101 So. 263 | La. | 1924
This is an appeal from a judgment amending the final account of a testamentary executor. The opponent, in whose favor the account was amended, was Mrs. Amelia ICuebler Goll, widow of the deceased by second marriage. She died after her opposition to the account was tried, and her succession is now represented by the public administrator. The executor of the will of the deceased, Goll, is Charles E. Goll, Jr., a son .of the deceased by his first marriage. The coheirs of the administrator are his brother, William B. Goll, and the children of his deceased sister, Julia Theresa Goll. There were no children of the second marriage-of Charles F. Goll.
The executor, as appellant, com plains of the judgment amending the account in the following particulars, viz:
(1) The widow was ordered placed on the account as a creditor of the separate estate of the deceased for $1,000, said to have been brought into the marriage and paid over to the husband under a marriage contract.
(2) The court recognized that certain city lots, inventoried as the property of the deceased, belonged half to his separate estate and half to the second community of acquSts and gains, and the court therefore adjudged the separate estate to be indebted to the community for $4,350, as the increase in value of the half interest of the separate estate for buildings constructed on the lots during the second marriage, and supposed to have been paid for with community funds.
(3) The court rejected certain commissions of 10 per cent, claimed by the executor on the rents collected by him as agent for his father, while the.latter was in Germany, for several years.
(4) The court decreed that the rents col
Taking up the complaints in their proper order, we shall consider first the judgment allowing the widow’s claim of $1,000.
The claim is founded upon a marriage contract between the deceased, Goll, and Miss Kuebler, and upon a clause in Goll’s will, recognizing the debt. The marriage contract was dated the 7th of February, 1S80, five days before the marriage of Goll to Miss Kuebler. In the fourth article of the contract, it was declared:
“Art. 4. The said intended wife brings into marriage the sum of one thousand dollars, which she settles upon herself as her separate and paraphernal property, hut which she shall put in the hands of her future husband as soon as the said marriage shall takfe place, and for which her said intended husband shall hold himself responsible and accountable to her.”
In his will, the deceased, Goll, acknowledged the debt, thus:
“I made a marriage contract by which I acknowledged that my wife brought into marriage the sum of one thousand dollars, which she has against my estate.
“Now in case of my death, if my wife wishes to renounce her claim of one thousand dollars, in that case I give and bequeath to her the sum of thirty dollars per month during her natural life, and I leave all of my property, which is my separate estate, to my children, burdened with said sum of thirty dollars per month should she renounce her claim of one thousand dollars.
“Should she not renounce her claim of one thousand dollars, which said marriage contract shows my estate is subject to, then I leave all my property to my children.”
It is argued on behalf of appellant that, inasmuch as the marriage contract was merely an acknowledgment that Miss Kuebler would bring into the marriage $1,000, for which her husband would, he responsible and accountable to her, it does not prove that she did pay the $1,000 to her husband. And it- is argued that the declaration in the last will and testament of the deceased, Goll, regarding the $1,000, is nothing more than an acknowledgment that he had theretofore acknowledged in the marriage contract that Miss Kuebler would bring into the marriage $1,000, for which he would be responsible and accountable to her. It is argued, therefore, that the acknowledgment in the will adds nothing to the acknowledgment that was already made in the marriage contract. On that theory, the district judge allowed the executor, over the opponent’s objection, to introduce testimony to prove that the deceased, Goll, had not received the $1,000. Pretermitting the question of admissibility of the testimony, our judgment of it is that it fell short of its purpose. The executor testified merely that, in a conversation with his father, after the latter had made his will, he said that his reason for bequeathing to his wife $30 a month in lieu of the $1,000 mentioned in the marriage contract was that, if she got the $1,000 at one time, she would spend it. It appears that the deceased did not either admit or deny that he had actual-, ly received the $1,000. It seems quite likely that he would have said that he had not received the money, if in fact he had not received it. And it is even more likely that he would have said in his will that he had not received the $1,000 for which he had made himself responsible by the marriage contract, if in fact he had not received it. The old man’s failure to deny that his wife’s claim of $1,000 was a just claim, in stipulating in his will that she would have to renounce the claim in order to get the stipend of $30 a month, leaves a very strong inference that
We take up next the judgment declaring the separate estate of the deceased, Goll. to be indebted to the second community for $4,350, for the increase in value of the half interest of the separate estate in the lot's which were improved during the second marriage. The judgment is founded upon the supposition or presumption that the improvements were paid for entirely with funds of the second community.
