On the Merits.
As just stated, the question now is whether certain property described in the petition was acquired during the first community, and was still in the possession of Dr. Dauphin at his death. The property is alleged to have .consisted in the following:
8 bonds of the N. O. City & Lake R. R.
Co. of $500 each........................... $ 4,000 00
6 bonds of the Crescent City R. R. Co.
of $1,000 ................................... 6,000 00
40 La. Consol. 4% bonds of $1,000 each..... 40,000 00
20 bonds of the City of N. O. Extended,
$1,000 each ................................ 20,000 00
40 bonds of the N: O. Waterworks Co.
at $500 each................................ 20,000 00
40 bonds Morgan’s R. R. Go. of $1,000 each 40,000 00
20 bonds of the N. O. & Carrollton. R. R.
Co., $1,000 each............................ 20,000 00
275 premium bonds of the City of N. O.,
$20 each ................................... 5,500 00
Making a total of....................... $155,500 00
—to which is to be added $50,000 in cash.
Taking up the items in regular order, we find the evidence as to them to be as follows:
(1)Eight bonds of the New Orleans City & Lake Railroad Company.
There is no evidence to show that Dr. Dauphin purchased or owned these bonds at any time during his life. In the plaintiffs’ brief the statement is made in connection with these bonds: “Unable to trace derivation of defendant’s title.”
(2) Six bonds of Crescent City Railroad Company.
The testimony shows that these bonds were taken by Dr. Dauphin in payment of loans made by him between December 29, 1883, and July 17, 1884, and that, therefore, they wore acquired after the dissolution of the first community, which was on the 2d of August, 1883. Plaintiffs say the loans were made out of community funds, but there is no proof of it.
(3) Twenty bonds of New Orleans & Carrollton Railroad.
These bonds were acquired on July 17,1884, long after the dissolution of the first community, and it is not shown that they were acquired with the money of the first community.
(4) Forty Louisiana Consolidated 4 per cent, bonds.
The evidence does not show any state bonds in the possession of Dr. Dauphin previous to 1886. Plaintiffs fail to show, therefore, that these bonds belonged to the first community.
(5) Twenty bonds of the city of New Orleans.
As to these bonds the record contains no evidence.
(6) Forty bonds of New Orleans Waterworks Company.
What evidence there is as to the acquisition of these bonds by Dr. Dauphin would show he acquired them in 1886, three years after the dissolution of the first community.
(7) Forty bonds of Morgan Railroad Company.
It is shown that Dr. Dauphin had some of these bonds in 1886. As to how long he had had them, nothing is shown. One witness, indeed, testifies that he saw Morgan Railroad *153bonds in the bank box of Dr. Dauphin in July, 1883, a month before the dissolution of the first community; but this statement is shown, by a comparison with the testimony of the witness himself on the trial in 1892, to be entirely unworthy of credit.
As to the other items there is no evidence whatever, except such evidence as would give rise 'to an inference that Dr. Dauphin during the first community had considerable means, but not necessarily to a greater amount than the $00,000 at which the estate of the first community was fixed by the judgment of 1892.
A perfectly reliable witness says that in 1879 he heard Dr. Dauphin say that he was not then worth $10,000. Another witness testifies that Dr. Dauphin, about a month before the death of his first wife, being himself very ill and expecting to die at any time, told him he was worth only $00,000 or $70,000.
The evidence is that Dr. Dauphin failed in business and began life anew in 1808; that he was an honest man, and averse to speculation, and sought safe investments promising sure returns.
In January, 1869, he entered the service of the Louisiana Lottery Company as a clerk. After a couple of years he was discharged on account of the dull business of the company, but shortly afterwards was re-employed in the same capacity, tie became president of the company “about in 1875.”
As to his salary, we find in the record of the suit of 1892 the following memorandum of evidence:
“Salary of M. A. Dauphin, as far as my recollection serves me: January 17, 1809, to December 31, 1871, $200 a month; May 18, 1872, to November, 1874, $200 a month; November, 1874, to January, 1876, $250 a month; January, 1876, to January, 1877, $300 a month; January, 1877, to January, 1882, $6,000 a year; January, 1882, to July, 1885, $10,000; July, 1885, to time of death, at $15,000 a year.”
