HOUGHTON v. HALL

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 her légitime from Mrs. McCormick's estate.

Mrs. McCormick, née 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 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 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 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 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 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.

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 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 Mrs. McCormick, up to the passage of Act No. 170 of 1912. All of the property in the name of Mrs. McCormick up to that time, save possibly the tract, which was sold for $340, and which we have held not to have been her separate property, was community property. It was all sold and presumably the proceeds were reinvested in property acquired after that date.

In deciding whether Mrs. McCormick had any, or sufficient, paraphernal funds with which to acquire paraphernal property, and thereby to determine whether defendants have shown that the property in her name at the time of her death was her separate property, we must take into consideration the date of the promulgation of Act No. 170 of 1912. We must take into consideration that date, because, although defendants concede that prior to then the proceeds of the industry of either spouse belonged to the community, they urge that, by Act No. 170 of 1912, the earnings of the wife, when carrying on a business or industry separate from her husband, whether the spouses be living together or not, are her separate property. They contend that while Mrs. McCormick and her husband were living together (for they never separated) that Mrs. McCormick carried on a separate business, namely the business of buying and selling real estate, and that for a time she was a licensed real estate agent. The businesses, so conducted, are pointed out as sources (more particularly, if not virtually entirely, the former) from which she derived separate funds.

In the year 1902, and, in fact, for many years prior thereto, there were two articles of the Civil Code treating of the classification of the property of married persons into separate and common property, more comprehensively than any other articles of the Code. These two articles still exist, though changed somewhat in substance and in form. One of these articles is article 2402, which, at the beginning of the year 1902, read as follows:

"This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase."

This article was amended by Act No. 68 of 1902, so as to add a clause at the end thereof, providing that damages, resulting from personal injuries to the wife, shall not form part of the community, and shall be recoverable by her alone, and that, should the wife die as a result of the injuries, the right to recover damages shall be as now provided by existing laws. The article has not since been amended and re-enacted, though it has been affected to some extent by other legislation, which will appear in the course of this opinion.

Likewise at the commencement of the year 1902, there was another article of the Code, treating of the classification of the property of married persons, namely, article 2334, which existed long prior to the adoption of the Code of 1870. This is one of the two articles, to which we referred a moment ago. It reads as follows:

"The property of married persons is divided into separate property and common property.

"Separate property is that which either party brings into the marriage, or acquires during the marriage by inheritance or by donation made to him or her particularly.

"Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared."

This article was amended in 1912, and, in point of fact, re-enacted, by Act No. 170 of 1912. The act, amending it, reproduces the first paragraph of the article, without the slightest substantial change. The same may be said of the second paragraph of the article, which is likewise reproduced, the only change being, which is not substantial, as it did not change the law, is to declare property purchased with separate funds separate property. However, immediately following the second paragraph of the article, a new paragraph is inserted, out of which the discussion in this case grows, which, due to its importance herein, we quote in full. The paragraph, which is the third one of the enacting part of the act, reads as follows:

"The earnings of the wife when living apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses, and the property purchased with all funds thus derived, are her separate property."

The third paragraph of the article is repeated verbatim as the fourth paragraph of the act, with this clause added: "But when the title to community property stands in the name of the wife, it cannot be mortgaged or sold by the husband without her written authority or consent." The fifth paragraph of the act repeals all laws or parts of laws in conflict with it.

This act was replaced by Act No. 186 of 1920, which repealed not only all laws or parts of laws in conflict with it, but expressly mentions in the repeal the preceding act of 1912. The act repeats verbatim the act of 1912, with a new paragraph added, appearing between the paragraphs defining separate property and common property, reading as follows:

"Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property."

The point upon which we are called upon to construe the acts of 1912 and 1920 is, whether these acts make the earnings of the wife, while she is living with her husband, though she is pursuing a separate business or occupation from him, such as a real estate business, her separate property. Unquestionably, under these acts, were the husband and wife separated, though not judicially, her earnings would be her separate property, but when these acts are carefully read, it is, we think, more than doubtful that, when the spouses are not separated, such earnings are not her separate property, but are common property, or in other words, belong to the matrimonial community.

