Moody v. Smoot

• Decision Date: 28 June 1890
• Parties: MOODY v. SMOOT <I>et al.</I>
• Court: Texas Supreme Court

14 S.W. 285

MOODY v. SMOOT et al.

Supreme Court of Texas.

June 28, 1890.

Appeal from district court, Mitchell county.

Sexton & Smith, for appellant. Jennings & Martin, for appellees.

GAINES, J.

The appellant, R. E. Moody, as administrator of the estate of Amanda C. Hay, and as next friend of her two minor children, brought this action against John C. Hay, her surviving husband, and the father of her children, the First National Bank of Colorado, and one H. B. Smoot. The object of the suit was to enjoin the sale of a stock of cattle alleged to belong in part to the community estate of Hay and his deceased wife, and in part to her separate estate. It was alleged that Hay, after his wife's death, had executed a mortgage upon the cattle to secure a note given to the bank for money borrowed, not to pay community debts, but for his own individual use, and that Smoot, the trustee, was about to sell the property to pay the debt. A writ of injunction was issued, which was dissolved upon the coming on of the answer. The cattle were then sold by the trustee, and bought by one Robertson. The plaintiffs subsequent to the sale filed an amended petition, in which, in addition to the facts stated in the original petition, they alleged the sale of the cattle, and the purchase by Robertson, and made him a party defendant. They prayed for the recovery of the cattle which belonged to the community estate of Hay and wife to be administered by Moody, as administrator of the estate of Mrs. Hay, for the payment of the community debts, and also for the recovery of the cattle alleged to belong to the separate estate of Mrs. Hay, and that if any of them could not be found, for a judgment for their value. There was also a prayer for general relief. A general demurrer and sundry exceptions to the amended petition were sustained by the court, and the plaintiffs declining to again amend the suit was dismissed. The exceptions are mostly but the statement of reasons in support of the general demurrer. There were, however, two special exceptions, properly so-called, which will be noticed in course of this opinion.

One of the grounds of demurrer so presented was that the plaintiff, Moody, as administrator of the estate of Mrs. Hay, had no right to the possession or control of the property which had belonged to her and her husband in common. This presents a question which seems never to have been decided in this state. In Jones v. Jones, 15 Tex. 143, the right of the surviving husband to administer the community property, and to pay subsisting debts against it, when there has been no administration upon the estate of the deceased wife, is fully recognized, and there are expressions in the opinion from which it may be inferred that the court were of the opinion that an administration might be granted upon the estate of a deceased wife during the life of the husband which would confer upon the administrator the right to administer the community property to pay community debts; but that question was not involved in the case. In Walker v. Howard, 34 Tex. 478, the court held that the qualification of the executor of the will of the deceased wife did not take away the power of the husband to sell the community property for the payment of debts of the community. But other parts of the opinion suggest a doubt whether the court intended to hold that no administration could be granted upon the community property in the right of the deceased wife as long as the husband survived. In Brown v. Seaman, 65 Tex. 628, the court, in treating of this subject, say: "The right of the survivor in community to the absolute management of the common estate is secured by statute, only in the event that a bond, with sufficient sureties, conditioned as the statute directs, is filed in the county court of the proper county. Unless this is done the property is open to administration as in other cases." This language was applied to a case in which the husband died and the wife survived. As applied to a surviving wife, the propositions are sound; but in the opinion that the same rule applied to the surviving husband, if such was the opinion intended to be expressed by the court, we do not concur. The act of the 26th of August, 1856, merely enlarged the powers of the surviving husband, and did not take away his authority under previously existing laws, except in case he had been cited to give the bond required by the act, and having failed to do so, administration had been granted upon the wife's estate. So much of the act as enabled any party interested in the estate to force the survivor to give bond, or to cause letters of administration to issue, is omitted from the Revised Statutes, and is repealed. See title 37, c. 28, art. 2164, et seq. So far, then, as the question before us is concerned, the law is now as it was before the act of 1856 was passed.

The wife's interest in the common property after the community debts are paid is equal to that of the husband. He has the sole management during the life of his wife; but it is a mistake to assume that it is only in this respect that their rights and obligations in regard to that property differ. His control of it during her life is absolute. Barring any disposition made with intent to defraud her, he may sell, barter, or give it away. All debts contracted by him he is liable to pay, not only from the community estate, but also from his separate property, and is subject to be sued therefor both before and after his wife's death. The community debts...