Titche v. Lee

22 La. Ann. 435

• Court: Supreme Court of Louisiana
• Decided: July 15, 1870
• Docket: No. 94
• Status: Published

Opinion

Howe, J.

The plaintiff instituted this suit against the defendant as administratrix of the estate of her deceased husband, and also asked for a judgment against her personally, upon the allegation that she ‘‘is partner in community, that the notes (in suit) are debts due by tbe community, which existed between the deceased and Mrs. Amanda M. Lee, at the time of their execution, and that therefore she is bound ior one-balf of petitioner’s claim.”

There was judgment for plaintiff upon one of the notes, for the full amount against tlic defendant in her representativo capacity, and for the half thereof individually; and she has appealed.

The succession of Lee was opened in 1863 by the appointment of the defendant as administratrix, and an inventory was regularly made. So far as we can perceive she hasmanaged the estate as administratrix only; and has not, as widow, concealed or made way with any of the effects of the partnership or community of gains. C. C. 2337. But the plaintiff contends that she is personally liable, because, up to the time this action was instituted, she had not renounced the community. It would seem, however, that the surviving wife has the thirty days allowed to a beneficiary heir, to make a choice between renunciation and acceptance. After the expiration of this delay she may be forced, by suit, to make her decision, in the same manner as an heir, and then judgment may be rendered against her personally if she does not renounce. Tiius she has, for thirty days, a right of deliberation, and her deliberations can not be disturbed by the action to compel a choice. But after this delay has expired she still has a right oí renunciation, for, in the action to compel, a judgment is to he rendered against her personally, “ unless she renounces.” The phrase implies a continued power of renunciation. C. C. 2383; C. P. 980, 982. Succession of Bichardson, 14 An. 1.

The pleadings and evidence do not justify the personal judgment appealed from, nor do wo feel authorized in this form of action to render the judgment contemplated in article 2383 C. C.

It is therefore ordered that the judgment so far as it is a persona one against Amanda M. Lee, he avoided and reversed; that in all other respects the said judgment he affirmed; and that the plaintiff pay costs of appeal.