
    Charles F. Cleiborne, Judge.
    SUCCESSION OF EDWARD THOMPSON
    No. 8697
    June 30th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit to-compel acceptance of title of property No. 1631 St..Anthony Street described as follows:

A certain lot of ground, situated in the Third District

of this City, designated by the No. 9 in Square No. 36 (now 751), bounded by St. Anthony, Bourbon (late Bagatelle), Claiborne (late ■ St. Avid), and Derbigny (late Prosper) Streets, on a plan of Ls. ■' .H» filie, late Surveyor, dated December 5th, 1845, deposited in ’..vithe office of Jules Mossy, late Notary, and measures, in American "'Measure, 25* 7" 7’" front on St. Anthony Street.by 128*2’' deep -between parallel lines. Purchased by Edward Thompson from G. H. : S.cbmidt by act of Joseph Cohn, Notary, dated December 8th, 1865; Reg. C.O.Bk. 88 p 695.

Edvard Thompson died intestate bn October 12th, 1905; he'.leftpo ascendants, nor descendants, nor collateral heirs; :. he-married'Catherine Gleason on December 13th, 1856; she survived ;-.him'fag '.his -sole and only heir, under Articles C. C. 917 (911), 924 (918); 930(924) to 932 ( 926); 949 (943).

Widow Edward Thompson then married James Healey; she died ;'|«he',,'8th, 191-9; her succession was opened in the Civil District '.Court under No. 127,616; Mary Ann Hanlon, widow of James Hanley, íwsts -recognized as -her -sole heir and put in possession of all the property-left by képV'í/- ■

Widow-.James Hanley opened the Succession of Edward ThoápSoh.under the No. 140,911 of the'Civil District Court. She ^-Jfged-áll the facts herein above recited and further

■ ■ "that; .as- -heir at law of her .said aunt, and her said aunt ■ ®i:v&k:'^drbsai'd, .'she,, said'‘.petitioner, being desirous of : completing the record and being recognized as the sole and only heir at Law of said decedent as aforesaid, hereby a.ccepts purely and simply the -Succession of said late Edward Thompson and desires to be sent into possession of all his right, title, and interest in and to tire properties acquired during said community, and in and to all the property left by said decedent and in ps rticular to the Real Estate hereinafter described. She therefore irayed to be "recognized as tire sole and only heir at law of the said late Edward Thompson as aforesaid' and accepting his said succession purely'and simply, prays that her 3aid aunt, Catherine Gleason Thompson, his surviving widow in community, be recognized as the sole and only heir at lav/ of the late Edward Thompson, and that the petitioner being her sole and only heir at law aforesaid she be sent into possession of all the oroperty left by liim and in particular of all his right, titles, and interest in and to the following described property, to-wit: tlien follows the description of tv/o properties including the pronerty Ho. 1631 St. Anthony Street.

Judgment v/as rendered accordingly recognizing Mrs. Cathey ine Gleason, widow in community of Edward Thompson, and as such owner in her own right of one undivided half of all the property acquired during the community, and also as the sole and onl^ heir of her said husband Edward Thompson and as such owner of the other undivided half of all,the community property left by him; and. petitioner Mary Ann Hanlon, widow of James Hanley, v/as accordingly put in possession as owner of all the property left by said Edvard. Thompson.,

Thereafter Widow James Hanley sold the. property 1631 St. Anthony Street to tlie defendant herein, Joseph Dumett. He refused the title. A rule was taken against him to force compliance. For reasons why he would not take the title Joseph Dumett alleged: that while.Edward Thompson died in 1905, his succession was opened only in 1922; that neither hid widow nor Widow James Hanley core-plied with Article 930 of the Civil Code in that they failed to take an inventory of the propertv left by Thompson, or to have an attorney appointed to represent the possible absent heirs, or to furnish bond. From a. judgment against him, defendant has pnerled.

There is no doubt that under the Articles of the Civil Code cited above the surviving spouse was not siesed of right of .,j .> orojtrty of the deceased by mere operation of Jaw, as are ? ■ ; cirs, and that me right of possession and -.bsolute owners' ip depended uponlsts^compliance with those formalities as a :or...ition precedent. 44 A. 801; 52 'A. 960.

nevertheless the surviving spouse inherited or acquired the rights of an heir, and transmitted them to hor own heir even 7 oefore she had exercised them.

C. 0. 949 (943): "natural children and the surviving husband or wife before ueir.g put in possession of the estate left- ' i them, are not considered as having Brocee-’ 1 to ,c deceased from the instant of his death; -ut • y ao not the less, transmit their rigilts to their uro, if they die-before having nade their demand to bo put into possession. The reason is, that this sort of heirs having only a right of arbi in to cause themselves to be put in possession of successions thus falling to them, this rig..t and this action form a part of iheir succession, vhich they transmit to their heirs". 28 A. 859-

".it since these Articles of the Goce -.-ore adopted, and since those decisions were rendered interpreting them, there has intervened legislation which repealed all those portions of the above articles, requiring the formalities of an inventory, an attorney for absent heirs and a bond, as far as commuiity property is concerned.

Act 57 of 1910 p 93 as amended by Act 80 of 1916 p 201 reads, in part, as follows;

Awt. 915. "In all cases, when either 'husband- or wife” shall die, leaving no ascendants or descendants, and without having disposed by last will and testament, of his or her share of the comnunity property, such undisposed of share shall be inherited by the survivor in full ownership. But in the event &c".

If Widow Thompson had attempted to exercise her rights as heir of her husband at any time prior to the Act of 1910 there is no doubt that it would have been necessary for her to have com* plied with all the conditions of inventory, attorney for absent heirs, and bond, required by Article Oivil Code 930; even a judgment, without those formalities, would not have availed her. 44 A. 801; 52 A. 960; 128 La. 752.

But even a compliance with all those requirements would not have invested the surviving spouse with a psafect title,

"in case any heir should come forward within the space of three years after his or her having been put in possession &c".

But after the passage of the Act of 1916 the law,under certain conditions, constituted the surviving spouse a legal heir to the amount fixed by law, and did not require of him the performance of any formalities. The right of Widow Thompson to exercise her quality of heir of her husband originated with his death, but was held in abeyance until she, or her heir, had complied with certain formalities of law. She might have been unwilling, or unable, to comply with the conditions of the law; yet her right and that of her heir would remáin in a state of suspend: ed animation without prescription against it. In the meantime, the legislature might have repealed Article 930. When the heir in this cane chose to exercise her right, she was bound to conform only to such formalities as the law required at that time.

When Widow James Hanley asked that Widow Thompson bar recognized, as the heir of her husband and that she be put in possession of Thompson's share of the community property, the Act of 1916 had impliedly repealed Article 930, as far as community property was concerned and' constituted the surviving spouse a legal heir seized, of right of the succession of the deceased. We are therefore of opinion that the judgment obtained by Widow James Hanley recognizing her as the heir of Edward Thompson and of his widow and putting her in possession of all the community property left by them was legal and valid, and that the judgment appealed from must be affirmed.

Judgnent affirmed.

June 30th, 1922.

REHEARING NOT APPLIED FOR  