198 S.W. 674 | Tex. App. | 1917
Appellant does not contend that the land was not damaged nor crops thereon destroyed because of a failure on its part to construct its roadbed as required by law, nor does it contend that the sum adjudged against it exceeded the damages to the land and crops. The contention (that is, the only one we think it worth while to discuss) it makes is that appellee was not entitled to recover the damages as determined by the trial court. The contention is based on several minor ones, to wit:
1. That it conclusively appeared from the testimony that appellee owned only an estate for life in the land. Not only did it not, so appear, but, on the contrary, it conclusively appeared that the land belonged to the community estate between appellee and her deceased husband, Mose Evans, and was their homestead at the time he died (seven or eight months before the suit was commenced), and after his death continued to be appellee's homestead. It thus appeared that appellee owned at least an undivided *675 one-half of the land. And if, in the absence, as was the case, of proof of the probate thereof the will of Mose Evans admitted as evidence without objection on appellant's part, should be given effect, it further appeared that appellee also owned, as said Mose Evans' devisee, a life estate in his one-half interest in the land, and was the executrix of the will, independent of control by the probate court.
2. That the suit was by appellee and the other plaintiffs as heirs of Mose Evans deceased, and was not maintainable by them in the absence, as was the case, of an allegation and proof that an administration had not been opened on his estate and that a necessity for such an administration did not exist. The insistence that the suit was by the plaintiffs as heirs is based on an allegation in the petition set out in the statement above, and, we think, is not tenable. The allegation of the plaintiffs that they "are the legal heirs of Mose Evans, deceased," should, we think, be treated as descriptive merely, and not as an allegation of the capacity in which they sued. The allegation following the one quoted, that the plaintiffs "are the owners of the hereinafter described premises and property," we think authorized the proof made by appellee, without objection on the part of appellant, that the land belonged to the community estate between her and her husband. As we understand the ruling of the Supreme Court in Ry. Co. v. Goldman,
"over the objection of the defendant to the effect that, since the petition disclosed the fact that the wife left children surviving, and that the cause of action was community property and lid not show the existence of community debts or that the husband had qualified as survivor in community, the children were necessary parties."
The Supreme Court held that the survivor of the marriage had —
"the power of a surviving partner to sue for collect, and preserve the community estate in trust for himself and others interested as creditors, or otherwise, subject to be controlled by court of equity when necessary to protect the beneficiaries."
3. That it appeared that a part of the damages sued for and recovered accrued after the death of Mose Evans. The insistence as to this is that appellee and the other plaintiffs were tenants in common of the land after the death of Mose Evans, and therefore that appellee was not, entitled to recover the entire damages accruing after his death, but only such proportional part thereof as her interest in the property bore to the whole of same. If we thought appellant had a right to make the contention we would sustain it, on the authority of Rowland v. Murphy,
Assignments presenting other contentions than those discussed are also overruled.
*676The judgment is affirmed.