Rowlett v. Mitchell

• Decision Date: 10 December 1908
• Parties: ROWLETT v. MITCHELL.
• Court: Texas Court of Appeals

114 S.W. 845

ROWLETT v. MITCHELL.

Court of Civil Appeals of Texas.

December 10, 1908.

Appeal from Hunt County Court; J. W. Manning, Judge.

Action by Mrs. Lona Rowlett against B. G. Mitchell, guardian. From a judgment for defendant, plaintiff appeals. Affirmed.

In November, 1901, J. W. Shoulders, then a widower and the father by his deceased wife of two small children, whose ages are not shown by the record, became a member of the Woodmen of the World, and as such a member received a policy insuring his life in the sum of $1,000 in favor of his said two children, named in the policy as the beneficiaries thereof. At that time he held as belonging to the community estate between himself and his deceased wife horses, mules, and other personal property of the value of about $450. January 25, 1902, he was married to appellant, with whom he lived until his death, which occurred February 25, 1905, and by whom he had two children. At the time of his death he and his surviving wife owned as the community estate between them personal property worth about $450, all of which the trial court found was applied by his surviving wife to her own use. As further found by the trial court, the policy issued to Shoulders was "an ordinary life policy," and the premium on same was $1.20 per month, and was payable monthly. Before his marriage to appellant he had made two such monthly payments of premiums accrued. After his marriage to appellant, he paid with funds acquired by him while they were married monthly premiums on the policy as they accrued, aggregating at the time of his death the sum of about $73.20. He was a tenant farmer. His cotton crops grown and marketed while he and appellant were husband and wife averaged in value each year about $300. The value of other crops grown by him is not shown in the record. After the death of Shoulders, appellee, the grandfather of the children of Shoulder's first marriage qualified as guardian of their estate, and as such guardian received the proceeds of the policy on their father's life issued in their favor. The suit was brought by appellant against appellee as guardian to recover one-half of the proceeds of the policy. In her petition she alleged the payment as stated above of premiums on the policy with funds belonging to the community estate between herself and her deceased husband, and further alleged that deceased after she married him often promised her to have the policy changed and made payable to her. On the foregoing facts, as found by him, the trial court concluded as matter of law: (1) That the rights of the beneficiaries in said policy vested in them at the time it was issued, and at the death of their father they had the right to the benefit named in the policy. (2) That "J. W. Shoulders had the right to take from the community funds of himself and plaintiff enough to pay the monthly premiums on said policy accruing after the marriage with plaintiff. It was a proper exercise of his control over the community property, and was not a fraud on the rights of plaintiff." The appeal is from a judgment entered in appellee's favor in accordance with the conclusions reached by the court.

Tinley & Hall, for appellant. J. S. Sherrell and B. Q. Evans, for appellee.

WILLSON, C. J. (after stating the facts as above).

We think the evidence was sufficient to support the conclusion reached by the trial court that the use by Shoulders of community funds of his second marriage to pay the premiums on the policy in favor of the children of his first marriage was not with intent to defraud appellant as the owner of an interest in such community funds. Therefore it must be said that in rendering the judgment complained of the trial court did not err; for the right of the husband to dispose of community funds is an absolute one, so long as it is not exercised for the purpose of defrauding the wife. Sayles' Ann. Civ. St. 1897, art. 2968; Stramler v. Coe, 15 Tex. 215; Martin v. McAllister, 94 Tex. 567, 63 S. W. 624. It does not appear that the use of the funds to pay the premiums on the policy as they accrued after his marriage to appellant was intended by Shoulders to be for the benefit of the community estate of the second marriage. On the contrary, it clearly appears from the record that he procured the issuance of the policy as a provision for the children of his first marriage in the event they survived him; and, not having exercised the right, if he had a right by the terms of the policy to change the beneficiaries named therein, when he continued paying the premiums as they accrued thereon after his second marriage, he should be held to have done so with the same purpose and intent in his mind. As the use of the community funds could not be treated as an investment for the benefit of the community estate, and as its use in paying the premiums for the benefit of the beneficiaries named in the policy was not with an intent to defraud appellant, there was no legal ground upon which appellant could have recovered either a part of the sum paid or a part of the proceeds of the policy. The wife cannot follow and recover funds of the community lawfully disposed of by the husband for other...