(52 La. Ann. 1524)

FIRST NATCHEZ BANK OF NATCHEZ,
MISS., v. MOSS et al. (No. 13,294.)1
(Supreme Court of Louisiana. March 5, 1900.)
MARRIED WOMAN-SEPARATE ESTATE-FAM-

ILY SUPPORT-EVIDENCE.

1. A wife separated in property from her husband by a judgment can invest her money in a corporation, and become the owner of some of its shares and receive dividends, free from claims on the part of her husband or of any of his creditors. The fact that the husband assisted in the management of the company without charging therefor does not have the effect of changing her title to her shares in the corporation, or her right to the dividends, from her to him; nor does it reinstate the dissolved community,

2. A wife separate in property should contribute to the extent of her ability to the expenses of the family and to the education of the children.

3. It follows that the same rule should control the husband; that he may, though absolutely insolvent, work, so as to contribute to the expenses of the family and to the education of the children. If this work should result in increasing the wife's revenue to a moderate extent, this would not render her liable for the debts of her husband. The property and the business were hers. The husband chose to work for nothing, so that she might get some return from the business. It all being hers, it is not subject to seizure for his liabilities. The management of the property was her management, and not his, and the property and business of the wife served her interest, and not his.

4. The testimony of the wife, as to the loan she invested in the company or firm in which the husband is employed, is supported by corroborating circumstances sufficient to sustain the loan as having been made by her and not by her husband. The latter had limited means, but it does not appear that the wife's loan to the company or firm was taken therefrom. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.

1 Rehearing denied June 20, 1900.

Suit by the First Natchez Bank of Natchez, Miss., against Hartwig Moss and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Lazarus & Luce, for appellant. Boatner, Dodds & Boatner, for appellees.

BREAUX, J. This was a suit for a judgment declaring 73 shares of stock in the corporation styled Janvier & Moss, Limited, as well as the dividends thereon, in the name of Mrs. Rosa Rose Moss, wife of Hartwig Moss, to be the property of Hartwig Moss, and thereby liable to the claim which the petitioner holds against the latter, and for which it obtained a judgment. Petitioner asks to have the title of Mrs. Rosa Rose Moss to this stock declared fraudulent and simulated, and also for an injunction restraining Mrs. Rosa Rose Moss and Hartwig Moss from parting in any manner with these shares. Mrs. Rosa Rose Moss moved to haye the injunction dissolved on the ground that she cannot lawfully be deprived of the right to use and dispose of her property as she sees fit. She also filed an answer in which she averred that she became judgment of the district court for the parish of separate in property from her husband by a Tensas on the 19th day of January, 1888, and that by the said judgment the community of acquets and gains existing between her and her husband was dissolved, and that she was authorized to administer her property. Janvier and Moss, also made defendants, in their answer denied that Hartwig Moss is the holder of any stock or has any interest in the corporation of Janvier & Moss, Limited. The statement of facts showed that plaintiff is a judgment creditor of Hartwig Moss for a large amount, as alleged by it, and that a fi. fa. issued against Hartwig Moss under the judgment against him, and the property in the hands of Janvier & Moss, Limited, which is the subject of controversy in this case was seized as his; that plaintiff filed a supplemental and amended petition to its original petition, in which it alleges, in substance, that Mrs. Rosa Rose Moss, wife of Hartwig Moss, has in her own name no other property than that described in the original petition, and which plaintiff charged was the property of her husband, except certain real estate situated in the city of New Orleans, which plaintiff also believes and avers is the property of her husband or of the community, and as such is liable to its claim, but that, being affected by mortgage, plaintiff does not choose to have it seized and sold for its claim. On the part of defendants the facts are that Mrs. Moss, as averred by her, obtained a judgment of separation of property against her husband in 1888; that she owned a plantation in the parish of Tensas, which was cultivated for her account, and which she sold in 1898. It appears that Hartwig Moss was connected with Ferdinand Marks in the insurance business from 1891 to 1893, and that during that time he realized a consid

