WESTERN DIST. than the usual style of notaries, which add nothing to the September, 1834. force and effect of the act. An inventory without such enunciation of the purpose for which it was made, would not be less an inventory. BROUSSARD BERNARD ET ALS. it will not be A community gains, as such, the death of one ઝ like a course of That a community of acquests and gains, as such, continjudicial acts reues after the death of one of the partners, with all the legal cognising such a custom is shown, eflects resulting from such a relation, with authority in the considered as husband, if he should survive, to be still regarded as the head proved to exist. of the community, with power to bind the common property of acquests and by new contracts, and to alienate it without restraint, is ceases to exist at a proposition so repugnant to all our notions of a community, the moment of and so subversive of first principles, that it cannot be for of the partners, a moment admitted. On the death of one of the spouses, with all the legal the community, in a legal sense of the word, is unquestionably terminated. Each party is seized of one undivided half of one undivided of the property, composing the mass, and the surviving party half of the Pro cannot validly alienate the share, not belonging to him. If the mass; and the survivor continues to administer, without making a the surviving partition, and is tacitly permitted to enjoy the common not belonging to estate, he will be considered, except in cases where he may have a legal usufruct, as intermeddling, and his responsibiliof a community ties will be those of a negotiorum gestor. effects resulting from it. Each party is seized perty composing party cannot alienate the share him. If the survivor of acquests and gains, continues without provo The object of the present suit, is to compel the defendants, to administer it to come to a final liquidation and settlement of the communiking a partition, ty, formerly existing between Michel Broussard and his late and is tacitly per wife, according to a decree, rendered by consent of all parties the common es- concerned, in 1820. The defendants in this case, who were mitted to enjoy tate, he will be considered, ex- plaintiffs in the first suit, seek to avoid the effect of that cept in cases where he may judgment, on the allegation, that it was rendered by consent, have a legal usu- that some of them were minors at the time, and some married fruct, as intermeddling, and women, and that they were injured by said judgment, and his responsibilities will be those are entitled now to restitution. of a negotiorum gestor. The action upon which the judgment was rendered, in 1820, was prosecuted by the present defendants, against Michel Broussard, and other persons, to whom he had conveyed, during the life-time of his wife, certain property, belonging to the existing community of acquests and gains. The principal object of that suit appears to have been, to BROUSSARD 28. BERNARD ET ALS annul that alienation, as made in fraud of his wife. The WESTERN DIST. purchasers, who were parties, pleaded among other things, September, 1854, that the right of action was prescribed; that a year had elapsed since the sale, and that in cases of alleged fraud, the revocatory action could not be maintained, after the expiration of one year. The judgment was finally entered by consent, annulling the alienation, restoring the property to the community, and permitting the surviving husband to retain it as his own, on certain conditions. If we take the whole judgment together, it is not easy to comprehend, how the present defendants have been aggrieved by it. Without that judgment, the whole property would yet belong to Isidore Broussard, or Landry, to whom it was conveyed, before the death of Madame Broussard. It is said, that the consent of the husband, and of the tutors, amounted to an alienation of the property of the wife and minors. But it must not be overlooked, at the same time, that the same consent tended to acquire the same property, which without it, may have been irrevocably lost to them. The decree rendered in the present case, sustains to a certain extent, the exception of the defendants, and proceeds to set aside the first judgment, as founded in error of law, and prejudicial to the minors and married women, and condemns the plaintiff to pay about six thousand dollars, the estimated value of the property in the inventory. It has been contended by the counsel for the appellant, that the first decree rendered by consent, if objectionable, was not absolutely null, but merely erroneous, and can only be avoided by action of nullity, or by appeal. a A judgment rendered by court of competent jurisdiction between parties legally before it, cannot be quesand collaterally. tioned indirectly Minors are bound by the judgments of courts of comtent jurisdiedon, when they come before properly This court has held, that a judgment rendered by a court of competent jurisdiction, between parties legally before it, cannot be questioned indirectly and collatarally, and in recent case, that minors properly represented, are equally represented, in bound; and the same doctrine was recognised in the case of ner as other per Martin vs. Martin's heirs. 