Kampen v. Helwick , 1904 La. App. LEXIS 115 ( 1904 )

DUFOUiR, J.

The ■ plaintiffs, heirs of defendants deceased wife, sue him for the return of the sum of $175.00; separate property alleged to have been entrusted by her to him.

Defendant denies that such a deposit was made and avers that his wife entrusted $56.00 only to 'him to pay certain bills, and that he paid them. He also claims in reconvention certain community debts and certain amounts paid by him-for the benefit of the wife’s estate.

The testimony of Kampen, taken in connection with a receipt signe'd by the defendant and a letter written by him, leaves no doubt in our minds that Helwick received $125.00 from his wife and has not accounted for them. We are also satisfied that he did not administer his wife’s separate estate.

The plaintiffs are therefore entitled as heirs, without waiting for a settlement of the community, to recover said amount, less the expenditure made by defendant for his wife’s estate, which, we think are proved to the amount of $17.50. 7 La. 295; 1 R. 383.

December 27th, 1904.

The expenses of the last illness are community debts, as are also the fees of a lawyer in a suit for a separation under the circumstances here disclosed. 2 An. 576; 16 A. 103; 104 La. 528.

We find nothing in the record to warrant defendant’s contention that plaintiff’s have accepted the community, although the plaintiffs did not object to evidence when first offered, on the ground that the reconventional demand was not connected with the mam demand, yet, they objected to the first offer to prove a community debt on the ground that they were not bound therefore. In this situation they are bound for the money paid by defendant for the wife’s separate estate, but cannot be considered as having expressly or by implication accepted the community.

Judgment amended by increasing the allowance to plaintiff on the main demand to the sum of $125.00, and by allowing defendant on his reconventional demand the sum of $17.50 and rejecting his other claims, defendant to pay costs of 'both Courts, and, as amended, the judgment is affirmed.