G. W. T. P. Ry. Co. v. Goldman , 87 Tex. 567 ( 1895 )

Herman Goldman and his wife sued the Gulf, Western Texas Pacific Railway Company for damages resulting from the negligent digging of a ditch without proper outlets, whereby water collected and became stagnant near plaintiffs' residence, causing (1) depreciation in value of their home, for which the jury allowed $1000; (2) sickness in family, necessitating expenses for physicians and medicines, for which the jury allowed $600; (3) removal from said residence to town and renting another place, for which the jury allowed $250; and (4) loss of time in going to and from town to work, for which the jury allowed $125.

Before the trial the wife died, and the husband, after having suggested her death, asked leave of court to prosecute the suit in his own name, which the court allowed, over objection of 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 did not show the existence of community debts, or that the husband had qualified as survivor in community, the children were necessary parties.

The theory of defendant is, that the surviving husband "derives his control over the wife's one-half of the community estate solely from the existence of community debts," and that in the absence of such debts he has no right to collect and reduce to possession the community choses in action.

A surviving partner has the right to sue for and reduce to possession the choses in action and property of the partnership dissolved by death of the deceased's partner, and the executor of the deceased partner, without showing sufficient reason therefor, can not make himself party to such suit. Watson v. Miller, 55 Tex. 290; Fulton v. Thompson,18 Tex. 286. This right does not depend upon the existence of debts. He is regarded as a trustee with power to collect and hold the estate in trust for himself, the firm creditors, and the representatives of the deceased partners. As to strangers, his right to recover is absolute. As to persons interested in the estate as creditors or otherwise, he is a trustee, subject to be controlled by a court of equity when necessary to protect the interest of the beneficiaries. Pars. on Part., 3 ed., p. 480. In this State there is much analogy between the relations of husband and wife as to property matters and those of ordinary partners. The analogy is not complete, for the husband, save in exceptional cases, has the sole power to bind the community, and is alone bound by contracts relating thereto, and the legal title to the community is generally vested in him, she having a mere equity; but we are of the opinion that it should be extended so as to give him 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 a court of equity when necessary to protect the beneficiaries. Moody v. Smoot, 78 Tex. 122.

Such power in the surviving husband avoids undue embarrassment to himself and the public, who deal with him, often without notice as to whether the transaction relates to the community estate or whether the wife be living or dead, and best promotes the interest of the children, whose share of the community is safer in the hands of the husband than in those of a stranger, and especially so where such stranger, as in this case, seeks to avoid liability in any event.

In some cases this power may be used by the husband to defraud the children, and so may the power to sell for the payment of debts. The same objections may be urged with greater force to similar powers in the surviving partner, who has not the husband's natural affection for his children and liability for their support, to restrain him from the abuse thereof.

The principles of law regulating and defining the property rights of the citizen are based upon the hypothesis that good faith is the rule and fraud the exception.

The principles here announced do not conflict with the rule in Rowland v. Murphy, 66 Tex. 534, where recovery was sought by the husband for damages to property owned by him and his children as tenants in common. The property was during the life of the wife the community estate of the husband and wife, but upon her death the children became tenants in common with him. There was no community relationship between the husband and children, and the damages to the property accruing after the wife's death, was not a community chose in action, as in this case.

We have given this question much consideration, and are of opinion that the court below and the Court of Civil Appeals correctly held that the suit could be prosecuted in the name of the husband alone, and the application for writ of error will be refused.

Application refused.

Delivered February 28, 1895.