
    No. 10,450.
    Barbara Weller vs. Jacob Von Hoven.
    Under Art. 2420, it. O. O., the failure of the wife separated from bed and board to accept the community, cither expressly or tacitly, within the delays therein prescribed, operates a conclusive and irrevocable renunciation thereof, which bars any subsequent assertion of community rights.
    Art. 2420 remains in force, and was not repealed by Act No. 4¡ of 1882.
    Failure of wife io repay to the community sums which had been advanced by it during its existence for the benefit of her separate property, does not amount to taking possession of community property operating a tacit acceptance.
    Peremptory exceptions founded on law may be filed at any stage of the trial before judgment.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    
    (3. A. Breaux and G. H. Ostenberger for Plaintiff and Appellant:
    1. Act 4 of 1882 was intended to and prof esses to obliterate all distinction theretofore existing in the attitude of a divorced wife and a widow in community and heir, in regard to the community dissolved, irrespective of cause of dissolution.
    2. The differences existing were, first, that in dissolution by death acceptance was presumed; whereas, in dissolution by divorce renunciation was presumed, unless acceptance was manifested in thirty days.
    8.As no other difference existed, the law could have had no other purpose than its obliteration; it grants no right not theretofore existing of acceptance with or without benefit of inventory. C. N. 1468; C. C. 2410, et seq.; Duranton, Ed., Bruxelles, 1841, Vol. 8, p. 209; Art. 458.
    4. The prescription invoked can not avail under the change operated by the Act of 1882, Art. 2420, O. C., having been necessarily repealed thereby.
    5. Wife bound to have inventory made only when she wishes to take benefit of inventory and renounce. O. O. 1032, 4, 5; G. O. 1050, 8; G. 0.1060.
    6. Widow may still renounce, though she has not acted within delays, and until an action to elect forces her to act. O. G. 2414; 28 An. S50; 14 An. 1; 22 An. 435; 20 An. 30.
    7. A party who has made a judicial assertion is estopped from thereafter contesting or contradicting it. Iiovcn having sworn in judicial proceedings as to his estate in 1869, can notnow gainsay the statement. Gilmer vs. O’Neal, 82 An.979; Reuder vs. Belknap, 28 An. 765; Folger vs. Balmer, 35 An. 743.
    8. Where the master of a community having exclusive charge thereof refuses to permit an inventory to be taken, or to give any account whatever of its operation and assets under his management, he should not equitably be heard to say that there are debts due by said community.
    9. Where, under such circumstances, he is shown to have paid his separate debts during the community, and that property exists, he should not be permitted to show debts of the community while concealing the assets.
    10. The master of the community can not claim reimbursement of separate funds coming into his possession during the community, unless he proves specifically and clearly that they were used for the benefit of the community. Succession. Bollinger, 30 An. 193; Succession Breaux, 38 An. 728.
    
