Mayor v. Breeding

• Citation: 24 S.W.2d 542
• Decision Date: 11 December 1929
• Docket Number: (No. 8282.)
• Parties: MAYOR v. BREEDING et al.
• Court: Texas Court of Appeals

24 S.W.2d 542

MAYOR v. BREEDING et al.

(No. 8282.)

Court of Civil Appeals of Texas. San Antonio.

December 11, 1929.

Rehearing Denied February 5, 1930.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Trespass to try title by Malisha Breeding, administratrix with will annexed of the estate of Robert Henderson Cook, deceased, in her alleged representative capacity, against E. A. Mayor, Sr., in which the plaintiff individually and others intervened. From a judgment for plaintiff and interveners, defendant appeals. Reversed and remanded.

Newton & Woods, of San Antonio, for appellant.

D. A. Meyer and Don A. Bliss, both of San Antonio, for appellees.

SMITH, J.

Robert Henderson Cook and Emma Washington, both then domiciled in the state of Pennsylvania, were married in that state on May 13, 1919. Six months afterwards, on November 11, 1919, Robert purchased a tract of land, with a dwelling house thereon, in Bexar county, Tex., paying $3,250 in cash therefor, and taking conveyance thereof in his own name.

In 1922 the Cooks encountered marital difficulties, and, on August 1 of that year, Emma, the wife, instituted divorce proceedings in a Pennsylvania court against her husband. Three weeks later, apparently as a result of their domestic controversy, both joined in a conveyance of an undivided one-half interest in the Texas property to the wife; it being recited in the deed that "it being the true intent and meaning of this conveyance to place said piece or parcel of land jointly in the names of Robert Cook and Emma Cook, husband and wife."

The evidence is undisputed, except by possible inference, that the couple were afterwards reconciled to a continuation of their conjugal relations, and it is true that the divorce action was never prosecuted, although it remained on the docket for three years and was still pending at the time of the husband's death, which occurred in July, 1925. Otherwise the record is silent as to the actual relations of the couple during those three years, except that a few months before his death Robert, afflicted with tuberculosis, left Pennsylvania and lived the remaining six months of his life on the Texas property, as his homestead, while his wife remained in Pennsylvania. Robert died without issue, but was survived by his said wife and one brother and five sisters. There is no evidence that he left a will, from which it will be presumed that he died intestate. Upon the death of Robert, Emma came to Texas, attended her deceased husband's funeral, and shortly afterwards sold and conveyed the whole of said property to E. A. Mayor, Sr., of Bexar county, for a cash consideration of $1,800, and Mayor went into possession.

On March 18, 1926, Malisha Breeding, one of the surviving sisters of the decedent, and claiming to be the administratrix, with will annexed, of the estate of Robert Cook, deceased, brought this suit, in her alleged representative capacity, in the form of trespass to try title to recover from Mayor the title and possession of an undivided one-half interest in said property, and for rents and damages. Thereafter the surviving brother and sisters of said Robert Cook, deceased, including the said Malisha Breeding, intervened in the suit, claiming, as the alleged sole heirs at law of said Cook, to be the owners of an undivided one-half interest in said property, which they sought to recover, with rents and damages, as in trespass to try title. To these several pleadings Mayor answered by general demurrer, general denial, and by plea of not guilty.

Upon the trial, Malisha Breeding, as administratrix, and individually as a sister of the deceased, together with her brother and four sisters, recovered judgment for an undivided one-fourth interest in the property in controversy and for partition. Mayor has appealed.

The judgment adjudicating the alleged administratrix and the interveners to be the owners of one-fourth of the property was based upon the theory that at the time of Robert Cook's death an undivided one-half interest in said property belonged to his separate estate and one-half to the separate estate of his wife, and that, under the laws of Texas, his widow inherited one-half of his separate interest, and his brother and sisters the remaining one-half, and that therefore the latter interest, being one-fourth of the whole, did not pass by the widow's attempted conveyance of the whole to Mayor.

Obviously, if the assumption of fact that the property thus divided belonged to the separate estate of the decedent is correct, then the theory is sound. But this assumption of fact is evolved out of jury findings, first, that "all of the money which was paid by Robert Cook as a consideration for the purchase of the land in controversy arose from gains acquired by said Robert Cook before his marriage to Emma Cook"; and, second, that Cook acquired all of said "money or the gains represented by said money" while he was domiciled in the state of Pennsylvania.

The findings that "all of the money" paid by Cook for the property "arose from money or gains represented by said money" acquired by him before his marriage, and while he was domiciled in the state of Pennsylvania, appear upon their surface to be somewhat obscure in meaning. But this meaning is perhaps clarified by the evidence when considered in connection with appellees' theory of the law, as adopted and applied by the trial court. That theory is that under the Pennsylvania law there is no such estate as community estate, and all the earnings of the community, as we know it in Texas, became the separate property of the husband; that by this process the consideration paid by Cook for the property involved came out of the separate estate of the husband, and the property thus acquired in Texas took the same status, becoming the separate property of Robert Cook, to the exclusion of his wife. With this theory in mind, it is appropriate to observe that, even though it may be inferable from the record that Robert Cook acquired some of this estate prior to his marriage to Emma, there is equal support for the inference that a portion of the funds paid for the property involved was earned by the joint efforts and labor of both husband and wife, during coverture. It may be well assumed, then, that the word "gains," as used in the jury findings, included such joint earnings. It is further shown by the record that the property involved was purchased by Cook during coverture, and that he took conveyance without qualification of the nature of the estate thus acquired.

The evidence upon the material phases of the case is meager and unsatisfactory; so much so, in fact, as to render doubtful its stability as the foundation of a judgment. No more may be safely assumed from that evidence, resolved in support of the jury findings and judgment, than that Robert Henderson Cook was born in San Antonio and kept his domicile there until he reached the age of approximately 20 years; that at that age, about 1916, he enlisted in the United States Army and served in the American expedition into Mexico in pursuit of Pancho Villa; that during or following that service he drifted north, and finally at some undisclosed date settled in Connellsville, in the state of Pennsylvania; that at an undisclosed period of the American participation in the World War he was drafted back into the army, and at a date not disclosed was discharged; that he married Emma Washington at Connellsville on May 13, 1919, and the two lived together there as husband and wife until after they purchased and paid for the property involved, and until Emma instituted suit for divorce on August 1, 1922.

There is evidence that at some uncertain date Robert was granted a pension by the government, but the amount of the pension, when it began, how long it continued, are left wholly to conjecture. There is no direct evidence that Robert had acquired any property or accumulated any money at the time he married Emma, and, even though it may be inferred, from the circumstances that this property was bought and paid for a few months after the marriage, that at that time he owned property, or possessed money, the extent of such holdings is purely conjectural. It is in evidence that, through the joint efforts and labors of both husband and wife, they operated "rooming houses" in Connellsville from the time they were married, and also that they were operating a confectionery establishment in the year 1924, but that was five years after they purchased the property involved, and therefore too late to affect the character of the estate of the respective parties in said property. Summarizing the foregoing statement, there is no evidence showing the period during which the money paid by Robert Cook for the property was earned, or the source of those funds, or how much, if any, of it was derived from the separate property or earnings of either, or the joint earnings, if any, of both. We therefore hold that there was no evidence to support the jury finding that "all of the money which was paid by Robert Cook as a consideration for the purchase of the land in controversy, arose from gains acquired by Robert Cook before his marriage to Emma Cook." A finding to that effect upon such issue, for the purpose of overturning the presumption existing in this state in favor of the community estate, ought to be supported by evidence more direct...