It is not disputed now that the lots which were improved or built upon during the second community belonged half to the separate estate of the deceased and half to the second community. The lots were bought by the deceased during his first marriage and therefore belonged then to the first community. At the death of the first Mrs. Goll, the executor and his brother and sister inherited their mother’s half interest in the lots; and they sold their half interest to their father after his second marriage. It is contended by the executor and his coheirs that the price was paid with ■ the separate funds of their father, and that therefore the second community owes the separate estate the amount of the price so paid. That would be the legal consequence of their father’s having bought the lots during his second marriage, in his own name and with his separate funds; for the deeds do not contain a recital that the price was paid with the separate funds of the husband or that the title was to vest in his separate estate. It is well settled that, without such stipulations to the contrary in the deed, a purchase of real estate by a married man during the rÉgime of the marital community, in his own name and with his own separate funds, vests the title in the community and puts the community in debt to the husband’s separate estate for the price paid. Rev. Civ. .Code, art. 2402; Joffrion v. Bordelon, 14 La. Ann. 618; Durham v. Williams, 32 La. Ann. 162; Succession of Merrick, 35 La. Ann. 296; Moore v. Stancel, 36 La. Ann. 819; Heirs of Murphy v. Jurey, 39 La. Ann. 785, 2 South. 575; Hero v. Bloch, 44 La. Ann. 1032, 11 South. 821; O’Neil v. Walker, 45 La. Ann. 615, 12 South. 872; Hall v. Toussaint, 52 La. Ann. 1763, 28 South. 304; Succession of Muller, 106 La. 89, 30 South. 329; Succession of Burke, 107 La. 82, 31 South. 391; Sharp v. Zeller, 110 La. 61, 34 South. 129; McWilliams v. Stair, 128 La. 752, 55 South. 343; Succession of Andrus, 131 La. 940, 60 South. 623; Succession of Watkins, No. 25910, 101 South. 395, post, p. 1000.
The same principle' applies to improve* ments put upon the separate estate of a married person at the expense or with the funds of the marital community. The improvements form a part of the separate estate, which becomes indebted to the community, at its dissolution, for the enhancement in value of the separate estate as a result of the improvements. Dillon v. Dillon, 35 La. Ann. 92.
There may be, and perhaps is, a presumption, when the separate estate of a married person is built upon or improved during the marital community, that it was done at the expense of the community. But, the doctrine of the case just cited is that, if there be such presumption, it is very slight and should readily yield to 'evidence to the contrary.
In this case, the executor contends that the buildings that were put upon the lots during the second marriage of his father were paid for with the latter’s separate funds. In support thereof, and in support of the contention that the second community’s
We cannot say or estimate with any idea of accuracy whether the community estate paid any more or less for the improvement of the lots than the separate estate paid for the community’s half interest in them and for the improvement of them. Our conclusion, therefore, is that the judgment appealed from should be annulled in so far as it recognizes the separate estate of the deceased to be indebted to the community estate for an increase in value of the community’s half interest in the lots, for the buildings put upon them during the second marriage.
With regard to the 10 per cent, commission charged by the executor on the rents which he collected as agent for his father when the latter was in Germany, it is conceded that there was no agreement or understanding whatever that a commission would be charged for collecting the rents. According to article 2991 of the Civil Code, in the absence of an agreement for compensation, services rendered in virtue of a mandate or procuration — excepting very' troublesome or expensive services, and excepting perhaps professional services and services rendered by one in the particular business or trade — ■ are gratuitous. Leathers v. Cannon, 27 La. Ann. 522. The rule is particularly applicable to transactions between persons closely or intimately related. Latour v. Guillory, 134 La. 332, 64 South. 130. Our conclusion is that the judgment rejecting the commissions is correct.
The judgment is correct also in so far as it declares that the rents collected befoi-e the death of Goll belong to the community of the second marriage, and that those collected afterwards belong half to the community and half to Goll’s separate estate. The reason why the rents collected before Goll’s
The judgment appealed from is amended so as to reject the claim of $4,350 allowed as a credit due by the separate estate of the deceased, Charles F. Goll, to the community of his second marriage, for the buildings constructed during the second marriage. As thus amended, the judgment is affirmed. The costs of this appeal are to be borne by the community estate; all other court costs are to be borne by the separate estate of the deceased, Goll.