Eustis v. Eustis

236 F. 726, 150 C.C.A. 58, 1916 U.S. App. LEXIS 2332

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 2, 1916
• Docket: No. 2938
• Status: Published

Opinion

PER CURIAM.

[1] If the donation of John G. Eustis to his nephew, George Eustis, trenched upon, or was in fraud of, the inchoate community rights of his wife, it is voidable under the laws of Louisiana, and subject to be reduced, or wholly set aside, as justice to the widow in community shall require.

[2] If the donation consisted of property in whole or in part belonging to the community, was without the wife’s consent, and operated to deprive her of fher full community rights upon the death of John G. Eustis in 1912, then the said donation on general equity principles is also voidable in Alabama.

[3] From the evidence in this case, it does not sufficiently appear that the donation in question exceeded the interest of John G. Eustis in the community existing between him and his wife, either in 1905 or 1912. In this connection, article 2404, Louisiana C. C., is pertinent. It provides as follows:

“Tlie husband is the head and master of the partnership or community; * * * he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.

“He can make no conveyance inter vivos, by a gratuitous title, of the im-movables of the community, nor of the whole, nor of a quota of the movables, unless it be for the establishment of the children of the marriage.

“Nevertheless he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons.

“But if it should be proved that the husband has sold the common property, or otherwise disposed of the same by fraud, to injure his wife, she may have her action against the heirs of her husband, in support of her claim in one-half of the property, on her satisfactorily proving the fraud.”

The case shows no adjudication between Mrs. Eustis and her husband’s heirs, settling her community rights, but rather that she and the heir have apparently made common cause against the donee. We are of opinion that, before Mrs. Eustis can attack the donation of 1905, she must first judicially establish her community rights against the heirs of her husband and exhaust her remedies against them.

The decree of the District Court dismissing the suit was proper under the evidence, and should be affirmed; and it is so orderaj.