Schreiber v. Beer's Widow & Heirs

91 So. 149, 150 La. 675, 1922 La. LEXIS 2613

• Court: Supreme Court of Louisiana
• Decided: January 2, 1922
• Docket: No. 23188
• Status: Published

Opinions

PROVOSTY, J.

Plaintiff, Mrs. Jeanne Schreiber, sues the widow of Ferdinand Beer as survivor in community, and his children, issue of his marriage, as his heirs, to revive a judgment heretofore rendered against him. The petition not alleging that the defendants respectively have accepted the community and the succession, an exception of no cause of action was sustained below.

Such an allegation was unnecessary. What the law presumes to exist need not be alleged; and, when the community is dissolved by the death of the husband, the widow is presumed to have accepted unless she has renounced. Ludeling v. Felton, 29 La. Ann. 721; Audrich v. Lamothe, 12 La. Ann. 77; Snoddy v. Brashear, 13 La. Ann. 470; Bank v. Jorda, 45 La. Ann. 189, 11 South. 876. In Edwards v. Ricks, 30 La. Ann. 928, the court said:

“The same rules are applicable to the wife’s acceptance, or renunciation of the community, when terminated by death of the husband, except that she cannot accept under benefit of inventory. She is presumed to accept if she does not expressly renounce.”

So far as the heirs are concerned, the Code itself is explicit on the point of their standing in the shoes of the de cujus until they have renounced. Articles 940, 941, 942 and 1014, read:

“Art. 940¡ A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds. * * *

“Art. 941. The right mentioned in the preceding article is acquired by the heir by the operation of the law alone, before he has taken any step to put himself in possession, or has expressed any will to accept it. * * *

“Art. 942. The heir being considered seized of the succession from the moment of its being opened, the right of possession, which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession.”

“Art. 1014. He who is called to the succession, being seized thereof in right, is considered the heir, as long as he does not manifest the will to divest himself of that right by renouncing the succession.”

Article 1000 of the Code presupposes that a legal heir may be sued as such before he has accepted, for it says that when sued as heir “he mates himself liable as heir” unless in his defense to the suit he renounces the succession or claims the delay for deliberating whether to accept. The article reads:

“Art. 1000. The person called to the succession does an act, which makes him liable as heir, if, when cited before a court of justice as heir for a debt of the deceased, he suffers judgment to be given against him in that capacity, without claiming the benefit of inventory, or renouncing the succession.”

If the widow in community and the legal heirs could not be sued as such until they had accepted, a creditor of the de cujus would have to bring two suits — one of inquiry, whether they accept or not; and, after judgment decreeing them to have accepted, then another suit to compel payment. The law contemplates no such idle circumlocution as this. Before acceptance, the widow and the heirs possess fully and completely the qualities of widow in community and legal heirs; hence they may be sued in these qualities.

Learned counsel for defendants argue that the right of an heir is in suspense until acceptance or renunciation; and in that connection they quote article 946, reading:

“Art. 946. Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he decide whether he accepts or rejects it.

“If the heir accept, he is considered as having succeeded to the deceased from the moment of his death; if he rejects it, he is considered as never having received it.”

But what is meant here by being “in suspense” is no more than that the right as heir or the obligation as such is not finally fixed, not that it does not exist. Certainly the heir is not finally liable, and may still renounce; but in the meantime he is heir, and may.be sued as such, and thereby be placed under the necessity of pronouncing himself at once upon acceptance or renunciation.

On the other hand, the learned counsel for plaintiff argues that by pleading to the ,suit without having renounced the defendants have, under operation of said article 1000, forfeited their right to renounce. But the question of whether the defendants have accepted or renounced does not come up on this exception of no cause of action. The only question that comes up is whether a widow in community, when the communits' has been dissolved by death,, and legal heirs, may be sued without an allegation being made of their having accepted the community or the succession. The question of whether they have in fact accepted or not is one that can come up only after they have made a plea of having renounced and of consequent nonliability.

The judgment appealed from is set aside, the exception of no cause of action is overruled, and the case is remanded for trial; the defendants to pay the costs of this appeal.

O’NIELL, J., dissents.