30 La. Ann. 275 | La. | 1878
The opinion of the court was delivered by
The sole question in this ease is what is the extent and value of the community .after the payment of its debts. Much of the argument of counsel was addressed to a discussion of the law regulating the community rights of the spouses in Louisiana and free reference has also been made to the laws of Spain and of France with a view to determine the exact nature and extent of the rights of the parties to this litigation. However interesting and instructive such discussion of foreign laws may be, the law of Louisiana is too positive and well settled in regard to the matter under consideration to render such reference necessary in the present case. The community of acquets and gains commences at the moment of marriage with nothing and includes at its dissolution presumptively every thing found in the succession of the deceased spouse and in the possession of the survivor, unless it he satisfactorily proved which of such effects either of the spouses brought into the marriage or which have been given them separately or been inherited' by them separately. R. C, C. 2405; Bouligny vs. Justin, 16 An. 209. Any property or effects acquired by both or either otherwise during the marriage fall into the community and constitute part of it without reference to the name in which it is acquired, R. C. C. 2402, and without reference also to the amount brought by the respective spouses into the marriage, even though one of them may have brought nothing. R. C. C. 2406. Separate property is that which either party brings into the marriage or acquires during the marriage by inheritance or donation made to him or her particularly. R. C. C. 2334. If the title to such separate property be satisfactorily proved at the dissolution of the marriage it is retained by or restored to the party owning it or his heirs or succession separately and apart from the community or the property of ' the other spouse. The effects which compose the community as well as the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband or by the husband and wife conjointly, are divided after the payment of the community debts equally between the husband and wife or their heirs upon the dissolution of the marriage. R. C. C. 2406. If the separate property of either husband or wife has been increased or improved during the marriage by the common labor, expenses, or industry of both, the other spouse or his or her heirs shall be entitled to one half the value of the increase or amelioration. R. C. C. 2408. The converse of this proposition is equally true, that if the community has been
We have examined the evidence with care and with the desire to end this litigation, but while it is sufficient to render it probable that the-community is in debt to the separate estate of the husband, we are-unable to agree with the executors or their counsel that either the fact or the amount of that indebtedness is satisfactorily shown. It is correctly argued by plaintiff’s counsel that because the husband had put a certain amount of capital into a commercial firm of which he was a-member some years before the marriage, and had a certain amount to his credit upon the books of the firm at the date of the marriage, it by no means follows that he was actually worth that amount or either amount at the marriage. Nor does it follow necessarily that because that firm continued in existence for several months after the marriage in a large commercial city and the husband derived from it on a settlement during the marriage a large amount of money which was put by him into another commercial firm or otherwise paid over to him or his executors that he was therefore worth the amount so received at the-time of the marriage and entitled to take it out of the community before partition with the wife of the common funds or property. - The short duration of the marriage and the evidence of the existence of such a. source from which he might have derived funds which went to enrich the community are circumstances entitled to consideration, and to which we attach the weight of simple probability and nothing more. They would not be sufficient to establish a debt against a stranger, nor, in our opinion, are they sufficient to do so against the community or to rebut the presumption in its favor created by the law. In order to do so it was necessary to show not only that the husband had a certain amount of money to his credit with his firm or co-partners at the date of the marriage, but that if the debts of the partnership had been then paid and the partnership then settled that his individual interest was actually and really worth a certain amount at the time, or that he afterward actually received during the marriage from that source without reference to profits and exclusive of profits made subsequently an amount of money equal to that with which it is sought to charge the community, and that it was used to enrich the community. Any portion received by the executors from that source subsequent to the death of the husband would form no proper charge against the community, and could not be properly deducted from if under the facts of this case, unless it be first, shown affirmatively that the sums so received were not the result of profits made subsequent to the marriage by the firm of which the husband was a member. It is too well settled to require the production of' authority, and results necessarily from the very nature of partnership,
In order that no injustice may be done and to give to the parties an. opportunity to make fuller and more certain proof both as to facts and amounts—
It is therefore ordered, adjudged, and decreed that the decree heretofore rendered by this court be avoided and annulled; that the judgment appealed from be and it is avoided and set aside, and this case-remanded to the court below to be further proceeded in in accordance-with the principles of this opinion. It is further ordered that the costs of this appeal be paid by the succession of John Denegre, deceased, and that all other costs await the final determination of the cause.