Oliver v. Robertson

• Decision Date: 01 January 1874
• Citation: 41 Tex. 422
• Parties: STERLING OLIVER AND WIFE v. THOMAS W. ROBERTSON.
• Court: Texas Supreme Court

41 Tex. 422

STERLING OLIVER AND WIFE

v.THOMAS W. ROBERTSON.

Supreme Court of Texas.

1874.

APPEAL from Rusk. Tried below before the Hon. M. D. Ector.

Pamina Oliver, joined by her husband, sued Thomas W. Robertson, the surviving husband of the deceased mother of Pamina Oliver, and alleged in her petition that her mother died leaving surviving her children, the issue of the marriage between herself and Robertson, whose names were given, but who were not made parties defendant. The petition alleged that land and personal property mentioned constituted the community estate of Robertson and wife; that Robertson had never administered on the estate, and refused to recognize the right of Mrs. Oliver to any interest in her mother's estate; that when Mrs. Oliver “became a widow, and went to live in the family of defendant,” she carried certain personal property, which Robertson converted and had not accounted for, and that she rendered services for which she was not paid; but the petition does not state when this occurred. Plaintiff also alleged that some of her own individual property was used and converted by William and John Robertson, two of the heirs of plaintiff's deceased mother, which she asked might be accounted for in the settlement.

An amended petition averred that Robertson and his deceased wife removed to Texas from the State of Georgia in 1850; that Georgia “was a common-law State at that time,” and that Robertson brought with him to Texas the money with which the property claimed to be community was purchased. The petition prayed the appointment of an auditor to take an account of and report the community property, &c., and for judgment for Mrs. Oliver's interest in her mother's estate. Exceptions were filed to the petition, which will be found embodied in the opinion. These exceptions were sustained, and Oliver and wife appealed.

W. W. Morris, for appellant.

Jones & Bagley, for appellees.

REEVES, ASSOCIATE JUSTICE.

The questions for decision in this case are presented by the exceptions to the original and amended petitions. After the general demurrer, defendant's special exceptions are:

1. That plaintiffs set out and claim to recover upon two distinct and separate causes of action and for want of proper parties.

2. Because they seek to recover for money loaned John Robertson in a suit against defendant, in which he is not a party or interested in the money loaned.

3. Because plaintiffs seek to recover the value of property claimed by the wife in her own separate right, in a suit to recover her interest in her mother's estate, and for partition.

4. Because plaintiffs seek to recover for work and labor done, which is a separate cause of action, and cannot be joined in a suit for partition and division of the estate.

5. Because the heirs of Pamina Robertson are not charged to have any interest in the money loaned John Robertson, or in the work and labor done by plaintiff, Pamina Oliver, for defendant, nor in her cattle, &c.

The exceptions were sustained to the original and amended petitions; and the plaintiffs declining further to amend, their suit was dismissed, and they excepted, and prosecute this appeal.

We are of the opinion that there was no error in dismissing the petition on plaintiffs declining to amend.

The claim to the property, as belonging to the community of defendant and his deceased wife, is based on the allegations of the amended petition, averring that the parties removed from the State of Georgia to the State of Texas in 1850, and that the defendant, Thomas W. Robertson, brought with him to Texas four thousand dollars, with which he purchased the property described in the original petition, and which, as they contend, thereby became the community property of himself and wife by operation of law. The plaintiffs, further amending their petition, allege that two hundred and sixty dollars out of...