Cox v. Hunter's Heirs

Dullard, J., delivered the opinion of the court. This is an action against the widow and heirs of the late P. H. Hunter, to recover a debt due by him at his decease. Some of the heirs appear to be minors, and are represented by their natural tutrix. The defendants excepted to the jurisdiction of the District Court, averring that an administratrix had been appointed to the estate, and that the plaintiffs’ claim had never been regularly presented for acceptance or rejection. The court declined jurisdiction of the case, and the plaintiffs appealed. It was shown on the trial below, that there had been an administrator, whose account had not been rendered, and that since the institution of this suit, the Court of Probates had made a second appointment. The heirs being minors, and the estate necessarily accepted, under benefit of inventory, we are of opinion, that the court did not err, in sustaining the exception, so far as they are concerned. The estate does not appear to come under the provisions of article 995, of the Code of Practice. But with respect to the widow, against whom judgment is claimed for one half of the debt, as concerned in the community, the same principle does not apply. A community of acquests and gains, cannot be accepted, undér benefit of inventory, and if the widow has accepted the community, or intermeddled in such a manner, as to render her liable for [428] one half the debts she may be sued in the ordinary tribu-lla|Sj an¿ her liability established. As to her, we are of opinion, the court erred in dismissing the suit. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; that the plea to the jurisdiction of the District Court, so far only as relates to the heirs, be sustained, and the suit be dismissed with costs; but that so far as it concerns the widow in her own right, that the plea be overruled, and the case remanded to the District Court, for further proceedings according to law, and that the costs of the appeal be paid by the widow.