ESTATE OF Aileen Copley TOWNES, Deceased, John Charles Townes, IV, and Susan Townes Parker, Successor Independent Co-Administrators With Will Annexed of the Estate of Aileen Copley Townes, Deceased, Appellants, v. Donna Lou TOWNES, Independent Executrix of the Estate of William Michael Townes, Deceased, Donna Lou Townes, Individually, Jerry S. Payne, Individually, and Payne & Associates, Appellees, 867 S.W.2d 414

MAJORITY OPINION ROBERTSON, Justice. This is an appeal from a take nothing judgment entered in favor of appellees on appellants’ claims of breach of fiduciary duty and conversion. Appellants bring eight points of error challenging the sufficiency of the evidence supporting the jury’s findings on liability, challenging the trial court’s refusal to submit a jury issue on their claim of unjust enrichment, and challenging the trial court’s admission of certain evidence. We reverse and remand. Aileen C.

Townes had five children: Aileen Townes McHenry, John Charles Townes IV, Susan Townes Parker, William Michael Townes, and George Copley Townes (who died in 1966). Aileen Townes was the primary beneficiary of her husband’s estate. After the death of her husband, Aileen Townes’ brother, George Copley, assisted with the management of her financial affairs until his death. Testimony indicated that Aileen Townes did not compensate her brother for his assistance. Upon George Copley’s death, Aileen Townes’ son, Michael Townes began assisting in the management of her financial affairs. In 1985, the “Aileen C.

Townes Special Account” was opened at First Interstate Bank. Although both Aileen Townes and Michael Townes were signatories on this account, the funds in this account belonged to Aileen Townes. Michael Townes also possessed the authority to write checks on his mother’s Merrill Lynch Cash Management Account. The funds in this account also belonged to Aileen Townes.

From 1985-89, Michael Townes made the following withdrawals from Aileen Townes’ accounts and deposited the funds in his own account or used the funds to his benefit: $60,598.60 in 1985-86; $100,410.50 in 1987; $80,000.00 in 1988; and $200,787.40 in 1989. All of the withdrawals, except the last one, were from the special account. In September 1989, Aileen Townes lapsed into a coma and later died. The last withdrawal by Michael Townes, of $83,650.00 from the Merrill Lynch account, occurred while his mother was in a coma. Michael Townes was appointed the executor of Aileen Townes’ estate.

From 1985-90, Michael Townes had a serious heart condition, of which his mother had been aware. In April 1990, Michael Townes died of a heart attack. The individual appellants were then appointed as Successor Independent Co-Administrators. Under the terms of Michael Townes’ will, his wife Donna was appointed independent executrix of Michael’s estate. Michael Townes left his entire estate to his wife, Donna. The estate of Aileen Townes had an approximate fair market value of $1,200,000.00.

The following represents the approximate distributions from this estate: Appellant, Charles Townes — $431,095.00; Appellant, Susan Parker — $431,095.00; George Copley Townes (Michael’s son) — $215,547.00; Elizabeth Brandt (Michael’s daughter) — $215,-547.00; and Aileen McHenry — $1,000.00. Aileen McHenry testified that she received only $1,000.00 under her mother’s will because her uncle, George Copley, had left her his entire estate. The E.E. Townes Trust Number 4, of which Aileen Townes was the beneficiary, terminated upon her death.

Under the terms of that trust, it was to be distributed in equal portions to the following four persons: Charles Townes, Susan Parker, Aileen McHenry, and Michael Townes. The value of this trust is approximately $3,052,532 to $4,117,325.60. Each of the four individuals will receive approximately $763,133 to $1,029,331.30. Donna Townes, widow of Michael Townes, testified that she did not have any involvement in Michael’s financial business. Donna claimed that she never saw any of the checks Michael withdrew from his mother’s account and she never signed or endorsed them for deposit.

Donna also testified that, while Michael was in the hospital, appellant, Charles Townes requested all of the paperwork regarding Aileen Townes’ estate. Donna refused to respond to those requests at that time. After Michael’s death, Donna collected all of the paperwork and gave it to her attorney, who in turn, made them available to appellants. Upon reviewing the documentation, appellants learned of Michael’s withdrawals from their mother’s accounts from 1985-89. Appellants then filed this suit, alleging breach of fiduciary duty, conversion, fraud, and unjust enrichment.

