Best v. Turner

• Decision Date: 09 December 1933
• Docket Number: No. 6859.,6859.
• Parties: BEST v. TURNER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

90 ALR 1293, 67 F.2d 786 (1933)

BEST v. TURNER et al.

No. 6859.

Circuit Court of Appeals, Fifth Circuit.

December 9, 1933.

E. M. Critz, of Coleman, Tex., for appellant.

R. R. Holloway, of Brownwood, Tex., for appellees.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

In an action by appellant as receiver of the Coggin National Bank of Brownwood, Tex., against May Turner and her husband, J. B. Turner, judgment for $5,000 was recovered against Mrs. Turner upon her double liability as a stockholder of the bank. 12 USCA § 63. The judgment provided that execution should be levied only upon her separate property, the income therefrom, and her personal earnings. (D. C.) 1 F. Supp. 461. The receiver appeals because the lien of the judgment was not made to extend also to the community property of the husband and wife.

Fifty shares of the bank's stock were bequeathed by the will of Mattie R. Coggin to Mrs. Turner, who during coverture, and long before the bank closed, accepted the bequest. It is appellant's contention that the liability of a stockholder of a national bank is statutory and not contractual. Upon this premise the argument is advanced that it is immaterial that the laws of Texas limit the power of a married woman to bind the community estate by her contracts. Appellees, on the other hand, insist that the liability here sought to be imposed is contractual and not statutory; but that, if statutory, the liability merely follows the stock and is that of the owner only.

Whether the liability be called statutory or contractual is not in our opinion decisive of the case. In McDonald v. Thompson, 184 U. S. 71, 22 S. Ct. 297, 298, 46 L. Ed. 437, it is said: "For the purposes of this case it the liability may have been both. The statute was the origin of both of the right and the remedy, but the contract was the origin of the personal responsibility of the defendant." In our opinion the rights of the parties are dependent upon the Constitution and laws of Texas; for of course upon a rule of property we accept the law of the state as construed by its highest court. Warburton v. White, 176 U. S. 484, 20 S. Ct. 404, 44 L. Ed. 555; Chicago, etc., R. R. Co. v. Risty, 276 U. S. 567, 48 S. Ct. 396, 72 L. Ed. 703.

The Constitution of Texas provides: "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband." Article 16, § 15. The bank stock which the appellee Mrs. Turner acquired under the will of Mrs. Coggin was therefore her separate property. Community property is that acquired by either spouse during marriage, except that which is the separate property of either. Revised Civil Statutes, art. 4619. It is liable for their debts contracted during marriage, article 4620; but is not liable "for debts or damages resulting from contracts of the wife except for necessaries furnished herself and children, unless the husband joins in the execution of the contract," etc. Article 4621. Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income from her separate property, is subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children. Article 4623. By construction it is established that the husband has generally the exclusive control and management of the community property. Stone v. Jackson, 109 Tex. 385, 210 S. W. 953. Cases like Christopher v. Norvell, 201 U. S. 216, 26 S. Ct. 502, 50 L. Ed. 732, 5 Ann. Cas. 740; Robinson...