On April 17, 1906, Jesse I. Carter deeded to Mrs. Eddie Goodwyne, wife of A. A. Goodwyne, for her separate use and benefit, the lot or tract of land described in the pleadings, hereinafter referred to as the Goldberg lot. The consideration was $2,000 — $50 paid in cash and the balance in monthly installments of $50 each, evidenced by 39 vendor’s lien notes.
On August 1, 1907, Jesse I. Carter deeded to Mrs. Eddie Goodwyne, for her separate use and benefit, another lot or tract of land described in the pleadings, hereinafter referred to as the Kottle tract. The deed recited a consideration of $1,250 — $100 paid in cash and the balance in monthly payments of $25 each, evidenced by 46 vendor’s lien notes.
Mrs. Goodwyne died intestate on March 4, 1911, leaving as her sole heirs her husband, A. A. Goodwyne, and their two children, G. B. Goodwyne, then a minor, and Gussie Goodwyne Thompson, wife of Robert Thompson. A. A. Goodwyne was appointed and qualified as guardian of the estate of the minor son, and continued in that capacity until January 10, 1914. He died on February 4, 1916.
On August 9, 1912, A. A. Goodwyne, as guardian of the estate of G. B. Goodwyne, and for himself individually, filed suit No. 1338 in the district court of Harrison county, Tex., styled A. A. Goodwyne et al. v. Mrs. Gussie Thompson et al., to partition six tracts or parcels of land — the two tracts above referred to being included — alleging them to be the community property of himself and his deceased wife. G. B. Goodwyne was not served with process in that suit; neither was he represented by a next friend or guardian ad litem.
On the day that the suit was filed, judgment was rendered adjudging the six tracts of land to be the community property of A. A. Goodwyne and wife, Eddie Goodwyne, and decreeing the two tracts which are the subject of the present controversy incapable of partition, and ordering them sold for the payment of community debts. M. W. Gehlen was appointed receiver to sell the property, with power to employ a real estate broker to assist in the sale.
One of these tracts was sold to H. Goldberg for $1,800 cash, and the proceeds ordered disbursed as follows; First, payment oí all costs; second, the claim of W. B. Allen for .the sum of $713, which represented the amount of a note held by him, executed by Mr. and Mrs. Goodwyne and secured by deed of trust upon the property; third, the claim of W. G. Rudd of $113.50; fourth, the claim of the Odd Fellows Lodge for $371; fifth, the claim of R. L. George for the sum of $90 for making the sale of the property; sixth, $250 to be paid to Mrs. Thompson to be charged against her interest in the funds derived from the sale of thq property; the remainder one-half to be paid to A. A. Good-wyne as guardian and one-half to himself individually. The final account of A. A. Goodwyne shows that he charged himself as guardian with the sum of $133, the money received from this source.
The other tract was sold to J. L. Kottle íor $2,000, cash and the receiver ordered to pay John G. Brown the remaining unpaid purchase price, amounting to $484.75, and the balance was ordered paid to discharge various other items, including funeral expenses of Mrs. Eddie Goodwyne, amounting to $133.-25, and the sum of $50 paid to G. M. McDaniel, a dealer in tombstones.
Defendant in error, B. S. Zellner, appointed guardian of the estate of G. B. Goodwyne subsequent to the discharge of A. A. Good-wyne, filed this suit June 5, 1917, in behalf of the minor, to annul and vacate the judgment rendered in cause No. 1338, and to re
The action to set aside the judgment was predicated upon the ground that G. B. Good-wyne was not properly before the court in that suit; that he was entitled to a one-half interest in the lots because they were the separate property of Mrs. Eddie Goodwyne, his mother, and not the community property of Eddie Goodwyne and A. A. Goodwyne, as the former judgment decreed.
H. Goldberg and wife, Lena Goldberg, J. L. Eottle, Robert Thompson and wife, Gussie Thompson, and others not necessary to enumerate in view of the judgment rendered and not appealed from, were named defendants in the suit. H. Goldberg having died during the pendency of the suit, his sole surviving heirs were made parties defendant. The case was tried before the court without a jury, and the court among other things found that the former suit was void as to G. B. Goodwyne; that the Goldberg and Eottle tracts were the community property of A. A. Goodwyne and wife, Eddie Good-wyne, and were sold to pay the community debts.
