Houghton v. Hall, 31445

CourtSupreme Court of Louisiana
Writing for the CourtOVERTON, Justice.
Citation148 So. 37,177 La. 237
PartiesHOUGHTON v. HALL et al
Docket Number31445
Decision Date27 March 1933

148 So. 37

177 La. 237

HALL et al

No. 31445

Supreme Court of Louisiana

March 27, 1933

Rehearing Denied May 1, 1933

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; George K. Favrot, Judge.

Suit by Mrs. Rhene Swart Houghton against A. V. Hall and others. From a judgment in favor of plaintiff, defendants appeal.


Laycock & Moyse, Dewey J. Sanchez, and Moise Thibodeaux, all of Baton Rouge, for executors and trustees and Succession of A. V. Hall, appellants.

Clyde C. Ratcliff, of Baton Rouge, for tutor ad hoc for the minor Vernon Davis, appellant.

Joseph A. Loret, of Baton Rouge, for appellee.

OPINION [148 So. 38]

[177 La. 241] OVERTON, Justice.

This suit was brought by plaintiff to have decreed five pieces of real estate and certain furniture appearing in the inventory of the succession of Clara Hall McCormick, widow of Frederick L. McCormick, as the paraphernal property of the decedent, to be community property, belonging to the community that existed between decedent and her late husband, Frederick L. McCormick, the latter's half of which is claimed by plaintiff, as his forced heir, and to reduce to the disposable portion certain legacies, made by Mrs. McCormick, to the end that plaintiff may receive [177 La. 242] her legitime from Mrs. McCormick's estate.

Mrs. McCormick, nee Hall, was married to Frederick L. McCormick on May 26, 1897. No children were born of the marriage, and neither party to it left any ascendants. On January 21, 1906, Mr. and Mrs. McCormick adopted Rhene Swart, the plaintiff herein, by notarial act. No other child was adopted by them.

Plaintiff married Albert B. Davis. Of this marriage, one child was born -- a son, named Vernon Davis. This marriage was later dissolved by divorce. Thereafter, plaintiff married her present husband, Frank S. Houghton, and moved from Baton Rouge, La., to Birmingham, Ala., where she now resides with her husband.

Frederick L. McCormick, the father by adoption, of plaintiff, died intestate, in Baton Rouge, on January 21, 1929. His succession was opened in Baton Rouge. The only property, listed on the inventory, as left by him, was stock in the Standard Oil Company, for which company he worked for a number of years, and was then pensioned by the company some seven years before his death. The stock was listed as community property.

Mrs. McCormick was recognized in the probate proceedings as widow in community, and plaintiff was recognized as Mr. McCormick's heir. Plaintiff took no active part in the opening of the succession. She was absent at her home in Birmingham during the succession proceedings. Mrs. McCormick attended to the matter. All that plaintiff had to do with the succession was to sign a power of attorney for the sale of the stock and to [177 La. 243] receipt for her half of the proceeds as heir of her adopted father.

When Mrs. McCormick married Frederick L. McCormick, she had nothing whatever. So far as the record establishes she inherited nothing during marriage. However, Mrs. McCormick was energetic and apparently ambitious to acquire property. During the marriage she bought and sold a number of pieces of immovable property. Some of the deeds recite that she made the purchases with her own separate and paraphernal funds while others do not contain this recital. Of the numerous pieces she purchased between the years 1897 and 1928, only five pieces were still held by her at the time of her death, which are the pieces involved here. The rest she sold from time to time, making by the sales, profits ranging from $ 40 to $ 4,500.

The death of Mrs. McCormick occurred on November 5, 1930. By her will, she left to Vernon Davis, the son of her adopted daughter, two pieces of real estate, to be held in [148 So. 39] trust for a limited time by two trustees named. She also left three legacies of $ 100 each to three relatives, attempted to make a bequest to Mrs. Odile Wilson, but failed to state what the bequest was, and made a bequest to plaintiff.

There was judgment below in favor of plaintiff, recognizing her as the owner in her own right, by inheritance from Frederick L. McCormick, of an undivided one-half of the five pieces of real property, involved in this suit, and also of an undivided one-half interest in the furniture left, and reducing the bequest of the two pieces of real estate to Vernon Davis to an undivided 22/100 each, and the three legacies in favor of the three relatives [177 La. 244] from $ 100 each to $ 22 each, and decreeing that the attempted bequest to Mrs. Odile Wilson was no bequest whatever. Nearly all of the defendants have appealed from the judgment, including the minor, Vernon Davis.

