Thibodeaux's Heirs v. Thibodeaux , 16 La. 40 ( 1840 )

Simon, J.,

delivered the opinion of the court.

The object of this suit, is the settlement of the community alleged to have existed between the defendant and the plaintiffs’ mother, and the recovery of whatever sum may be found to be due said plaintiffs in right of their said mother. The petition does not specify any particular property belonging to the community, and (he plaintiffs’ claim appears to be predicated solely on an acknowledgment made by defendant in his marriage contract with his second wife, that his estate consists in sundry property estimated at three thousand dollars.

Defendant avers in his answer, that when he contracted marriage with plaintiffs’ mother, he had property to the amount of five thousand dollars ; that his first wife brought nothing into the marriage, nor did she receive any kind of property during said marriage, either by inheritance, donation, or otherwise. He further states, that far from there being any acquests and gains, his own estate had diminished in quantity and value, so that, at the time of the dissolution of the marriage, there being no property in community, there was no necessity for any inventory.

On the trial the plaintiffs attempted to show, by witnesses^ the amount of property which the defendant had at the time of his second marriage, and the evidence having been objected to, was rejected by the court. In settling a community between a surviving partner, and the heirs of the deceased, it is clear that reference must be had particularly to the situation of the affairs of the community, at the time of its dissolution ; and between husband and wife, although the effects, reciprocally possessed by them at the dissolution of the marriage, are presumed to belong to the community, yet this presumption must yield to proof of the contrary; Louisiana Code, article 2374. In order to arrive at this proof, and to a fair settlement of the rights of the parties to the community, it is necessary to consider, 1st, the property which the spouses had at the time of their marriage : 2d, That Which they received or acquired during the marriage; and 3d, The property and effects which they reciprocally owned and possessed at its dissolution. 7 Louisiana Reports, 221. We are unable to perceive what weight the evidence of the amount of property, which the survivor possessed at the time of his second marriage or at any other subsequent period, can have on the decision of this cause; if his estate had increased since the death of his first wife, her heirs cannot set up any claim to it under the well known rule of law, that the community ceases by the decease of one of the partners. The evidence was certainly irrelevant, and the court below did not err in refusing to permit its introduction.

In settling a community between a surviving partner and the heirs of the deceased, reference must be had particularly to the situation of the affairs ofthe community at the time of its dissolution. No evidence will be received of the amount of property in possession, after the dissolution ofthe community, except at the time ; nor at the time of the second marriage of the surviving partner.

On the merits, we are satisfied that the evidence fully justifies the defendant in his position ; that there was no necessity for an inventory; (he whole of the property he possessed was his; there were no acquests and gains; nay, it is even shown that he was worth four hundred dollars less at the time of the death of his first wife, than he was when he married her, and the plaintiffs have adduced no proof to the contrary.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.