Upon appeal the honorable Court of Civil Appeals concluded that the Goldberg and Eottle tracts belonged to the separate estate of Mrs. Eddie Goodwyne, and not to the community estate. It reformed the judgment so as to award the guardian of the minor a recovery of an undivided one-half interest in the Goldberg tract, and an undivided one-half interest in the Eottle tract, but charged the latter with the payment to Eottle of one-half of the $484.75 purchase money paid to Brown out of the proceeds of the sale to Eottle. 220 S. W. 587.
wise attending to the duties incident to ownership with a view to preserve the property, are entirely consistent with the right given him by law to manage and control her separate property. His declarations of ownership of the property in himself, made in her absence and not shown to have been acquiesced in by her, are wholly insufficient to undermine the positive declarations in the deeds.
In view of our conclusion that the property was the separate property of the wife, it is necessary to notice some of the various items paid out of the proceeds of the sale of the lots to determine whether the property may properly be chargeable therewith, as it does not appear from the record as a matter of law that the items represent community debts.
The claim of the Odd Fellows Lodge for $371 stands upon a somewhat different basis, in that the debt was contracted solely by the husband. The 'testimony of those with whom he negotiated in securing the loan is
Plaintiffs in error concede that the item of §133.25 paid to Rains and Herndon and the item of §50 paid G. M. McDaniel out of the proceeds of the sale were for the funeral expenses of Mrs. Goodwyne. They contend, however, that these items are proper charges against her separate estate.
By our statute, the harsh common-law rule has been somewhat ameliorated by the creation of the community estate and the vouchsafing to the wife of a separate estate. Article 4622, Rev. Civ. Stat. 1911. But the right to manage and dispose of community property during coverture rests exclusively with the husband, and subjects him to the corresponding duty of maintaining his wife and family, and defraying out of this property the debts contracted during marriage. 10 Tex. 130.
The wife may, however, contract necessaries for herself and children, and, in the event of' a judgment establishing that the expenses so incurred were reasonable and proper, the court shall decree that execution be levied upon the community, or the separate estate of the wife, as the plaintiff may elect. Article 4625, Rev. Civ. Stat. of 1911. The granting of the right to the wife to charge her separate property, as indicated, does fiot exempt the community property from liability. Moody, Adm’r, v. Smoot, 78 Tex. 119, 14 S. W. 285. Both estates are primarily liable. ’
The authorities upon the question of the husband’s right of contribution from the wife’s separate estate for her funeral expenses, in the event he pays them, are not in accord. The Supreme Court of Massachusetts, in construing a statute similar to ours, making the funeral expenses a priority claim against the estate, held that, in the event of a payment' of them by the husband, he is entitled to recover the amount so paid from her separate estate. Constantinides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311. The Supreme Court of Iowa, by a divided court, in Skillman’s Estate, 146 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 295, in reaching the same conclusion cited Constantinides v. Walsh with approval. In New Fork, the necessary and proper funeral expenses are allowed as a charge upon the estate of the decedent, for whose estate they were incurred; but, in the event the decedent be a married woman, and the expenses be paid by .the husband, he is entitled to reimbursement from her personal estate. McCue v. Garvey, 14 Hun (N. Y.) 562.
The record does not reveal whether the funeral expenses in this case were paid by the husband or whether their payment was enforced against the wife’s separate estate, and, if this question should arise upon another trial, the principle announced herein should be applied to the facts as.may be developed. If it should develop that the husband paid the expenses and reimbursed himself out of the proceeds of the sale, this would not be a proper charge against her separate estate, because he was not entitled to contribution. On the other hand, if these items were paid direct to the holders of the claims in discharge thereof, the same would be a proper charge, because her estate is primarily liable, and the minor’s interest should be charged with one-half of the amount of such expenses.
Due to the record not showing, as a matter of law, what the character of the various items of the, indebtedness was, it necessitates that the judgment be reversed and the cause remanded for further trial.
We recommend, therefore, that the judgments of the district court and of the Court of Civil Appeals be reversed, and the cause remanded for further trial.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
We approve the holding of the Commission of Appeals on the question discussed in its opinion.
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