Lumpkin v. Murrell

• Decision Date: 01 January 1876
• Citation: 46 Tex. 51
• Parties: WILSON LUMPKIN, EXECUTOR, ET AL. v. AMANDA E. MURRELL AND HUSBAND.
• Court: Texas Supreme Court

46 Tex. 51

WILSON LUMPKIN, EXECUTOR, ET AL.

v.AMANDA E. MURRELL AND HUSBAND.

Supreme Court of Texas.

1876.

APPEAL from Anderson. Tried below before the Hon. M. H. Bonner.

This case can be understood from the opinion. The nature of the controversy does not admit of an abstract of the pleadings, exhibits, evidence, orders, & c., contained in the record of about four hundred pages.

The case went to the jury on twenty-six special issues. They and the assignment of errors sufficiently appear in the opinion; except that the second of the assignments by appellee, pointed out that in the account the whole of expenses of repairing a storehouse had been charged to the share of plaintiffs instead of to the estate.

Word & Williams, for appellant.

Reagan, Greenwood & Gooch, for appellee.

MOORE, ASSOCIATE JUSTICE.

This suit was brought by appellees to recover from the appellant Lumpkin, the executor of John Murchison, deceased, her father, the share or interest which she claimed as an heir of her deceased mother, Pauline H. Murchison, in the community estate of her said father and mother, as well as her part of her mother's separate estate, which had come into his hands as such executor, and to recover for use, occupation, and enjoyment of said property, together with interest thereon, and all profits derived, or which by reasonable diligence might have been derived, therefrom by her father subsequently to her mother's death, and by said executor, and also for damages for the improper and unauthorized use and wrongful conversion of any of said property by her father or said executor.

It is alleged in the pleading, and the evidence shows, that said John Murchison and his first wife, Pauline H. Murchison, were married in the Republic of Texas on the 16th day of July, 1843; that said Pauline died on the 16th of August, 1859, leaving as the issue of said marriage the plaintiff, Amanda E., and the defendants, John M. Murchison and William E. D. Murchison, all of whom were then minors; that at the date of said Pauline's death both she and her husband owned separate estates, and were possessed of a considerable amount of both real and personal property belonging to them in common, against which, so far as is shown in the record, there were no debt or incumbrance of any character. Said Pauline died intestate, and no administration was ever had on her estate; and said Murchison, without having any inventory and appraisement of community estate of himself and wife made and filed in the County Court, retained possession of all of said community property, and occupied, used, and disposed of the same in the manner he had done prior to said Pauline's death; that on the 4th day of April, 1860, said Murchison married his second wife, Mary Bruton, who died on the ____ day of March, 1865, leaving surviving her, as the issue of this marriage, the defendant, William H. Murchison. During this marriage said Murchison was engaged in, and carried on large business transactions, some of which had been undertaken and commenced during the life of his first wife, and at the death of his second wife was in possession of a large amount of both real and personal property, all of which appellees seem to insist was purchased or procured with the community property of the first marriage or the profits derived from the use and disposition made of it; and without making an inventory of the community property of himself and second wife, Murchison still continued, after her death, to deal with and use all the property in his possession and under his control as if it was his separate estate, until his death, on the 15th of April, 1872; and in making his will he seems to have been oblivious of the fact that his children owned an interest in, or could justly assert a claim to any part of it.

The appellees, B. F. Murrell and Amanda E. Murrell, were married on the 15th day of August, 1865, she being then about sixteen years of age. No demand, however, seems ever to have been made of her father, by either her or her husband, for her share of her mother's estate in the community estate or for a settlement thereof; nor does it appear that any such demand was made of the executor prior to the bringing of this suit.

This brief recital of a few of the facts connected with the matter in controversy in this case will show that its proper determination must be attended with serious and unavoidable difficulty and embarrassment.

The difficulty in the proper adjustment of the matters in controversy are obviously in no way lessened, when it is also stated, that at the death of his first wife Murchison was largely engaged in merchandize, which he continued until some years subsequent to his second marriage; that the personal property belonging to the community consisted mainly of the goods on hand at the date of his wife's death, and notes and accounts owing for goods previously sold; while from the statement of facts there seems to be but slight and unsatisfactory evidence now accessible, which will enable us to say what portion of the assets of the first community were invested in the business done during the second; or what part of the funds which were realized when his mercantile business was finally wound up should go to the one or the other of the respective community estates, and how the heavy losses which the business ultimately suffered, should be apportioned between them.

Considering the magnitude and importance of the questions in this case, and the inherent difficulties involved in their proper determination, and that two of the defendants were minors and represented by guardians ad litem, we are constrained to say that a careful examination of the record does not impress us with the conviction that such a solution of them has been attained as fully comports with equity and justice, or as will result in the distribution of the community property of Pauline H. Murchison equally and fairly between her children, or so as not to result in serious injustice to the minor defendant, William H. Murchison, in respect to his interest in the community estate of his mother. But while this is so, it cannot be said that the assignment of errors by appellants points to any tangible and positive error in the record for which the judgment should be reversed, if indeed they are not so vague, indefinite, and general as to preclude our looking to them.

The first error assigned is, that the court erred in its instructions to the jury. The charge is full and somewhat exhaustive in presenting the views of the court upon the points discussed; and the law in respect to them seems to us clearly and forcibly developed. The errors in the judgment, as we apprehend it, result from a misconception of the true character of appellee's demand, its nature and extent by the parties, and probably to some extent by the court; the failure of appellants to present the proper defenses, and the exaggerated, if not in some instances unwarranted, amount found by the jury in their answers to some of the special issues, rather than from any erroneous instructions from the court on the questions embraced in the charge. But if there are any errors in it, as has been often said, such an assignment as this fails to properly point them out. It is also to be noted that no instructions whatever were asked of the court by appellants.

The second error is in admitting evidence to show the amount of property acquired by Murchison after the death of his wife. In view of the issues upon which the case was tried, it is not seen why such testimony might not have been properly admitted. But if not, the record does not show that any such objection was made or any exception taken to the ruling of the court upon it. The record contains no bill of exceptions taken by appellants to this or any other ruling of the court during the entire course of the trial.

...