Appellee claims to be the legitimate child and sole heir of W.T. Patterson, deceased, and sues to recover money belonging to said Patterson and held on deposit by appellant at the time of his death.
Appellant admitted in its answer that at the time of Patterson's death, in June, 1891, he had on deposit with appellant the sum of two thousand dollars; and judgment was rendered against appellant for that amount with six per cent interest from March 9, 1894, the time the suit was commenced.
It was proven, and is not disputed, that appellee is a daughter and only child of W.T. Patterson, that her mother was an Indian woman, named Alcy; and the only question of fact in the case is whether or not she and Patterson were married at the time appellee was born, which was about the year 1848. At that time and prior thereto Mrs. Alcy, as she was called, was the surviving widow of a man named Atkins, who it appears went to California and died. Mrs. Alcy remained in the Creek Nation in the Indian Territory; and, though there is no positive proof of such an agreement, there is evidence tending to support the conclusion that W.T. Patterson and Mrs. Alcy, without having any marriage ceremony performed, agreed to become husband and wife, and the evidence is quite clear that they lived and cohabitated with each other for a considerable time before and after appellee was born, and publicly recognized and treated each other as husband and wife; that during that time, if Patterson did not entirely support Alcy and her child, he contributed largely to that end; and for years afterwards he acknowledged appellee to be his child, and contributed to her support. It was also shown that at the time in question the Creek Indians had no written laws concerning marriage and that, according to their customs and usages, the facts above recited would show a valid marriage. Such being the case, although there are some circumstances in evidence tending to show that it was not Patterson's intention to, and that he did not believe that he had legally married the woman Alcy, we cannot say that the court's finding on this issue is not correct.
After the evidence had been introduced, and while the defendant's counsel was replying to the opening argument of the plaintiff's counsel and contending that the plaintiff could not recover because she had not pleaded any customs and laws of the Creek Nation concerning marriage, the trial court allowed the plaintiff, over the defendant's objection, to amend her petition in that respect; and that ruling is assigned as error.
Notwithstanding the verbiage of the statute, and some decisions tending to support the objections that it was too late to amend, under the latest case by our Supreme Court that has come to our knowledge as well as some former decisions it was within the discretion of the court to allow the amendment; and the record does not disclose any abuse of discretion. W.U. Telegraph Co. v. Bowen, 84 Tex. 477.
The fifth section of appellant's answer reads thus: "Further specially *Page 226 answering herein the defendant says that at the time of the death of W.T. Patterson, on the ____ day of June, 1891, he had on deposit with defendant the sum of two thousand dollars and no more; that it refused to pay the same to any one until it had been established who were the heirs of said Patterson; that in two suits in the District Court of Travis county, Texas, it was determined who the heirs of said W.T. Patterson were, to-wit: in cause No. 10,393, G.M. Patterson v. Francis Patterson, and in cause No. 11,078, Estate of Wm. T. Patterson, probating the will of said Patterson; that after it was established in said causes who were the heirs of Wm. T. Patterson, it paid out said money to the parties so shown to be the heirs of said Patterson, and who are indeed his heirs." Then follows a statement of the sums paid out and when paid out to each of the parties so found to be his heirs, giving names of each. The District Court sustained an exception to so much of this plea as stated to whom and why appellant had paid the $2000 held by it for Patterson at the time of his death; and this ruling is assailed by appellant.
We do not understand counsel for appellant to contend that because it was proved and decided in the suit between G.M. Patterson and Francis Patterson that certain persons were the only heirs of W.T. Patterson, therefore appellee, though not a party to that suit, is estopped from showing the contrary; but the proposition relied on is stated thus in appellant's brief: "The probating of said will of W.T. Patterson was a proceeding in rem, and the finding of the court in said proceeding of who the heirs of W.T. Patterson were, is binding and conclusive against all the world."
We are not prepared to agree to this proposition, in its entirety. It may be conceded that a proceeding to probate a will is a proceeding in rem, as to all the property disposed of by the will; but it is not such a proceeding as to property not disposed of by the will, and therefore not involved in the probate proceeding.
If the plea had shown that the will of W.T. Patterson had been probated and that it devised the property here involved to some person other than appellee it would have presented a sustainable defense. As to property not devised, heirship cannot be established in a proceeding to probate a will.
But it is not claimed that the will, or the probate proceedings, had any reference to the subject matter of this suit; and therefore we think the plea was properly stricken out.
No reversible error has been pointed out, and therefore the judgment will be affirmed. Affirmed.
Writ of error refused. *Page 227