
    Lawson & Ux. v. Ripley.
    Where the object of the suit is to obtain a settlement and liquidation of tbe community formerly existing between tlio deceased husband and surviving wife, and for a partition ot the residue, after payment of the common, debts, the court of probates has exclusive jurisdiction. — 7 L. 375 (I.), and cases there noted.
    This court has exclusivo jurisdiction in all matters concerning estates; particularly in those cases where they are in a course of administration.
    Whenever a question of title to real property and slaves arises collaterally in the court of probates, and an examination of it becomes necessary in order to give the court the means of arriving at a correct conclusion on matters of which it has jurisdiction, it must take cognizance of such title.
    Courts of probate have not exclusive jurisdiction in suits for tbe purpose of dividing property belonging to a legal partnership or community between the surviving spouse and the heirs of the deceased one; but the district court has concurrent jurisdiction in such cases. — 9 L. 5S0 (YI.), and cases there noted.
    The marriage contract between the deceased spouse and the defendant, is admissible in evidence, although not specially set up in the pleading?, in a suit for the settlement of the community affairs and partition thereof.
    Where the title to property brought in marriage was in the party, although not paid for, it becafne his separate property and remained such at the dissolution of the community.
    Slaves received during marriage, by one of the spouses, in exchcmge or in payment of money duo him on his separate and individual right, do not become community property.
    Appeal from tbe court of probates for tbé parish of East Eeliciana.
    This is an action by tbe plaintiffs, as joint administrators of the succession of Gen. E. ~W. Ripley, deceased, instituted in tbe court of probates, against tbe defendant, who is tbe surviving widow, and alleged to have accepted tbe community of acquets and gains; praying for a sale of so much of said property as may be necessary to pay all tbe community debts, and that a partition be made of the residue according to law. Tbe plaintiffs expressly allege that a community of acquets and gains existed between the deceased and tbe defendant, and enumerate tbe property that was acquired during marriage, alleging there was none other; that tbe community is largely indebted and [239] set out the various debts owing. Tbe petitioners concluded by praying for a sale of so much of said property as may be necessary to pay tbe debts, and that the remainder be partitioned between plaintiffs and defendant.
    The defendant excepted and expressly states, that an adminstrator has no power to sue for a partition; Ms authority being purely and solely administrative, unless other powers are expressly given by law; and that tbe court of probates has no jurisdiction of this suit.
    2. She further excepted, that no inventory and appraisement bad ever been made of all the property belonging to tbe succession of Gen. Ripley, appertaimng to tbe community of acquets and gains, and that a final partition cannot be made until tbe same has been legally inventoried and appraised.
    In answering, tbe defendant admits a community of property existed, during her marriage with, her deceased, husband; that all the property of his succession belongs to the community with the exception of some negroes and stock, which she avers is her separate property. She expressly denies that the community is indebted as alleged; but that the succession of her late husband is largely indebted to the community for moneys paid by him out of the community funds, in discharge of his separate debts contracted before marriage. That she is desirous of having a final, legal and definitive partition of all the community effects, but protests against any partial or incomplete partition of the same. She denies generally all the allegations in the petition except such as are admitted in her answer; and prays, if the court fakes jurisdiction of this case, that the whole of the property of the succession be decreed to belong to the community of acquets and gains; and that a partition thereof be made according to law.
    Upon these pleadings and issues the parties went to trial.
    The judge of probates sustained his jurisdiction of the suit; overruled the defendant’s exceptions, and proceeded to trial on the merits.
