(dissenting).
Charles F. Alexander and Marjorie L. Alexander were husband and wife. Irreconcilable domestic differences having developed between them, on March 7, 1939, they entered into a property settlement contract. On March 14, 1939, Marjorie L. Alexander obtained a decree of divorce from Alexander. The decree expressly approved and ratified the contract. At the time the contract was entered into, they had three minor children.
The contract provided that Alexander should pay Marjorie L. Alexander $10,000 in cash; that he should pay her $150 per month for the suppoit and maintenance of the minor children, but that in the event of the death of a child, or upon a child reaching his or her majority, if then self-sustaining, the payments for the support of the children should be reduced one-third; that he would pay her for her support and maintenance $150 per month until her death or remarriage; that simultaneously with the execution of the contract, he would cause the beneficiaries in three outstanding policies of insurance on his life, aggregating $45,000, to be irrevocably changed to Marjorie L. Alexander and the three children, the “survivor or survivors of them’’; that he would fully discharge all loans and liens upon such policies and promptly pay the premiums thereon as they became due. Alexander and Marjorie L. Alexander owned, as tenants by the entirety, a residence property in Kansas City, Missouri. The contract provided that Marjorie L. Alexander and the children should have the sole and exclusive right to occupy such residence property as their home, and that Alexander would pay the mortgage debt against such home as it matured, and would pay the taxes on the residence and the cost of exterior repairs and upkeep thereof and of the insurance thereon; and that he would execute a will devising the home to Marjorie L. Alexander in the event she survived him.
By the contract, Alexander transferred to Marjorie L. Alexander all the furniture, *432furnishings, and other personal property in the home.
Paragraph 6 of the contract provided that Alexander, on or before April 15 in each year, until the death or remarriage of Marjorie L. Alexander, should furnish and deliver to her in Kansas City, Missouri, “a true and certified copy of his federal income tax return for the preceding taxable calendar year,” and if, as shown thereby or otherwise established,=■ Alexander should “have gross income — from whatever source derived,” excluding only capital gains, in any calendar year, in excess of $7,500, then for such calendar year, Alexander would pay to Marjorie L. Alexander, in twelve equal consecutive monthly instalments, commencing on the first day of May following, a further and additional sum equal to 20 per cent of the amount by which such calendar year income of Alexander exceeded the sum of $7,500:
The Alexanders separated in the year 1934. In the fall of 1937, Alexander organized the Texas Water Company, a water public utility, at Fort Worth, Texas, and became president of that company, and established a residence in Fort Worth, Texas, where he has since continuously resided. After the divorce decree was entered, and on March 14, 1939, Alexander married Lou Alexander. Since their marriage, they have maintained their marital domicile at Fort Worth, Texas.
In the year 1939, Alexander received by way of salary and otherwise,'$7,148.16, and Lou Alexander received $484.80. In the year 1940, Alexander received by way of salary and otherwise, $7,824.29, and Lou Alexander received $818.28. In the year 1941, Alexander received by way of salary and otherwise, $11,015.92, and Lou Alexander received $783.50. In the year 1942, Alexander received by way of salary and otherwise, $13,634.39, and Lou Alexander received $782.50. In the year 1943, Alexander received by way of salary and otherwise, $14,161.42, and Lou Alexander received $968.80. In the year 1944, Alexander received by way of salary and otherwise, $17,138.02, and Lou Alexander received $1,019.64.
Under the statutes of the State of Texas, a husband and wife, with a marital domicile in that state, form a community or marital partnership; the property acquired by either the husband or wife during marriage, except that which is the separate property of either, is common or community property ; and each has an absolute one-half interest in the common or community property immediately upon its acquisition.1 So-far as this record shows, none of the income-received is the separate property of either Alexander or Lou Alexander.
The rights of husband and wife in community property in Texas are perfectly equal.2 In Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, 804, the court said. “ * * * each marital partner owns an estate in the community property equal to that of the other partner; * * * ”
In De Blane v. Lynch, 23 Tex. 25, 29, the court said, in part:
“It is true, that in a particular case, satisfactory. proof might be made, that the wife-contributed nothing to the acquisitions; or, on the other hand, that the acquisitions of property were owing wholly to the wife’s industry. .But from the very nature of the-marriage relation, the law cannot permit inquiries into such matters. The law, therefore, conclusively presumes that whatever is acquired, except by gift, devise or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual industry.”
In Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W. 1139, 1143, the court said, in part:
“In this State, the beneficial interests of the husband and wife in community prop*433erty are equal, whether the grant or deed to the property be in the name of only one of them or to them jointly. Though the grant or deed be in the name of the husband, alone, the ‘interest’ or ‘estate’ of the wife in the property is as absolute as that of the husband. She acquires her interest in virtue of our law governing community property, and the force which that law imparts to a conveyance of the property to the husband during the marriage. She takes under a grant or deed in his name to the same extent that he docs; and it is as fully through the grant as is true of his interest, that she is invested with her right.”
