The opinion of the court was delivered by
Nicholls, O. J.
We find copied in the transcript, filed in this case, all of the proceedings had in the Succession of Owen Glancy, although the only issue before us is as to the correctness of the ruling of the district judge sustaining an exception of no cause of action filed by Mrs. Margaret Higgins, the widow in community of Owen Glancy, Sr.
We, of course, have come to a knowledge of these proceedings through that fact, but we do not feel justified by reason of that fact into going into an examination of and discussion of the whole situation of the succession upon this appeal. We think we should confine ourselves to the pleadings of the appellant in his petition. We do not think plaintiffs’ demand should have been dismissed upon an exception of no cause of action. The exception was levelled at the whole demand and we have held that an exception so made was correctly overruled if any part of the demand could stand against the exception. Peoples State-Bank vs. St. Landry State Bank, 50 Ann.; City of New Orleans vs. Collins, 52 Ann. 973.
At least a part of plaintiff’s demand should be tried upon the-merits.
The plaintiffs allege that they are owners in common with the-defendant of certain described property; that they are unwilling to-remain any longer in indivisión; they ask that a partition of the property be made and that to that end a sale of the same be made. Than [420]*420certain properties described stands in the name of their mother, Mrs. Margaret Higgins, widow of Owen Glancy, as having been purchased by her with her paraphernal funds, ¡but that she had no paraphernal funds to purchase the property with and the property really belonged to the community which existed between her and her husband. That Owen Glancy had died testate;.that the bequests made by the will had all been duly discharged and there were no debts due by the estate. ¡That the widow of Owen Glancy had taken possession of all the prou<nrty and drawn all the fruits and revenues therefrom and used the .•same since the death of her husband. That she had been permitted no i do this by plaintiffs, in ignorance of the fact that Owen Glancy had left a will. That she should be held to account for the same and for certain monies which she had received from an Insurance Company for the loss of a certain building. There is no declaration made by the plaintiffs that they are the sons of Owen Glancy, nor that their rights as forced heirs have been in any manner trenched upon by the- will of the deceased. What dispositions the will contained are not set out, inferentially they are such as induce the plaintiffs to believe that Mrs. Owen Glancy has, ¡by reason of its terms, no usufruct under the Act of 1844. We presume from the whole tenor of the petition that plaintiffs’ joint ownership of the property is based upon being heirs of their father and that the property is sought to be partitioned as community property.
While the issue between the parties is one raised on the face of plaintiffs’ petition, yet the briefs and arguments ¡before us are directed ■entirely to a discussion of the' legal question as to whether, or not, under the terms of Owen Glancy’s will the widow was deprived of the benefit- of the usufruct granted to a surviving widow under the Act of 1844. The district judge had all papers of the succession before him .and may have felt himself justified through his judicial knowledge of their contents in using them in connection even with an exception of •no cause of action, but they were not introduced in evidence on the -trial of such an exception.
Plaintiffs insist that the widow has no usufruct and that their right to a partition is absolute. The widow set up no objection or exception to this claim other than the exception of no cause of action. If plaintiffs be joint owners of the property with Mrs. Owen Glancy, the law gives them the right to a partition. Article 1289 of the Code declares [421]*421•that ^no one can be compelled to hold property with another unless the contrary has been agreed upon. Any one has a right to demand the division of a thing held in common by the action of partition.”
This being the case, it behooves any one against whom an action of partition is directed by their joint owners to set up their objections by way of special exception or defense and not meet the demand by an out and out denial of a right of action. Appellees should have set up exceptions other than this particular exception or gone to trial on a denial of the right of partition in an answer. Defendant urges it would seem that if she is, in point of fact, entitled to a right of usufruct as surviving widow in community, the co-owners with her are as a resulting fact cut off from a right of partition.
If by this she means that since the Act of 1844 the children of the marriage cannot sue and actually recover from the mother and take out of her possession, freed from her usufructuary rights, their father’s interest in the community property, she is supported in her contention by the decision of this court in Day vs. Collins, 5 Ann. 588. The court held, however, in that case, that notwithstanding the existence of usufruct, the affairs of the community could be ascertained and liquidated by action. (See Ogden vs. University, 49 Ann. 195; Succession of Moore, 42 Ann. 336.)
