Although Mrs. Maggie Robertson acted in perfect good faith in her attempted marriage to J. P. Robertson, yet, as it was conclusively shown that he was never divorced from Mrs. Annie Budd, and therefore was legally incapable of contracting a second valid marriage, it follows that Mrs. Maggie Robertson was never the lawful wife of J. P. Robertson. For the same reason Mrs. Annie Budd never changed her legal status as the lawful wife of J. P. Robertson by her attempted marriage with John Budd; and the fact that she has not seen fit to become a party to this suit and ask for damages for the injuries in controversy sustained by J. P. Robertson, does not affect the question as to whether or not Mrs. Maggie Robertson is entitled to recover. If Mrs. Maggie Robertson was not the lawful wife of J. P. Robertson, then in no sense was she his heir, within the meaning of Sayles' Texas Civil Statutes, article 3353a, providing that causes of action for personal injuries other than those resulting in death shall, upon the death of the person injured, survive to and in favor of his heirs and legal representatives. She did not sue as the executrix or administratrix of his estate for the benefit of his heirs and creditors, but sought to recover and did recover twenty-five hundred dollars in her own personal right, with no evidence to support that claim except the fact that she in good faith married and lived with J. P. Robertson as a wife, and that the cause of action accrued to J. P. Robertson during the existence of that relation. Unquestionably Mrs. Annie Budd, as the surviving lawful wife of J. P. Robertson, had an interest in the cause of action asserted in this suit. Under the laws of this State J. P. Robertson did not at his death leave two surviving lawful wives. Under the common law the cause of action asserted abated with the death of J. P. Robertson, but by article 3353a of Sayles' Texas Civil Statutes, it is made to survive to his heirs and legal representatives. The basis for her contention that she is a legal representative of J. P. Robertson is her claim that she acquired and owned a half interest in the cause of action before his death. I deem it unnecessary to consider whether or not such an *Page 313 interest would constitute her a legal representative of J.P. Robertson after his death, — as I do not believe she ever acquired such an interest. Her contention is that as she was in good faith his putative wife, the cause of action was community property between them, and each owned an undivided one-half interest therein. Sayles' Texas Civil Statutes, article 2968 reads as follows:
"All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only."
By this article of the statute the cause of action sued onprima facie was made the community property of J. P. Robertson and his wife, Mrs. Annie Budd, vesting in each a half interest therein. Under repeated decisions of our higher courts it is a settled principle of law that when a marriage is held to be unlawful, the putative wife, who has assumed and sustained that relation believing in good faith the marriage to be lawful, will be entitled to one-half of all property acquired by the joint labors of the two, even in the absence of proof of the extent of labor contributed by each. Barkley v. Dumke, 99 Tex. 153 [99 Tex. 153]; Morgan v. Morgan, 1 Texas Civ. App. 315[1 Tex. Civ. App. 315]; Lawson v. Lawson, 30 Texas Civ. App. 43[30 Tex. Civ. App. 43]; Allen v. Allen, 101 Tex. 362 [101 Tex. 362]; Chapman v. Chapman, 16 Texas Civ. App. 383[16 Tex. Civ. App. 383]; Speer on the Law of Married Women, sec. 178.
The case of Lawson v. Lawson, supra, was a controversy between Harry Lawson and his putative wife, Caroline Lawson, over certain property acquired by them during their marriage, Caroline in good faith believing that the marriage was a lawful marriage, and the finding of the trial court was as follows: "All the property in controversy was acquired by the joint efforts of Caroline and Harry in the same manner as if they had been husband and wife, but in what proportion their respective labors contributed to such accumulation I am unable to say." A judgment was rendered by the trial court decreeing to Caroline Lawson one-half the property so acquired, and in the opinion of the Court of Civil Appeals affirming that judgment the following language was used:
"In the case at bar, inasmuch as plaintiff was never the lawful wife of Harry Lawson she could not in any event be entitled to the full property rights of a wife, such as homestead rights in a homestead the separate property of the husband, or a one-third life estate in his separate realty. But if in good faith she has entered into the relation, the courts will not refuse her the just fruits of the labor of her hands and permit the husband, who is equally guilty if either is, to appropriate the partnership earnings to his own use.