Appellants sought the imposition of a constructive trust and sought actual damages of $400,000.00 and punitive damages of not less than $1,200,000.00. The case went to the jury only on the issues of breach of fiduciary duty and conversion. The jury found no liability on the part of Michael Townes and the trial court entered a judgment dismissing appellants’ claims with prejudice. In points of error one and two, appellants claim there was legally and factually insufficient evidence to support the jury’s finding that Michael Townes did not breach his fiduciary duties to Aileen Townes.

Where a party challenges the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing a matter of law challenge, we must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. at 690. If there is no evidence to support the finding, we must then examine the entire record to determine if the contrary proposition is established as a matter of law. Id.

If a party is attacking the factual sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex.App.—Corpus Christi 1990, writ denied).

In reviewing such a challenge, we must examine the entire record to determine if there is some evidence to support the finding, if the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great preponderance of the evidence supports its nonexistence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Whether the great weight challenge is to a finding or a nonfinding, we may reverse and remand a case for a new trial if we conclude the jury finding or nonfinding is against the great weight and preponderance of the evidence.

See Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990). The parties stipulated that Michael Townes occupied a fiduciary relationship with his mother regarding her estate. When persons enter into fiduciary relations, each consents as a matter of law to have his conduct measured by “the standards of the finer loyalties exacted by courts of equity.” Sorrell v. Elsey, 748 S.W.2d 584, 585 (Tex.App.—San Antonio 1988, writ denied) (quoting Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 788 (1938)).

Even in the case of a gift between parties with a fiduciary relationship, “equity indulges the presumption of unfairness and invalidity, and requires proof at the hand of the party claiming validity ... of the transaction that it is fair and reasonable.” Sorrell, 748 S.W.2d at 585. The fiduciary must show that the transaction was “fair, honest, and equitable.” Miller v. Miller, 700 S.W.2d 941, 947 (Tex.App.—Dallas 1985, writ ref'd n.r.e.).

In establishing the fairness of a transaction involving a fiduciary, some of the most important factors are: (1) whether there was full disclosure regarding the transaction, (2) whether the consideration (if any) was adequate, and (3) whether the beneficiary had the benefit of independent advice. Id. Another crucial inquiry is whether the fiduciary has benefited at the expense of the beneficiary. Id. The transaction is unfair if the fiduciary significantly benefits from it as viewed in light of circumstances existing at the time of the transaction. Id.

Because the parties stipulated to the existence of a fiduciary relationship and that Michael withdrew funds from his mother’s account, the burden was on appellees to rebut the presumption that Michael’s transactions were unfair. Appellees contend the following evidence supports the jury’s finding that Michael Townes did not breach his fiduciary duty: Aileen Townes was very generous to her family. During the years in question, Aileen Townes gave appellant, Charles Townes and his family approximately $148,-000.00, and gave appellant, Susan Parker and her family approximately $101,000.00.

The parties stipulated that Aileen Townes had a close relationship with her son, Michael, and was aware of his health problems. Michael Townes lived close to Aileen, visited her often, and spoke with her several times a day. Testimony also indicated that Aileen Townes was alert and aware of her financial condition until her death. Although appellant Charles Townes testified that Michael’s lifestyle improved after he began managing Aileen Townes’ estate, other testimony indicated that Michael and Donna Townes lived an average lifestyle.

They did purchase at least one automobile and they took some trips, but Donna Townes testified that these trips were taken with Aileen’s knowledge and were not expensive trips.

The testimony of Timothy Winata, an expert witness CPA called by appellees, concerned Winata’s review of the documentation while making the following assumptions of fact: (1) that Michael Townes was a law-abiding and honest individual; (2) that Aileen Townes made gifts to her children and her children’s families; (3) that Michael Townes assisted his mother with all her financial affairs; and (4) that there was an agreement or arrangement between Michael Townes and his mother for compensation of Michael for his services.

Winata classified some of the funds withdrawn by Michael as gifts because those funds were used to purchase automobiles and Aileen Townes had made transfers to other family members for the purchase of vehicles. Winata also classified the checks to Donna Townes as gifts. The remaining amount Winata classified as compensation for Michael’s management of his mother’s financial affairs. This amount constituted 51.9% of the income growth of Aileen’s accounts.