erable sum, $5,250 of which was turned over to a commission merchant of this city in 1892, or, rather (the claim), was sold to this merchant, who was or had been the commission merchant of Mrs. Moss, and who was also Mr. Moss' commission merchant before he (Moss) became insolvent. In 1893 Janvier and Moss, after the latter had left the Marks firm, organized a corporation under the limited liability act, with a capital of $10,000, not paid up. There was no cash paid on either side. The late Mr. Janvier had many clients and friends, with whom he had dealt for many years, while Mrs. Moss, the other member of the firm, desired to secure employment for her husband. After receiving a number of shares, she placed $2,000 with the firm as a loan, and Mr. Janvier, the other member of the firm, made a similar advance to it. No other amount was ever contributed to the business of the new or the old firm. The agreement was that this amount would not be returned to Mrs. Moss until the corporation had earned it. Owing to the death of the senior member of the firm, another corporation was organized in 1898, which succeeded the former. In this new corporation Mrs. Moss held 73 shares. The stock was issued to Mrs. Moss on the one hand, and to the young ladies representing the Janvier interest on the other, as representing their interest in a well-established business. Mr. Moss attended in great part to the management of the business. In fact, it appears that the business depended largely upon his services and industry, together with the industry of the secretary and treasurer of the corporation, who represented the Janvier interest. It appears that he (Moss) is not paid anything for his services. Mrs. Moss draws the money. There is an account kept in her name, showing the amount she has drawn; but Mr. Moss has no account with the firm, and does not draw any money therefrom. With reference to the assets of the firm, the vice president testified that they consist of the business agency of certain insurance companies, a certain business on their books, and good will acquired by the industry of those in charge of the corporation; that without this the shares would be of no value. The good will of the business depended largely upon the name and influence of the late Mr. Janvier. It was afterwards retained by the efforts of the members of his family and the services of Mr. Moss. The evidence reveals that the shareholders made something over and above expenses. When the case was tried in the district court, Mrs. Moss was still the lender of the $2,000 before stated, and the owner of the shares which were issued to her when the corporation was organized. The record discloses that Mr. and Mrs. Moss are the parents of six children. The oldest was in his fifteenth year when the parents removed to New Orleans. The judge of the district court rendered judgment in favor of the defendants, and dissolved plaintiff's injunction; reserving the former's rights

in the plaintiff's bond. From this judgment plaintiff appeals.

Nothing in the testimony shows that the writ of fi. fa. which was issued would take anything except property belonging to the wife. The money advanced to the firm was unquestionably hers. There is no testimony to the contrary. The proof that years ago the husband went into partnership with Ferdinand Marks, and received for his share a considerable amount, as before stated, does not show that the wife received any part of this sum. They had separate accounts, and nothing shows that the $2,000 in question were transferred from his (the husband's) account to hers. At one time she owned a plantation, and crops were cultivated for her account, from the proceeds of which it may well be that this amount in question was realized by her. At any rate, the evidence does not show that this amount was turned over to her by her husband. The business of Janvier & Moss, to which the wife contributed this amount, was conducted exclusively in her name, in so far as she was concerned. Whatever were the returns, they were considered as her property. The amount was only an incident of the main issue. It is not claimed by plaintiff as belonging to the husband. From that point of view, we think that the wife's evidence regarding these $2,000 is amply corroborated. From the principal that a separation of property dissolves the community, it results that all that the separate spouse acquires is for his or her account alone, but here plaintiff insists that the wife is benefited to such an extent by the energy and industry of her husband that the profits must be held as accruing to her separate benefit or that of the community. We will state here that it does not appear that the profits were at all large. The wife, it is true, did manage to buy real estate of no great value in this city; but it remains so incumbered with mortgages that plaintiff has not undertaken to have it seized, although it contends that it, while in the name of the wife, must be held, under the rule which it invokes, to have fallen into the community. With reference to a community which is dissolved by a judgment of separation of property, it may well be that the husband and wife may reinstate it by abandoning the protection accorded to the wife under the judgment, provided the interests of third persons remain undisturbed thereby. But nothing of the kind seems to have been intended here, either expressly or impliedly. There were no large accumulations made and placed to the credit of the husband. He renders services, it is true, but they are entirely in the interest of the wife. It would be different if the husband were not serving in the wife's interest, but the wife's interest were serving the husband. The law provides that the wife should contribute to the expenses of the family and to the education of the children to the extent of her ability. She is held to their entire support if the husband

