Liebman v. Fontenot , 275 F. 688 ( 1921 )

JACK, District Judge

(after stating the facts as above). Article 916 of the Civil Code, relative to community property, reads as follows :

“In all cases, when the predeceased husband or wife shall have loft issue of the marriage with the survivor, and shall not have disposed by last will and testament, of bis or her share in the community property, the survivor shall hold a usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.”

There is this difference in the rights of the wife to her commuhity half of the property and her right to the usufruct of her deceased husband’s community half: The former is absolute; it belongs to her from the time it is acquired by the community. The husband, as head of the community, has the administration of all of the community property; but, nevertheless, the ownership rests equally in the two spouses. Whenever the marriage relation is terminated, whether by death or divorce, the wife may demand her half of the community property in full ownership. The putting in possession is merely the legal recognition of an existing right. The wife’s usufruct of the community half interest of the deceased husband is not an absolute right, inherent in her. She takes such usufruct only where the husband has not, by will or testament, disposed of his half of the community. Her half of the community is hers by reason of the partnership of acquets and gains; the community property is the joint production of the toil and efforts of the two. The usufruct of the property of the deceased spouse, however, is a thing not acquired jointly by the two, but a right transmitted from the husband to the wife, by reason of the law, where there is no adverse disposition by deceased of his community interest.

The federal inheritance tax is an excise tax, levied on the estate transmitted from the living to the dead. The estate so transmitted, in this instance, is Liebman’s undivided half interest in the community. The property itself goes to his heirs, subject, however, to the usufruct of his widow. The federal law, unlike that of the state, makes no distinction in the rate between certain heirs. It is a fixed tax on the transmission of the estate without regard to whom it descends. It is to be paid out of the estate, and so the court is not concerned with the proper division of the tax as between the heirs and the widow.

The exception will be sustained, and plaintiff’s demand dismissed, at her cost.