In Re Greathouse's Estate

MURRAY, Justice. On the 15th day of February, 1944, Mrs. Letha G. Lackey filed her final account as administratrix of the estate of S. D. Greathouse, deceased, showing certain property to be in her possession belonging to said estate, and certain other property not in her possession also belonging to this estate. Mrs. Lackey prayed that the court enter an order determining who were the heirs of S. D. Greathouse and partitioning and distributing such property among the heirs. Thereafter Freda Greathouse and Willie Edna Cantrell, wife and daughter, respectively, of S. D. Greathouse, deceased, also filed an application in the Probate Court of Bexar County for partition and distribution of the property belonging to the estate of S. D. Greathouse, deceased, contending that they were the only heirs at law of said intestate and that the only other person having any interest in such property was Gus B. Mauerman, who had an assigned interest therein. Thereafter Mrs. Carmen Mitchell filed a petition in said Probate Court, likewise seeking partition and distribution of said property, contending that she was the common law or de facto wife of S. D. Great-house, and that she and her daughter Betty Jo Greathouse, were heirs at law of S. D. Greathouse, and that in any event she was entitled to a one-half interest in such property as a partner of S. D. Greathouse. The Probate Judge rendered judgment favorable to Mrs. Carmen Mitchell's contention and permitted her and her daughter to participate in the distribution of the property. An appeal was taken from this judgment to the District Court, where a trial before the court resulted in judgment denying Mrs. Carmen Mitchell and her daughter any participation in the distribution of this property and declaring, in effect, that Mrs. Freda Greathouse and her daughter, Mrs. Willie Edna Cantrell, were the heirs and the only heirs at law of S. D. Greathouse, deceased. From this judgment, Mrs. Carmen Mitchell, joined by her husband, Roy Mitchell, has prosecuted this appeal. Whether or not Mrs. Carmen Mitchell was the owner of a half interest in this property, as a partner of S. D. Greathouse, involves a question of title whi(ch cannot be decided in this suit. This is an appeal from the Probate Court of Bexar County, and the District Court, in hearing this appeal, even though by a trial de novo, had no greater jurisdiction than did the Probate Court. The Probate Court has no jurisdiction to adjudicate title. Art. 3290, Vernon’s Ann.Civ.Stats.; Zamora v. Gonzalez, Tex.Civ.App., 128 S.W.2d 166. Therefore, the only question before the District Court was whether or not Mrs. Carmen Mitchell and her daughter were heirs at law of S. D. Greathouse, deceased. The evidence shows that S. D. Greathouse had entered into a ceremonial marriage with appellee, Mrs. Freda Great-house, and that this marriage had never been dissolved. Mrs. Willie Edna Cantrell was a child of this marriage. S. D. Great-house accumulated all of the property, as listed in the final account, after his marriage to Freda Greathouse. In about 1934, S. D. Greathouse and Freda Greathouse separated and never again lived together as man and wife, but no divorce was had. Shortly thereafter S. D. Greathouse and Carmen Mitchell began living and cohabiting together, and as a result of this cohabitation the daughter, Betty Jo, was born. Under such circumstances Carmen Mitchell never became the common law wife of S. D. Greathouse, because during all the time they lived together he had a lawful wife. She did not become his putative wife because admittedly there was no ceremony performed. Papoutsis v. Trevino, Tex.Civ.App., 167 S.W.2d 777. The trial court properly held that Mrs. Carmen Mitchell and her daughter were not the heirs at law of S. D. Greathouse, deceased. The judgment is affirmed.