Wolford v. Melton

• Court: Court of Appeals of Texas
• Writing for the Court: Key
• Citation: 63 S.W. 543
• Parties: WOLFORD et al. v. MELTON et al.
• Decision Date: 12 June 1901

63 S.W. 543 WOLFORD et al.
v.
MELTON et al. Court of Civil Appeals of Texas. June 12, 1901.

Page 544

Appeal from district court, Collin county; J. E. Dillard, Judge.

Suit by J. W. Melton and others against W. F. Wolford, as administrator of the estate of J. T. Melton, deceased, and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Abernathy & Beverly, for appellants. J. R. Gough and J. M. Pearson, for appellees.

KEY, J.

J. W. Melton and his sister, Edna Woodman, joined by her husband, brought this suit against W. F. Wolford, administrator of the estate of J. T. Melton, deceased, Nancy C. Melton, surviving wife of J. T. Melton, Martin E. Melton, Dibrel G. Melton, Carlton E. Melton, Stillwell A. Melton, and Mary Melton, the last five named being children of John T. Melton and his second wife, Nancy C. Melton, to recover five-twelfths of two tracts of land. The plaintiffs Mrs. Edna Woodman and J. W. Melton are the sole surviving children of J. T. Melton by his first wife, Mary Jane Melton. The land involved was acquired by J. T. Melton after the death of his first wife, and the plaintiffs undertook to show that their father had paid for the land with money received by him from the sale of a stock of horses, which was community property between him and his first wife. The testimony shows that John T. Melton married his first wife in 1868; that she died in 1875; and that at the time of their marriage he owned a bunch of horses, which, of course, was his separate property. They were stock horses, and continued to increase; and it is well settled that the increase of live stock, the separate property of one spouse, becomes community property belonging to both; and it is upon this theory that the plaintiffs seek to make out their case. Several years after his first marriage, J. T. Melton moved his stock of horses from Collin county to Montague county, and in 1880 sold the entire herd, consisting of about 100 head; and the plaintiffs submitted testimony tending to show that the land in controversy was bought with the proceeds of that sale. The evidence tends to show that at the time J. T. Melton sold the stock of horses they ranged in age from colts up to 15 years. The court instructed the jury, among other things, as follows: "Colts and calves, which are the offspring of mares and cows belonging to the separate estate of the husband which are brought after marriage, belong to the community estate of the husband and...