No. 1,213 | La. | Jun 15, 1889
Lead Opinion
Motion to Dismiss.
The opinion of the court was delivered by
This litigation involves a discussion of the relative rights of the surviving wife and child of L. C. Jones in his succession.
Tlie provisional account of tutorship of the minor was opposed by the undertutor who urged numerous objections thereto, with a view to an increase of the account accruing to the minor.
By means of a supplemental account the tutrix corrected tlie greater part of the errors charged by the undertutor, and this appeal is taken from the judgment homologating the account as thus amended. It brings up but two points for discussion: the .contested right of the surviving widow to the proceeds of a crop hanging by the roots, on lands belonging to the community, and to the separate estate of tlie husband, at the time of his death, and her right to a credit for expenses incurred in the maintenance and education of the minor.
The motion to dismiss is grounded on the contention that after the filing of the supplemental account by the tutrix, making corrections which were accepted by the opponent by special written agreement of his counsel, the only matters remaining in contest or dispute for judicial investigation, did not reach an amount equal to the lower limit of our jurisdiction. But a reference to the pleadings shows that in this case the test of jurisdiction is not in the matter in dispute, but must be regulated by the amount of the fund to be distributed.
The account presented by the trutrix contains a statement of the proceeds of the sale of community and of separate property, of other succession and community assets, and of the debts paid by her, and it is, therefore, properly an account of administration of the succession and of the community, which she administered in her capacity of natural tutrix. Now as the amount of the fund which she thereby proposes to distribute exceeds the sum of two thousand dollars, this court is vested with jurisdiction' irrespective of tlie pecuniary amount of the matter
Opinion on the Merits
On the Merits.
It appears that at the death of Jones, in August, 1884, he had in cultivation a crop of cotton and of corn lying partly on lands belonging to the community and partly on lands belonging to himself separately.
It further appears that after filing her account, which- was in December, 1887, and before the latter part of September, 1888, the tutrix contracted a second marriage.
The judgment appealed from enforced the claim of the widow and tutrix to the ownership as -usufructuary of the crops hanging by the root both on the separate and community lands.
As to the crops raised on the community lands the judgment is manifestly correct and unassailable, but it is as clearly erroneous in its disposition of the crops made on the separate lands of the deceased.
The legislation which regulates the usufruct of the surviving spouse of the shares accruing to his or her issue of the marriage, has no application to the separate property of either spouse after the dissolution of the marriage, either by the death of one of the spouses or otherwise, except as to the fruits hanging by the root as hereinafter stated. No more have the provisions of Articles 221 and 223 of our code, which regulate the rights of the parents touching the property of their children, during the marriage, have any bearing on, or reference to, the subject now under discussion.
The rights of the parties in this case must be determined by the provisions of Article 2407 of the Civil Code, which reads:
. “ The fruits hanging by the roots on the lanas belonging separately to either the husband or the wife, at the time of the dissolution of the marriage, are equally divided between the husband and the wife of their heirs.” * * *
Under that law, the proceeds of the crop hanging by the root in August, 1884, on the separate lands of L. C. Jones, after deducting-necessary expenses, were to be equally divided between the widow and her child.
According to the interpretation given to the article in our jurisprudence, the fruits of that crop fell into the community, and the share accruing to the minor went into the hands of the surviving partner in
Now as representing the share accruing to the minor from the.community, the funds thus received by the tutrix became subject to her usufruct. C. C. 916.
As the funds were useless to the usufructuary without expending the same, the usufruct was of the imperfect kind, and the obligation of the usufructuary was to accountd'or them at the expiration of the usufruct. C. C. 534, 536, 549; Succession of Hayes, 33 Ann. 1141.
It therefore follows that at the date of the second marriage, the usufruct of those funds in the widow terminated, and from that date she has become the debtor of her minor child for the half of the nett proceeds of the crops aforesaid which accrued to said minor, with legal interest. Cochran vs. Violet, 38 Ann. 525.
She must therefore be held liable to account for the same.
The credit of $750 allowed to the tutrix by the district judge for the maintenance and education of the minor is predicated on the proceedings of a family meeting which empowered the tutrix to spend $375 annually for the purposes herein stated. But there was no proof that the amount thus allowed was actually disbursed by the tutrix, hence it was error to allow the credit in the absence of such proof.
It is, therefore, ordered that the judgment appealed from be amended as follows:
By holding the widow liable to account to the minor for one-half of the nett proceeds of the crop raised in 1884 on the separate lands of the deceased, with legal interest from the date of her second marriage. By rejecting the credit of $750 allowed to the tutrix for the maintenance and education of the minor, with the reservation of her right to recover actual disbursements made by her on that score.
And it is now ordered, adjudged and decreed that said judgment, as thus amended, be affirmed at appellee’s costs on appeal.