Clapp's Executors v. Branch

WILLIAMS, Associate Justice. Appellants are plaintiffs in an action of trespass to try title brought to recover of defendants, Branch and others, several tracts of land. Appellees are parties who intervened, asserting title to an undivided half of the land for which plaintiffs sued. The verdict and judgment were in their favor for one-half and for plaintiffs for the other half, defendants showing no title. The titles exhibited on either side emanated from Henri and Louis Rueg, who, in 1838, were the joint owners of the land. Plaintiffs, confessedly, have the interest of Louis Rueg, and claim that of Henri Rueg, who died in 1838, through his father, brother and sister, claiming to have inherited from him. The intervenors claim such interest by inheritance through a child, who, they assert, was born to Henri Rueg by his widow after his death. The question upon which the case depends is one of fact, whether or not such a child was born alive, so as to inherit from its father. If it was, it is con *206 ceded that the intervenors have the title to the half which they recovered, unless defeated by plaintiffs’ plea that they are innocent purchasers. Intervenors’ evidence tended to show that Henri Rueg’s wife was pregnant when he died, and that she subsequently gave birth to a child who lived a few weeks and died, casting the inheritance upon its mother, from whom intervenors claim. Plaintiffs’ evidence tended to negative the fact of the birth of a living child to the widow, and to impeach and break down the testimony of witnesses upon which their adversaries relied. Among the evidence which plaintiffs offered was the record of a proceeding in the Probate Court of Natchitoches Parish, Louisiana, which was offered both for the purpose of showing a final and conclusive adjudication of the fact that no such child was born, and that the father, brother and sister of the deceased were the heirs, and also, in case it was held not. to be an adjudication of the question at issue, as a circumstance tending to establish their contention. The record was excluded, and this ruling is assigned as error. The proceeding was begun March 19, 1838, by a petition to the Probate Court by Louis Rueg, stating that Henri Rueg, his brother, had recently died in that parish, leaving property owned by him in partnership with the applicant, and a community of acquests and gains between deceased and his widow, Marie Louise Flores, then pregnant, and asking for the appointment of a curator ad ventrem for the unborn child, and that an inventory and appraisement be taken, upon notice to the widow and the curator. A curator was appointed, accepted and qualified, and appraisers were also appointed, who, together with the ■ parish judge, and in the presence of the widow and the curator, made an inventory and appraisement of the property, which was filed and approved. On December 22, 1838, one Alexis Lernee made application for letters of administration, representing that the deceased left no legitimate descendants, but left a father, brother and sister, the first and the last residing in Switzerland; and that they were the heirs of deceased and had authorized the applicant to administer; and on December 22 an order was entered, reciting that the petitioner had established his quality of • attorney in fact, and had, in the name of the heirs, accepted the succession, and appointing him administrator. Subsequent proceedings show the sale of the property, under orders of court, the payment of debts, and the delivery of the residue of the money and claims therefor over to Louis Rueg as one of the heirs atid the attorney in fact for the others, the father, brother and sister being recognized and stated as such heirs; and, finally, on December .26, 1840, these facts being shown, the court entered an order approving the accounts and discharging the administrator. The only one of these proceedings with which Mrs. Rueg is shown to have had any connection was the taking of the inventory and appraisement. In that, there was no issue as to the right of inheritance from the deceased. The prospective rights of the child were recognized, and there was no determination of any person’s right to inherit. The subse *207 on out administration was a proceeding in rem, and all the world were parties to it, in the sense that they were to be bound by the judgment disposing of the property within the jurisdiction of that court in that proceeding. But no other property was involved or affected. The very reason why the judgments in such cases are binding on all persons is that the court deals with the property in its custody, and not with persons. Delivered October 31, 1895. The judgment does not fix a personal estoppel upon any one, precluding him or her from asserting title to property not involved in the proceeding, because the court has no jurisdiction either over the person or the property. The proceeding in question, it may be conceded, conclusively disposed of the property within the jurisdiction of the court, but none other. And, as there was no adjudication of an issue to which Mrs. Rueg or her child was a party, it could not operate as an estoppel in personam, and, without operating in personam, it could not estop them as to land in Texas. But we think this record admissible for the other purpose assigned, as bearing on the question of fact whether or not there had been born a child whose rights, or those of its mother inherited from it, to the estate of the deceased, were superior to those to whom the estate was delivered. The proceeding was in a court of record, was based upon the assertion that others than a child of deceased were, his heirs. If it is true, as claimed by appellees, that there had been born a living child who inherited from Rueg, and that the child had died, its mother was probably entitled to the property being disposed of in this proceeding. It was considerable in amount, and yet the record shows that others were allowed to represent to the court that they were the persons entitled and to take the property, without the ássertion of any claim on her part. This is a circumstance which plaintiffs had the right to have the jury consider. It is not conclusive, and the fact that no right was asserted to that property does not prove that it did not exist, but it nevertheless is a circumstance entitled to consideration; and with proper limitations as to its effect and the purpose for which it is to be considered, the record should be admitted. Allen v. Read, 66 Texas, 19. We are also of the opinion that the court erred in not excluding the statement of the witness Charles Rambin, in which, after stating what he had been told by members of Mrs. Rueg’s family of the birth of a child, he added: “I am sure they did not lie to me.” This was a comment upon the evidence which the witness was not entitled to make. If the persons through whom plaintiffs claim were not the heirs 'of Henri Rueg, they cannot prevail against the title of those who are the heirs, on the plea that they were innocent purchasers. Persons undertaking to buy from heirs of dead people in whom the legal title was vested, must see to the fact of heirship. Patty v. Middleton, 82 Texas, 587. We find no error pointed out in the other assignments. Reversed and remanded.