For time, which we may term immemorial, the community of acquests and gains has been a reciprocal one, at least, up to the passage of the act of 1912. It is true that the wife has had, in the division of its assets, or in the rules governing it, barring the right of the husband as head and master of the community, somewhat the advantage, but never sufficiently to make serious inroads into the reciprocal nature of the partnership. If the construction contended for by defendants is to prevail, the effect of the two acts will be to make a material change in the law, and, at least in one instance, a change which would not be expected. For example, article 131 of the Civil Code provides that, "if the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade; and in such case, her husband is bound also, if there exists a community of property between them. * * *" Where there does exist a community of property between the spouses, which is the case in most instances, the profits of the business, at least, up to the passage of the act of 1912, belong to the community. The court, in order to consider such profits as the separate property of the wife, would have to consider the entire article repealed, in spite of the fact that a community existed between the spouses, and notwithstanding there is no conflict between the article and the act in respect to the existence of a community, or else say to the husband that you are bound for your wife's debts in her capacity as a public merchant, in view of the community existing between you and her, although the community will receive no part of the profits. It is true that the same consequences will result if the husband and wife are separated, though not judicially, and though there is no question that where they are so separated the wife's earnings are her separate property, notwithstanding the continued existence of the community. However, the mere fact of the separation in such instance, is most likely to bring about a dissolution of the community by a separation, judicially granted, from bed and board, and thereby bring about relief.

Besides the foregoing, the construction contended for by defendants would seem to be in its nature unjust in its general application, and so unlike the conception of a community that we seriously doubt that the Legislature intended such a construction to be given the acts. In view of these observations, we might look for the Legislature, if it intended to make such a fundamental change by a law to be incorporated in the Civil Code, the law to be supplanted having stood the test for over a century, and having entered into the lives daily of all of our people, to give expression to the change more clearly than it seems to us it has.

In making these observations, it may not be amiss to note that although the act of 1912 was adopted nearly twenty-one years ago, and the act of 1920, nearly thirteen years ago, this and another case, submitted last month, seem to be the first cases, brought to this court, in which the point here raised has been presented, although cases have been submitted, involving facts, calling for the consideration, on the point here raised, of either the act of 1912 or the act of 1920, such as the cases of Hellberg v. Hyland, 168 La. 493, 122 So. 593, Reine v. Reine, 170 La. 839, 129 So. 364, and Vercher v. Roy, 171 La. 524, 131 So. 658. In the Vercher Case the act of 1920 is cited as authority for the ruling, there made, which was to the effect that compensation for services performed by the wife in nursing and caring for her father, while living with her husband, if due at all, was due to the community, but the ruling was made without discussing or mentioning the point here made. None of these rulings, although they may all be correct, on the point presented here, is entitled to full force as precedent in deciding this case, by reason of the fact that there was no consideration, so far as appears, of the point.

Dr. Harriet S. Daggett, Associate Professor of Law, in the Louisiana State University, has treated in a learned and thoughtful manner, the question now under consideration, in her treatise on "The Community Property System of Louisiana with Comparative Studies," beginning at page 7 thereof, in which references to the question are also made at pages 54 and 176 thereof. Dr. Daggett takes the position and reaches the conclusion that whether the wife be living apart from her husband or not, the earnings of her separate industry are her separate property, and that the Hellberg Case was erroneously decided upon this and another point, relating to the paraphernality of the profits of the investment of the wife's separate estate, upon which latter point she is correct. The Tulane Law Review, in vol. 4, No. 2, p. 281, and Loyola Law Journal, vol. 11, No. 1, p. 28, in reviewing the Hellberg Case, take the same position as does Dr. Daggett.

This court, after hearing arguments in two cases, on the question presented here, and after reading the briefs in those cases, has reached a different conclusion from that reached by Dr. Daggett and the two law reviews, touching the proper interpretation of the acts of 1912 and 1920. This conclusion is reached, not only on the observations already made, but more especially upon what is presently to be said herein.

