Succession of Broussard

306 So. 2d 399, 1975 La. App. LEXIS 4114
CourtLouisiana Court of Appeal
DecidedJanuary 15, 1975
Docket4820
StatusPublished
Cited by16 cases

This text of 306 So. 2d 399 (Succession of Broussard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Broussard, 306 So. 2d 399, 1975 La. App. LEXIS 4114 (La. Ct. App. 1975).

Opinion

306 So.2d 399 (1975)

Succession of Eldest J. BROUSSARD.

No. 4820.

Court of Appeal of Louisiana, Third Circuit.

January 15, 1975.

*401 Ronald J. Gossen, Lafayette, for plaintiff-appellant.

J. Minos Simon and John Rixie Mouton, Lafayette, for defendant-appellee.

Before HOOD, CULPEPPER and MILLER, JJ.

MILLER, Judge.

Plaintiff, Alberta Broussard, daughter of decedent Eldest J. Broussard by his first wife, appeals the judgment classifying four savings accounts, one checking account, and one parcel of land as separate property of decedent's second wife Rena Clement Broussard, the defendant in this action. Defendant answers the appeal seeking reclassification of another parcel of immovable property as her separate property. We affirm in part and reverse in part to hold most of the disputed property belonged to the community of acquets and gains existing between defendant and decedent.

Eldest J. Broussard died on November 29, 1962. Of his first marriage three children were born—Alberta Broussard (plaintiff), Geraldine Broussard, and Darrell Broussard. Decedent married his second wife, Rena Clement (defendant) on January 22, 1945, and two children were born of this marriage.

The trial court ordered inventories taken of the property belonging to decedent at the time of his death.

Motions to traverse the classification as separate or community property raise the following issues:

1) Did Broussard make a manual gift to his second wife, Rena C. Broussard of all profits earned by his wife's beauty shop?
2) Are the following properties to be classified as the widow's separate property or were they community?
A. Checking account in Rayne State Bank & Trust Company in the name of Rena's Beauty Shop in the amount of $207.59.
B. Four savings accounts. Two at New Iberia Savings & Loan Association in the sums of $5,351.00 each, and two at Gulf Coast State Bank, Winnie, Texas, in the sums of $308.00 each.
C. Lots 1 and 3 of Block "H" of the St. Charles College Addition to the City of Rayne.
*402 D. Lot 15 of Block 11, Cunningham Addition to the City of Rayne.
E. Improvements made to decedent's separate property known as Lots 1, 3, and 5 of Block "I" of the St. Charles Addition to the City of Rayne.
3) Was the trial court manifestly wrong in approving the $500 appraisal of the community's household furnishings?

The alleged donation to wife of her earnings from her beauty shop

In 1956, defendant opened her beauty shop. She testified that she borrowed $500 from a Savings & Loan to open the business and repaid that loan with her business earnings. She opened a checking account in the name of the beauty shop subject to withdrawal solely upon her signature. She paid all utility bills associated with operations of the beauty shop.

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, ... are her separate property. (Emphasis added.) LSA-C.C. art. 2334.

Notwithstanding the italicized portion of the code article, the earnings of the wife while living with her husband under the regime of community property, are community property even though the earnings come from business conducted, or an occupation pursued by the wife separately from her husband. Haughton v. Hall, 177 La. 237, 148 So. 37 (1933). See also Succession of Howell, 177 La. 276, 148 So. 48 (1933).

Since defendant was living with decedent while operating the beauty shop, her earnings from the beauty shop fell into the community of acquets and gains.

The manual gift, that is, the giving of corporeal movable effects, accompanied by real delivery, is not subject to any formality. LSA-C.C. art. 1539. Defendant, relying on Succession of Byrnes, infra, and LeBlanc v. LeBlanc, 80 So.2d 715 (La.App. 1 Cir. 1955), contends that "future earnings" are corporeal movables and can therefore be the subject of a manual gift. LSA-C.C. art. 1539. We do not understand these cases to support that argument. Corporeal things are such as are made manifest to the senses, which we may touch or take, which have a body, whether animate or inanimate. Of this kind are fruits, corn, gold, silver, clothes, furniture, lands, meadows, woods, and houses. LSA-C.C. art. 460. We hold that future earnings are incorporeal things, such as are not manifest to the senses and which are conceived only by the understanding; such as the rights of inheritance, servitudes and obligations. LSA-C. C. art. 460.

Defendant alternatively contends that her husband manually donated to her all profits from the beauty shop; that each deposit of her earnings to her separate account constituted a manual gift.

During the marriage the husband may donate to his wife in full ownership all that he might give to a stranger. LSA-C.C. art. 1746. A man who contracts a second or subsequent marriage can give to his wife, either by donation inter vivos or by last will and testament, in full ownership or usufruct, all that portion of his estate that he could legally give to a stranger. LSA-C.C. art. 1752. A donation of community property made by the husband to his wife is valid, because the wife alone has the right to complain of a violation of LSA-C.C. art. 2404, which prohibits the husband from donating community property. The donation is valid when she consents. Succession of Williams, 171 La. 151, 129 So. 801 (1930); Succession of Byrnes, 206 La. 1026, 20 So.2d 301 (1944).

In order to complete a manual gift, it suffices that 1) the donor's will to give, and 2) actual possession of the corporeal *403 movable property by donee, operate simultaneously. Succession of Gorman, 209 La. 1092, 26 So.2d 150 (1946).

Defendant had actual possession of her earnings and profits from her beauty shop because these earnings and profits were deposited in a checking account and in various savings accounts subject to withdrawal solely on her signature.

The rub comes when one seeks to determine decedent's intent to donate these earnings to his wife. If he did hold this intent, did this intention to donate operate simultaneously with defendant's actual possession of these funds?

Donee bears the burden of proving the alleged donations. Succession of Rageur, 155 La. 97, 98 So. 853 (1924); Succession of McBurney, 162 La. 758, 111 So. 86 (1927); Faison v. Patout, 212 La. 37, 31 So.2d 416 (1947). The proof must be strong and convincing that donor intended to give the property. Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502 (1949); Succession of Oulliber v. Ouilliber, 204 So.2d 625 (La.App. 4 Cir. 1967); Succession of Brewster, 259 So.2d 388 (La.App. 2 Cir. 1972).

The only evidence presented at trial concerning decedent's intention was given by his widow the defendant. She testified that her husband told her when she opened the beauty shop, that as long as she paid the utilities, whatever she made was to belong to her.

There is no testimony concerning decedent's intentions after the beauty shop was opened. Succession of Gorman, supra, requires the intent to donate to be simultaneous with actual possession by the donee. There was no testimony in this record to show that decedent continued this alleged donative intent.

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Bluebook (online)
306 So. 2d 399, 1975 La. App. LEXIS 4114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-broussard-lactapp-1975.