Gorman v. Gause

Decision Date01 February 1933
Docket NumberNo. 1386-5988.,1386-5988.
Citation56 S.W.2d 855
PartiesGORMAN et al. v. GAUSE et al.
CourtTexas Supreme Court

Suit by Margaret Gause Gorman and others against Mamie C. Gause and others. Judgment for defendants was affirmed by the Court of Civil Appeals , and plaintiffs bring error. The death of Mamie C. Gause subsequent to the filing of the application for writ of error was suggested, and the request of Gertrude Overbey to be substituted as defendant in error in her place was granted.


C. C. Gillespie, of Memphis, Tenn., Neal A. Brown, of Edinburg, and Seabury, George & Taylor, of Brownsville, for plaintiffs in error.

R. M. Bounds, of McAllen, and Graham, Graham & Graham, of Brownsville, for defendants in error.


On April 29, 1918, John P. Gause and Mamie Cato, in contemplation of their marriage, entered into a purported prenuptial agreement. Portions of the agreement pertinent to this controversy are as follows:

"They, Jno. P. Gause and Mamie Cato, if said marriage so intended shall be had and solemnized, do waive and declare void all the community laws of the State of Texas, so far as the property they now own or may hereafter become possessed of is concerned. They also contract and agree with each other that each may sell and dispose of the property now owned by them, or may hereafter acquire, as their separate estate free from the claims or any rights, demands or interest that the laws of Texas, may have given the other in such property, if this agreement and said contract had not been entered into and this agreement executed in lieu of and in the room of the provision of said laws, and hereby declair that no property so acquired will be community property, but belong to the party so acquiring same, separate from the other, except as herein agreed and provided. * * *

"In the event of the death of the said Jno. P. Gause, and should the said Mamie Cato survive him, it is agreed that an account of what property or estate they both have be taken in account, and divided into three equal parts, one-third to be given to his said daughter, Margaret, or her heirs, one-third to his said daughter, Minnie Elma, or her heirs, and one-third to the said Mamie Cato; but in the event she should depart this life, that part of the estate of Jno. P. Gause, that went to make up her one-third in said division, shall be returned to his said children or their heirs in equal moeties.

"In the event of the death of Mamie Cato, and she be survived by Jno. P. Gause, all of her property, both real and personal, shall be used and controlled and had for his benefit and use during his natural life, and after his death to revert to the heirs of Mamie Cato; and upon the death of Mamie Cato, if he should survive her, the said Jno. P. Gause agrees to probate her estate in the probate court where they may be at the time of her death, and return therein inventory of her estate, but in no event will he be required to execute a bond for such estate or such administrator, that being expressly waived by Mamie Cato.

"That upon the death of Jno. P. Gause, if Mamie Cato should survive him and become possessed of a part of his estate in the division as aforesaid, she shall invest such part of said estate in land or other staple property, taking the deed in her own name for life, remainder to Margaret and Minnie Elma Gause or their heirs."

At the time of the marriage each party owned property of the value of approximately $8,000. During their marriage there was acquired by their joint efforts a community estate of the estimated value of $70,000.

With the exception of an apartment house situated in the city of Mercedes, all of the realty accumulated during the marriage was taken in the name of John P. Gause. The lot upon which the apartment house was constructed was acquired by Gause during the marriage. It was deeded by him to his wife through the medium of a trustee. A vendor's lien was retained to secure the purchase price represented by a note for $2,699, which was executed by the wife, payable to the trustee, and by him indorsed to the husband. The sum paid for this property was its fair value of $2,500, plus $199 for drawing plans of an apartment house thereafter erected thereon.

On March 7, 1928, the said John P. Gause and his wife executed what purported to be their joint and mutual wills, in which it was recited that said parties had theretofore in a marriage contract agreed that all of the property each owned at that time and that which each might acquire during their marriage would be the separate property of the one so acquiring the same, and that it was the will of each that the survivor take all of the property, both real and personal, outstanding in their name, and no other. The will contained this further provision: "It is further our will and desire and we do here now bequeath to the legal heirs or legatees, if any, of the one departing this life before the other, all of our right, title and interest, in whatever kind and nature, in and to the property, of every kind and nature, that was seized and possessed of by the first deceased of us, as the case may be."

