Hemphill, Ch. J.
The important question in this cause may be resolved into two points, viz :
Can the plaintiff maintain this action, without first showing that the community of gains existing between his father and mother was settled in a regular course of administration, and that this land remained to the community after the payment of debts ?
2nd. Was the plaintiff barred of his action by prescription or limitation ?
The community was primarily liable for its debts and charges ; but it does not follow that the fact as to indebtedness could be ascertained only by administration. This may furnish more conclusive proof: but without administration, there may be satisfactory evidence that no debts ever existed, or if so, that they have been discharged. And where, as in this case, there has been a lapse of thirteen or fourteen years, there is a presumption that the debts have been paid off; and there being no evidence that any ever existed, the presumption is, that none ever did exist. Had any been owing at the death of plaintiff's mother, or had the land been sold to satisfy debts, there would doubtless have been some evidence of these facts. Where an heir, especially after so great lapse of time, sues for the share of a deceased partner in the community, the fact of indebtedness, if relied upon, must be established by the defence. Nothing of the kind was attempted in this case. There was no evidence about indebtedness, one way or the other.— We are of opinion that the action cannot be defeated on the supposed bare possibility that there might be debts against the community. It does not appear that any have been discovered, and it is not to be presumed that any would be developed by administration.
It is not necessary to consider what equities might be set up by a surviving husband, or his vendees, against the claims by the heirs of the deceased wife, for her share in the community : as, for instance, that the property is subject to or has [502] been disposed of in payment of debts; or that there is other property of the community, sufficient to satisfy the claim. No such points are raised in this case. Believing that the first ground is insufficient, and that the action will lie notwithstanding there has been no administration on the estate of the mother, which, in this instance, would be but a useless form, we will proceed to consider whether the plaintiff is barred by the laws of prescription.
This is the main point in the cause. It has been thoroughly investigated by counsel, and has been illustrated by some of' the most consummate arguments. The ground is this, that by the laws in force at the time of the sales to the defendant, the estate of Milly, the deceased wife, would be held to be a vacant estate up to the commencement of this suit, that being the-first and only act of acceptance on the part of the heir ; and a purchaser in good faith from the surviving husband would be protected by the prescription of ten years, although Milly’s heirs were minors.
“ A succession is called vacant when no one claims it, or when all the heirs are unknown, or when all the heirs to it have renounced it.” (C. 0. La. Art. 1088.) This definition is as precise, as full, and clear, as any to be found among the ■ civil law authorities, and we will not accumulate definitions from other sources. That, as a general rule, prescription runs-for and against a vacant estate, under the laws of Spain, there can be no question. The doctrine on this subject is concisely stated by Escriche, in his Dictionary, under the head of acceptance of inheritance. Discussing the effects of such acceptance, he says that it retroacts to the day of opening of the succession : that is to the day of the death of the person whose • succession it is ; that the effect of this retroaction is that the acceptance by the heir, at whatever epoch of time this may be, is the same as if he had accepted at the moment of the-death of the deceased ; but among other effects of such acceptance, it is said, that prescription will run for the benefit of the-[503] heir during the time between the death and acceptance, for the reason that third persons, having an interest, might interrupt the prescription, by proceeding against the heir himself, or by causing a curator of the vacant inheritance (in case the residence of the heir was unknown,) to be appointed, against whom they could enforce their rights ; and that, in the same manner, prescription would run against the heir, because the vacant inheritance represents the person of the deceased, and the negligence of the heir ought to be imputed to himself, and cannot prejudice third persons. The rule as to prescription is here propounded by the author without any exception in favor of minors ; but under the word Herencia, in treating of actions for the recovery of an inheritance, he declares that though a possession in good faith may gain the inheritance by prescription of ten years between those present, and twenty between the absent, and thirty where the possession is in bad faith, so that the true owner who will not prosecute his action will, by his negligence, lose his rights; yet there is an exception in favor of the minor, against whom prescription does not run during minority ; citing L. 7, Tit. 14, Partidas 6. This law fully supports the position of this eminent commentator, and whatever may be the construction, under the Codes of Louisiana, as to the universal operation of prescription against vacant estates, including minors as well as adult heirs, yet it would seem that by the laws of Spain, at least in the opinion of Escriche, there would be an exception in favor of minority.
