concurring in part, and dissenting in part.
I concur in the holding that the bequest was not adeemed. The house and lot of deceased had been sold prior to her death, but the proceeds of that sale were present in her estate and identifiable at the time of her death. The trial court was in error in holding that the bequest was adeemed.
This case was pleaded and tried upon a wrong theory. It was assumed by the parties and found by the trial court that the bequest was adeemed because the real estate was sold before decedent’s death. That was an erroneous assumption and finding in the trial of the case.
The attempt by the appellants to recover exemplary damages was predicated on the erroneous belief that the bequest had been adeemed. The case was in such a posture that appellants did not and could not attempt to show breach of fiduciary duty to them by Fuller and her son Tommy by failing to account to them for their share of the proceeds of the sale, and that such failure was with malice and intentional harm.
The rule in Texas is that where a case has been tried on the wrong theory, and the trial court commits error in rendering judgment, then in the interest of justice the case should be remanded for a new trial. Tex.R.Civ.P. 434; Morrow v. Shotwell, 477 S.W.2d 538, 542 (Tex.1972); Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 520 (1958). An excellent discussion of the question of remanding a case under circumstances as found here was prepared by Judge Robert Calvert and found in 4 St. Mary’s L.J. 291.
See Cape Conroe Limited v. Specht, 525 S.W.2d 215, 220 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Travelers Insurance Co. v. Delta Air Lines, Inc., 498 S.W.2d 443, 447-448 (Tex.Civ.App.—Texarkana 1973, no writ).
It is said in Members Mutual Ins. Co. v. Tapp, 437 S.W.2d 439, 440-441 (Tex.Civ.App.—Houston [14th Dist.] 1969), no writ.
*520Where a case has not been fully developed, and where it has been tried on the wrong theory, the judgment of the appellate court should be one of remand and not one of rendition.
See Members Mutual Ins. Co. v. Tapp, 469 S.W.2d 792 (Tex.1971); Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458, 459 (1948).
Since this case was tried on the wrong theory, and we hold that the trial court erred in holding that the bequest was adeemed, I would remand the ease for the purpose of determining the issue of exemplary damages.