Rippy v. Rippy, 7692.

• Citation: 49 S.W.2d 494
• Decision Date: 06 April 1932
• Docket Number: No. 7692.,7692.
• Parties: RIPPY et al. v. RIPPY.
• Court: Texas Court of Appeals

49 S.W.2d 494

RIPPY et al. v. RIPPY.

No. 7692.

Court of Civil Appeals of Texas. Austin.

April 6, 1932.

Rehearing Denied April 27, 1932.

Error from District Court, Lampasas County; Few Brewster, Judge.

Suit by Mrs. Hassie Rippy against T. A. Rippy and others. From judgment for plaintiff, defendants bring error.

Affirmed.

J. Tom Higgins, of Lampasas, and Cox & Hayden, of Abilene, for plaintiffs in error.

R. L. Walker and J. C. Abney, both of Lampasas, for defendant in error.

BLAIR, J.

The parties will be designated appellants and appellee.

Appellee, Mrs. Hassie Rippy, the surviving wife of T. E. Rippy, deceased, sued Ed. Hocker, the independent executor of the estate of T. E. Rippy, and appellants, the children of the said T. E. Rippy by a former marriage with Mrs. L. J. Rippy, deceased, alleging that the property described in her petition was the community estate of herself and the said T. E. Rippy, and prayed judgment for a community undivided one-half interest therein, and for a partition thereof by commissioners. Appellants answered, setting up the following two defenses: (1) That the property was not community, but the separate estate of T. E. Rippy, deceased; (2) that the will of the said T. E. Rippy was duly probated without objection or contest by appellee; that she elected to take certain property under the terms of the will inconsistent with a community interest, and was therefore estopped to claim the property as community.

A trial to the court without a jury resulted in judgment for appellee as prayed; hence this appeal.

Appellants contend that the undisputed evidence establishes their two defenses pleaded as a matter of law, and that judgment should be here rendered for them. We do not sustain the contentions.

On the issue of whether the property was community or the separate estate of T. E. Rippy, deceased, only appellee and Ed. Hocker, the executor of the T. E. Rippy estate, were witnesses, the remaining evidence being documentary; and as a whole the evidence is undisputed. It shows that in 1901 T. E. Rippy married appellee. At that time T. E. Rippy owned a 500-acre farm in Coleman county, a residence in the town of Coleman, and had about $300 in cash, all of which was his separate property. Appellee had no property at the time of her marriage. In 1905 the farm was sold for $1,500 in cash, and notes aggregating $10,500, which notes were paid from time to time until 1912, when they were released. In 1905 a house and lot was purchased in Coleman for $1,600 cash, and sold the following year for $1,800 cash. Appellants admit this was community property. Appellee and T. E. Rippy made their home in the residence in Coleman owned by Rippy at the time of the marriage until 1906, when they moved to Lampasas, Tex.; and in May, 1906, this Coleman residence was sold for $1,300 in cash and $1,200 in notes. In 1906 a house and lot was purchased in Lampasas, the deed being to T. E. Rippy, and was used as the homestead of the parties for about one year, and then sold. In 1907 lots 1 and 2, block 34, Barnes addition to the city of Lampasas, were purchased for $2,000 cash, the deed being to T. E. Rippy; and with the exception of a few months when the parties purchased a hotel at Lampasas and operated it, the above property was their homestead. In 1907 and 1909 two other pieces of property were purchased for $1,000 each, in cash, and the deeds were made to T. E. Rippy. In addition to these three pieces of property, there was on hand at the time T. E. Rippy died vendor's lien notes aggregating $4,500; cash in bank, $7,366.65; and certain shares of stock in oil companies, which the commissioners herein appointed valued at $400. The farm was rented until sold, and during the entire 28 years of this marriage relation rooms in the various residences occupied as the homestead were rented as well as the other property, and T. E. Rippy was paid all these rents, and they were deposited to his account in various banks, and commingled with his separate funds. In the judgment of the trial court are the following findings of fact:

"That out of the proceeds of the sale of said Coleman property, and from funds acquired by the joint labors of plaintiff and T. E. Rippy, and from interest acquired from loans made by T. E. Rippy, the real estate and personal property described in plaintiff's petition was acquired during the marriage relation between said T. E. Rippy and plaintiff. That there has been and was at the time of purchase of said real estate and personal property described in plaintiff's petition such a mixing and mingling of the separate estate of T. E. Rippy and plaintiff that it is impossible to determine what part of said property was the separate estate of T. E. Rippy and what part was the community estate between T. E. Rippy and plaintiff; that at the time of the death of the said T. E. Rippy the said marriage relation with plaintiff still continued and that the community estate of the said T. E. Rippy and plaintiff consisted of the property described in plaintiff's petition."

Article 4619, R. S. 1925, provides that, except as therein stipulated, all property acquired by either the husband or wife during marriage is presumed to be community property. The statutory presumption further obtains that "all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved." Numerous decisions hold that these presumptions obtain as to real estate acquired during marriage, and that it makes no difference whether the conveyance of same be made to the husband or to the wife, or to both; and that the burden is upon the party alleging the contrary to satisfactorily prove the assertion. Lott v. Keach, 5 Tex. 394; Schmeltz v. Garey, 49 Tex. 49; Glasscock v. Hamilton, 62 Tex. 145; Oppenheimer v. Robinson, 87 Tex. 174, 27 S. W. 95; Duncan v. Bickford, 83 Tex. 322, 18 S. W. 598; Speer's Law of Marital Rights, p. 425, § 350; and p. 428, § 352.

In the instant case there is no dispute that all the property in question was acquired during the marriage, and that at the time the marriage was dissolved by the death of T. E. Rippy all the property was in his or their possession. The only proof offered by appellants tending to show that the property was not community, but the separate estate of T. E. Rippy, was that he had a separate estate when he married appellee and that she had no property; that Rippy's estate was sold, and from 1 to 4 years thereafter the real estate in suit was purchased and the conveyances taken in his name.

In Speer's Law of Marital Rights, p. 434, the rule applicable is stated as follows: "The facts that at the marriage the husband had much money, and the wife nothing, and that during the marriage relation the parties decreased in fortune, making nothing, will not rebut this presumption unless the purchase money or consideration is explicitly traced to the separate property of the husband." Schmeltz v. Garey, 49 Tex. 49; York v. Hilger (Tex. Civ. App.) 84 S. W. 1117.

With respect to the oil stock and the vendor's lien notes aggregating $4,500, held in the name of T. E. Rippy at the time of his death, there was no evidence that they were his separate...