"That this distinction has been recognized is clear from the opinion in Chapman v. Chapman, 16 Texas Civ. App. 382[16 Tex. Civ. App. 382]; cited by appellant, where the court refused to award to the putative wife the full rights of a wife in property which was a donation by the State to a husband and to the acquisition of which she contributed nothing, but did give to her a partnership interest in personal property acquired by their joint efforts during the existence of the relation.
"It would seem that good faith, whether resting in mistake of *Page 314 fact or mistake of law, is enough to authorize the courts to treat the relation as a partnership upon proof that something was actually contributed by each to the acquisition of the property claimed."
The case of Morgan v. Morgan, supra, was a controversy between Susan H. Morgan, surviving lawful wife of John E. Morgan, and his surviving putative wife. The property involved was one hundred and sixty acres owned by John R. Morgan at the time of his putative marriage and other property accumulated after that marriage; and following an extensive review of the authorities, the Court of Civil Appeals used this language: "We are of the opinion, therefore, that if appellant (the putative wife) in good faith believed that she was the lawful wife of John E. Morgan, she should not be deprived of her right to participate in the property acquired through their joint efforts, and that she should have been allowed to prove that fact, and that this issue should have been submitted to the jury. Of course this would give appellant no right to any share in the property which John E. Morgan had at the time of his attempted marriage to her, whether such property be his separate property or the community property of him and his first wife. This by our statute would go to his lawful wife and child. Newland v. Holland, 45 Tex. 588."
It will be noted that in both cases last discussed, Morgan v. Morgan and Lawson v. Lawson, the putative wife was given one-half of such property only as had been acquired by the joint efforts of herself and putative husband. Likewise, in the case of Routh v. Routh, 57 Tex. 589, the property involved was acquired by the joint labor of the parties in the putative marriage, as shown on pages 593 and 594 of the report of that case.
In the case of Barkley v. Dumke, 99 Tex. 153, the cases of Morgan v. Morgan and Lawson v. Lawson are approved and the court uses the following language: "Therefore we think it should be taken as the settled doctrine in this State, that in the case of a marriage of the character of that in controversy, the putative wife, so long as she acts innocently, has as to the property acquired during that time the rights of a lawful wife." In that case, however, the property in controversy was exclusively the property of the putative wife, and further than the general terms used there is nothing to indicate that the Supreme Court intended to extend the doctrine of the two cases of Morgan v. Morgan and Lawson v. Lawson and to hold that the putative wife is entitled to one-half of the property acquired by the husband during the marriage, but which was not acquired by the joint efforts of the two. It seems to the writer that the language quoted above from the Supreme Court, if construed literally and without limitation, would sustain the claim of the putative wife to administer as survivor of the community upon all property acquired by her and her putative husband during the existence of the assumed relation of husband and wife, contrary to the doctrine announced by Justice Williams in the case of Chapman v. Chapman, 16 Texas Civ. App. 382[16 Tex. Civ. App. 382], and would also sustain the claim of the putative wife, in case she survive him, to an inheritable interest in property acquired by the husband during the existence of the putative marriage, even though acquired by gift, devise or descent. *Page 315
In the case of Allen v. Allen, 105 S.W. 54, by this court, and 101 Tex. 362, by the Supreme Court, the right of the putative wife to one-half the property involved was recognized. However, the property involved in that case consisted of a tract of one hundred and sixty acres of land which was bought by the husband on a credit and afterwards paid for by money acquired by the putative wife by gift from her mother, and a block of land in the town of Tolar which was purchased with proceeds of crops raised on the one hundred and sixty acre tract, and all of the property was acquired during the putative marriage.
In the writer's investigation of the decisions of our State no case has been found holding that property not acquired by the joint labors of the partners of a putative marriage would be owned by them jointly, even though the same might be the community property of the husband and his lawful wife under article 2968, above quoted. If that question has never beensettled by the decisions of our State, then it was certainly not intended to be embraced in the language of the Supreme Court in the case of Barkley v. Dumke, quoted above, "Therefore we think it should be taken as the settled doctrine in this State," etc. (italics mine).
