Moore v. Moore
| Decision Date | 09 December 1895 |
| Citation | 33 S.W. 217 |
| Parties | MOORE et al. v. MOORE et al. |
| Court | Texas Supreme Court |
Action by M. A. C. Moore and another against Frank M. Moore and others for partition. There was a judgment of the court of civil appeals (31 S. W. 532) modifying a judgment of partition, and plaintiffs bring error. Affirmed.
McNeal, Harwood & Walsh, for plaintiffs in error. Atkinson & Abernethy and Glass & Burgess, for defendants in error.
The plaintiffs in error instituted this suit in May, 1893, against the defendants in error for partition of the property belonging to the estate of A. J. Moore, deceased, alleging that it was the community property of A. J. Moore and the plaintiff M. A. C. Moore, his second wife, who claimed one-half of the property, and that the other half belonged in equal proportions to Robert I. Moore, Frank M. Moore, and Lizzie and Virginia Merriman, the children of Martha Merriman, deceased, the daughter of A. J. Moore. The petition describes specifically the property belonging to the estate, consisting of some personal property,—principally, however, of lands,—all of which was of the value of about $8,000. The defendants did not contest the claim made in the petition that the property was the community property of the deceased and M. A. C. Moore, but alleged, in substance, that in 1873 A. J. Moore was appointed guardian of the estate of Frank M. Moore and Martha Moore, the mother of Lizzie and Virginia Merriman, the defendants, who were possessed of one tract of land, which they inherited from their mother, the first wife of A. J. Moore; that under the orders of the county court the said A. J. Moore sold the tract of land for $1,380 in May, 1874, which money he had never paid over to his wards, either in whole or in part; and that the said Frank M. Moore and Lizzie and Virginia Merriman were entitled to receive out of the estate to be partitioned the said sum of $1,380, with 12 per cent. interest from the date on which it was received. It was also alleged in the answer that there were no other debts against the estate. In a supplemental petition, plaintiffs alleged that they had charge of the estate of A. J. Moore after his death; received the revenues and paid the taxes, incidental expenses, and debts of A. J. Moore, funeral expenses, etc., leaving a balance in their hands, not stated in the opinion of the court of civil appeals.
The facts are that A. J. Moore was married to the mother of Frank M. Moore and Martha Moore in the year 1858. Martha was born the 12th day of November, 1860, and Frank on the 4th day of January, 1863. Their mother died in the year 1864, and A. J. Moore and the plaintiff M. A. C. Moore were married September 20, 1865, of which last marriage Robert I. Moore was born November 22, 1866. Martha Moore, the daughter of A. J. Moore by his first marriage, intermarried with John Merriman the 1st day of February, 1883, and died April 23, 1887, leaving surviving her the defendants Lizzie and Virginia Merriman. A. J. Moore died April 27, 1893, leaving surviving him at his death his widow, M. A. C. Moore, his two sons, Frank M. and Robert I. Moore, and his grandchildren Lizzie and Virginia Merriman, his only heirs.
The case was tried before a jury, and verdict rendered in favor of M. A. C. Moore for one-half of all the property, the remaining one-half to be divided equally,—one-third each to Frank M. Moore, Robert I. Moore, and one-third to Virginia and Lizzie Merriman, the children of Martha Merriman. The jury also found in favor of Frank M. Moore and Lizzie and Virginia Merriman the sum of $1,311, to be paid $655.50 to Frank M. Moore and $655.50 to Lizzie and Virginia Merriman, each sum to bear interest from the 8th day of August, 1874, to the 8th day of August, 1891, at 12 per cent. interest per annum, and from the latter date to April 23, 1893, at 10 per cent. interest; making the sum of $2,104.82 to Frank M. Moore, and the same sum to Lizzie and Virginia Merriman. The court entered judgment according to this verdict, except that the court directed that the homestead and personal property, exempt by law, be set aside to the widow, M. A. C. Moore, out of the estate, the remainder of the property to be partitioned, which judgment was reversed and rendered by the court of civil appeals, omitting the part setting aside the homestead and exempt property to the widow, and reducing the amounts adjudged to defendants in error as follows: To Frank M. Moore, $1,940, and to Lizzie and Virginia Merriman, $1,855,—awarding two-thirds of this sum, $2,530, against M. A. C. Moore and Robert I. Moore, in the proportion of $1,897.50 against M. A. C. Moore and $632.50 against Robert I. Moore, except that it was remanded for a proper partition according to the judgment of the court of civil appeals.
M. A. C. Moore and Robert I. Moore applied for a writ of error in this case upon the following grounds: (1) The court of civil appeals erred in holding that the district court had jurisdiction in this suit to provide for the payment of a debt against the deceased in favor of the defendants in error, growing out of the unsettled guardianship in the probate court, in the absence of proof that it was the only debt against the estate. (2) The court of civil appeals erred in holding that it was competent in this suit for the defendants in error to assert, and the court to award judgment in their favor for, a claim against the estate of A. J. Moore, when there was no representative of the estate before the court; to enforce a specific lien upon the property of the estate for the satisfaction of the judgment, when no lien had been created by the deceased, or existed against the property in his lifetime. (3) The court of civil appeals erred in reversing and reforming the judgment so as to subject the homestead and other exempt property to partition.
When the plaintiffs in error instituted their suit, asking that the property of A. J. Moore be partitioned, they virtually said to the court that there were no debts against the estate, and no necessity for administration; for if there were such debts, or necessity for administration, they would not be entitled to partition. Having sought the jurisdiction of the court for the purposes of partition, they ought not to be heard to say that conditions existed which would defeat the very suit that they were prosecuting, without allegation and proof of such facts. The defendants in the suit alleged that there was no other debt against the estate, save that which they asserted, and this was not controverted either by pleading or evidence on the part of ...
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