I have concluded that appellant's motion should be granted to the extent that her point should be sustained asking that she have judgment over against appellee for the amount of the income tax which accrued during the part of the year 1947 which she and Mr. Moody remained married and which she had to pay. I must therefore dissent from the order completely overruling appellant's motion for rehearing.
The contract of partition of the community provided that Mrs. Moody should have the various items of property therein specified as her share of the community estate 'free from all community debts existing against said property.' The indebtedness for income taxes for the period from January 1 to May 23, 1947 had attached when the parties were divorced on the latter date. Nothing the parties could do could change the true amount owed by them to the Government for that period. Whether that indebtedness was then liquidated, matured or inchoate, it was a community debt. Words could not well be chosen which would express more comprehensively the intention that Mr. Moody should pay all community debts then were employed by the parties. Any community debts which were not thereby included had to be expressly *Page 613 excluded. That explains why the parties inserted paragraph 4 in the partition agreement.
In my opinion the words 'existing against said property' do not mean existing as a lien against such property. What they literally mean is, in my opinion, that the items of property which were set aside to Mrs. Moody, and the income therefrom, shall not thereafter be diminished on account of any community indebtedness. In other words, the language used means that Mrs. Moody gets the specified property and Mr. Moody gets all of the rest of the property, subject to the community debts, so that he must pay same.
I reserved judgment when the Court first announced its decision, and wrote a tentative opinion so the parties could, if they would, indicate why such views were wrong.
This formal dissent is substituted for my former tentative dissenting opinion, which is withdrawn.