Paddock v. Lewis

• Decision Date: 11 April 1896
• Citation: 35 S.W. 320
• Parties: PADDOCK v. LEWIS.
• Court: Texas Court of Appeals

35 S.W. 320

PADDOCK v. LEWIS.

Court of Civil Appeals of Texas.

April 11, 1896.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

Action by W. B. Paddock, administrator of the estate of E. A. Maury, deceased, against W. P. Lewis, for certain rents and moneys. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Matlock & Boyce, for appellant. Hunter & Stewart and W. F. Wells, for appellee.

STEPHENS, J.

This suit was brought by appellant, as administrator of the estate of E. A. Maury, deceased, to recover of appellee the amount of certain rents collected by him, belonging to said estate, and the further sum of $1,940, the amount of a bank deposit alleged to have been held in trust for said Maury and converted by appellee. The claim for rents was met by various items of credit, which exceeded the amount of the rents; and, to the extent of such excess, appellee recovered judgment.

The defense to the count for conversion of the bank deposit was that Maury had made appellee a gift thereof. The evidence of appellee's wife as to the declarations of Maury was admitted, over the objections of appellant, to prove the gift, and to this ruling the first error is assigned. It is plain that, had judgment gone against appellee under this count, it would have been collectible out of the community estate of himself and wife. To that extent, she would have been bound by the judgment. The statute which excludes certain evidence of parties to suits by or against administrators, etc., has been construed to apply to the wife, in such cases. Sayles' Civ. St. art. 2248; Simpson v. Brotherton, 62 Tex. 170; Newton v. Newton, 77 Tex. 510, 14 S. W. 157; Bennett v. Cattle Co., 1 Tex. Civ. App. 321, 21 S. W. 126. The fact that the evidence was offered to prove a gift to the husband, thereby creating a separate estate in him, cannot affect the question. The purpose of this suit was to obtain a judgment against him for the alleged conversion, which would have fixed a liability against the community estate; and her testimony was offered, under the general denial, to defeat such a recovery. This assignment of error is therefore sustained. It is insisted, however, that it should not require a reversal of the judgment, because the gift in question was proven by other and competent evidence, without conflict. We do not so interpret the record. The evidence tended to different conclusions on this point. The manner in which the bank account was kept,...