    The evidence showed that Jira. Lawson, one of the plaintiffs, is the [240] daughter of Gen. Ripley by a former marriage and his sole heir; that she and her husband are joint administrators of his succession. ■ That some or most of the property found in the succession is the separate property of the spouses, enumerated in the marriage contract which had been entered into between them on their marriage in 1830. This contract indicated the property that each of the spouses owned at the time of marriage, and brought by them respectively into marriage. Among the items of property was an estate in the parish of East Feliciana, where they resided, designated in the marriage contract as the Redwood tract of land, and some slaves received during marriage from Ira Bowman and Hannah JIusgrove. The title to the land had vested in Gen. Ripley, by agreement with his vendor, previous to his marriage, but the notarial act of sale was passed afterwards, and the land, or a greater portion of it remained to be paid for. This with the claims for which certain negroes were received by the deceased during marriage, were all specified in the marriage contract as his separate property.
    The judge of probates rendered judgment, decreeing the negroes purchased and received from Bowman and JIrs. JIusgrove as the separate property of the deceased, and as going to the heir: as also.the Redwood estate. He designates the separate property of the two parties, giving that of the deceased to the heir, and the other to the defendant. The community property was equally divided between the plaintiffs and defendant. The defendant appealed.
    Lyons, for the plaintiffs, contended that the court of probates had jurisdiction of the partition of successions between the surviving spouse in community and the heir of the deceased one; and the beneficiary heir may, as administrator, when there ai-e debts to pay sue for such partition; and such suit may be brought in the probate court. Code of Practice, 924, Ho 14; 7 JIartin, H. S. 469 ; 7 La. Rep. 296 ; 11 Id. 17; 12 Id. 214.
    2. The widow in community is not a third person, and in an action [241] of partition when it is a necessary incident of the partition, the probate court may inquire into title to real property. 5 Martin, N. S. 214; 8 La. Rep. 459; 15 Id. 455.
    3. Successions are the peculiar objects of the court of probates, and it is there they are partitioned. They are cm entire thing. And as this is an action to make a sale of the community property for the purpose of paying debts, it is necessary to ascertain what that community property is, and the district court has not jurisdiction of the settlement of a succession, which this is. 15 La. Rep. 36 ; La. Code, 2374, 1099 ; Oode of Practice, 983.
    4. The separate property of General Ripley is clearly shown by the marriage contract, which declares what property he “ brought into the marriage,’5 and the titles made in pursuance of the contract. La. Oode, 2314.
    5. The marriage contract is an authentic act and makes full proof between the parties to it, and it cannot be contradicted. La. Oode, 2231, 2235; 14 Toullier, No. 25; 13 Id. No. 305.
    6. The property acquired subsequent to the marriage by General Ripley, was received in payment or exchange for the debts or claims, stipulated in the marriage contract to be laid out in negroes, and consequently became his separate property. 12 Toullier, No. 154; 3 La. Rep. 231; 5 Martin, N. S. 255 ; 1 La. Rep. 520 ; 7 Id. 296.
    7. The negroes received from Ira Bowman in exchange for the debt of Bennett & Morte, are the separate property of General Ripley; as well ns those received from Hannah Musgrove, in payment of a debt due by her.
    These claims are all explained by the marriage contract. Also, the Redwood estate is shown to have been purchased previous to the marriage and was his separate property, although it may not have been all paid for.
    [242] Preston, on same side, insisted that the court of probates had jurisdiction in this case, although it is admitted that it extends only to successions, or property where the parties are under the protection of this court. The heir must claim and sue in an action of partition in the probate court, when the object of the partition is a succession. Oode of Pactice, 924, Nos. 5 and 14; 1021, 1022, 922, 1025.
    2. When the heir accepts with the benefit of inventory the whole property must be administered by an administrator; but it devolves upon the heir subject to a partition, to ascertain the rights of the wife. There is nothing in the law of community adverse to this course. See La. Oode, arts. 934, 935, 936, 937, and 938, 1025, 1035", 1036, 1042, 1051, 2394, 2395, 2396, 2398.
    3. There is no controversy here about title ; it is only as to the mode or manner the parties may divide the property held in community. See the case of MeOaleb v. MeOaleb, 8 La. Rep. 466 ; 11 Id. 455. Mr. P. argued the case generally on the merits.
    