For the purpose of convenience we shall requote the crucial paragraph involved, appearing in the acts of both 1912 and 1920, to wit:

"The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property."

It cannot be questioned, with any degree of plausibility, that the earnings of the wife, with the view of protecting her, while in an unfortunate position, against the possible acts of her husband, are, by the act, made her separate property, when she is living apart from him, although there has been no separation from bed and board decreed by any court. This is, we think, the correct interpretation of what we shall term the first clause of the paragraph. The second clause begins with the words, "her earnings," which are a substantial repetition of the words, "the earnings of the wife," appearing at the beginning of the first clause. It is this repetition, if we are correct in our conclusion, that constitutes the source of trouble in this case. This repetition constitutes the source of trouble, because those opposing the construction, which we are about to give to the paragraph, rely, whether expressly or not, upon those words, as indicating that what follows discloses sources of earnings, productive of separate property, when the spouses are not living apart, but are conducting separate businesses, or pursuing separate occupations, as shown by the clause reading, "her earnings when carrying on a business, trade, occupation or industry separate from her husband."

If we were to look into the paragraph no deeper than its grammatical construction, there would be force in the position taken by those entertaining the contrary view. When we look into the substance of what the Legislature has said, we find that the earnings of the wife, mentioned in the first paragraph, which constitute her separate property, are limited by nothing, save the fact that she must be living apart from her husband, when the earnings come into existence. To give effect to the construction of those entertaining an opposite view from us as to the meaning of the paragraph would result in destroying, by making utterly useless, the first clause of the paragraph. This destruction would result from the fact that, as concerns the sources of the earnings, appearing in the second clause of the paragraph, and named therein specifically, these earnings are included in the word "earnings," appearing in the first paragraph, in which the earnings of the wife, while living apart from her husband, are made her separate property. The only difference between the two clauses, when we look alone at their grammatical construction, and treat them as not dependent on each other, is that, in the first, the restriction on the earnings is that they must arise while the wife is living apart from her husband, and in the second clause no such requirement is mentioned, but instead, the requirement is that they must arise in a separate business or occupation from that conducted by the husband. Since, in view of the fact that it is impossible to imagine, how, excluding some possible freakish instance, a wife who has separated from her husband could work for him or engage in the same business with him, it may be fairly said that the carrying on of a separate business or industry is contemplated in the first clause of the paragraph. Therefore, in substance, under the construction proposed by defendants, the only difference between the first clause and the second clause is that, in the first clause, the wife must be living apart from her husband, while in the second clause no such requirement is made. This discloses, under defendants' construction, that the second clause is broader than the first, includes the first, and thereby makes the first clause useless.

It is a cardinal rule in the interpretation of statutes that, if it be possible to do so, every part of the statute must be given effect, for the Legislature is not presumed to insert useless and meaningless clauses in its enactments. Effect may be given reasonably to every clause in the paragraph, and by doing so we may reach the legislative intent, which is the ultimate object to be ascertained in all interpretation.

The legislative intent was that the second clause should be explanatory of the first, as much so as if the two clauses read: "The earnings of the wife when living apart from her husband although not separated by judgment of court, [that is] her earnings when carrying on a business, trade, occupation or industry separate from her husband, * * * are her separate property."

This construction gives, we think, full effect to both clauses, and thereby carries out the legislative intent. In no other way that we are able to conceive is it possible to give effect to both clauses. This construction moreover does not make the paragraph, in its operation, harsh and unjust, which is another thing to be avoided, if possible, in the construction of statutes, for there is no presumption that the Legislature intends to work an injustice. This construction moreover accords with the historical facts surrounding the so-called emancipation of women, for, as we appreciate it, it was never the object of women to obtain more than to be placed in society on an equal basis with men. It was never their desire to be accorded unjust advantages.