It can not be said that the cause of action in favor of J. P. Robertson accruing by reason of the injuries he received in the accident in controversy, and immediately upon the happening of the accident, was acquired by the joint labors of himself and Mrs. Maggie Robertson. No evidence was introduced to show that J. P. Robertson ever entered into a contract with Mrs. Maggie Robertson, specifically conveying to her an interest in the cause of action, and to say that she had such an interest would be to say that such an interest accrued to her as an incident to her marriage contract.
In the case of Chapman v. Chapman, 16 Texas Civ. App. 382[16 Tex. Civ. App. 382], Justice Williams, now of our Supreme Court, said: "The right given by our statutes to the survivor of a marriage to administer the estate of the deceased spouse and the property which belonged to them in common (Rev. Stats. arts. 2165-2167-2181) is given to him or her who is recognized by the law as the lawful husband or wife of the deceased, and as appellant was never lawfully married to Thomas Chapman she had not the right to administer in preference to anyone else. For the same reason there was no community estate, such as is contemplated by the statute, between herself and the deceased. The community estate is created by law as an incident of marriage and does not arise from contract between the parties. It is created by law only as between those who occupy towards each other the relation of husband and wife."
Statutes governing the subject matter of a contract are as much a part of the contract as though expressed therein, and in this sense are incidents to the contract, 11 Cent. Digest, sec. 750, and authorities there cited. Obviously, this announcement has reference to contracts only which are legally binding. The statutes defining property rights of husband and wife became a part of the marriage contract between J. P. Robertson and his lawful wife, Mrs. Annie Budd, but did not become a part of the marriage contract between J. P. Robertson *Page 316 and Mrs. Maggie Robertson, as J. P. Robertson was not legally capable of entering into the last named contract, and the same therefore had no binding effect in law upon either of the parties.
To establish an arbitrary rule that in all cases a putative wife is entitled to a half interest in such a cause of action as this, accruing to her de facto husband, when she contributes nothing to its acquisition, and thus reduce the interests of the lawful wife and children therein to one-half regardless of how short may be the duration of that relation, regardless of the pecuniary value of such a claim, and regardless of equities, even, in favor of the lawful wife, in whom the statute has vested a one-half interest in the cause of action, would, in my opinion, extend protection to the putative wife further than is warranted by our decisions, and further than the principles of equity would require.
It would be difficult, if not impossible, to determine how much the efforts of each partner to a putative marriage contract had contributed to the purchase of property acquired by the joint labors of both, and it is well settled that in the absence of proof of an agreement to a contrary effect, parties to a partnership will be held to be equal partners. Likewise, parties contributing to the purchase of property for their joint use and benefit, but not as partners strictly speaking, are presumed to own the same in equal interests in the absence of proof that one contributed more than another, or that by contract between them it was agreed that the interest of one should be greater than that of another. Upon this theory the decisions above cited and discussed, holding that property acquired by the joint labors of the parties to a putative marriage is owned by them in equal interests, can be sustained without attaching to such a marriage contract the incidents attached by our statutes to a lawful marriage contract. If some of the statutory incidents of a lawful marriage contract are to be held incidents of a putative marriage contract also, I can perceive no valid reason why all of those incidents should not so attach, and thus give the putative wife the right to plead coverture against her contracts other than for necessaries and for the benefit of her separate estate, an inheritable interest in the separate estate of the husband, homestead rights and all other rights given by statute to a lawful wife. If some of these rights are to attach to the putative marriage contract as incidents thereto, and others denied, where shall the boundary line be drawn between such as do and such as do not so attach?
The fact that Mrs. Maggie Robertson nursed J. P. Robertson in his illness resulting from the injuries for which this suit was prosecuted, would no more entitle her to an interest in the cause of action than would the services rendered by his physician in treatment for the same injuries vest in him the right to recover for the infliction of those injuries.
For the reasons above noted I believe that the judgment in favor of Mrs. Maggie Robertson should be reversed, and, as to her, judgment should be here rendered in favor of appellant.
Writ of error granted, reversed and rendered as to Maggie Robertson, and affirmed as to other defendants in error. 103 Texas, —. *Page 317