is entirely without resources. It follows that to the extent of his ability, at least, as much in the way of support is incumbent upon the husband. If the husband, after having seen his stores dwindle down until he becomes absolutely without the means to support and raise his family, then assists his wife in this most laudable purpose, instead of remaining supinely indifferent, we cannot think that this can be taken as an evidence of intention to re-establish the community. In fine, in our view, it is not possible, under the law, to change the title to the shares in question from the wife to the husband on the evidence here. The money advanced was advanced by her, and the shares were issued to her, in good faith. The services of the husband, that the wife might get a revenue therefrom, did not have the effect of converting them into his property. This was not a large corporation, yielding a large revenue, in which the husband received a large salary, and dividends on shares nominally in the name of the wife; but it is, as we take it, a partnership organized into a corporation, limited, in order, we infer, to concentrate the business and make it less difficult to manage, and from which the wife receives some revenue. By the judgment of separation, the wife has the enjoyment and management of her paraphernal property. If it prospers a little, owing to the husband's management for her, the profits do not fall into the community or become his own. The judgment of the district court is affirmed to the extent of Mrs. Moss' interest in the firm of Janvier & Moss. That, we understand, includes 73 shares, all, as we take it, involved in this suit. It is therefore adjudged, ordered, and decreed that the judgment appealed from be affirmed, at appellant's costs.

(52 La. Ann. 1561)

Succession of FATJO. (No. 13,414.) (Supreme Court of Louisiana. June 4, 1900.) HOMESTEAD-ALLOWANCE TO WIDOW-OPENING SUCCESSION-COMMUNITY.

1. Where the mother claims the widow's homestead, and proves the necessitous circumstances of her children and her own, she is entitled to the usufruct, and the children to the amount.

2. The delays in the opening of a succession to which a creditor has given his sanction afford him no ground of complaint.

3. The widow's acts, as relates to the community between her and her late husband, are not construed into a tacit acceptance of the community. If they were, the children would not be thereby prejudiced in their rights to recover the property.

4. The fees and charges as fixed by the court below are not excessive.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; George H. Théard, Judge.

In the matter of the succession of Anthony Fatjo. From the judgment rendered on the settlement of the administratrix, Gustave Seidel, opponent, appeals. Affirmed.

Vincent Foulon and Charles H. Osterberger, for appellant. Richardson & Soulé, for appellee.

BREAUX, J. The issues to be decided in this suit grow out of an opposition of a creditor, whose claim is secured by mortgage, to an account of administration filed by an administratrix who administered the affairs of her late husband. The first and principal ground of opposition is to the widow's homestead. The account credits the widow in necessitous circumstances with $1,000. The judge of the district court allowed this claim, and at the same time reduced the amount to $758.09, by charging the widow with amounts she had collected for the succession. The debits consisted of rent with which she was charged, and the amount received from the Young Men's Benevolent Association, an association of which her late husband was a member at the time of his death; the sums aggregating $1,017. This judgment allowed her credit for taxes paid by her, insurance, repairs, interest on opponent's mortgage note, funeral, and other expenses, aggregating the sum of $774.19, leaving a balance of $242.81 to be deducted from the $1,000 to which the widow is entitled under the judgment from which the appellant appeals. The pleadings are not as full as they usually are when the widow sets up a claim for the widow's homestead of $1,000. No demand is directly made in behalf of the minors. The widow asked for the amount exclusively in her own name. The pleadings set out that the minors and the widow had no property at the death of the father and husband, save their interest in the property which is burdened with the mortgage of the opponent. The contention on appeal at bar was that the claim is not sufficiently laid before the court, as relates to pleadings, to enable the court to pass upon the issues and affirm the judgment. A similar question was decided in Corner v. Bourg, 26 La. Ann. 615, in which the court held that it was not necessary for the claim to be presented directly in the name of the minor; that it sufficed if the claim were made by the surviving widow in necessitous circumstances; that "the destination of the money after the expiration of the usufruct is fixed by law, regardless of the question whether the tutor of the minor has made a formal application for the homestead or not." The decision is to the point, and is a sufficient answer to opponent's position, particularly in view of the fact that no objection was urged in the district court to the admissibility of evidence; and the administratrix, in order to meet the grounds of opposition, introduced testimony completely supplying the insufficiency of her allegations for a homestead, in so far as relates to a special demand in the interest of her minor children, as well as herself, left in necessitous circumstances.

