Succession of Bell

A rehearing was sought by and granted to plaintiff on the sole question of whether the proof offered by defendant was sufficient to sustain the judgment of $11,502.28 allowed plaintiff against the second community.

There is no fixed rule or standard of proof required to establish that the contribution of the separate funds of the husband has been used to benefit the community. To establish such a claim it must be shown with reasonable certainty that the community still had the benefit of the contribution at the time of its dissolution, and that the separate funds were not wasted by the husband or disposed of for his separate benefit. Munchow v. Munchow, 136 La. 753, 67 So. 819; Succession of Ferguson,146 La. 1010, 84 So. 338; Succession of Provost, 190 La. 30,181 So. 802.

Plaintiff admits that Bell, the defendant, at the beginning of the second community, was the owner of one half of the property of the first community, and that the second community is indebted to defendant for the property which he brought into and which was used by the second community. In the sixth paragraph of her petition, plaintiff alleges that the community which existed between her mother and the defendant is indebted to the defendant for the separate property owned by the defendant, which he brought into the community and which was used by the community, but the amount of which "is not known to your petitioner, but which amount will be definitely shown and fixed upon the trial of the case." In the prayer of her petition, plaintiff asks that the defendant "be paid by preference and priority the amount of his claim against the community and representing his separate property that was used by the community."

Defendant, in his answer, admits the allegations contained in the sixth paragraph of plaintiff's petition and then avers that he brought into the second community $12,234.69, which was used for the benefit of the community, and that the community is indebted to him for that amount, "all of which is more fully shown by the itemized account hereto attached and made a part hereof, and each item on said account was well worth the amount as shown." In the prayer of his answer, plaintiff, among other things, asks for judgment against the second community for the amount shown on the attached itemized account.

The trial judge, in rendering judgment for defendant, reduced his claim against the second community from $12,234.69 to $11,508.27. The reason for the reduction of $732.36 in defendant's claim is not set forth in the record.

Counsel for plaintiff argues that the statement attached to defendant's answer is ex parte and that it was admitted in evidence over his objection.

It is obvious that the statement was attached to the answer in response to the allegation of the petition that the amount, which defendant brought into the second community and which was used for the benefit of the community, was unknown but would be definitely shown on the trial of the case. The statement was offered in evidence and objected to only after counsel for plaintiff had called defendant for cross-examination and had examined him categorically on each item set forth on the statement. Under the cross-examination by plaintiff's counsel and the later direct examination by his own counsel, defendant testified as to the correctness of all the items listed on the statement, and also that the property in question went into the second community and that the second community was benefited to the extent of the amounts shown on the statement. Under these circumstances the objection that the statement is ex parte and inadmissible loses its force.

The testimony of the defendant was corroborated as to various items on the statement by Dr. E. Blume, Wilbur C. McDonald, President of the Jackson Parish Bank, Charles Stringer, and Jack Bell. No countervailing testimony was offered on behalf of plaintiff. The testimony of defendant, who is a farmer, that his farming operations during the existence of the second community were unfavorable, is not disputed. Nor is it disputed that the funds of the first community were not wasted by defendant, or that any portion of those funds were invested by defendant except for the benefit of the second community.

Our re-examination of the record satisfies us that at the time of his second marriage to plaintiff's mother defendant owned all the personal property shown by the statement attached to his answer, and that after the marriage he sold the property for not less than the amounts shown on the statement, and invested the proceeds in the purchase of real and personal property that went into the second community.

The record shows that plaintiff, at the time of the marriage of her mother to the defendant, was five years of age, and that she was reared by defendant as if she were his own child.

For the reasons assigned, our original opinion is reinstated and made the final judgment of this court.