We are not aware that this court had ever held that the fact of the existence of the usufruct, in the surviving partner in community, would cut off an action of partition by the heirs "of the other spouse, if the result of the partition would not be to extinguish the usufructuary’s right. The expressions used in Dickson vs. Dickson, 33 Ann. 1372, 1377, 1380, do not go that far. We are not disposed to pass upon that question on an exception of no cause of action.
Article 605 of the Civil Code declares that the owner may mortgage, sell or alienate the thing subject to the usufruct without the consent of the usufructuary, but he is prohibited from doing it in such circumstances and under such conditions as may be injurious to the enjoyment of the usufructuary. This Article deals with the conventional usufruct. We have several instances in the Code where the property affected by a usufruct is none the less authorized to be sold, if sold, subject to the usufruct. (C. O. 584, 585, 587.)
We think that question should be Eft to be determined after evidence adduced on the facts of each particular case.
[422]*422We would regret that a succession as small as this succession is should be exhausted by costs, and we feel warranted in view of the discussion of the subject before us in making some remarks which may have the effect of putting an end to future litigation. The usufruct granted to the surviving partner in community under the act of 1844 (Section 629, Revised Statutes) is one conferred Upon him or her by the law itself. It exists subject to the right of tbs deceased spouse to control and regulate it either in part or entirely by his last will and testament. If he makes no last will, the law declares the surviving partner shall hold in usufruct so much of the share of the deceased in said community a'* may be inherited by his issue. In that case, the whole of his share.
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The opinion of the court was delivered by
Nicholls, O. J.
We find copied in the transcript, filed in this case, all of the proceedings had in the Succession of Owen Glancy, although the only issue before us is as to the correctness of the ruling of the district judge sustaining an exception of no cause of action filed by Mrs. Margaret Higgins, the widow in community of Owen Glancy, Sr.
We, of course, have come to a knowledge of these proceedings through that fact, but we do not feel justified by reason of that fact into going into an examination of and discussion of the whole situation of the succession upon this appeal. We think we should confine ourselves to the pleadings of the appellant in his petition. We do not think plaintiffs’ demand should have been dismissed upon an exception of no cause of action. The exception was levelled at the whole demand and we have held that an exception so made was correctly overruled if any part of the demand could stand against the exception. Peoples State-Bank vs. St. Landry State Bank, 50 Ann.; City of New Orleans vs. Collins, 52 Ann. 973.
At least a part of plaintiff’s demand should be tried upon the-merits.
The plaintiffs allege that they are owners in common with the-defendant of certain described property; that they are unwilling to-remain any longer in indivisión; they ask that a partition of the property be made and that to that end a sale of the same be made. Than [420]*420certain properties described stands in the name of their mother, Mrs. Margaret Higgins, widow of Owen Glancy, as having been purchased by her with her paraphernal funds, ¡but that she had no paraphernal funds to purchase the property with and the property really belonged to the community which existed between her and her husband. That Owen Glancy had died testate;.that the bequests made by the will had all been duly discharged and there were no debts due by the estate. ¡That the widow of Owen Glancy had taken possession of all the prou<nrty and drawn all the fruits and revenues therefrom and used the .•same since the death of her husband. That she had been permitted no i do this by plaintiffs, in ignorance of the fact that Owen Glancy had left a will. That she should be held to account for the same and for certain monies which she had received from an Insurance Company for the loss of a certain building. There is no declaration made by the plaintiffs that they are the sons of Owen Glancy, nor that their rights as forced heirs have been in any manner trenched upon by the- will of the deceased. What dispositions the will contained are not set out, inferentially they are such as induce the plaintiffs to believe that Mrs. Owen Glancy has, ¡by reason of its terms, no usufruct under the Act of 1844. We presume from the whole tenor of the petition that plaintiffs’ joint ownership of the property is based upon being heirs of their father and that the property is sought to be partitioned as community property.
While the issue between the parties is one raised on the face of plaintiffs’ petition, yet the briefs and arguments ¡before us are directed ■entirely to a discussion of the' legal question as to whether, or not, under the terms of Owen Glancy’s will the widow was deprived of the benefit- of the usufruct granted to a surviving widow under the Act of 1844. The district judge had all papers of the succession before him .and may have felt himself justified through his judicial knowledge of their contents in using them in connection even with an exception of •no cause of action, but they were not introduced in evidence on the -trial of such an exception.