5 Martin, N. S. 165. We are therefore of opinion, that the court erred, declaring that the Fuero Real was in force in Louisiana, the same man sons. The Furco in Real was not in force in Lonisi at ana in 1816. BROUSSARD V8. BERNARD ET ALS. While a judgment remains in ties are conclu gal recourse. WESTERN DIST. the death of Madame Broussard, and in setting aside the September, 1834. judgment heretofore rendered, and yet remaining unreversed. While that judgment remains in full force, it ought to regulate the rights of their parties in the premises, leaving to those who were not of age at the time, their legal recourse. Before any final settlement of the community can be made, force and unape it is necessary to examine the substance and extent of that pealed from, the rights of the par- decree. It begins by declaring, that the property which had ded by it, leav- been sold by Broussard to Isidore Broussard, and by the latter ing to those under age their le- to Landry, belonged in full right and bonâ fide, to the parties jointly, the same, together with its natural fruits and increase, being a community between said Michel and the heirs and representatives of his wife. It then proceeds to decree, that all the property mentioned in the deeds, shall be partaken and divided between the parties, the heirs taking their share in money, at certain times of credit, and the defendant retaining the property, at an appraisement to be made afterwards; and the sums coming to the heirs, being one-half of that estimation, after deducting the amount of debts due by the community, and which the defendant may have paid, after the death of his wife. It is silent as to the revenues derived from the property, from January 25th, 1816, up to the time of the inventory. Property pur It is contended by the defendants, in their answer, that the chased by the husband after the property acquired by the plaintiff, after the death of his wife, dissolution of the belongs to the community. We are of opinion, that it forms community by the death of his the sole property of the plaintiff, but that he is accountable for wife, becomes his one-half the net revenues, derived from the common property, sole property; but he is ac- after the death of his wife, and up to the time the invenone-half of the tory was made, in November, 1820. At that period, we rived from the consider his obligation to account for the revenues, to have ty after the death ceased, because he was authorised to consider the whole of his wife, and property as his own, on paying interest, according to the making the in- judgment. countable for net revenues de common proper up to the time of ventory. According to this view of the rights of the parties, under the existing judgment, we are of opinion, that the final settlement and liquidation of the community, ought to be effected as follows: first, all the property mentioned in the inventory, in the possession of the plaintiff, at the price WESTERN DIST. therein estimated; second, crediting the plaintiff for all debts September, 1834. contracted before the death of his wife, and since paid by him, BROUSSARD vs. and thirdly, charging him with one-half of the net revenues, BERNARD ET ALS, which the defendants may prove to be derived from the use of the common property, from the 25th January, 1816, till the 15th November, 1820. As the judgment in question, related only to certain specific property, and it does not appear certain, that it was the only property belonging to the community, at the death of Madame Broussard, we are of opinion, that the defendants are not precluded from showing the existence of other joint property at that time, and that, in its partition, the defendants are not bound by the said judgment. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and it is further ordered, adjudged and decreed, that the parties proceed before the parish judge, of the parish of St. Martin, to the final settlement of the community, lately existing between Michel Broussard and Anastasie his wife, according to the principles expressed in this opinion, and that the defendants pay the costs of the appeal. 29 WESTERN Dist. September, 1834. THEALL THEALL ET ALS. THEALL US. THEALL ET ALS. APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF ST. MARY. In the construction and interpretation of wills, the intention of the testator must be sought in the words he has used in the will, and not aliunde. Constructions and interpretations of wills, are not to be resorted to for the discovery of the testator's intention, when he has used none but plain unequivocal expressions. A testator must be presumed to know that his own property alone can be the subject of his disposition. So where a community of property exists, and the testator in his olographic will declares he wishes "the rest of his property, (after making legacies) both real and personal, divided as follows: One-half to his wife, and the other half to his brother's children," &c: Held, that the wife first takes half the community, and one-half of the other half, after deducting debts and legacies. This is an action of partition. The plaintiff as surviving wife of the late Joseph Theall, instituted her suit in the Probate Court, for the parish of St. Mary, against the dative testamentary executor, and the testamentary heirs and legatees of her deceased husband, for a partition of his succession, according to the provisions of his olographic will, duly admitted to probate. The will was dated the 9th February, 1832, and the testator died during that year. After making several specific legacies, on particular titles, to his collateral relations, the testator proceeds with the following bequest. "I give my wife Nancy Theall, all my household and kitchen furniture, with the cattle and hogs that are remaining. The rest of my property both real and personal, I wish divided in the following manner, that is to say: One-half of all to my wife Nancy Theall. The other half to my brother's children," &c. In pursuance of the above clause in the will, the plaintiff prays to have decreed to her one-half of the estate of her late husband, comprising the community of acquests and gains; the specific legacies, on particular title, bequeathed to her, and one-half of all the residue of the said succession, |