      
      B. R. Forman for Defendant and Appellant:
    1. The wife separated from bed and board (or divorced), who has not, within thirty days from the separation, finally pronounced, accepted the community, is conclusively presumed to have renounced the same, unless within thirty days she has obtained a prolongation from the judge, after the husband was heard, or after he was duly summoned; and this renunciation is final and irrevocable. C. C. 2420 (2389); Code Napoleon, 1463; Herman vs. Theurer, 11 An. 70; Snoddy vs. Brashear, 13 An. 469; Ewing vs. Altmeyer, 16 An. 416; Deeuir vs. Lejeune, 15 An. 569; Marcade, Yol. 5, p. 605, Bd. 1859.
    2. This law is not repealed by Act 4,1882. Repeals are not favored nor implied unless the new law is irreconcilable and inconsistent with the former law. New Orleans vs. Mechanics’ Bank, 15 An. 107; State vs. Parker, 15 An. 231; Bond vs. Hiestand, 20 An. 139; Durand vs. Dubuclet, 24 An. 155, and other cases there cited.
    3. Before the year 1882, the widow could not accept the community with benefit of inventory; she must accept unconditionally or renounce; and in order to renounce she must first make an inventory. C. O. 2413 (2382) \ Monget vs. Pate, 3 An. 270; and the only object of the Act of 1882 was to enable the wife, when the marriage had been dissolved either by death or decree of court, to accept the, community with benefit of inventory.
    4. When a case has been fully tried and submitted to the District Court on its merits, together with a peremptory exception founded on law (such as prescription), and the District Judge sustains the exception, the whole case is before the Supreme Court for review, and if this court should not sustain the exception, it can then pass on the merits. It is to the interest of the republio that a law suit should end; otherwise there might be as many appeals as there are points of law in the case. C. P. 905; Kenner vs. His Creditors, 8 N. S. 63; Levi vs. Weil, 24 An. 223.
    5. The community, to which the wife who accepts on its dissolution is entitled, is the net result of its earnings, its acquets and gains, C. C. 2402 (2371), and the debts contracted during marriage must be acquitted out of the common fund, C. O. 2403 (2372), and the husband is the head and master, and during the community can do what he pleases with its assets, and at its dissolution is not accountable to the wife for anything done before. C. C. 2404.
    6. She is liable for her share of the debts. C. C. 2409 (2378).
    7. Where the right to an adjudication existed before a marriage, although it was only accomplished after a marriage, the property does not enter into the community. Barbet vs. Langlios, 5 An. 213; Succession Morgan, 12 An. 153; Code Napoleon, 1408; Marcade, Vol.5,p. 474,Sec. 7; The dictum in Chapman vs. Woodward, 16 An. 167, rests entirely on Hache vs. Ayraüd, 14 An. 178; and Breaux vs. Carmouche, 15 An. 588; and these eases have been overruled by Troxler vs. Colley, 33 An. 426; .Vavasseur vs. Mouton, 34 An. 1044.
    8. If the last proposition of law be not sustained, and the adjudication of the in-, terest of minor children of the first marriage, in property acquired during the first marriage, fell into the second community, then: (a) when the evidence shows that part of that property was sold during the second community, the husband is not accountable for its proceeds; and (6>the wife owes her share of the price of that remaining on hand, and must pay her one-fourth of the price , before she can talco her one-fourth of the property, say........................... $7,088 75
    .(c) She must also first repay the money advanced by defendant to her to pay her separate debts which she owed before marriage............... 9,662 25
    
      (d) And also one-half of the debts of the second community existing on 16th May, 1884, say $16,406.80 ........................................................ 8,203 40
    Total.........................................................................................$24,954 40
    Before plaintiff can legally and justly talco one-fourth of the property adjudicated to Von Hoven in 1869, and now remaining on hand, she must pay the aggregate of the above throe items.
    9. A parent who hold's property in common with his minor children may have a part and need not have the whole adjudicated to him, C. C. 343 (338), and where the only object of the proceedings is to adjudicate a part of the property of the first wife’s succession, or rather of the first community, and there is no attempt to liquidate and settle the whole succession, and the general debts and funeral charges and expenses of last illness and other debts are wholly omitted, and only those affecting tills particular property adjudicated are mentioned, there is no duty or obligation to describe or mention property or assets, which it is not desired to adjudicate under the article, and since estoppel is relative to persons, the parent is not estopped to allege and prove that at the time he had other property which ho did not wish to have adjudicated, and in no event could he be estopped as to plaintiff, who could not be injured legally by his failing to include all his property in such proceedings.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff and defendant were married in 1868. In 1884 the hnsband sued the wife for separation from bed and board and obtained judgment, which became final on December 17, 1884, and from which no appeal was taken. Subsequently he obtained a final divorce.

On June 9, 1886, plaintiff filed this suit, in which she claims a settlement of the community of acquets and gains which subsisted during the marriage, and which was terminated by the judgment of separation from bed and hoard rendered in 1884. Rev. O. 0., 155.

The defendant joined issue on the merits, and the trial of the ease had made some, progress, when he filed a peremptory exception founded on law to the effect that, by reason of plaintiff’s failure to accept the community within the delays allowed by law, she had tacitly and irrevocably renounced the same, and her right of action here asserted was thereby barred and destroyed.

From a judgment maintaining this exception the present appeal is taken.

The exception is founded on Art. 2420, Rev. O. C.: “The wife, separated from bed and board, who has not within the delays above fixed, to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prolongation from the judge after the husband was heard, or after he was duly summoned.”

It is shown and is undisputed that plaintiff did not accept within the term prescribed, and obtained no prolongation thereof from the judge.