The will contained the further provision that should Mamie C. Gause survive John P. Gause it was his desire that she use the homestead and household furniture during her life, with the remainder to his heirs.

On June 29, 1929, John P. Gause died, and on the 10th day of September, 1929, his will was duly admitted to probate on the application of Robert E. Kirkpatrick; he being named in said will as independent executor thereof.

On July 22, 1929, during the pendency of the application to probate the will, Mamie C. Gause filed in said proceeding notice of her intention not to claim anything under said will, and electing to take her property rights under the laws of this state.

Kirkpatrick, as independent executor, duly returned an inventory and appraisement of the estate of John P. Gause, which was approved on December 2, 1929. This inventory showed two pieces of property as separate property of John P. Gause valued at about $8,800. There were some 21 items of real estate listed as community property. The apartment house which was conveyed by Gause to his wife during their marriage was not listed in the inventory; but the note for $2,699 given by the wife to her husband as the purchase price of the lot was listed among the claims due the estate.

This suit was instituted by Mamie Gause Gorman and Minnie Elma Gause, the only heirs at law of John P. Gause, to establish their right to all of the property owned by John P. Gause at the time of his marriage, as well as all of the property accumulated during the marriage, with the exception of the apartment house and the homestead then occupied by Mamie C. Gause, which it was conceded she was entitled to use during her lifetime.

The trial court concluded that Mamie C. Gause was not bound by the antenuptial contract, nor by the joint mutual will, or both contract and will construed together, and that she was not estopped from setting up her claim to a one-half interest in the community estate of John P. Gause, deceased. These conclusions resulted in a judgment awarding Mamie C. Gause a one-half interest in the community estate of John P. Gause, deceased, and one-half of said estate to his two daughters. In the judgment the note given John P. Gause by Mamie C. Gause as the purchase price for the apartment lot was canceled, and this property was treated as a part of the community estate. The judgment of the trial court was affirmed by the Court of Civil Appeals .

The record exhibits a conflict as to whether the purported marriage agreement was executed before or after the marriage of John P. Gause and Mamie Cato. It seems that the parties entered into a written stipulation as to certain facts, with the agreement that this stipulation could be offered in evidence upon the trial. It contained a reservation that the parties might introduce evidence upon matters not specifically agreed upon. In this stipulation it was recited that the purported antenuptial agreement was executed on April 29, 1918, and that the marriage of the parties occurred on May 1, 1918. Upon the trial defendants in error were permitted, over the objection of plaintiffs in error, to offer testimony showing that said agreement was in fact executed on May 1, 1918, within a few hours after the marriage ceremony had taken place.

Under our view of the law applicable to the facts of this case it is immaterial whether this agreement was executed before or after the marriage. In either event, it was a void and unenforceable agreement. By it the parties sought to fix the status of property thereafter to be acquired during their marriage different from that prescribed by the Constitution and laws of this state. It has been repeatedly held by our courts that a husband and wife do not have the power, by mere agreement, made in advance, to change the status of community property yet to be acquired to that of the wife's separate property. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, 802; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51; Cox v. Miller, 54 Tex. 16; Green v. Ferguson, 62 Tex. 529; Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; Armstrong v. Turbeville (Tex. Civ. App.) 216 S. W. 1101.

The same reasons which would deny the power of the husband and wife by contract to set at naught the laws of this state defining and fixing the status of property acquired during the marriage would operate to prevent their doing so by antenuptial contract, unless, as argued by plaintiffs in error, such a contract be authorized by the provisions of article 4610, R. S. 1925. This article reads as follows: "Parties intending to marry may enter into such stipulations as they may desire, provided they be not contrary to good morals or to some rule of law; and in no case shall t...

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    ...separate property was intended to be exclusive and that it may not be altered or enlarged by an act of the legislature. See also, Gorman v. Gause, 56 S.W.2d 855 (Tex.Com.App.1933, holding approved); Huie, The Texas Constitutional Definition of the Wife's Separate Property, 35 Tex.L.Rev. 105......
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