Hurst v. Mellinger

Henry, Associate Justice.— In the year 1881 M. Mellinger, John Mellinger, and George Goebel were partners in a mercantile business conducted in the city of Houston, Texas, in the name of M. Mellinger & Bro. In that year M. Mellinger died at his home in Louisiana, leaving a last will, in which he gave to his brother John Mellinger and to plaintiff, his son, then 14 years old, his share in said partnership, to be equally divided between them. This will was duly probated in the State of Louisiana. Upon the death of M. Mellinger his interest was ascertained and entered upon the books of the firm as a credit to John Mellinger. The business continued to be conducted until John Melliger’s death several years afterward in the name of M. Mellinger & Bro. Shortly after M. Mellinger’s death Goebel sold his interest to John Mellinger. The minor George Mellinger lived in the family of John [190] Mellinger and served in Ms store. TMs he continued to do until the death of his uncle. He then presented an itemized account for money had and received hy John Mellingér under the will of his father and for labor and services rendered him, duly verified by affidavit, to appellant for his acceptance as administrator of the estate of John Mellinger, which being rejected he instituted this suit. ■ Defendant answered by a general denial, and that if plaintiff ever had any interest or claim in the business of M. Mellinger & Bro. by virtue of the will of M. Mellinger or otherwise it was as a partner, and that he did not claim to be a creditor until upon the death of John Mellinger the concern was found to be^insolvent. The court rendered judgment for plaintiff. It is assigned that “the ■court erred in admitting the will of M. Mellinger in 'evidence over the objection of defendant in support of the pretended claim of plaintiff for money had and received for his use by John Mellinger, when in fact the ¡said will was not probated in this State as required by our law, and because said will was not legal evidence in support of said pretended claim, as said claim was for money had and received, while the said will only pretended to convey to plaintiff all the right, title, interest, and claim of Ms father in the store in Houston.” Plaintiff made the itemized account presented to the administrator part of his petition, and with regard to his interest under his father’s will ■charged that his father died in the month of March, 1882, “and by his will devised to John Mellinger and plaintiff equally all of his interest and the amount due and belonging to him in the said business and stock of M. Mellinger & Bro., the total amounting to the sum of eleven thousand ■seven hundred and twenty dollars and twenty-six cents, out of which was paid to Mrs. Catherine Mellinger, for her interest therein, the sum of four thousand dollars, leaving seven thousand seven hundred and twenty dollars and twenty-six cents, one-half of which became the property of said John Mellinger and the other half of plaintiff. That John Mellinger took possession of the whole thereof and appropriated -it to his own use.” The property at the death of M. Mellinger consisted principally of a stock of merchandise and uncollected debts. The will of M. Mellinger described the property bequeathed to his son and brother as “all his right, title, and interest in the store established in Houston, Texas.” This will was duly probated in the State of- Louisiana. We think the objections to its admissibility in evidence were properly overruled. As a will of personal property it was governed by the laws of the testator’s domicile, and having been probated in Louisiana it was not necessary for it to be probated in Texas to make'it evidence of plaintiff’s rights under it. Holman v. Hopkins, 27 Texas, 38. We think plaintiff’s cause of action was for the conversion of Ms in [191] terest in the stock of merchandise and not for money had and received. While the allegations in the petition are somewhat confused and obscure if not contradictory, we think that it sufficiently states the cause of action to apprise defendant that his suit was for the value of his interest in the particular mercautile business bequeathed him by his father's will and appropriated by his uncle. In the absence of special exceptions to the petition we think it was sufficient, and the objections to the introduction of the will as evidence were properly overruled. The claim sued upon, with its endorsements, seems to have been introduced as evidence without objection. The defense that plaintiff: was John Mellinger’s partner was not sustained at the trial. We find no error in the proceedings and the judgment is affirmed. Affirmed. Delivered March 1, 1889.