But, if it be admitted that no such exception exists, and that by the legitimate operation of Spanish law, minor as well as adult heirs were excluded, as against third possessors, provided they did not accept the estate within a limited period ; yet we are of opinion that this doctrine has not, nor can it be allowed, any such operation, under our laws and their construction and the established usages and practice in relation to the estates of deceased persons, as would materially benefit the defendant or preclude the plaintiff from his action.
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Hemphill, Ch. J.
The important question in this cause may be resolved into two points, viz :
Can the plaintiff maintain this action, without first showing that the community of gains existing between his father and mother was settled in a regular course of administration, and that this land remained to the community after the payment of debts ?
2nd. Was the plaintiff barred of his action by prescription or limitation ?
The community was primarily liable for its debts and charges ; but it does not follow that the fact as to indebtedness could be ascertained only by administration. This may furnish more conclusive proof: but without administration, there may be satisfactory evidence that no debts ever existed, or if so, that they have been discharged. And where, as in this case, there has been a lapse of thirteen or fourteen years, there is a presumption that the debts have been paid off; and there being no evidence that any ever existed, the presumption is, that none ever did exist. Had any been owing at the death of plaintiff's mother, or had the land been sold to satisfy debts, there would doubtless have been some evidence of these facts. Where an heir, especially after so great lapse of time, sues for the share of a deceased partner in the community, the fact of indebtedness, if relied upon, must be established by the defence. Nothing of the kind was attempted in this case. There was no evidence about indebtedness, one way or the other.— We are of opinion that the action cannot be defeated on the supposed bare possibility that there might be debts against the community. It does not appear that any have been discovered, and it is not to be presumed that any would be developed by administration.
It is not necessary to consider what equities might be set up by a surviving husband, or his vendees, against the claims by the heirs of the deceased wife, for her share in the community : as, for instance, that the property is subject to or has [502] been disposed of in payment of debts; or that there is other property of the community, sufficient to satisfy the claim. No such points are raised in this case. Believing that the first ground is insufficient, and that the action will lie notwithstanding there has been no administration on the estate of the mother, which, in this instance, would be but a useless form, we will proceed to consider whether the plaintiff is barred by the laws of prescription.
This is the main point in the cause. It has been thoroughly investigated by counsel, and has been illustrated by some of' the most consummate arguments. The ground is this, that by the laws in force at the time of the sales to the defendant, the estate of Milly, the deceased wife, would be held to be a vacant estate up to the commencement of this suit, that being the-first and only act of acceptance on the part of the heir ; and a purchaser in good faith from the surviving husband would be protected by the prescription of ten years, although Milly’s heirs were minors.
“ A succession is called vacant when no one claims it, or when all the heirs are unknown, or when all the heirs to it have renounced it.” (C. 0. La. Art. 1088.) This definition is as precise, as full, and clear, as any to be found among the ■ civil law authorities, and we will not accumulate definitions from other sources. That, as a general rule, prescription runs-for and against a vacant estate, under the laws of Spain, there can be no question. The doctrine on this subject is concisely stated by Escriche, in his Dictionary, under the head of acceptance of inheritance. Discussing the effects of such acceptance, he says that it retroacts to the day of opening of the succession : that is to the day of the death of the person whose • succession it is ; that the effect of this retroaction is that the acceptance by the heir, at whatever epoch of time this may be, is the same as if he had accepted at the moment of the-death of the deceased ; but among other effects of such acceptance, it is said, that prescription will run for the benefit of the-[503] heir during the time between the death and acceptance, for the reason that third persons, having an interest, might interrupt the prescription, by proceeding against the heir himself, or by causing a curator of the vacant inheritance (in case the residence of the heir was unknown,) to be appointed, against whom they could enforce their rights ; and that, in the same manner, prescription would run against the heir, because the vacant inheritance represents the person of the deceased, and the negligence of the heir ought to be imputed to himself, and cannot prejudice third persons. The rule as to prescription is here propounded by the author without any exception in favor of minors ; but under the word Herencia, in treating of actions for the recovery of an inheritance, he declares that though a possession in good faith may gain the inheritance by prescription of ten years between those present, and twenty between the absent, and thirty where the possession is in bad faith, so that the true owner who will not prosecute his action will, by his negligence, lose his rights; yet there is an exception in favor of the minor, against whom prescription does not run during minority ; citing L. 7, Tit. 14, Partidas 6. This law fully supports the position of this eminent commentator, and whatever may be the construction, under the Codes of Louisiana, as to the universal operation of prescription against vacant estates, including minors as well as adult heirs, yet it would seem that by the laws of Spain, at least in the opinion of Escriche, there would be an exception in favor of minority.