Based on his analysis and on the assumptions of fact, Winata concluded that the “most probable agreement between Michael Townes and his mother for the compensation to Michael Townes for handling her financial affairs was that Michael Townes and his mother would divide on an equal basis all the income and growth he derived from the investment portfolio for the years in question.” We do not find that this evidence establishes any of the factors important in rebutting the presumption that Michael’s withdrawals from Aileen’s account were unfair.

Appellants contend that the following evidence establishes breach of fiduciary duty as a matter of law: The parties stipulated that Aileen’s handwriting did not appear on any of the checks written or withdrawals made by Michael. Indeed, the parties stipulated that Michael signed all of such checks or withdrawals. Although Aileen received duplicate statements regarding the Merrill Lynch account, only Michael received account statements regarding the special account. All of Michael’s withdrawals except for the last one came from the special account, for which Aileen received no account statements.

The final cheek written by Michael Townes came from the Merrill Lynch account. Although Aileen Townes received statements from this account and thus, ordinarily would have been apprised of the withdrawal, this particular withdrawal of $83,650.00, occurred while Aileen was in a coma from which she never recovered. Morris Bosak, an accountant who had dealt with Michael Townes, testified that Michael did not use proper accounting methods. Bo-sak’s review of the documents revealed no evidence that Michael was paid compensation for his services.

Bosak further testified that, during Michael’s management, the estate lost approximately $30,000.00. Based on his experience regarding fair and reasonable compensation of a fiduciary or trustee, the amount of funds Michael withdrew was excessive as compensation. Our review of this evidence shows that there was no evidence Aileen received independent advice regarding the transactions. The evidence clearly shows that Michael Townes benefitted from the withdrawals at Aileen’s expense, and that there was not full disclosure.

Aileen did not receive any account statements reflecting the withdrawals made while she was in good health and the last withdrawal, taken from an account for which Aileen ordinarily would have received a statement, was taken while Aileen was in a coma. We find that this evidence establishes that appellees did not rebut the presumption of unfairness of these transactions and that the evidence conclusively establishes that Michael Townes breached his fiduciary duty.

Therefore, the trial court erred in overruling appellants’ motion for JNOV and in entering judgment in favor of appellees as to breach of fiduciary duty. We sustain point of error one. Having sustained point of error one, we need not address point of error two. In points of error three and four, appellants claim there was no evidence or insufficient evidence of the existence or terms of any agreement between Aileen Townes and Michael Townes. Because appellants did not have the burden of proof on this issue, they must demonstrate on appeal that there is no evidence to support the jury’s finding. Croucher v.

Croucher, 660 S.W.2d 55, 58 (Tex.1983). We may consider only the evidence and inferences that tend to support the finding, disregarding all contrary evidence and inferences. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

Where a party challenges the factual sufficiency of the evidence supporting an adverse finding on which he did not have the burden of proof, he must demonstrate there is insufficient evidence to support the adverse finding. See Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex.App.—Corpus Christi 1990, writ denied). In reviewing such a challenge, we must consider all of the evidence and set aside the verdict only if the evidence standing alone is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Jury question 2 asked if, and the jmy so found, that the withdrawals made by Michael Townes from his mother’s accounts were within the scope of an agreement between Michael Townes and his mother. The alleged agreement between Aileen Townes and Michael Townes was not an express agreement. An implied contract arises when circumstances disclose that, according to the ordinary course of dealing and the common understanding, there was a mutual intent to contract. City of Houston v. First City, 827 S.W.2d 462, 473 (Tex.App.—Houston [1st Dist.] 1992, writ denied).

Express language is not essential to a promise; conduct may convey an objective assent. Id. The only difference between express contracts and implied contracts is the character and manner of proof required to establish mutual assent, and whether mutual assent existed is a question of fact for the jury. See id. The only evidence relating to an agreement between Aileen Townes and Michael Townes was a statement by Michael’s sister that their mother would have wanted to compensate Michael, and the testimony of expert witness, Timothy Winata.

The testimony of Winata, however, was based on the assumption that an agreement existed. Wi-nata did not determine if an agreement existed. Instead, he assumed one existed and then attempted to determine the terms of that agreement. Morris Bosak, another expert witness who reviewed the financial documents, testified that there was no documentary evidence indicating an agreement to compensate Michael.

