Merrell v. Moore (47 Tex. Civ. App. 200, 1907)

TALBOT, Associate Justice.

—This is a suit instituted by Mrs. Viola Moore, joined by her husband, Wilson Moore, against B. W. Merrell and J. E. Sapaugh, as individuals and as the independent executors of the estate of J. B. Merrell, deceased, with whom are joined their respective wives, the unlmown heirs of J. B. Merrell, deceased, all nonresidents of the State of Texas, and also Lee J. Hayes, - Stone and Jack Woods, residents of Dallas County, Texas, to recover, as her community interest one-half of certain personal property, consisting of saloon fixtures, business, etc., located in said Dallas County, of about the, value of six thousand dollars, and other prouertv. Mrs. Moore alienes that she and J. B. Merrell were legally married in the State of Arkansas, in the year 1889, and that she continued to be his lawful wife until his death in December, 1906; that all the property described in her petition was acquired by the said J. B. Merrell while the marriage relation existed between them, and was their communitv property; that J. B. Merrell left a will in which he treated all of said property as his individual property, and devised the same to the defendants named, other than Hayes, Stone and Woods. It was further alleged that by his will the said J. B. Merrell appointed the defendants, B. W. Merrell and J. E. Sapaugh, executors without bond, and provided that no action should be had in the Probate Court under his will, other than the filing of an inventory, appraisement and list of claims; that said will had been probated in the County Court of Dallas County, Texas, and the said E. W. Merrell and J. E. Sapaugh confirmed as the executors thereof; that they had taken possession of all of said property but had placed defendants Hayes, Stone and Woods in actual control and management of the saloon property and business, and through them said business was being continued and conducted; that all the defendants denied the interest of the plaintiff, Mrs. Moore, in and to said property, contested her right thereto and excluded her therefrom; that said defendants were insolvent and were converting the property into money and the said executors were about to sell or otherwise dispose of all of the property in Dallas County and distribute the proceeds among the beneficiaries named in the will of J. B. Merrell and remove the same and its proceeds out of the State of Texas, leaving plaintiff without remedy. She prayed for an injunction, restraining the defendants from disposing of the monies and property of the estate, and that a receiver be appointed to take charge of all the property pending the litigation, and that 'upon a final hearing the one-half interest in said property and money be established in plaintiff as her separate property, and that the property be divided in accordance with the true interest of all concerned. The executors, Merrell and Sapaugh, answered the rule to show cause why a receiver should not be appointed, and upon a hearing before the court it was adjudged that plaintiff was entitled to the injunction and the appointment of a receiver as prayed for, and the receiver was accordingly appointed. From this order the executors have appealed.

There is testimony tending to establish the following material facts: The maiden name ,of the plaintiff, Mrs. Viola Moore, ivas Viola Stewart; she was left an orphan at an early age and was raised as a member of the family of her older brother, Dr. J. H. Stewart, in Howard County, Arkansas. While- a member of her brother’s family she became engaged to be married to J. B. Merrell, who was then attending a medical school at Little Bock. Viola became pregnant, and on May 1, 1889, was delivered of a male child. Three- days later J. B. Merrell was arrested by Thomas Holt, deputized for that purpose, upon a charge of having seduced Viola under a promise of marriage, and in company with Holt went to the county seat of Howard County, procured a marriage license, returned to the bedside of Viola and in the presence of her brother’s family, some of their neighbors and Holt, married her. The marriage ceremony was performed by a minister of the gospel and under the marriage license procured by Merrell, which had been regularly issued by the county clerk of Howard County. The said child born to Viola was recognized and admitted by J. B. Merrell to be his son. About a month after the marriage, and after having carefully nursed Viola through her confinement and sickness Merrell left her and the child at Hash-ville, Arkansas, with the statement that he was going to prepare a home for them. He went to Galveston, however, from which place he wrote Viola a- letter, protesting the most ardent love for her, but indicating that he had abandoned her and the child. In this letter he stated that he would go to Hew York, and from there he did not know where, but that when he got settled down to business he would send money to help support her and the child. After this Merrell never communicated with his family, but abandoned his wife and child, leaving them to their own resources or to the charity of their relatives. In December, 1890, Dr. Stewart brought them with him to Texas and located in Brath County. Mrs. Viola Merrell by her own labor supported herself and child and educated the latter. J. B. Merrell appeared at Dallas about the year 1896, and embarked in the saloon business, in which business he remained until his death, in December, 1906. At' his death he left a will, in which he appointed B. W. Merrell and J. E. Sapaugh independent executors, free of the control of the Probate Court, and in which he devised all the property acquired and left by him to the. defendants in this case, other than Hayes, Stone and Woods. The will was probated, the said executors qualified 'by taking the oath prescribed by law. The executors are both poor men, who reside in Arkansas, and B. W. 'Merrell is himself indebted to the estate in a large amount. The executors turned over the saloon business to Hayes, -who, with the assistance of Stone and Woods as bartenders, was continuing the saloon business at Dallas, Texas. Hayes was under no bond to the executors, and they required no regular reports of him. The executors know nothing of their own knowledge in regard to the estate, or of its management; nor of what Hayes is doing with money derived from the business. It was the intention of the executors to sell the property and distribute the proceeds among the parties named in the will, not recognizing Mrs. Viola Merrell as having any interest therein. The executors have shipped out from Dallas to Arkansas, where' they now are and have all the time resided, all the personal property, other than that connected with the saloon business. $350 of money belonging to the estate was used in the settlement of the claims of Oscar J. Merrell, son of Viola and J. B. Merrell, upon his contest of the probate of the will, of which $150 was awarded to his attorneys.

