Evans v. Evans

• Decision Date: 14 March 1923
• Docket Number: (No. 6904.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 249 S.W. 1097
• Parties: EVANS v. EVANS.
• Court: Texas Court of Appeals

249 S.W. 1097

EVANS v. EVANS.

(No. 6904.)^*

Court of Civil Appeals of Texas. San Antonio.

March 14, 1923.

Rehearing Denied April 11, 1923.

Appeal from District Court, Maverick County; Joseph Jones, Judge.

Action by Lulu B. Evans against E. O. Evans. From judgment for plaintiff, defendant appeals. Affirmed.

Douglas, Carter & Childers, of San Antonio, for appellant.

Ben. V. King, of Eagle Pass, for appellee.

FLY, C. J.

This suit was instituted by appellee against appellant to recover on a promissory note for $2,250, payable to the order of her deceased husband, A. H. Evans, and on its face due on January 1, 1917. It was alleged that A. H. Evans died on September 21, 1920, leaving a will bequeathing all of his property to appellee, which will had been duly probated in November, 1920, and that appellee is the legal owner and holder of the promissory note. A letter written by appellant was pleaded to lift the bar of the statute of limitations. Appellant answered by general demurrer and special exception and a plea of four years' limitation. The cause was tried by the court, and judgment rendered in favor of appellee for $2,599.85.

It was agreed by the parties that A. H. Evans, deceased, was the husband of appellee, and that he died testate on September 21, 1920; that his will was probated in Maverick county, giving appellee all of the estate, and that the same has been duly closed; that appellee is the owner and holder of the note, which has not been paid, except interest to January 1, 1922; that a letter was written by appellant to his brother, A. H. Evans, on August 31, 1920, in which he said, among other things:

"The interest on my note was due July 1st, and I did not pay it before I left because I was afraid I might run short of money on my trip, and I did not have to spend more than I expected; I have about $300 in the bank now, and probably could pay you now, but I owe quite a number of small bills here, and would like to take care of them first, so if it is all right with you I won't send you your check till the latter part of this month (Sept.). I put $5,000 in the insurance business for Shelley $4,000 of which I had to borrow from the bank, but I have paid back $1,000 of that and would have payed another $1,000 by now if I had not taken a trip. I want to take up the balance of that note as soon as possible and it won't take me very long now to do so."

A. H. Evans, the brother of appellant and the owner of the note, which was shown to be the only note owed by appellant to his brother, died within three weeks after that letter was written. Appellant made payments on the note after the death of A. H. Evans, the last being made on or about January 1, 1922. Appellant did not in his pleading, nor does he now, claim that he owed any other note to A. H. Evans, when he wrote the letter from which the extract is made, nor was there any attempt to show that the note sued on was not the one to which reference is made in the letter in which he expressed a desire to "take up the balance of that note as soon as possible, and it won't take me very long now to do so."

The petition clearly showed that appellee was, as admitted by appellant, the owner and holder of the note through the will of her deceased husband. It was not incumbent on her to allege that there were no debts against the estate, nor administration pending. She, as the owner of the note, had the authority to prosecute the suit as community survivor, even though there had been no will, and, if appellant desired to show that an administration was pending, he should have pleaded and proved it. She pleaded her ownership of the note, and was suing, not as the representative of an estate, but in her own right. She had the undoubted right to maintain the suit. Walker v. Abercrombie, 61 Tex. 69. As said by the Court of Civil Appeals at Galveston through Judge Williams:

"If there was an administration in this case, it was incumbent on the defendant to plead and prove it, inasmuch as the facts alleged showed, prima facie, a right of action in the plaintiff." Telegraph Co. v. Kerr, 4 Tex. Civ. App. 280, 23 S. W. 564, approved in Railway v. Groseclose (Tex. Civ. App.) 134 S. W. 736.

The agreement in the statement of facts that appellee had received all of the estate, and that it had been closed, shows the hollowness of the invoked technicality. The first...