But, if it be admitted that no such exception exists, and that by the legitimate operation of Spanish law, minor as well as adult heirs were excluded, as against third possessors, provided they did not accept the estate within a limited period ; yet we are of opinion that this doctrine has not, nor can it be allowed, any such operation, under our laws and their construction and the established usages and practice in relation to the estates of deceased persons, as would materially benefit the defendant or preclude the plaintiff from his action.
[504] It is doubtful whether, within the scope and meaning of the terms in Spanish law, there was any such thing as the vacant estate of the civil law known to our jurisprudence after December, 1836. In the Act organizing inferior Courts, December 20th, 1836, the Chief Justices of counties were by the 24th Section made Judges of Probate, and were required to take probate of wills, grant letters of administration, appoint guardians of minors, idiots and lunatics, &c.; but there was no allusion to acceptance of estates by heirs, and no proceedings directed to take such acceptance. It might be inferred that administration was to be had on all estates where there was no will. Now, under the Spanish and Louisiana laws, there was no necessity for administration, as the term is understood at common law, where there was an acceptance of the estate by the heirs. The simple acceptance of the heir, when made by one of full age, bound him unconditionally to pay all the debts of the succession, even out of his own property, should that be required ; and if an heir demanded the benefit of deliberation and inventory, and an administrator be in the mean time appointed, yet, if at the expiration of the term of deliberation, the heir accept unconditionally, all the effects must be delivered up to him ; (Art. 1048, C. C. L.;) and even where there is a curator of what is denominated a vacant succession, whose term of administration is fixed at one year, yet the heirs may take possession before the end of this term. No such proceedings were known or recognized in practice under our laws, between 1836 and 1840. What may be the effect on the rights and obligations of heirs who accepted tacitly or by their acts, during this period, it is not necessary to discuss. The rules in relation to acceptance were in no degree enforced, observed or recognized. Administrators were generally, if not universally, appointed, and heirs were not allowed to disturb them until the debts were paid, and their administrations had closed.
It is very possible that as actual possessors, the heirs might have been enforced to discharge the debts of the estate ; or, if they, being adults, suffered the property to be possessed by [505] third persons, they might, on general principles, be barred by lapse of time or limitation, and this without adopting the fictitious being known as the vacant estate.
But whatever may have been the law in relation to vacant estates, and to prescription for and against them, we believe this to have been abrogated on the introduction of the common law in 1840, and other laws passed during that session.— It will be recollected that an estate is vacant because not accepted by heirs, and when accepted, they have, as a general rule, the right of possession, either with or, as the case may be, without the benefit of inventory. But in the probate law of 1840, which was intended as a general regulation for the settlement of successions, nothing is said in relation to acceptance by the heirs, but provision is made for the grant of administration on the estates of all persons who may die intestate, without any discrimination as to whether the heirs were present or absent, whether they accepted or renounced ; they were not in fact required to do either. The law proceeded on the supposition that the property was in the heirs, subject to the payment of debts, and administrators were appointed to pay the debts, and to prepare the property for distribution.— Not a word is said throughout the law, in relation to acceptance or otherwise by the heirs, and we must hold that no such acceptance was necessary to vest the estate in the heirs, and consequently that an estate was not, in contemplation of law, vacant for want of such acceptance. If then, the estate of Hilly, the mother, was vacant, and if prescription did run against a minor heir of such estate during minority, as is contended by appellant—but whch, to say the least, on a true construction of the law of the Partidas, is very doubtful—yet by operation of the laws in 1840 the estate must be regarded as vesting in the heir, without any express, formal or tacit acceptance ; and if so, the defendant cannot claim the benefit of prescription, as sufficient time had not elapsed to complete the bar.
[506] As to whether the time which run under the laws of Spain, could be computed and estimated as a part of the two years allowed a minor after age, under the law of 1836, to bring his suit, we are of opinion that it cannot be considered in the estimate. A definite time is allowed after a fixed event, viz : the coming of age, and this .cannot be diminished by deductions for time elapsing before arrival at age. If, after arriving at age, the law was modified, allowing a shorter or longer time for suit, the time which had expired under the previous law, might be allowed in computing the term of limitation.
The judgment, as one in partition, might have been expressed in different terms, or its directions might have been modified ; but as it seems to attain the justice of the case, it is not deemed necessary te reverse and render in this Court, and it is therefore ordered that the judgment be affirmed.
Judgment affirmed.