Having reached the conclusion that the earnings of the wife, whether she be conducting a separate business or pursuing a separate occupation from her husband, while living with him, under the régime of the community, are community property, we have no hesitancy in holding that the earnings of Mrs. McCormick, following the passage of the acts of 1912 and 1920, up to the time of the death of her husband, which occurred about a year and a half before her own, are community property. These earnings, together with the capital invested, which we have found to be community property, apparently entered into the purchase of the real estate, involved here, as also into the personal property. This property is therefore community property. In fact, so far as this record discloses, Mrs. Cormick, at no time, owned any separate property.

Plaintiff, being the adopted child of both Mr. and Mrs. McCormick, who left neither ascendants nor descendants, has all of the rights of a forced heir of each. Succession of Hosser, 37 La. Ann. 839; Succession of Hawkins, 139 La. 228, 71 So. 492. Being a forced heir of Mr. and Mrs. McCormick, she is not estopped to show that the declarations in the deeds, signed by her foster parents, to the effect that Mrs. McCormick was purchasing the property, involved here, with her own separate funds, is unfounded. Westmore v. Harz, 111 La. 305, 35 So. 578; Phelps v. Mulhaupt, 146 La. 1078, 84 So. 362. Nor is plaintiff estopped from claiming that property in the name of her foster mother, and not inventoried in her foster father's succession as community property or otherwise, is, in fact, community property, in which he owned an undivided half interest, by receipting for her half interest in the proceeds of such property as was inventoried. Plaintiff is not estopped, if for no other reason, because she was not familiar with all the facts upon which the estoppel rests, such as the facts showing that the property should have been inventoried. Of course, there is no reason why a forced heir, like any other creditor of the community, cannot show that property standing in the name of the wife is community property.

From the foregoing it appears that one-half of the property, in question here, belongs to plaintiff by inheritance from her foster father, who owned such interest therein as a member of the community. The trial court was therefore correct in allowing plaintiff that interest. In order to give plaintiff her légitime, it is necessary to reduce the bequest of the two lots to Vernon Davis to a 22/100 interest each and the remaining legacies to $22 each, the reductions being made pro rata, as was done by the trial court, and required by article 1511 of the Civil Code.

A motion to remand this case has been filed in this court to permit defendants to establish that in 1914 Mrs. McCormick received a legacy of $2,000 from Mrs. Johanna M. Parker, and to show what disposition Mrs. McCormick made of this money. No motion for a new trial was filed in the trial court on this ground, because defendants had no knowledge of this legacy until after the time for a new trial had elapsed, although it is said that plaintiff did have such knowledge, but failed to divulge it.

From certified extracts of the will of Mrs. McCormick, attached to the motion, there is abundant reason to expect that were the case remanded defendants would be able to show that, in the year 1914, Mrs. McCormick did receive such a legacy, but as to what evidence may be expected reasonably to be produced at another trial, which likely would bring about a different result, does not appear. So far as appears, what may be shown on this essential phase of the case is not yet known. There is no suggestion of the existence of any evidence, and certainly not sufficient, to show that the money went into the purchase of any real estate claimed by defendants. Apart from the sufficiency of the showing to give any reasonable expectation that, upon another trial, defendants will be able to show that the money, in whole or in part, went into the purchase of the real or personal property, in question here, there is no showing of the likelihood that defendants will be able to establish, in order to disclose a moneyed claim against the community, and thereby show a fund in favor of Mrs. McCormick's estate, to affect, favorably to them, the reduction of the legacies made by Mrs. McCormick. However, should it be shown that the $2,000 legacy was used for the benefit of the community, nevertheless this likely would not change the judgment, for the simple reason that Mr. McCormick received an inheritance, during his marriage, of about $2,000, which the circumstances would indicate was used for the benefit of the community. The two claims against the community would offset, in effect, each other. These reasons, without going further, call for the refusal of the motion to remand. A case will not be remanded unless the newly discovered evidence is such as is likely to change the result. Such is the rule as to motions for new trials. Barker v. Houssiere-Latreille Oil Co., 160 La. 52, 106 So. 672, Courtin v. Browne, 151 La. 741, 92 So. 320. It is equally applicable to motions to remand. There is no sufficient reason to remand.

The judgment is affirmed.