      Andrews S Boyle, for the defendants, contended that the probate court was without jurisdiction because it is a court of limited powers and restricted to certain enumerated cases or classes of cases, different from that now under consideration. Its jurisdiction in cases of partitions is limited to successions between heirs and those in which minors, interdicted or absent persons are interested. Oode of Pract. art. 924, No. 14, 925,1020, 1025 ; 12 La. Rep. 218.
    2. On the dissolution of the community of acquets and gains by the death of one of the spouses, the portion to which the survivor is entitled forms no part of the succession of the deceased, though undivided it is separate and distinct from the interest to which the heir is entitled, and rests in the survivor the moment the community is dissolved. The survivor cannot be cited before the probate court to partake with the heir, ratione materias ml personas. German v. Gay & al. 9 La. Rep. 580.
    3. The court of probates has no jurisdiction over eases like the pre- [243] sent ratione materias because they are not partitions of sueeessions, nor ratione personae because the surviving spouse does not claim title as heir, nor hold any fiduciary character over which that court has the legal control and supervision.
    
      A fortiori, the court of probates is without jurisdiction in the present action where the saviving spouse is cited to partake the community with the heir, and to decide in the contestation what portion of the property sued for is community property and what the separate property of either spouse.
    4. The court a quo erred in permitting the plaintiffs to introduce a paper purporting to be a marriage contract. It should have been rejected as not having been set out in tbe pleadings and as calculated to take tbe defendant by surprise.
    If the court was correct in striking out the portions of the answer P. P. because the averments therein contained were not set out with sufficient certainty, it clearly erred in permitting the plaintiffs to introduce a document so Important to the issue and so vague in its character without being pleaded at all. Benoit v. Hebert & al., 1 La. Rep. 262.
    5. The eourt erred in decreeing the plantation upon Redwood to be the separate property of the late E. W. Ripley.
    The evidence proves it to be community property. See agreement with Ingraham, dated 14th July, 1829, recorded 18th February, 1831. Suit of Ingraham v. Hardestie for the same property, filed by E. W. Ripley and signed by him as counsel for Ingraham, 16th July, 1829. Act of sale, Ingraham to Ripley.
    The agreement of 14th July, 1829, was not a sale, conveyed no rights to the property therein described, and at all events was not binding on the defendant until recorded. It was not accompanied with possession. The terms and mode of payment do not conform with the act from Ingraham to Ripley, 12th April, 1832, in which no mortgage is reserved in conformity with the stipulations in the agreement.
    The aet of sale seems to be a new and distinct contract, only resem- [244] bling the agreement in being between the same parties.
    6. The eourt erred in rejecting the testimony of David Bradford, see hill of exceptions, p. 85, showing the conversations of General Ripley on the day of his marriage with the defendant in relation to the agreement with Ingraham, which would have explained whatever seems doubtful in relation to it.
    7. The court erred in decreeing the negroes purchased of Ira Bowman and H. Ifxxsgrove, to be the separate property of E. "W. Ripley. The acts of sale show that they wei-e acquired subsequently to the marriage. See acts, Bowman to Ripley, 15th August, 1830; Musgrove to Ripley, marked (18 & 19) pp. 60, 61; Civil Code, 2314, 2371; Brown v. CoVb, 12 La. Eep. 174; 10 La. Eep. 172.
    8. The court erred in permitting the introduction of parol testimony to prove title to immovables. See testimony of Bowman p. 51; Preston and Thompson, 5.1, 9; Bickman, 52, 64; Keef and other witnesses, p. 64, 8; Bills of exception, pp. 74, 85, 86, 87.
    9. The court erred in reading depositions where due notice had not been made on defendant; and in permitting Atchison the deputy sheriff, no longer in’office, to amend his return.
    10. The court erred in overruling the exception of defendant, that the plaintiffs suing as administrators could not introduce testimony that Mrs. Lawson, the wife, was the heir of the latp E. W. Eipley, no allegation to that effect, or that she claimed in that capacity being made in their petition. The final decree of the court is erroneous. It does not conform to the pleadings or to the prayer of petitioners.
    Curry, for the plaintiffs in conclusion, (representing James Turner of counsel in the case.)
    1. The plaintiffs sue as administrators of Gen. Ripley’s estate, and ask a [245] sale of the property for the principal purpose of paying the debts; and as incidental thereto a partition of any balance that may remain is prayed for. In order to bring tbis> about the widow in community is cited and made a party that the proceedings may bo had contradictorily with her, who alone with the plaintiffs are interested in the residuum.
    2. The defendant excepts to the jurisdiction of the probate court, because a partition is one of the objects sought. This exception ivas properly overruled. It has been expressly decided in a case contradictorily between the heirs and the mother of a minor claiming the property of the deceased, that an action to annul a will and recover a part of the property, with a prayer that a final partition be made among the parties, can he maintained in the court of probates. Seethe case of Mo Caleb & al. v. Mo Caleb, 8 La. Eep. 459. '
    3. In the present case the estate of Gen. Eipley is administered as an insolvent one; and the object of this suit is chiefly to provoke a sale of the property of the succession, lately held in community between him and the defendant, for the purpose of paying the debts for which the community is bound. The prayer for a partition is only incidental to the administration of the estate.
    4. In all cases where a succession is in a course of administration, the probate court is the proper jurisdiction in which to provoke a sale and partition of the community property or the property of the succession, belonging to the estate administered. Code of Practice 1021 to 1025.
    5. The case of Breau v. Landry & al. (16 La. Eep. 88) recently decided at Opelousas, is very different from the present. There the succession was fully administered and in the hands of third persons. The plaintiff expressly alleges that these persons “ have taken illegal possession of said land in virtue of a pretended will and testament of Ms late wife whereby she bequeathed the said land and part of the improvements to her children,” &c. This court very properly overruled the jurisdiction of the probate court, because the property is held by an adverse title, and in the hands of third [246] persons; and the estate of plaintiff’s deceased wife had been fully administered.
   Simon. J.

