Girard v. Girard , 35 N.M. 147 ( 1929 )

OPINION OF THE COURT

WATSON, J.

This is a suit for the partition of certain lands, which, according to plaintiffs’ theory, were the community property of Joseph F. Girard and Mary E. Girard, husband and wife. They were married prior to 1887, and the latter died in 1904. Plaintiffs claim a three-eighths interest in the property as her heirs. Joseph F. Girard died in 1921. Litigation involving his estate has been disposed of in this court. Girard v. Girard, 29 N. M. 189, 221 P. 801, 35 A. L. R. 1493. We will not repeat the facts there set forth. The present defendants are Margaret Morrison Girard, mentioned in the former decision, and persons holding under Joseph F. Girard. Pursuant to the mandate of this court in the former case, a decree was entered awarding the entire estate of Joseph F. Girard to Margaret Morrison Girard. Thereafter the present suit was commenced.

The district court, holding the property in question to have been community estate, awarded three-eighths of it to the plaintiffs as the heirs of Mary E. Girard. Defendants have appealed. There is also a cross-appeal which, in view of the disposition of the appeal, need not be noticed.

Appellants present numerous points, only one of which it will be necessary to consider. The fundamental question is whether Mary E. Girard, at the time of her death, was possessed of any inheritable interest in the lands in question. One parcel of it had been conveyed to Joseph F. Girard in 1887 and the other in 1899.

In 1904, when Mary E. Girard died, chapter 62, Laws 1901, was in force. According to it, the property in question was denominated the “separate estate” of the husband. Section 1. We will assume, favorably to appellees, that he had acquired it by “onerous title.” Section 2. Still he possessed in it all the rights he would have had if single except that he could convey or incumber it only if the wife joined in the act, and he could devise only an undivided half of it. Sections 5 and 6. These sections, with section 9, make it plain that his ownership was not affected by the wife’s death except as that event freed him from the restrictions above mentioned upon alienation and devising. The judgment cannot rest upon the provisions of this chapter.

Appellees cite Mings v. Hering, 26 N. M. 425, 193 P. 497, as construing this chapter and as holding “that upon the death of the wife three-eighths of the community property descended to the children.” It appears on the face of the opinion that this court accepted the contention of the interveners that, as children of the deceased wife, they were “under chapter 62, Laws 1901, * * * owners in fee simple of a three-eighths interest in the land.” This court did not, however, construe the chapter. Its construction was not called for. Strangely, counsel did not question the theory put forward as above stated by the interveners, but contended only that “the surviving husband had the power to sell community property for the purpose of paying the debts of the community without taking out letters of administration.” Construction is now for the first time necessary.

Appellees contend that under Compiled Laws 1897, §§ 2030 and 2031, and all previous statutes on the subject, the death of the wife resulted in her heirs taking one-half of the community property, and that chapter 62, Laws 1901, “while perhaps a little fragmentary and ambiguous, was intended to emphasize the same thing.” This we do not grasp. On the contrary, we are impressed with the completeness and clarity of the chapter, and note that it expressly repeals Compiled Laws 1897, §§ 2030 and 2031. Section 9.

But one possible theory could be advanced to sustain the judgment, viz. that chapter 62 did not operate upon property previously acquired. Appellees’ counsel do not so contend, and we see no reason at this time for so holding. However, we do not decide the question, reserving it for consideration in case such theory should hereafter be deemed worthy of presentation.

The judgment must be reversed and the cause remanded, with a direction to enter judgment for appellants. It is so ordered.