We find that the evidence supporting the jury’s finding of an agreement is so weak as to do no more than create a mere surmise or suspicion of the existence of an agreement and therefore, this evidence is no more than a scintilla and, is in legal effect, no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Having found no evidence to support the jury’s finding of an implied agreement between Aileen and Michael Townes, we sustain point of error three. We need not address point of error four.

In points of error five and six, appellants challenge the legal and factual sufficiency of the jury’s findings that Michael and Donna Townes did not convert funds belonging to Aileen Townes. Conversion consists of the wrongful exercise of dominion or control over another’s property in denial or inconsistent with the other’s rights in that property. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex.1971). Money is subject to conversion only when it can be described or identified as a specific chattel, and not where an indebtedness may be discharged by the payment of money generally. Wheat v.

American Title Ins. Co., 751 S.W.2d 943, 944 n. 1 (Tex.App.—Houston [1st Dist.] 1988, no writ); Crenshaw v. Swenson, 611 S.W.2d 886, 891 (Tex.Civ.App.—Austin 1980, writ ref'd n.r.e.). An action for conversion of money will lie where the money is “(1) delivered for safe keeping; (2) intended to be kept segregated; (3) substantially in the form in which it is received or an intact fund; and (4) not the subject of a title claim by the keeper.” Edlund v. Bounds, 842 S.W.2d 719, 727 (Tex.App.—Dallas 1992, writ denied).

Our review of the evidence supporting the jury’s finding of conversion reveals no evidence showing that Aileen consented or agreed to all of the withdrawals and no evidence that Michael had a title claim to any of the funds. Thus, we must review all of the evidence to determine whether the evidence established conversion as a matter of law. The parties stipulated that Michael Townes managed his mother’s financial affairs and her investment portfolio.

The parties also stipulated that, although Michael was authorized to sign checks on the two accounts, all of the funds deposited and all the income or appreciation from those funds belonged to Aileen Townes. Finally, the parties stipulated that Michael Townes wrote checks to himself or to family members from Aileen’s accounts totalling more than $400,-000.00. There is no evidence of an agreement between Michael and Aileen Townes regarding the withdrawal of funds and Michael, not Aileen, received the account statements from the special account, from which all but the last withdrawal were made.

As previously mentioned, the last withdrawal was from the Merrill Lynch account, and although Aileen received statements regarding this account, this withdrawal of $83,-650.00 occurred while Aileen was in a coma. This evidence establishes that the funds in the accounts were in Michael’s care for safe keeping and that these funds were intended to be kept segregated as an intact fund. The evidence further shows that Michael wrote checks or made withdrawals from these accounts in the amount of $441,796.50.

The evidence does not show that Aileen consented or agreed to the withdrawals or that she was even aware of all of the withdrawals. Furthermore, the funds were not the subject of a title claim by Michael Townes. Thus, we hold that the evidence conclusively establishes that Michael Townes committed conversion by withdrawing sums from Aileen’s account. As to Donna Townes, however, we find the evidence supports the jury’s finding that she did not commit conversion.

The evidence showed that Donna did not know of Michael’s involvement with his mother’s financial affairs until the time of Aileen’s final illness in September 1989. Donna testified that Michael never discussed any financial decisions with her and never let her make any deposits into the checking account. No evidence contradicted Donna’s testimony regarding her lack of involvement. Thus, we find no evidence of the elements of an action for conversion of money with respect to Donna. We sustain point of error five insofar as it relates to Michael. We overrule point of error five with respect to Donna.

Based on our ruling on point of error five, we need not address point of error six challenging the factual sufficiency of the evidence supporting the jury findings of conversion. In point of error seven, appellants claim the trial court erred in refusing to submit jury questions on unjust enrichment. Having sustained points of error one, three, and five, we need not address this point of error.

In point of error eight, appellants contend the trial court erred in allowing into evidence both the testimony and the written report of Tim Winata because such testimony and report were premised entirely upon facts not in evidence, were wholly speculative and not probable. Having sustained points of error one, three, and five, we need not address this point. We reverse the judgment of the trial court and remand the cause for proceedings in accordance with this opinion.