delivered the opinion of the court.

This is an action brought by the joint administrators of the succession of E. "W. Ripley, deceased, for the purpose of obtaining a partition of the property in community between the deceased and the defendant, after having sold so much of the said community property as may be sufficient’ to satisfy the debts thereof.

They represent that the deceased intermarried with the defendant on the 29th of July, 1830, that a community of acquets and gains existed between them; that said community is largely indebted, and that the defendant having been decreed to have accepted the community, is liable for her portion of the debts thereof; the petition concludes with a prayer for the sale of a part of the common property, and for a partition of the residue.

The defendant’s answer first alleges that the plaintiffs as administrators cannot maintain an action of partition, and that the court of probates is without jurisdiction in such matters. She further avers that complete inventories of the community property have not been made; that a partition cannot be made until the inventories are completed, and that all the property which the deceased died possessed of, belongs to the acquets and gains, except some specified as belonging to herself. She denies the indebtedness of the community as stated in the petition, and states that the succession of her husband owes to the community a sum of $30,000, used to pay his individual debts; that a tract of land in Illinois has not been inventoried; and prays that the whole property inventoried as belonging to the succession of E. ~W. Ripley, be adjudged to belong to the community of acquets and gains, and that the same be partitioned according to law.

The probate court overruled the plea to its jurisdiction, tried the [241] cause on its merits, and after indicating in its judgment the property which belongs to the spouses respectively, ordered that all the property inventoried as belonging to the succession of the deceased not therein decreed to be the separate property of the parties, be considered as community property and be partitioned as such. From this judgment the defendant appealed.

Our attention is first drawn to the defendant’s exception to the jurisdiction of the probate court; and it has been most strenuously insisted on her part that the court of probates has no jurisdiction over cases like the present; ratione materia, because they are not partitions of successions; nor ratione persona, because the surviving spouse does not claim as heir, nor hold any fiduciary character under the control and supervision of that court; and that a fortiori, it is without jurisdiction in an action where the surviving spouse is cited to partake the community with the heir of the deceased, and to decide what portion of the property belongs to the community, and which is the separate property of either spouse.

