
    BREAU vs. LANDRY ET AT.
    APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF ST. MARTIN.
    Where the husband seeks to recover certain property as his part of the-community, in his own right, from the heirs of his deceased wife, who claim it under her last will, although he may give to his suit, the form of an action of partition, yet it involves title, and the probate court is without jurisdiction.
    This is a suit purporting to be an action of partition. The plaintiff as surviving husband, sues in his own right, and in behalf of two of his children by his deceased wife, Mathilde Broussard, alleges that a community of property existed be-* tween the spouses during marriage; among other things, there was a plantation and improvements, belonging to said community, at its dissolution, one-half of which belongs to him, and the other to the children and legal heirs of his deceased wife, which has never been partitioned among them. That Lise Landry, widow of Alexander Breau, one of said children, now wife of Gilbert Sourier, being an heir of Mathilde Broussard, have taken possession of the plantation and improvements without any legal right, and retain the same, in virtue of a pretended will of said Mathilde, whereby she bequeathed her property to her eight children. The plaintiff admits the will may be good, as regards one-half of said property, but that the other, belongs of right to him, as surviving partner of the community. A partition is prayed for according to law.
    
      The defendants plead the general issue, and aver that the community property of the plaintiff and wife had been partitioned, and definitively settled between the plaintiff and the heirs ; and that the property now claimed, had been set apart to Alexander Brean, one of the heirs of said Mathilde, and of which these defendants are now in the quiet and peaceable possession.
    The answer sets up various other matters in defence, and avers that the plaintiff is without any cause of action ; that this suit is vexatious, and intended to harass the defendants, by reason whereof, they claim five hundred dollars in damages.
    Upon these issues and pleadings, the case was brought before the Court of Probates. The judge of the probate court, was of opinion, the issue between the parties involved questions of title, and that he had no jurisdiction of the case. There was judgment dismissing the suit for want of jurisdiction, and the plaintiff appealed.
    
      JVeveu, for the plaintiff,
    argued to show that this was clearly an action of partition among heirs, of the succession of Mathilde Broussard deceased, and that the Court of Probates has exclusive jurisdiction.
    
      Voorhies, contra,
    insisted that the case involved questions of title, which could only be inquired into by the courts of general jurisdiction. The defendants claimed the properly in their own right, as having been ■ bequeathed to them by the deceased wife of the plaintiff. It had been partitioned, and they claimed under a title.
   Morphy, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment of the Court of Probates, of the parish of St. Martin, dismissing his action for want of jurisdiction. The petition charges, that at the death of Mathilde Broussard, the wife of Pierre Breau, the present plaintiff, all the property then existing, was community property. That part of it consisted of a plantation of twelve arpents, on the Bayou Teche, with certain improvements made during the marriage; that since the death of Mathilde Broussard, her husband, Pierre Breau, has caused to be built on said land, out of his private funds, a cotton-gin house, and has purchased and employed ten thousand fencing pieux, in enclosing the greatest part of the plantation; that one-half of all said property belonged to Pierre Breau, and the other-half to the heirs and legal representatives of his deceased wife ; that Lise Landry, the widow of Alexander Breau, and tutrix of his children, and her present husband, Gilbert Sourier, have forcibly and unlawfully taken possession of said land, and the improvements ; and do still retain the possession of the same, against the will and consent of the petitioner, in virtue of a pretended will and testament of the said Mathilde Broussard ; whereby she bequeathed the said land and part of the improvements to her children, the defendants. That the said last will may be good, with regard to the share of the said Mathilde Boussard in the said plantation, but that it is without effect as to the share of said Pierre Breau, and that it is almost impracticable to divide the said land and improvements in kind without injury to the parties concerned; the petition then concludes with a prayer for a partition, &c. We think, that the judge below acted correctly in declining to take jurisdiction. Pierre Breau, does not claim, as one of the heirs of his wife, Mathilde Broussard, but he seeks to recover from them property belonging to him in his own right, and which his wife, as he alleges, unlawfully bequeathed to them. The form of a partition, which he has given to his action, cannot change the nature of his claim, which is clearly one for the recovery of property, alleged to be unjustly withheld from him. His ownership is not admitted by the defendants, who hold as absolute owners, under the will of their mother, and are in actual possession. The validity and strength of their title cannot be passed upon by the Court of Probates. 2 Louisiana Reports, 25, Sharp vs. Knox. As to the improvements alleged to have been made by Pierre Breau on the plantation, since the dissolution of the community, they may entitle him to a claim against the heirs of his wife, in a court of ordinary jurisdiction, should they be declared the sole proprietors of the land.

Where the husband seeks to recover certain property as his part of the community, in his right, from the heirs of his deceased wife, who claim it under her last will, although he may-give to his suit the fox*m of an action of partition, yet it involves title, and the Probate Court is without jurisdiction.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.

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