
    MELDE et al. v. MELDE et al.
    (Court of Civil Appeals of Texas.
    Nov. 23, 1910.
    
    On Motion for Rehearing, Jan. 4, 1911.)
    1. Partition (§ 55) — Petition—Parties.
    Where a petition for partition of certain land showed that all the parties claimed as heirs of their father, and that one of the children who inherited an undivided interest in the land had died, but did not disclose what had become of her interest in the estate, and neither she nor her heirs were made parties, the petition was insufficient.
    FEd. Note. — Eor other cases, see Partition, Dec. Dig. § 55. J
    On Rehearing.
    2. Partition (§ 63) — Evidence—Release by Administrator of Community.
    Where, in partition, plaintiffs introduced a release executed by a husband and as administrator of the community estate of his wife, one of the heirs of the common source of title, whose interest was not otherwise represented by any party to the action, such release indicated that the deceased heir left one or more children, who inherited her interest in her father’s estate, because, under Rev. St. 1S95, art. 2221, a husband could not administer on his wife’s community estate unless the wife left a surviving child or children.
    [Ed. Note. — Eor other cases, see Partition, Dec. Dig. § 63.]
    Appeal from District Court, Lee County; Ed. R. Sinks, Judge.
    Suit for partition by John Melde and others against Oswald Bielde and others. Decree for complainants, and defendants appeal.
    Reversed and remanded.
    Wm. O. Bowers, for appellants. Watson & Simmang, for appellees.
    
      
       For other cares see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   KEY, C. J.

According to the undisputed proof in this case, Andrew Melde was married twice and had two sets of children. By his first wife, who died in 1874, he had eight children, viz., Ernstine Simaek, Emma Kiesch-nick, John Bielde, Charles Bielde, Her-mann Bielde, Mrs. Hermann Urban, Henry Bielde, and Lena Wuensche. By his' second wife, who died in 1904, he had nine children, whose names it is not necessary to state. 1-Ie died in 1908, and shortly thereafter this suit was instituted for the purpose of partitioning his estate.

The original petition is not in the transcript, but was substituted by a first amended original petition, in which Hermann Bielde, Charles Bielde, John Melde, and J. B. Simaek were -plaintiffs and the children of Andrew Bielde by his second wife were defendants. The petition alleged that Andrew Bielde and his first wife had eight children, giving their names as above stated, and alleged that Blrs. Hermann Urban is dead. It was also alleged that the plaintiff J. B. Simack had acquired all the interest in the property formerly owned by Ernstine Simack and her husband, Emma Kieschnick and her husband, and Henry Melde, and that the plaintiffs and defendants were each entitled to one-seventeenth of the estate of Andrew Melde, deceased. The petition contained no other allegation concerning Mrs? Urban and Lena Wuensche. . However, without being made a party to the first amended petition, Mrs. Wuensche filed an answer, in which she adopted all of the pleadings filed by the plaintiffs, and prayed for judgment for her interest in the property.

The defendants filed answers, including a general denial and a special plea, alleging that none of the plaintiffs were entitled to recover, because the children of Andrew Melde by his former wife had received advancements from him, in consideration of which they had executed releases cutting them off from any right to inherit any portion of his estate.

There was a nonjury trial, which resulted in a decree awarding to J. B. Simack an undivided s/32, and to Lena Wuensche, John Melde, Charles Melde, and Hermann Melde, each, 1/32 of the property, and to each of the defendants 25/288 thereof, and commissioners were appointed to partition the same. The defendants have appealed, and complain of the action of the trial court in refusing to hold that the releases pleaded by them es-topped the plaintiffs from asserting title to any of the estate of Andrew Melde, deceased.

There is fundamental error apparent upon the face of the record, which requires the case to be reversed. While the plaintiffs alleged in their petition that Mrs. Hermann Urban was dead, it failed to disclose what had become of her interest in her father’s estate, and there was no proof that she was dead. The plaintiff’s petition, as well as the testimony submitted thereunder, disclosed an absolute necessity for further allegation and proof, and perhaps additional parties, before a proper decree could be rendered. Ship Channel Co. v. Bruly, 45 Tex. 8; De La Vega v. League, 64 Tex. 205. It appearing that Mrs. Urban was a child of Andrew Melde, deceased, the pleadings and proof should have shown that her interest in the property had been acquired by one or more of the parties to the suit, or she or her heirs should have been made parties.

As the record indicates that other persons who have not had their day in court may be brought into the case, we deem it improper for this court at this time to pass upon the questions which are decisive of the rights of the parties. Therefore, without deciding other questions, and for the reasons stated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

In this motion it is insisted th&t the testimony shows that Sirs. Hermann Urban, one of the children of the deceased ancestor, was dead; and in support of that insistence reference is made to a release executed by Her-mann Urban, in which he is described as community administrator of the estate of Annie Urban, née Annie Melde, deceased. If the recital referred to can be considered as proof of the death of Mrs. Urban, it is also proof of the fact that she left one or more children, who inherited her interest in her father’s estate, and therefore should have been made parties to this suit. Under article 2221, Rev. St. 1895, Hermann Urban was not entitled to administer upon the community estate, unless his deceased wife left a surviving child; and, if the recital referred to establishes the fact that Mrs. Urban was dead, it is also sufficient to show that she left one or more children surviving her, as otherwise her husband could not lawfully have qualified as administrator of the community estate.

Motion overruled.  