The object of this action is clearly for a settlement and liquidation of the community formerly existing between the deceased and the defendant, and for a partition of the residue after satisfaction of the common debts. Those debts, though due by such community, are generally set up by the creditors against the succession of the husband, who, as master of the community during its existence, is always responsible for their payment. After its dissolution by the death of the husband, it is uniformly understood that his estate is hound to pay the debts contracted during the marriage; if it he dissolved by the death of the wife, the survivor is generally alone applied to for the satisfaction of the community debts; and the wife or her representatives, although their distinct interest to the community attaches at the dissolution of the marriage, subject to their right to renounce and be exonerated from [248] the payment of the community debts, have nothing to claim out of the acquets and gains, until such debts are paid or liquidated. The succession of the husband, is therefore so far connected with the community as' to form together at the time of his death, an entire mass called his estate, which is not only liable for the payment of the common debts, hut also for the portion of the wife or her heirs to the residue, if they have not renounced. The widow or her representatives have consequently such an interest in the mass of the estate or succession of the husband, with regard to whom no distinction is made between his separate property and that of the community until the net proceeds or amount of the acquets and gains are ascertained, that their assistance at the inventory and their concurrence at all the proceedings relative thereto, which are to be carried on contradictorily with them, are generally required. All such proceedings take place before the court of probates which, according to law, has exclusive jurisdiction of all the matters concerning the estate, particularly in those cases where it is in a course of administration; and it does not occur to us that separate proceedings can properly be had in relation to the community, until after the settlement of the husband’s estate and the payment of the common debts, a division of the residue of the acquets and gains, is to he made between the heirs of the deceased and the surviving spouse; and even then, the affairs of the husband’s estate administered under the control and supervision of the court of probates, are to be inquired into and sometimes fully investigated. In this case, the estate of General Ripley, is administered as an insolvent one; the prayer for a partition of the community is only incidental to the administration of the estate; and it seems to us that, if we were to declare the court of probates to be without jurisdiction, this would be in direct opposition to the intention of the lawmaker whose object is clearly to bring before the courts of probates all the matters relative to estates administered under their superintendence.

[249] But it is contended that this would be giving to the court of probates the right of trying questions of title: probate courts have certainly no power to try titles to real estate, and to decide directly on the validity of such titles; but, as this court has said in the case of Gill v. Philipps et al. 6 Martin, N. S. 298, “those courts possess all powers necessary to carry their jurisdiction into effect, and when in the exercise of that jurisdiction, questions arise collaterally, they must, of necessity, decide them, for if they could not, no other court could: ” And, “ any other construetion would present a singular species of judicial power — the right to decree a partition, without the authority to inquire into the grounds on which it should be ordered, or the portions that each of the parties should take. The end would thus be conceded without the means.” Baillo v. Wilson ot al., 5 Martin, N. S. 217. We are satisfied that whenever a question of title to real property and slaves arises collaterally in the court of probates, and an examination of it becomes necessary in order to give the court the means of arriving at a correct conclusion on matters of which it has jurisdiction, it must take cognizance of such title, at least for the purpose of ascertaining which property belongs to either of the spouses respectively or to the community. In the case of McCaleb v. McCaleb, 8 Id. 465, the same doctrine was again sanctioned by this court, who held, that courts of probates have authority to inquire collaterally into the character of sales and conveyances, which compose a part of the property forming the entire amount to be partaken, in order to enable them to know the amount of the whole estate. See also 12 La. Rep. 218.

In the case of Turner v. Collins, 1 Mart. N. S. 370, it was decided that courts of probates had not exclusive jurisdiction in a suit for the purpose of dividing property belonging to a legal partnership or community, between the surviving spouse and the heirs of the deceased; but this, in our opinion, fully recognizes the jurisdiction of the probate court. The case of [250] Broussard v. Bernard, 3 Mart. N. S. 37, establishes also the concurrent jurisdiction of the district court in such cases. So it was again decided in the case of Gague v. Gague, 3 Id. 172; 7 Id. 470. And in the case of German v. Gay et al., 9 La. Rep. 584, this court had again occasion to declare that the probate court had not exclusive jurisdiction in a suit for a partition of the community, meaning that its jurisdiction is concurrent with that of the district court. We cannot therefore hesitate to conclude that the present case is properly within the jurisdiction of the* court of probates, that the matters in controversy in this action are peculiarly within the province of such courts; although concurrent jurisdiction may be given to the ordinary tribunals; and that the judge a quo did not err in overruling the defendant’s declinatory exception.

