
    Succession of E. L. Whitten—A. L. Johnson, Tutor, et als. Appellants.
    "Where the succession is not accepted purely and simply by the heirs, its liability to them can not be adjudged without its being legally represented in the suit. If accepted purely and simply, such liability to the heirs would be extinguished by confusion.
    A defendant can not be bound by a judgment where no judgment by default was rendered and no issue joined.
    APPEAL from the District Oourt of the parish of East Baton Rouge, Burk, J.
    
      E. T. Merrick, for plaintiff. G. Ratliff, for opponent and appellant. J. W. Seymow’, Attorney ad hoc.
    
   Vookhies, J.

(Slidell, O. J., absent.)

Elisha L. Whitten died without issue, leaving his mother, Cassandra Whitten, and his collateral kindred as his legal heirs, and Martha Ohaney as his surviving spouse.

On the 27th of April, 1841, Cassandra Whitten as administratrix of his estate, filed an account of her administration, showing .that the proceeds of the assets amounted to the sum of $11,220 18, and the debts and charges to $9,492 74, leaving a balance of $1,727 44, for distribution among the heirs, defendant, as stated by her, on the collection of the notes given by the purchasers at the probate sale of the property of the estate.

Martha Cfhtmey, the surviving spouse, and Melessa 0. Whitten, one of the heirs, opposed the correctness of the account, the former alleging besides, that some of the debts charged were contracted previous to the marriage and hence were not chargeable to the community. During the pendency of the opposition, Cassandra Whitten died and Bailey B. Chaney was appointed administrator of the estate. In 1848, a judgment was rendered by the District Court, homologating the account. It was, on appeal to the Supreme Court, reversed and the cause remanded to make proper parties.

On the 3d of July, 1849, Melessa C. Whitten filed a petition, alleging that the administrator had failed and neglected to have the legal notices given of the filing of the account, and prays that ho should be ruled to show cause why the same should not be done within the time prescribed by law. The names and places of residence of the heirs are set forth in her petition, and also that of the surviving spouse, in which she concludes with a prayer, that all the parties interested be legally cited, and that a partition be made among them according to law, and the opposition previously made to the account sustained, &c. Bailey D. Chaney, filed an answer, admitting his appointment as administrator of the estate of Elisha, L. Whitten, deceased, but denying that any part of the funds thereof had ever come into his hands. He averred that he had instituted a suit against William Kelly, for the recovery of the price of a negro, but was defeated. That he was not aware of the existence of any other property, except a small tract of land, the value of which would not defray the expenses necessary to effect its sale. The heirs also filed answers, some of whom adopted the opposition of Melessa C. Whitten to the administratrix’s account, and denied the solvency of the community. On the 11th of January, 1850, B. D. Chaney filed a supplemental answer, in which he alleged that all the property administered upon by Cassandra Whitten, was the separate property of Elisha L. Whitten, the acquets and gains having been absorbed by the debts of the community; hence the surviving spouse had no interest in the estate. That as all the heirs of Cassandra were also the heirs of Elisha, whatever claims existed in favor of one estate against the other, were extinguished by confusion. That the children of Cassandra N. Whitten, one of the heirs of Elisha, had received $600 of the administratrix, whose estate had been sold and partitioned among her heirs. On the 17th of July, 1851, Bailey B. Chaney, filed a petition, or plea, in which he claimed as administrator of the estate of James J. Chaney, deceased, all the right, title, and interest of Martha Wells, arising out of the estate, as surviving spouse of Elisha L. Whitten, by virtue of a forced alienation under an execution issued on a judgment against her in favor of said estate. As it does not appear that this plea was ever notified or issue joined on it by the proper parties, it is deemed unnecessary to notice it any farther. Upon these issues, the cause was tried by the District Court, and from the judgment thereon rendered this appeal was granted to the opposers.

The opposition to the account filed by Cassandra Whitten as administratrix, is the only matter involved in litigation. It does not appear from the record, that B. B. Chaney ever received as administrator, any part of the funds or effects therein specified, or that he ever filed any account of his administration.

Considered in any point of view, it is obvious that the opposition of the heirs is not maintainable. If the succession of Cassandra Whitten, he considered as not accepted purely and simply by them, how can its liability be adjudged without its being legally represented in this suit? If accepted purely and simply, it is clear that such liability would become extinguished by confusion.

In relation to the claim of the surviving spouse, it is clear that the judgment homologating the account of the administratrix cannot affect her rights. As already seen, after the cause was remanded by the judgment of the Supreme Court, the proceedings were changed, and she was cited as one of the defendands to an action of partition among the heirs, but it does not appear that she ever joined issue, or that a judgment by default was ever taken against her.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs in both courts, without prejudice to the right of Martha Chaney, wife of Samuel Wells, to proceed against the legal representative of the estate of Cassandra Whitten, deceased, and legal heirs of said Elisha L. Whitten, to enforce whatever claim she may be entitled to in the succession of the latter as surviving partner of the community.  