Mrs. Viola Merrell received information by letter from one of the old friends of the Merrell family in Arkansas, that J. B. Merrell had obtained a divorce from her. About a year after receiving such information a marriage ceremony was performed between herself and one Wilson Moore, of Erath County. Mrs. Viola Merrell entered into this marriage ceremony believing that her former husband, J. B. Merrell, had been divorced from her. After the death of J. B. Merrell she learned that he had never been divorced from her, which was true, and thereafterward, under the advice of am attorney of Stephen-ville, she was again married to her present husband, Wilson Moore. J. B. Merrell and his wife, Viola Merrell (now Viola Moore), were never divorced; their marriage, contracted in May of 1889, remained undissolved until dissolved by his death in December, 1906. The property in controversy was acquired by J. B. Merrell by onerous title during the existence of the marriage.

Appellants contend that the District Court erred in appointing a receiver herein, and urge, substantially, the following propositions: (1) that the undisputed evidence shows that all the property acquired by J. B. Merrell, and which he owned at the date of his death, was acquired by him after the marriage of the plaintiff, Mrs. Viola Moore, to Wilson Moore, and that such marriage precluded Mrs. Moore from recovering any interest in or part of said property; (2) that the undisputed evidence adduced showed, that the said J. B. Merrell was, by reason of both duress of imprisonment and duress per minas forced, in the year 1889, to marry Mrs. Moore, then Viola Stewart, and that he did not thereafter live with the said Viola as his wife; that after said marriage the said Viola contributed nothing to the accumulation of the property in controversy, and during the time of its accumulation she lived and cohabited with Wilson Moore as his wife; (3) that the undisputed evidence showed no ground for the appointment of a receiver, taking the custody, control and disposition of the estate from the executors appointed under the will.

The evidence does not, perhaps, establish conelusivély that all the property in which the appellee, Mrs. Moore, claims an interest was acquired after her marriage to and during her cohabitation with Wilson Moore; but if that fact be conceded, still we are of the opinion that she did not, under the circumstances shown, by such marriage and cohabitation, forfeit her right to share in the community 'property acquired by the efforts of J. B. Merrell during the existence of the marriage relation between the said Merrell and Mrs. Moore. No case directly in point has been cited, and it is doubtless true today, as when the well expressed opinion in Routh v. Routh, 57 Texas, 589, was written, that “neither by dicta or decision has it yet been determined what acts, facts or circumstances, while the duties, disabilities and burthens oí the contract still attach to her, shall divorce the wife from the rights of property she a-quired by the same contract.” The “important boundary line in the separation of these important rights” was not established in the case referred to, but the principle, that the wife’s right to an equal ' iterest in the community property continues until that right is in some mode recognized by the law forfeited, and that “the' existence merely of cause for divorce does not necessarily impair her marital rights to property which coexists with the contract of marriage, irrespective of any mere balance sheet to be struck between the husband and wife, on account of their respective moral or conjugal merits or demerits,” is clearly announced. The marriage relation when once established continues until dissolved by death or judicial decree, and all property acquired by either the husband or the wife during the marriage, except such as is acquired by gift, devise or descent, is by statute made their common property.' This community of interest is not made to depend upon the acquisition of the property during the time the parties actually live together, nor ..pon the fact that there was an equal amount of labor or capital contributed by the husband and wife in its accumulation. It is the property acquired “during the marriage” (with the exception stated) that “shall be deemed the common property of the husband and wife, and the right to an equality of enjoyment and division thereof, regardless of whether the one or other has contributed little or nothing in its acquisition,” is well recognized. Therefore, had the separation of appellee from J. B. Merrell been by mutual consent it world not hav„ affected her right in the community property, although derived solely from the efforts of the said Merrell. But .such ev