The only bill of exceptions which we have deemed necessary to notice, is one taken to the opinion of the lower court permitting the plaintiffs to introduce in evidence the marriage contract of the parties. The objections made to this document are that it was not set up in the pleadings, did not correspond with the allegations, and had the effect of altering the substance of the demand; we think the probate judge did not err: it is true this marriage contract is not specially mentioned in the petition; but the action itself is such as to presuppose that the plaintiffs intended to produce all the titles and documents necessary to establish their right to the separate property of the deceased, so as to show that it makes no part of the community; and the defendant’s issue demonstrates sufficiently that she expected said marriage contract to be the principal subject in controversy on the trial of the cause; her allegation that all the property carried on the inventory of the estate, belonged to the community, necessarily required the production of the contract to which she was a party; she was aware of its existence, she knew that the community could not be settlod without recurring to this document, and we cannot believe that she was taken by surprise.

[251] On the merits, the appellant urges that the court below erred: 1. Because it decreed the Bedwood tract of land to be the separate property of the deceased. 2. Because certain negroes purchased or taken in exchange during the marriage from Ira Bowman, and another received in payment from Hannah Musgrove in part satisfaction of a debt due by her to Gen. Bipley, ought to be declaimed to belong to the community of acquets and gains.

I. This point arises from the marriage contract produced by the plaintiffs, which, with regard to the Bedwood tract of land, contains the following clause: “ The said E. W. Bipley declares that he owns and brings into the marriage the following property and rights, to wit,” “ A plantation on Bedioood, parish of East Feliciana, of twelve hundred and eighty acres with the buildings, improvements and appurtenances.” This clearly shows that the deceased owned this property at the date of his marriage (29th July, 1830), the marriage contract being conclusive proof on this subject; but the evidence further establishes that as early as the 14th July, 1829, a written agreement wgs entered into between the deceased and his vendor, Ingraham, for the purchase of this plantation, on certain tex-ms which are specified in the act signed by both parties; the sale, in our opinion, was complete before the marriage, and the passing of a notarial deed of sale after the marriage was only for the purpose of perfecting the evidence of the contract. If the husband owed any part of the price (this fact also appears by the maiTiage contract) and paid it during the marriage out of the common funds, this may be a charge against him in favor of the community; but he is nevertheless entitled to the land as his separate property.

II. This also arises from a clause in the maxTiage contract, which after specifying the incox'poreal lights or claims of the husband, goes on to say: “ The following claims set apa/rt to the purchase of negroes with, to wit, Sc. Sc." The claims alluded to consisted in a dividend of about $4000, [252] allowed by act of Congress appropriating $9350 to the ci-editors of Bennett & Martee, and in a claim against Mrs. Musgrove for about $1500. It has been shown that the slaves purchased from Ira Bowman were taken in exchange or paid for by the transfer of the sum of $3500 out of the funds coming to the deceased as a creditor of Bennett & Martee; and that the slave purchased of Mrs. Musgrove, was received by the' deceased in payment of a part of the claim mentioned in the marriage contract. These slaves, under the circumstances, do not, in our opinion, form any part of the community of acquets and gains, not only because it cannot be controverted that the rule, th’at property acquired during marriage ought to be considered as common to both husband and wife, although purchased with the separate funds of one of them, is only applicable to acquisitions made by purchase, and does not include things which may be received by either of them in exchange or in payment of money due to them on their separate and individual rights; 1 La. Rep. 520; 3 Id. 231; Case of Dominguez v. Henry Lee & Go. lately decided by this court; aud 12 Toullier, No. 154; but more particularly because the investment of the money proceeding from the claims in question had been provided for and agreed upon between the spouses in their marriage contract. According to the art. 2393 of the La. Code, “ married persons may by their marriage contract, modify the legal community, as they think fit, either by agreeing that the portions shall be unequal, or by specifying the property belonging to either of them, of which the fruits shall not enter into the partnership.” We must, therefore, consider the clause under consideration as a modification of the legal community, so far as the negroes purchased with the claims set apart in the marriage contract for that purpose are concerned, and if so, they cannot belong to the said community.

Tho appellees have prayed in their answer that the judgment of the probate court be so amended as to allow them the negroes Rhoda and [253] Rhoda Ann as the separate property of the deceased; but an attentive perusal of the evidence found in the record has not satisfied us that, they do not belong to the community.

We therefore conclude that the judgment of the court below is correct, according to the facts and law of the case.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be affirmed, with costs.  