Edelstein v. Brown

• Decision Date: 06 March 1907
• Citation: 100 S.W. 129
• Parties: EDELSTEIN v. BROWN et al.
• Court: Texas Supreme Court

Page 129

100 S.W. 129

EDELSTEIN v. BROWN et al.

Supreme Court of Texas.

March 6, 1907.

Error from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by J. M. Brown and another against E. Edelstein. From a judgment in favor of plaintiff affirmed by the Court of Civil Appeals (95 S. W. 1126), defendant brings error. Affirmed.

See 80 S. W. 1027.

M. M. Smith, E. A. King, and Morris & Crow, for plaintiff in error. W. R. Heath and Sam D. Snodgrass, for defendants in error.

BROWN, J.

J. M. and L. B. Brown instituted this action in the district court of Camp county, in which they alleged that they were the children and only heirs of Mrs. Sarah Edelstein, deceased, who was the wife of the defendant, E. Edelstein; that Mrs. Edelstein had departed this life, leaving community property of herself and her said husband which was in the hands and possession of defendant, Edelstein. They prayed for the appointment of a receiver for the estate, which was done, and that they should recover their mother's interest in the community property of the said Edelstein and wife. Plaintiffs were the children of Mrs. Edelstein by a former husband. Edelstein denied the marriage between himself and the plaintiffs' mother, at the same time admitting in his testimony that he and the plaintiffs' mother had maintained illicit intercourse with each other during her marriage to three husbands, from all of whom she had been divorced, and that, subsequent to the divorce from the last husband, the mother of the plaintiffs and the defendant had lived together, occupying the same room, and oftentimes the same bed. There was no evidence of any statutory marriage, and plaintiffs relied upon the presumption of marriage arising from the facts of the cohabitation. L. B. Brown, one of the plaintiffs, was introduced as a witness on their behalf, and testified at length to the facts of the cohabitation between Edelstein and his mother during many years, a part of which time he lived in the house with them, and that they lived together as man and wife up to the time of his mother's death, in the year 1902. The defendant, Edelstein, objected to this testimony, upon the ground that it was proof of a transaction between the deceased mother of the plaintiffs, under whom they were claiming, and the defendant, but the court overruled the objection, and admitted the evidence. E. Edelstein being upon the stand as a witness in his own behalf, his attorneys propounded to him questions in reply to which he would have answered: "I was never married to the mother of the plaintiffs, and she and I never agreed in any way or form to become husband and wife, and I never at any time agreed with her to become her husband, and I never was married to her. It was not understood between them at any time prior to her death that she was my wife, or I her husband." The testimony was objected to by the plaintiffs' counsel, and the court sustained the objection, because, under article 2302, Rev. St. 1895, the defendant was not competent to testify as to transactions between himself and the deceased mother of the plaintiffs. The writ of error in this case was granted upon the ground that the trial court...