41 La. Ann. 491 | La. | 1889
The opinion of the Court was delivered by
The iinal account and tableau presented by the administrator of this succession and who is the surviving husband in
To this pretension, the husband has filed defences which go to the jurisdiction, of the court to try the issue of the ownership and to establish that, although the title was taken in the wife’s name with the recital that the purchase was made for herself, her heirs and assigns, with her own separate and paraphernal funds, the statement was made in error, and that the value of the property is an acquet of the partnership affairs.
After the amount had been homologated, as far as not opposed, certain parties intervened and joined in the opposition already filed, to a certain extent.
The opposition, is levelled at other items of tlie account and was passed upon in that respect, by the lower court, in a manner which does not appear to be an object of complaint in this court.
On the trial, the husband administrator offered to introduce i>roof to show the alleged error in the recital of the act of purchase; but the court refused to admit any, considering that the husband, under whose authority the purchase and investment had been made, was estopped from contesting its contents.
An offer was also made to show that, although true it may be that the naked lot was acquired by the wife, as her separate property, the same; had been improved, during the community, by the putting up of buildings upon it, which, at the dissolution of the community, became the property, share alike, both of the surviving husband and the succession or heirs of the deceased wife; but the court declined to hear the evidence on the same ground.
Bills were reserved to the rulings thus made.
I.
There can be no doubt that the court had jurisdiction vwtione materice of the matters in controversy, whether it acted exclusively as a probate court, or as a court exorcising an ordinary and general jurisdiction, probate included.
The distinction which existed formerly between the jurisdiction of probate courts and civil courts of ordinary general jurisdiction, has been obliterated by Art. 130 of the Constitution, and the Civil District Court for the parish of Orleans, blending both jurisdictions, had the right to
ir.
The heirs who filed an opposition, after the account had been homologated, as far as not opposed, had a right to do so, for the plain reason, that their sole object was to join in the opposition already filed, which, from a legal standpoint, impliedly protected them as effectually as if they had been named in it. This supplemental opposition did not therefore come too late.
ITT.
However true it may be that a husband, under whose authority a wife acquires property with the recital in the act that the purchase, is made by her with her separate and paraphernal funds and for her exclusive, benefit and advantage and that of her heirs and assigns, — may be, as a rule, estopped from contesting the verity of the statement and the, character of the investment, it does not follow that he must necessarily be shut out from all right to attack the act, on grounds which he might have urged against others than his "wife, such as error, violence or fraud.
The recital, in the absence of a denial by forced heirs or creditors, operates as prima facie proof in favor of the wife and her heirs and the burden is upon the husband opposing on proper ground to throw the door open. Burns vs. Thompson, 39 Ann. 377.
The rulings in 35 Ann. 33 and in 40 Ann. 579, relied on, have no bearing, as no charge of error was made there as it is here. ■
This right to attack on proper charge, the husband possesses as well against the wife and her heirs, but he must be held to substantiate it by strong legal and convincing evidence.
Granting that the naked lot was purchased by the wife, as her property, it cannot bo irresistibly- claimed that the buildings said to have been subsequently put upon it, have not been erected by the community and that their value does not form part of its assets. See 39 Ann. 413.
If such be the case, the surviving husband has the right to offer valid proof to establish the fact and the court must be guided accordingly.
We think the court erred in refusing the evidence offered and that the bill taken to its ruling is well founded.
It is, therefore, ordered and decreed that the judgment appealed from, as far as it effects the real estate and improvements in question (No. 94 Fourth street, in this city), be, reversed ; that the exceptions of
