Succession of Geddes

The opinion of the Court was delivered by Poci-ié, J. Tlie executors of the last will of John G-eddes have taken this appeal from a judgment ordering them to deliver to the widow of tlie deceased certain specified objects bequeathed to her by her husband in his will, which has been duly probated. The defense which they urged against the widow’s demand is in substance : That her demand was premature and could not be entertained before a settlement of the community which had existed between the spouses, and before the expiration of the delay allowed by law to the executors for the payment of debts, to be preceded by a sale of the property for that purpose, if necessary. The record shows that the property, which all belonged to the community, amounted to $147,910 84, and that the succession owed no debts beyond tlie expenses of the last illness and funeral charges, which have already been settled out of the cash assets of the succession. The legacies, to tlie widow consist of the dwelling-hoiise occupied by the two spouses, and of bonds, stock, etc. The other legacies contained in the will are moneyed bequests. The deceased left no issue of the marriage, and no forced heirs. [54] The mere statement of the foregoing facts appears to us a sufficient answer to the defense urged by the executors. After a careful study and grave reflection on the subject, we are entirely at a loss to appreciate the strength of the position which they have assumed in their resistance to the just and legal demand of Mrs. G-eddes for the execution of the last will entrusted to them by the deceased. We have followed the argument of their learned counsel, and have considered all the authorities which he quotes in support of the well known rule of succession law under which the widow can claim nothing from the community previous to a settlement of the same and to the payment of the debts, and under which it is settled that her interest in the community is merely residuary. But the issue presented herein cannot be affected by these principles, as invoked and applied by appellants. In the present proceeding, the widow is not pressing any of her rights as surviving partner in community, but she simply seeks to enforce her rights as a legatee under the will. As her legacies are specific objects, her claim thereto cannot be affected by the other legacies which are for money. The latter are subordinate to her claim and should be reduced if the assets of the succession should be insufficient to cover all the legacies. C. C. art. 1635. Bxxt no such contingency is presented in this case, in which it appears that the executors have in hand funds left by' the testator, and since collected as revenues of the succession property, in an amount nearly sufficient to discharge all the moneyed legacies provided for in the will of the deceased. Under our law, at the death of Geddes his widow became the absolute owner of one-half of all the property comprised in the inventory as belonging to the succession and community, subject only to the payment of community debts, if any existed. Tugwell vs. Tugwell, 32 A. 848; Glasscock vs. Clark, 33 A. 584. She is therefore owner in her own right of surviving partner in community of one-half of all the property bequeathed to her in her husband’s will. Her ownership and seizin of that portion of the property result from the operation of law, and of her own will in accepting the community; and neither could be affected, increased or restricted by any testamentary dispositions of her husband. Her demand in this proceeding is, therefore, for the delivery and possession of the other half of said property; of the only portion thereof which accrues to her under the effect of the will. [55] Under tlie circumstances of this succession, the resistance of the executors is unjustifiable and illegal, and is in direct opposition to the will of the testator, from whom they have received and accepted the solemn trust of executors. We, therefore, find no error in the conclusions of our brother of the District Court. Judgment affirmed.