The sole issue here presented is the meaning of the phrase “gross income” in paragraph 6 of the contract.
Since the parties made Alexander’s annual income tax return the basis for determining his annual gross income, it seems clear to me that they used the phrase .“gross income” in the sense it is used in the Federal income tax laws.
Section 22(a) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, page 1008, defines “gross income” as follows :
“ ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * *
Under the Federal income tax laws, community income of a husband and wi fe, with a marital domicile in a community property state, inures one-half to the husband and one-half to the wife, and one-half is in-cludible in the gross income of the husband and one-half is includible in the gross income of the wife, and may be returned accordingly.3 Under the Federal income tax laws, “gross income” is the income as defined in the statute which inures to the individual taxpayer in the taxable year. That is the ordinary meaning of the phrase.
But, it is suggested that since the contract was made in Missouri and was to be performed in Missouri, the phrase “gross income” must be construed in accordance with the laws of Missouri. If that be granted, it would not, in my opinion, change the result. Counsel for Marjorie L. Alexander point to no Missouri law, and I have been unable to find any, indicating that the meaning of “gross income” in Missouri differs from the ordinary meaning of the phrase; that is, gain of every character from whatever source derived. Hence, i can only conclude that the meaning of an individual’s gross income in Missouri is the gain of every character from whatever source derived inuring to such individual. Surely, it does not include income which, at the moment of its acquisition, belongs absolutely to another.
What counsel for Marjorie L. Alexander really assert, and what the trial court in effect held, is that the phrase “gross income” should be construed to mean the gross income that would have inured to Alexander if his status had been either that of an unmarried person or of a married person with his marital domicile in Missouri. That would introduce hypothetical and undeterminable factors into the situation. We have no way of knowing what Alexander’s income might have been had he remained single. It is common knowledge that a good wife may contribute much to the earning capacity of her husband. Likewise, we have no way of knowing what Alexander’s earning opportunities would have been had he remained in Missouri.
Moreover, there is no language in the contract, or circumstances surrounding the making thereof, warranting such a construction. Clearly, Alexander had the legal right to remarry and establish his marital domicile in Texas. When the contract was entered into, divorce was obviously imminent and followed seven days thereafter, and there is nothing to indicate that the parties contemplated that Alexander would remain single and, indeed, his remarriage occurred following the divorce on the day *434it was granted. Approximately one year and six months before the contract was entered into, Alexander had gone to Texas and there acquired a business and established a residence. At the time the contract was entered into, he was engaged in carrying on such business in Texas and actually resided in Texas. Surely, it was not within the contemplation of the parties, when the contract was entered into, either that Alexander would thereafter remain in Missouri, or that he would not reside in Texas, or some other community property state. Hence, I fail to see any justification for computing “gross income” under paragraph 6 of the contract on the basis of a hypothetical status of Alexander as an unmarried person, or a married person with a marital domicile in Missouri.
Since only one-half of the community gross income inured to Alexander, and the other half, at the very moment of its acquisition, became the absolute property of his wife, Lou Alexander, I am impelled to the conclusion that “gross income” in paragraph 6 of the contract must be measured by one-half of the gross income of Alexander and Lou Alexander in each succeeding calendar year commencing with 1939, so long as their marital domicile remains in Texas, excluding therefrom capital gains, if any.
Counsel for Marjorie L. Alexander contend that the phrase “gross income.” should be construed as “gross earnings.” In its ordinary sense, “earnings” means compensation received from labor or personal effort. It does not include income such as dividends, interest, rents, and royalties. It seems clear to me that the parties contemplated no such restricted meaning of the phrase “gross income.” “Gross income” is a much broader phrase than “gross earnings” and includes gains from whatever source derived. While in the present posture of the parties, construing the phrase as “gross earnings” might inure to the benefit of Marjorie L. Alexander, should Alexander accumulate investments from which he would receive income in the way of dividends, interest, rents, or royalties, the ben-fit to Marjorie L. Alexander might be substantially less. Indeed, Alexander might reach a financial situation where he would cease his personal efforts and his whole income would be derived from dividends, interest, rents, or royalties.
I would modify the judgment in accordance with the views above expressed.
Art. 4619, § 1, Vernon’s Ann.Texas Stat., Vol. 13; Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, 804; Wright v. Hays, 10 Tex. 130, 133, 60 Am.Dec. 200; Hammonds v. Commissioner of Internal Revenue, 10 Cir., 106 F.2d 420.
Wright v. Hays, 10 Tex. 130, 133, 60 Am.Dec. 200.
In Mercury Fire Ins. Co. v. Dunaway, Tex.Civ.App., 74 S.W.2d 418, 419, 420, the court said, in part;
“ * * * The rights of the husband and wife in community property are unified and equal and their title thereto and interest therein is the same. 23 Tex.Jur. 101, § 80; Lee v. Lee, 112 Tex. 392, 247 S.W. 828, par. 3; Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W. 1139.”
Hopkins v. Bacon, 282 U.S. 122, 127, 51 S.Ct. 62, 75 L.Ed. 249.