Opponent complains of the acts of this administratrix in having collected rents, and

The

in having delayed the settlement of the succession. Opponent's next contention is that the widow has accepted the community, and that she has lost her right to her homestead by her failure to cause an inventory to be made. Both as related to the asserted acceptance and the failure to have an inventory made, the opponent was not inactive, and, as we take it, not indifferent. widow, having remained in possession of the property after the death of her husband, called upon the opponent a short time after said death, and advised with him as to what should be done in the interest of all concerned. Opponent properly desired to safeguard bis interests as a mortgage creditor. and collect the amount of his claim. He was at the same time, it appears, not unwilling to see the widow recover from the proceeds of the sale of the property the amount allowed the widow and minors in necessitous circumstances. There arose no difference between the widow and the creditor before the sale of the property, and it became known that the proceeds were not sufficient to pay both, and then the affairs of the succession remained in statu quo without objection. The widow testified that she was advised by this creditor not to incur costs and fees, as they would lessen the chances of realizing enough to pay her claims and his own. This is to some extent denied by the creditor. His testimony, however, and that of the attorney for the administratrix, show that he was only too willing to let the succession remain unopened. He accepted part of the amount collected by the widow in part payment of interest on his claim, and urged no objections, but, on the contrary, he appears in the light of one approving of what was being done, or, rather, not being done, in matter of the settlement of the succession. Opponent's contention is that the widow accepted the community, and that in consequence she is without right to a homestead. This asserted acceptance of the community on the part of the widow is claimed on the ground that in the first place she did not render a faithful account of the amounts collected by her. We do not think that this charge is sustained by the facts. Her acts were those of administration. She collected rents. In her account she did not charge herself with all the rent the district judge found she owed, nor did she credit herself with small amounts which she had paid. After the balance between these debits and credits is established, it is made evident, we think, that it was not the intention to conceal, with the view of gaining an advantage.

Opponent now complains, in addition to the foregoing, that no inventory was taken until more than 22 years after the death of the husband. He is scarcely in a position to complain of a delay to which he himself contributed, as before stated. One who only performs acts of administration in carrying out the wishes of creditors can hardly be held thereby to have accepted the succession, as

between himself and these creditors. But, granting that she can be held to have there by accepted, it would not be ground to deny to the minors the right to the homestead. They have a right entirely independent of the right of the widow, and that cannot be prejudiced by the fact that she has accepted the succession, or that she has become indebted to it. This point was directly decided in Succession of Schexnaydre, 16 La. Ann. 196. These minor children were unquestionably in necessitous circumstances at the death of their father. Their right to the homestead is manifest and made sure by clear provisions of the statute. With the evidence before us, we do not feel that we should adjudge them not entitled to the amount claimed. Only the property mortgaged was left. The mother earned her support and that of her children by repairing umbrellas,-an occupation honorable enough, it is true, but which suggests necessitous circumstances. In the presence of the legal right of the minors in necessitous circumstances, the charges that there was delay in making the inventory, an attempt to conceal, and acts of illegal interference with the affairs of the succession, must fall. They are not sustained by the evidence,-to the extent charged, at any rate. There is evidence be fore the court showing that what was done received the countenance, and even approval, of the opponent.

The opposition was also directed against the fees of attorney and notary. They were reduced in the district court. We do not think that they should again be reduced, and we therefore leave them without further change.

Lastly, the widow having accounted for the rent, she was properly credited with insurance, repairs, and other similar expenses.

For the reasons cited above, we have reached the conclusion that the judgment should be affirmed. It is therefore ordered. adjudged, and decreed, for reasons assigned, that the judgment appealed from is affirmed.

(52 La. Ann. 1769)

ST. LANDRY STATE BANK v. MEYERS et al. (No. 12,628.) (Supreme Court of Louisiana. May 16, 1898.) WRITTEN CONTRACT-PAROL EVIDENCE-REPUDIATION-CONSTRUCTION-AGENCY

EVIDENCE-BURDEN OF PROOF.

1. Unless error, fraud, or latent ambiguity be averred, parol testimony is inadmissible against or beyond what is recited in a written act, or as to what may have been said before or at the time of making it, or since.

2. Application is made of the principle upon which rests the maxim, "Expressio unius personæ, vel rei, est exclusio alterius."

3. Nor can a party be permitted to accept and enjoy the benefits of a contract, and at the same time repudiate its obligations.

On Rehearing.

1. Where a contract is made between persons professing to act for themselves, and not as representatives of others, and one of the contracting parties seeks to fix a liability arising

therefrom upon an alleged principal of the other, the burden of proof rests upon the party so seeking to show that the contract was made by the other on behalf of such principal, and inured to the benefit of the latter.

2. The meaning of a word used in a contract is to be ascertained by considering it in its relation to the context and to the immediate subject-matter of such contract, and not by attributing to it an absolute signification, irrespective of the connection in which it is used.

