Cooper v. Cooper, 11503.

• Decision Date: 04 February 1943
• Docket Number: No. 11503.,11503.
• Citation: 168 S.W.2d 686
• Parties: COOPER et al. v. COOPER.
• Court: Texas Court of Appeals

168 S.W.2d 686

COOPER et al. v. COOPER.

No. 11503.

Court of Civil Appeals of Texas. Galveston.

February 4, 1943.

Rehearing Denied February 17, 1943.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by Inez Cooper against Charles Cooper, individually and as executor of the estate of Ernest H. Cooper, deceased, and another, for statutory allowances to plaintiff as deceased's widow. Judgment for plaintiff, and defendants appeal.

Affirmed.

C. E. McVey, of Houston, for appellants.

J. A. Copeland and W. M. Latham, both of Houston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 61st District Court of Harris County, entered partly upon a jury's verdict in response to special issues submitted, and partly upon independent findings of the court itself from the pleadings and evidence, allowing the appellee, as the surviving wife of Ernest H. Cooper, deceased,—on her suit therefor against appellant, Charles Cooper, individually, and as independent executor of the estate of Ernest H. Cooper, and Alice Cooper, the deceased's daughter and one of his devisees,—and payable, primarily, out of the deceased's estate in the hands of the appellant-executor, these amounts of money on account of these, respectively, specified claims by her therefor, to-wit: (1) As a reasonable allowance in lieu of a homestead, $2,000; (2) as a widow's allowance, in reimbursement for the maintenance of herself for one year from the time of the death of her deceased husband, Ernest Cooper, $1,000; (3) as a reasonable allowance in lieu of exempted personal property and articles, which are not among the effects of the deceased, $750 (less the remittitur of $250 hereinafter mentioned); (4) as the reasonable value of appellee's undivided one-half interest in the community property belonging to the community estate of herself and her deceased husband, $162.50; all four items aggregating the total of $3,662.50.

The $250 remittitur, mentioned supra, was voluntarily made by the appellee in the trial court in connection with the jury's answer under special issue No. 4 that $750 would be a reasonable allowance to appellee as such widow "in lieu of exempt articles (other than the household furniture and furnishings) which are not among the effects of said deceased", such voluntary relinquishment of the $250 having been so made by her in response to the holding by that court that — under R.S. Article 3487 — only one-half of a $1,000 maximum could be allowed her in lieu of such missing exempt articles.

As indicated, such total recovery of $3,662.50 was so awarded the appellee against the appellant-executor primarily out of the estate of the deceased; but the court, upon findings therein specified, further thus adjudged the same recoveries in her favor, secondarily, against appellant, Charles Cooper, individually, whom she had likewise sued both in his representative and individual capacities, as follows:

"It further appearing to the Court, and the Court so finds from the undisputed evidence, that said Defendant, Charles Cooper, has converted a part of the Estate of Ernest Cooper, Deceased, into cash and has commingled the monies, funds and assets of said Estate with his own, and that he has not made, and could not make, a proper accounting and settlement with Plaintiff for her widow's rights, and community interests in said Estate, and has so managed the affairs of said Estate as to render himself personally and individually liable to Plaintiff, the Court is of the opinion that Judgment should also be rendered in favor of Plaintiff against said Defendant, Charles Cooper, individually, as well as in his capacity as Independent Executor of said Estate.

"It is therefore further Ordered, Adjudged and Decreed by the Court that said Plaintiff, Mrs. Inez Cooper, do have and recover of and from said Defendant, Charles Cooper, individually, (also sometimes known as C. L. Cooper) said sum of Three Thousand Nine Hundred Twelve and 50/100 ($3,912.50) Dollars, less said remittitur of Two Hundred Fifty ($250.00) Dollars filed by Plaintiff herein, or the net sum of Three Thousand Six Hundred Sixty Two and 50/100 ($3,662.50); less also any credits that said Defendant may be entitled to by reason of any monies first made upon such execution against the properties of said Testator, Ernest H. Cooper, deceased, in the hands of said Charles Cooper, as Independent Executor of said Estate; and that if the proceeds from such execution sale of said properties belonging to the Estate of Ernest H. Cooper, deceased, should be insufficient to satisfy this Judgment in full, then execution shall issue against said Defendant, Charles Cooper, individually, (also sometimes known as C. L. Cooper) on any property that he may have, which is subject to execution, for any balance that may be remaining due on this Judgment."

The Court also appended this adjudication as to the appellant, Alice Cooper, whom the appellee had so in like manner sued individually along with Charles Cooper in his two stated capacities — upon a finding that she had then become of age, and had been represented in the cause by her attorney, and was asserting some kind of interest in the deceased's property, to-wit: "* * * that any and all claims, rights, title and interest of said Defendant, Alice Cooper, in and to the properties and assets, both separate and community, belonging to the Estate of said Ernest H. Cooper, deceased, are inferior and subject to the rights, interests, and claims of said Plaintiff and to this Judgment awarded in her favor."

The appellants in their brief state points for reversal, which, in substance, may be thus recapitulated:

(1) That no special issues should have been submitted to the jury on certain enumerated special exceptions to the appellee's pleadings, which had, prior to this trial in the 61st District Court, been adversely ruled upon by the 80th District Court.

(2) Appellants' motion for an instructed verdict in their favor below should have been granted, because there was not sufficient evidence justifying the submission of any of the five special issues submitted by the court, the undisputed evidence having shown that the only issue made upon the pleadings and evidence was one "upon the issue of community property, that there was accumulated a small amount of furniture, which was worth $150.00".

(3) The court lacked power to make any allowance in lieu of a homestead, because the appellee had no community interest in any of the decedent's property, they not having been living together as husband and wife at the time of his death, a divorce suit by him against her having been then pending, all the land he owned at the time of his death having been his separate property and they, too, never having lived upon any of it during the marriage; and, finally, all of such property having been, both at the time of their marriage and at that of his death, heavily incumbered to the Federal Land Bank of Houston.

(4) The allowance to appellee for one year's support after the husband's death was unnecessary, because it was made more than four years after his death, contrary to R.S. Articles 3404 to 3412, inclusive, Vernon's Sayles' Civil Statutes, 1914, Vernon's Ann.Civ.St. Arts. 3476-3484.

(5) The court erred in submitting special issue No. 4, quoted supra, as to what would be a reasonable allowance for appellee in lieu of certain exempt articles not found among the deceased's effects, "because, under Article 3402, Revised Statutes 1925, the appellee could not recover on this issue."

(6) The quoted judgment against Charles Cooper, individually, was fundamental error, because the appellee in her trial pleadings only sought such a recovery against him, in the event that "it be found that the said Charles Cooper, defendant, has disposed of any part of said property, or unlawfully converted any part of said property to his own use and benefit, then that plaintiff have a proper money-judgment against said defendant;" further, because there was no evidence that he had ever disposed of or unlawfully converted to his own use and benefit any of the deceased's property, and no issue was submitted to the jury on that question.

In the state of the record here, it is determined that none of these contentions should be sustained; while it is thought that some of them are subject to one or another of many objections made by the appellee...