidence to support the jury finding, the evidence is not factually insufficient to support the finding and the finding is not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.
I do not agree that the judgment of the trial court can also be affirmed based upon the jury’s answers to Special Issues 2-A, 3-A, 4 — A, S-A, 7, and 8, in view of the appellants’ objections and exceptions to the charge, the misconduct of the jury, and the evidence contained in the record.
In Special Issue 2-A, the jury was asked to find whether at the time the Swenson sisters made the “second contribution of approximately $50,000.00 to Stephens County Museum, Inc.,” they were acting under undue influence. Appellant, Museum, objected and excepted to such issue on the grounds that the second $50,000.00 contribution was made up of various checks given at different times and dates and the issue as submitted requested the jury to find the existence or nonexistence of undue influence with respect to the aggregate of such respective contributions when if broken down as to each individual contribution they could find the absence of undue influence with respect to one or more of such individual checks. The Museum further pointed out that as framed the issue constituted a comment upon the evidence. In my opinion the objection was valid. The evidence showed that the second contribution of “approximately $50,-000” consisted of a series of checks given at different times. The issue as framed required the jury to find all of the $50,000.00 was given as a result of undue influence or all of it was not. The issue constituted a comment on the weight of the evidence. Rule 272, T.R.C.P.; Johnson v. Zurich General Accident and Liability Insurance Company, 146 Tex. 232, 205 S.W. 2d 353 (1947).
Appellants objected and excepted to Special Issues No. 2-A, 3-A, 4 — A, and 5-A because the issues failed to inquire as to the name or identity of the party or parties who may have exerted the undue influence and as worded the jury was permitted to speculate and find the existence of undue influence by persons unknown to and unconnected with any of the defendants in the case and unconnected with any of the evidence in the cause. I agree that the issue was too general and global. I fail to find any evidence of undue influence exerted by any person other than S. T. Swenson. The undue influence issues should have included by either name or capacity the party or parties who allegedly exerted such undue influence.
Appellants contend material jury misconduct occurred insofar as the undue influence issues are concerned. I agree. The testimony of the jury foreman establishes, without contradiction, the jury substituted its own definition of what constituted undue influence for the definition given by the court.
The jury found in answer to Special Issues No. 7 and 8 that the Swenson sisters did not place the deed conveying approximately 5777 acres of land to the trustees, and the declaration of trust, in the control of the trustees with the intention that the instruments should become operative. The trustees contend there is no evidence to support these findings. I agree.
The record reflects that the deed conveying approximately 5777 acres of land to the trustees and the declaration of trust were placed in the hands of the trustees after the instruments were executed by ap-pellees. There is no evidence in my opinion that these two instruments were given to the trustees for any special purpose. I do not think the rule announced in Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287 (1957) and Vannerberg v. Anderson, 146 Tex. 302, 206 S.W.2d 217 (1947) is applicable. In those cases the deeds were never placed in the hands of the grantees. Here, *690the deeds were placed in the hands of the grantees and there was no evidence of any reservation, restriction or special purpose. I think the proper rule to be applied is found in 19 Tex.Jur.2d § 88, page 368, where it is stated:
“If a grantor places a deed in the hands of the grantee, except for some special purpose, the law conclusively presumes that he intended it to become operative as a conveyance, and the delivery is complete and valid unless accident, mistake, fraud, or some similar ground for relief exists.”
See also McClendon v. Brockett, 32 Tex. Civ.App. 150, 73 S.W. 854 (1903, writ ref.); Johnson v. Masterson, 193 S.W. 201 (Tex.Civ.App.1917, writ ref.).
If it were not for the jury’s answers to Special Issues No. 2-B, 3-B, 4-B, 5-B, and 6, I would reverse and remand the case. However, in view of the jury’s answers to Special Issues No. 2-B, 3-B, 4-B, 4 — B, and 6, I am of the opinion that the judgment of the trial court should be affirmed. I also agree that appellees’ cross-points should be overruled because there is some evidence to support the answers of the jury to Special Issues No. 1-A and 1-B.