(dissenting).
Antecedent to the divorce Dr. Nail and his wife were partners, albeit marital and not professional. Despite that fact I would hold that the situation presenting the problem to be resolved would not differ from that which would have obtained had they been professional partners and the decree one dissolving that character of partnership.
Important, I believe, is the absence of consent to any disposition of any part of the good will accumulated as personal to Dr. Nail as an individual during the period over which he was the marital partner of his wife. The property apportionment by the divorce decree includes part, if not all, of such good will attached and existent solely because of Dr. Nail’s professional skill, experience, and reputation as a physician. It is to be noticed that there was presence of consent in the cases cited by the majority upon the matter of acquisition and transfer of good will as an asset of medical doctors, viz: Wolff v. Hirschfeld, Yeakley v. Gaston, and Randolph v. Graham. In these cases it was in actuality something other than the professional skill, experience, and reputation of a doctor which was considered as property, though such had an effect upon the property and had operated to enhance its value.
My quarrel is not with the holding of those cases, nor of the conclusion of the majority that a professional man can acquire a good will in connection with his practice or profession and, if such good will does in fact exist, it is an asset which is property, even though intangible.
The point of my divergence of opinion is the authority of the trial court, absent the consent of Dr. Nail, to consider it or its value as part of the property to be divided pursuant to decree of divorce; or, (since Mrs. Nail was not a professional partner and incapable of any personal use of the good will) upon such evaluation to encumber Dr. Nail with an indebtedness to his divorced wife payable out of future income in the event he makes any use thereof by practicing his profession.
The general rule is that in a professional partnership such as of attorneys or physicians, the reputation of which depends upon the individual skill of the members, there is no good will to be distributed as a firm asset upon dissolution as the good will is primarily attached to the persons of the individual partners and necessarily attends each partner’s personality upon partnership dissolution. 65 A.L.R.2d 521, Annotation: “Accountability for good will on dissolution of partnership”, p. 529, Sec. 5, “Where good will is personal to individual partner or attached to his individual property”, and p. 538, Sec. 10, “Good will personal to partners”. Of course, there is nothing to *401interfere with the transfer of such good will as would be capable thereof by consent, as per contract, etc., a different matter altogether.
Under 38 C.J.S. Good Will § 3, p. 952 “(Nature and Incidents) — Adherence to Place, Name, Property, or Business”, and the Subsection, “Business or profession dependent on personal qualities of owner”, there is mention of differing lines of cases on the question of the adherence of good will to a business or profession dependent solely on the personal ability, skill, integrity, or other personal characteristics of the owner.
Thereunder is citation to two Tennessee cases by the reasoning of which I am impressed.
Slack v. Suddoth, 102 Tenn. 375, 52 S. W. 180, 45 L.R.A. 589, 73 Am.St.Rep. 881 (Tenn.Sup.Ct., 1899). The parties had been professional partners in the practice of dentistry. Upon dissolution one partner sought and obtained from the chancellor a sum of $500 as his portion of the good will (formerly belonging to both partners) because the other had retained the office location formerly used by both. The court held that the $500 was erroneously awarded, writing, as follows: “ . . . no forced sale or transfer can be made of a good will, when it is based upon professional reputation and standing, or upon business connections. Good will implies something gained by consent, — not something realized by force or coercion.”
Hunt v. Street, 182 Tenn. 167, 184 S.W. 2d 553 (1945). The parties had been professional partners as architects under the firm name of R. H. Hunt Company. Street, after the dissolution, conducted business under the same company name. Hunt sought and obtained an injunction. Additionally, the chancellor ruled that the firm name was a partnership asset and a receiver was appointed and directed to sell it as such, to the highest bidder at public outcry, with intention to divide the proceeds between the former partners. On appeal the decree authorizing sale of the company name was reversed. The court referred to language in a New Jersey case, viz: “ ‘Professional skill, experience, and reputation are things which cannot be bought or sold. They constitute part of the individuality of the particular person, and die with him.’ ” Mandeville v. Harman, 42 N.J.Eq. 185, 193, 7 A. 37, 40 (1886). The court also made reference to 24 Am.Jur., p. 805, “Good Will”, Sec. 5, “Elements”, and quoted from 40 Am.Jur., p. 316, “Partnership”, Sec. 271, “Professional Partnerships”, as follows: “ ‘The general rule is that a professional partnership the reputation of which depends on the individual skill of the members, such as partnerships of attorneys or physicians, has no good will to be distributed as a firm asset on its dissolution. Therefore, no forced sale or transfer can be made of the good will of such a partnership on a termination of the firm by mutual assent.’ ”
The writer is of the opinion, not only of the soundness of the principles of law declared upon by the two Tennessee cases, but that these same principles would have full application to the divorce of the marital partners in the instant case. If in the one instance a forced sale of the professional good will of either or both parties would be inhibited by law the same would be true in the other.
The proper answer is: the good will of Dr. Nail, attached and existent because of his professional skill, experience, and reputation as a physician, comprises no part of the property to be administered upon dissolution of the marriage, whether by death or divorce.
I recognize and acknowledge that the trial' court’s attempt at property division was not an award of alimony. I also am aware that the “points of error” presented do not predicate complaint on the ground discussed and which I believe constitutes reversible error. However, I believe that in the light of the statements and arguments made under all points the ground *402may be said to be fairly raised and presented. The court is authorized to pass on the sufficiency and merits of a point of error in the light of the statements and arguments thereunder. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Texas Rules of Civil Procedure 418, “Briefs: Contents”.
I would remand the cause to the trial court in order that a new property division might be made without the inclusion, as part of such property, a “value” placed upon Dr. Nail’s professional skill, experience, and reputation as a physician.