The above article is taken from Art. 1463 of the French Code, and its meaning and effect are conclusively settled by both our own and the French jurisprudence. It is universally held to mean that the failure of the wife separated from bed and board to accept the community, either expressly or tacitly, within the prescribed delay, operates a conclusive renunciation thereof, which is irrevocable, and which bars any subsequent acceptance or assertion of community rights. 5 Mareadé, p. 605; 3 Baudry-Lacantiniére, p. 130; 22 Laurent, pp. 425, 431; Herman vs. Theurer, 11 An. 70; Aurich vs. Lamothe, 12 An. 76; Ewing vs. Altmeyer, 15 An. 416; Decuir vs. Lejeune, 15 An. 569; Shoddy vs. Brashear, 13 An. 469.

We do not understand the learned counsel of plaintiff to dispute the perfect validity of the exception, if Art. 2420 remains in force.

But they claim that this article has been repealed by the statute No. 4 of 1882, which is in the following words:

“ At the dissolution, for any cause, of the marriage community, it shall be lawful for the wife to accept the community of acquets and gains under the benefit of inventory, in the same manner and with the same benefits and advantages as heirs are allowed by existing laws to accept a succession under the benefit of inventory.”

The statute contains no repealing clause, and it can not be held to repeal Art. 2420 by implication, unless its provisions are “contrary to or irreconcilable with those of the former law.” • R. O. O. 23 Repeals by implication are universally disfavored. The principle formulated by Mr. Sedgwick and approved by this tribunal, as well as by courts generally, is that “ laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject, and it is, therefore, but reasonable to conclude that the Legislature, in passing a statute, did not intend to abrogate any prior law relating to the same subject matter, unless the repugnancy between the two is irrevocable.” Sedgwick Stat. Construction, pp. 106, 98; N. Q. & C. R. R. vs. City, 34 An. 441, and authorities there cited.

There is no such repugnancy between the Article 2420 and the subsequent statute. On the contrary, they may well stand together, and might be incorporated in a single consistent statute, which would provide: (1) The delays within which the wife separated from bed and board should be bound to signify her acceptance; (2) that said acceptance, however, might be made' under the benefit of inventory in the same manner and with the same benefits and advantages as the law provides in the case of beneficiary heirs. Where is the inconsistency? The article and the statute, in fact, treat of different matters. The article treats of the time within which the wife must signify her acceptance; and the statute treats of the manner in which she may accept.

The evil intended to be remedied by the statute was very clear. Under the prior law the wife, in all cases, was bound to accept or renounce the community unconditionally, taking upon herself the risk of its solvency or insolvency. The object of the statute was simply to change this, and to authorize the wife to accept under benefit of inventory, whereby she incurred no liabilities beyond the value of the community.

We have been unable to appreciate the force of the argument of counsel that the Act of 1882 destroys the reason and motive on which Art. 2420 rests, and that ratione eessante, eessat etiam lex. His suggestion of the reason underlying the article as being intended only as a protection to the wife, is quite contrary to the view expressed by this court and by the French commentators.

“The reason of the rule,” said this court, “ is doubtless this: the husband is the head and master of the community, and at once responsible for its debts, and being seized of it he ought not to be compelled to demand of the wife a partition of the effects in- his hands, and thus lessen his means to meet the debts, particularly as he is responsible for the whole, whilst his wife, by acceptance, would only be responsible for one-half of the same. The interest of the creditors and of the public require that the delay allowed the divorced wife to accept should be, as provided by the Code, a short one.” Herman vs. Theurer, 11 An. 70.

Other reasons are given by the French commentators, but all are entirely contrary to the one suggested by counsel. 3 Baudry-Lacantiniére 130; 22 Laurent 425.

Authorizing the wife to accept with benefit of inventory detracts. in no manner from the reason and policy of the law which requires her to exercise the right within a brief delay, under penalty of forfeiture.

The objection to the timeliness of pleading the exception is unfounded. It is clearly a peremptory exception as defined by Art. 845, O. P., “which, without going into the merits of the cause, show that the plaintiff can not maintain his action, either because it is prescribed or because the cause of action has been destroyed or extinguished.” Such exceptions, under the express terms of the following Art. 846, “may be pleaded in every stage of the action previous to the definitive judgment.”

The contention that plaintiff tacitly accepted the community within the term prescribed finds no support in the record. Surely the suggestion is hardly serious that because the wife is indebted to the community for sums advanced during its existence for her separate estate, her failure to pay such debt is to be treated as a conversion of community property operating as an acceptance.

The earnest and very able argument of counsel for plaintiff has commanded our attentive consideration, but we can discover no ground for reversing the judgment of our learned brother of the District Court.

Judgment affirmed.  