
    
      HANNIE vs. BROWDER.
    
    property^not dotfisUpa«-in shehaíamoit-gage on her husband’s property, if iie dispose of it.
    Appeal from the court of the third district*
   Martin, J.

delivered the opinion of the court The plaintiff in the life time of her husband, ia-stituted a suit against him, for a separation of g°°ds and the restitution of her property in his hands. He died before the termination of the suit, and the plaintiff made the present defendant, „. . . ,. , curator of his vacant estate, a party, she proved that she married without any constitution of dot or dowry, and that her husband had received and sold two slaves, bequeathed to her, before the marriage, and that he had also received, from the executors of her father, the sum of S 11,757, part of a larger sum, also bequeathed to her. The district court gave judgment for her to the amount of 2 11,200—-with privilege on the sum of 8 1200—-she appealed.

The defendant having offered his accounts for approbation to the court of probates, the plaintiff intervened and insisted on being placed, as a privileged creditor, for the whole amount of her judgment. The court of probates ranked her according to the judgment of the district court. She appealed from this decision to the district court, by which it was confirmed. From this hatter decision she appealed to this court and both appeals are now before us and have been heard 4 1 together.

This court is of opinion that the district court and the court of probates erred. The property of the wife, was paraphernal, since it was not constituted in dot or dowry. Civil Code 327, art. 19, 329, art. 12 and 13. For her para-phernal property, disposed by the husband the wife has a mortgage on his estate. Id, 339, art. 62.

The plaintiff’s original suit for separation and restitution of her property, could not be renewed against the curator of his estate, quoad the separation, but it might quoad the restitution.

It is therefore, ordered, adjudged and decreed that both the judgments of the district court be annulled, avoided and reversed : and this court proceeding to render such judgment, as in its opinion, ought so have been given, doth order, adjudge and decree that the plaintiff do recover from the defendant, as curator of the estate of her husband, the sum of eleven thousand and two hundred dollars with interest, at the rate of five per cent, from the date of the judicial demand, as a mortgage debt on the estate : the plaintiff having waved her right to the difference, between the sum of S 117,57 in the statement of facts and S 10,000 in the judgment. And it is further ordered, adjuged and decreed that the decision of the court of probates be annulled, avoided an(j reversed, and that the plaintiff be classed for 1 the said sura, as a mortgage creditor of the estate and that the defendant pay costs in the court of probates, the district and this court.

C. Baldwin for the plaintiff, Workman for the defendant.  