Plaintiffs insist that the widow has no usufruct and that their right to a partition is absolute. The widow set up no objection or exception to this claim other than the exception of no cause of action. If plaintiffs be joint owners of the property with Mrs. Owen Glancy, the law gives them the right to a partition. Article 1289 of the Code declares [421]*421•that ^no one can be compelled to hold property with another unless the contrary has been agreed upon. Any one has a right to demand the division of a thing held in common by the action of partition.”
This being the case, it behooves any one against whom an action of partition is directed by their joint owners to set up their objections by way of special exception or defense and not meet the demand by an out and out denial of a right of action. Appellees should have set up exceptions other than this particular exception or gone to trial on a denial of the right of partition in an answer. Defendant urges it would seem that if she is, in point of fact, entitled to a right of usufruct as surviving widow in community, the co-owners with her are as a resulting fact cut off from a right of partition.
If by this she means that since the Act of 1844 the children of the marriage cannot sue and actually recover from the mother and take out of her possession, freed from her usufructuary rights, their father’s interest in the community property, she is supported in her contention by the decision of this court in Day vs. Collins, 5 Ann. 588. The court held, however, in that case, that notwithstanding the existence of usufruct, the affairs of the community could be ascertained and liquidated by action. (See Ogden vs. University, 49 Ann. 195; Succession of Moore, 42 Ann. 336.)
We are not aware that this court had ever held that the fact of the existence of the usufruct, in the surviving partner in community, would cut off an action of partition by the heirs "of the other spouse, if the result of the partition would not be to extinguish the usufructuary’s right. The expressions used in Dickson vs. Dickson, 33 Ann. 1372, 1377, 1380, do not go that far. We are not disposed to pass upon that question on an exception of no cause of action.
Article 605 of the Civil Code declares that the owner may mortgage, sell or alienate the thing subject to the usufruct without the consent of the usufructuary, but he is prohibited from doing it in such circumstances and under such conditions as may be injurious to the enjoyment of the usufructuary. This Article deals with the conventional usufruct. We have several instances in the Code where the property affected by a usufruct is none the less authorized to be sold, if sold, subject to the usufruct. (C. O. 584, 585, 587.)
We think that question should be Eft to be determined after evidence adduced on the facts of each particular case.
[422]*422We would regret that a succession as small as this succession is should be exhausted by costs, and we feel warranted in view of the discussion of the subject before us in making some remarks which may have the effect of putting an end to future litigation. The usufruct granted to the surviving partner in community under the act of 1844 (Section 629, Revised Statutes) is one conferred Upon him or her by the law itself. It exists subject to the right of tbs deceased spouse to control and regulate it either in part or entirely by his last will and testament. If he makes no last will, the law declares the surviving partner shall hold in usufruct so much of the share of the deceased in said community a'* may be inherited by his issue. In that case, the whole of his share.
If, by his will, he has disposed of certain specific property and no more, in full ownership, that particular property would pass out of the succession to the legatee free from the usufruct, but the usufruct would attach to the balance; that being “so much of Urns share in .the community property as would be inherited by his issue,” under the circumstances. The cutting off of the usufruct would be measured exactly by what had been disposed of by the deceased spouse to the prejudice of the usufruct and inconsistent with it. If the deceased left the survivor the full ownership of certain property, hie or she would take that, holding the balance of his share in usufruct. If he left a legacy to a third person payable out of the revenues of either the whole of his share in the community property, or of a particular or specific part of it, the survivor would take the usufruct, but with the charge upon it of making payments of the legacy out of thie revenues to the extent. The legatee having the right to make his legacy available by and through the usual legal remedies.
Eor the reasons assigned herein, it is ordered, adjudged and decreed that the judgment herein appealed from be, and the same is hereby, annulled, avoided and reversed and the exception of no cause of action is set aside and this cause is hereby remanded to the District Court with orders to reinstate the same for further proceedings according it law. Costs of appeal to be paid by appellee; those of the lower court ip await the final deeisin of the case.