3. Where a provision inserted in a written contract by one of the contracting parties is susceptible of two interpretations, the other contracting party is entitled to the interpretation most favorable to him, but parol evidence may be admitted, without special plea, to explain the ambiguity.

Watkins and Blanchard, JJ., dissent.
(Syllabus by the Court.)

Appeal from judicial district court, parish of St. Landry; Gilbert L. Dupré, Judge.

Action by the St. Landry State Bank against Julius Meyers and others. Judgment for plaintiff, and defendants appeal. Reversed.

Saunders & Miller, Kenneth Baillio, and William C. Perrault, for appellants. E. D. Estilette, Thomas H. Lewis, and E. B. Du Buisson, for appellee.

BLANCHARD, J. The plaintiff is a corporation doing a banking business at Opelousas, La. In January, 1896, Alphonse Levy was its president, and Julius Meyers was one of its directors. They had been filling such positions for several years. In that month there was published in one of the newspapers of the town a quarterly statement of the condition of the bank. This was furnished under the oath of the cashier, J. T. Skipper. It showed the bank to be not only solvent, but prosperous. Overdrafts to the extent of $4,527.17, only, were declared to exist. This statement was false and perjured. One month later Levy, the bank's president, was dead by his own hand, and an investigation into the affairs of the bank disclosed that it had been looted and wrecked. This was accomplished, in the main, by means of overdrafts drawn by the mercantile firm of J. Meyers & Co., the largest business house in the parish. The members of this firm were Julius Meyers and Alphonse Levy. The aggregate of the overdrafts of the firm exceeded $54,000,-an amount in excess of the capital stock of the bank. The announcement of the insolvency of J. Meyers & Co. followed, and liquidators to wind up its affairs were appointed. Before its failure the real estate owned by the firm and its members had been covered by mortgages for large amounts. Criminal proceedings were taken against Julius Meyers and J. T. Skipper for the part they had taken in wrecking the bank. While the liquidation of the affairs of J. Meyers & Co. was being proceeded with, a new commercial concern, known as the "Opelousas Mercantile Company, Limited," arose upon its ruins. The organizers and stockholders of this association were the brother-in-law and

four nephews of Julius Meyers. One of the nephews, Isaac Roos, became president of the corporation. This concern installed itself at the same stand, and proceeded to conduct the same character of business, as that done by J. Meyers & Co. It became the virtual successor of that firm, and straightway undertook to possess itself of all the assets of the insolvent house, including valuable real estate in several parishes. To this end it proceeded to purchase, at a large discount (about 35 per cent. on the dollar), the outstanding indebtedness of J. Meyers & Co., and in a short time had acquired it all, save about $200. So that at the time the present suit was brought the mercantile company was practically the only creditor of the defunct house, holding claims against it, and against Julius Meyers, of over $100,000. There is evidence it was considered by some of the people of Opelousas as "Julius Meyers"; that is to say, as the continuation of the same business, at the same stand, by Meyers under a different name. Following the disclosure of the looting of the bank, an effort, and it seems a successful one, was made to save it from ruin. Five of the directors advanced funds to tide it over its difficulties. This was done in the form of deposits, for which the bank issued certificates of deposit. The amount so deposited aggregated $13,000, of which Julius Meyers furnished $5,000, taking, under date of March 12, 1896, a deposit certificate which reads as follows: "Julius Meyers has deposited in this bank five thousand dollars, payable, subject to conditions (see agreement), in current funds on the return of this certificate properly indorsed." The agreement referred to was dated March 11, 1896, and was to the effect that the five directors who signed it had agreed to deposit in the bank the respective amounts set opposite their names, and to leave the same on deposit for the space of 12 months, unless the board of directors should decide that the financial condition of the bank admitted of the withdrawal of the same, in whole or in part, before that time. At the same time, Meyers, notwithstanding the failure of his house, seems to have been able to make a further advance to the bank of $5,000, this time in the form of the purchase by him of that much interest in the overdraft which the insolvent and dissolved firm of J. Meyers & Co. owed the bank. The liquidators of his firm (of whom he was one) also made an advance to the bank about the same time in the nature of an anticipated dividend upon the bank's claim against the firm. This last advance amounted to $10,125. It thus appears that the bank received in March, 1896, on account of the overdraft of J. Meyers & Co., $15,125, and had advanced to it by the five directors aforesaid the further sum of $13,000, making, in all, $28,125, enabling it to continue business. Following the death of Alphonse Levy, E. M. Boagni had become president of