He seems to have acquired some shares of stock of the Louisiana Lottery Company early in. the existence of that company, when its stock must have been rated very low. He held at first 30 shares, and from 1876 to the date of his death he held 56. As to what were the dividends on this stock during the existence of the first community there is no evidence, but we find that from the dissolution of the first community to the date of Dr. Dauphin’s death they amounted to $49,-560.
We find also that the market value of this stock was as follows: In July, 1879, 80 bid, 100 asked; in August, 1879, 125 asked; in February, 1880, 150 asked; in May, 1880, 250 asked; in 1882, 400; in February, 500; in June, 550; in July, from May to August, 1883, 600 asked.
Judging from the gradual increase in the salary of the president and in the market value of this stock, and assuming that the stock previous to 1879 did not rule higher than 80, the inference is that the earnings of the stock were very much greater in the decade following the dissolution of the first community than in the decade preceding it —at least twice as great.
Going by these data, the amount received by Dr. Dauphin 'by way of salary from 1809 to August, 1883, would be $66,300, and by way of dividends $24,780, or a total of $91,-080. To this amount must be added some occasional gratifications or extra pay the lottery company was in the habit of giving its employes, of which the amount is not fixed even approximately, and also the interest and dividends on his investments as he gradually increased his fortune.
Against this must be charged his expenses and charities and liberalities. The testimony is that he “was liberal in his living; he likéd comforts, and used to give away a *155great deal of money; he used to give money to the orphan asylums, and among people that nobody heard about. He lived well.” “He was very liberal to his wife’s family, the Choppins.” That in his home “there was nothing lacking; it was a gentleman’s house all over.”
What rate of expense this mode of living can have entailed can only be conjectured. This'expense was greatly increased in the latter, years of the first community by the constant and serious illness of the wife and Dr. Dauphin’s own infirm condition of health, doubtless entailing heavy medical expenses.
Under this evidence we do not think a probable case is made out of the fortune of Dr. Dauphin having been greater at the dissolution of the first community than the amount at which it was fixed in the judgment of July 17, 1892.
The burden was on plaintiffs to make out their case, nor did this burden shift at any time to the defendant. It is not pretended that the connection of defendant with the property, or her knowledge of it, began before the death of Dr. Dauphin, eight years after the dissolution of the first community; and, assuming that the property was acquired by Dauphin, nothing shows that defendant has the slightest knowledge of when or how it was acquired. The situation is not at all the same as it would have been had the issue been as to whether the property had belonged to the succession of Dr. Dauphin, for then the burden would have shifted to defendant to account for her possession of all of that part of the property shown to have been acquired by Dr. Dauphin during his lifetime.
Counsel for defendant make the statement, and the circumstances of the case lend it much plausibility, that the learned counsel for plaintiffs fully themselves realized at the closing of the evidence that they had failed to make out a case for their clients, and that it was then they bethought themselves of filing the second supplemental petition and the intervention, so as to change the issue from whether the first community had or had not owned the property in question to whether or not the succession of Dauphin owned it. Had the learned counsel believed that the case as propounded in the original and first supplemental petitions had been made out, they would hardly, in their answer to the intervention, have made the plaintiffs join in asking the relief prayed for by the interveners, which was inconsistent with the relief prayed for in the original and first supplemental petitions; and they would hardly have made the interveners “deny the right of plaintiffs at this time to the specific relief sought in the original and [first] supplemental petitions.”
Both on the plea of prescription and on the merits of the case, the judgment must be against the plaintiffs. It goes without saying that the plea of prescription thus sustained has no application to the intervention.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that there be judgment rejecting plaintiffs’ demand at their costs in both courts, and dismissing the intervention at the cost of the interveners, but without prejudice to their right to institute a separate action.
See dissenting opinion of BREAUX, J., 36 South. 305.