As we have said, all of the property ever acquired by Mrs. McCormick was acquired by her during her marriage. The presumption therefore is that the moment it was acquired the title to it vested in the community, or in other words that it became the property of the community, existing between the two spouses -- and this, no matter in whose name the acquisitions were made -- whether in the name of the husband or in the name of the wife. Civil Code, art. 2402. Such being the presumption, those who assert that property so acquired is the separate property of one of the spouses must establish it. Huntington, Administrator, v. Legros, 18 La.Ann. 126; Cosgrove v. His Creditors, 41 La.Ann. 274, 6 So. 585. This presumption is not overcome by the declaration of the spouses in a deed to the wife that the latter is purchasing with her own separate and paraphernal funds, under her separate administration. Shaw v. Hill, 20 La.Ann. 531, 96 Am. Dec. 420; Gogreve v. Dehon, 41 La.Ann. 244, 6 So. 31. The wife, and those claiming through or from her, to overcome the presumption in favor of the community, must establish three crucial facts, namely: (1) The paraphernality of the funds; (2) the administration thereof separately and apart from her husband; and (3) investment by her. Stauffer, Macready & Co. v. Morgan, 39 La.Ann. 632, 2 So. 98.

The first piece of property acquired by Mrs. McCormick was acquired a year or [177 La. 245] two after her marriage, and in fact, according to the statement of A. V. Hall, was no acquisition by Mrs. McCormick at all, but was a transfer made by W. P. Denham, at the instance of A. V. Hall, to the latter's sister, Mrs. McCormick, to be held by her for the benefit of her brother, to shield it from her brother's creditors. This land was later transferred by Mrs. McCormick to her brother's wife, Hall says, without consideration. Prior to the last transfer, Hall states that he desired to enlarge the tract by purchasing an adjoining tract for $ 300. This tract he also had transferred to his sister, Mrs. McCormick, for the same purpose that the first tract was transferred to her. Hall testifies that, although he had the second tract deeded to Mrs. McCormick with the understanding that she would also hold title to it for him, nevertheless that, when Mrs. McCormick transferred the first piece, she was holding to Hall's wife, he agreed that she might keep it as a gift, and then he says that he permitted her to keep it in consideration of protecting his property, or in other words as compensation for services rendered. Mrs. McCormick sold this tract in 1902 for $ 340.

It is urged by defendants that Mrs. McCormick was permitted to retain the tract, sold by her in 1902 for $ 340, as a donation. If so, the tract became her separate property, since donations made to the wife are her separate property. If the land was her separate property, the price she later received for it, by her own efforts, amounting to $ 340, may be correctly said to have been her separate property.

It is seriously doubtful whether we should permit parol evidence to convert what is a [177 La. 246] sale on its face by a subsequent parol agreement into a donation, in order to show that property standing in the name of the wife is hers by donation. Were we to do so in any particular instance, the parol evidence here is insufficient in weight to justify us in holding that there was a donation. If Mrs. McCormick was permitted to retain the land in consideration of services rendered, although the morality of the consideration is not above criticism, the transaction could not be considered a donation, but one in compensation for services rendered. Services rendered by the wife, at that time, long prior to the passage of Act No. 170 of 1912, amending article 2334 of the Civil Code, beyond question, enured to the benefit of the community, and not to the wife alone. Civ. Code, art. 2402. [148 So. 40]

We therefore find, aided by the presumption in favor of the community, that the $ 340 derived from the sale was community property. Even though we were to hold that the evidence warrants the conclusion that the transaction was a donation, and that the fund derived therefrom was the separate property of the wife, nevertheless, assuming that the $ 340 formed part of the next purchase of property by the wife, it was wholly insufficient to pay or meet the consideration therefor. The deed to the next piece was passed on April 23, 1907, and the consideration was $ 2,750. From what source Mrs. McCormick derived the remainder of the consideration does not appear. She may have derived it by means of her own industry, or it may have come from the industry of her husband. Either would have made the property community property, for the proceeds of the industry of either spouse, at that time, enured unmistakably [177 La. 247] to the community, and the confusion of separate and community funds in making up the consideration would make the property purchased community property. Reine v. Reine, 170 La. 839, 129 So. 364; Succession of Coste, 43 La.Ann. 144, 9 So. 62; De Sentmanat v. Soule, 33 La.Ann. 609.

This, in substance, may be said concerning every acquisition of property made by...

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