
    
      PIZEROT & AL. vs. MEUILLON’S HEIRS.
    
    East. District.
    
      June 1813.
    The time of prescription in a suit for a partition, is thirty years.
    Solemnities, required in testaments, are matters of strict law.
    Commandants might receive acts, whatever the value of the property.
    Meuillon married the plaintiffs’ sister, in 1787 : five years-after she died, without issue, leaving her husband. Her will contains a bequest pf‘ about twenty four hundred dollars, to be paid from her share in the succession of her mother : another to her husband of “ the enjoyment “ her part in the succession of her^mother, during “ his life, and at his death to her heirs : ” by another clause she “ leaves to her husband, the “ absolute disposition of the goods acquired community, viz. to give them to .those of “, relations of the testatrix, as he shall believe to " have merited them, or to dispose,of them, at “ his will, otherwise, without being holden “ render any account. ”
    Ten months after her death, Meuillon execute ed an act before a notary, wherein he declared that “ of his own free will and mere motion, he , " renounced purely and simply, and in the best “ form of law, all legacies, donations, dispositions “ and aU other advantages, generally whatever, " stipulated in his favour, Jay and in the last will " and testament of Madame Meuillon Pizerot, " his wife, which legacies, donations, dispositions, “ rights and-other advantages, generally what-" ever, for the friendship he has for the bra-thers and sisters of his deceased wife, he aban- " dons to them,¿purely and siinply. To which “ end he obliges himself to return to them the “ twp thousand dollars, which he has received “ from her mother, as a part of her paternal “ estate. This renunciation is declared to be made on condition, that the brothers shall pay the legacies ; which they agreed to do. “ Whereupon, “ the said Meuillon declares the said testament “ generally, in what ever regards him to be void “ and of no effect, and that it is to be considered, “ as far as it regards him, as if it had never been “ made. ”
    A short time after, he paid to the brothers the two thousand dollars, for which they gave him a notarial discharge.
    Madame Meuillon brought nothing into the marriage, at the time it was contracted, and nothing during its existence, but the two thousand dollars of her father’s estate. Meuillon was rich : several negroes and other property were acquired during the marriage. At the death of Madame Meuillon, no inventory was made, nor any account stated or payment made of the matrimonial gains, or profits made during the marriage—to obtain these was the object of the present suit.
    Meuillon, before his marriage, owned a plantation and a number of slaves, which he had contracted- to sell to Mather, who had been put in possession, and had sold about twenty of the slaves -and made some payments : but afterwards^-finding it inconvenient to make the purchase, he surrendered the plantation and the negroes unsold. There was found among Meuillon’s papers, after his death, a loose receipt, by which he acknowledged to have received a certain quantity of indigo, as the last payment of the plantation : .but Mather admitted that the payments he had made were a trifling indemnification for' the slaves he had sold and the use of the others and of the plantation.
    During the carriage, Meuillon had acquired a number of negroes, which he had sold, on a credit to several of his relations, taking their notes therefore : and, at a period which could not be ascertained, he made an endorsement on said notes, declaring his intention that the debtors should be discharged, if he did not collect the amount of the notes, during his life.
    He had at the time of his marriage, a debt due to him by Mather and Stroclder of g 8,500, and he received in payment of it twenty six negroes, a number of whom he sold.
    During the marriage, he purchased, among other property, several negroes and houses and lots, in New-Orleans, and after the death of his wife, he made large improvements on these and other lots, which he then purchased, and added to one of the latter a strip of ground eleven feet wide, from one of those purchased during the marriage.
    
      The plaintiffs insisted 1. that all the estate, left by Meuillon, was to be eonsidered as acquest or matrimonial gain and profit, unless the defendants’ shewed the contrary.
    2. That Meuillon, having made no inventory, the community of goods was to be presumed to have continued till the time of his death.
    3. Otherwise, they were entitled to one half of the acquets during the marriage, and the profits thereof since that time.
    4. That the defendants were bound to account, for one half of the revenue of the plantation, disposed of to Mather, during the marriage; as well as one half of the amount of the notes of Meuillon’s relations., The plaintiffs also claimed one half of the improvements, on the lots in New-Orleans, made since the death of Mad. Meuillon.
    The defendants 1. admitted the first proposition, but contended it must refer to the period of Mad. Meuillon’s death.
    2. That the community was then dissolved.
    3. That no account was due, because there were no gains—-because the will gave them to Meuillon, and the instrument cited could not operate as a renunciation.
    
    The decision of the Court of the first district being, in favour of the defendants, on the last branch of the third proposition of the defendants, the plaintiffs appealed therefrom.
    In the course of the argument, the plea of pres; cription was opposed to the plaintiffs* claim of a division. ,
    
      Livingston for the plaintiffs.
    I. No prescription will run, when there has been no division. Pothier de la Comm. Part. 3, ch. 11, art. 3, n°. 698. The prescription is 30 years. Ahora 380.
    II.. The partnership is renewed when the partner, or the heirs suffer the business to be continued as before. 3 Febrero. 181 ch. 9, s. 1, n. 12.
    A partnership is tacitly contracted in many cases. But whether a new partnership shall be pre-sumed to have been contracted, or the old one continued or renewed, when, the husband or wife being dead, the survivor retains possession of the common property, is affirmatively’answered by Matienzo, Velasco, Escobar and others. Yet it is most true that the partnership does not take place, with the father, who is presumed to have kept the property, as the lawful admirfistrator, and hav. ing the uSufruct of all the maternal and adventitious estate of the son, is not obliged to partid, pate the gains. Ant. Gomez, Var. Rep. 594 n. 2.
    If after a dissolution of the marriage by the •wife’s death, the husband retains the common estate, and make profit thereby, and a division ,be demanded by the'emancipated children, one half of the profit made since the death of the wife shall be *11 given them : the reason is that the husband during widowhood is supposed to remain in the same marriage. Matienzo treats this question at large. Gloss. n°. 1, as. 9, and following. In n°. 13, he says, the contrary opinion seems to have been supported by some : but in n°. 17 to 26, he decides the question by distinguishing different cases : and in almost every one he concludes that the community continues and that one half of the gains are given to the heirs of the wife. 2 Azevedo, 290, l. 5, tit. 9, l. 2, n°. 18.
    The heirs of the wife, whether lawful or instituted, legítimos o extraños shall be entitled to one half of the fruit, of the gananciales, until the division, if any of them were productive. 4 Febrero, 295, l. 1, c. 4, s. 4, n°. 86, 87, & 88.
    If the marriage be dissolved by the death, of one of the parties, and the survivor retain the common property the subsequent gains are to be divided with the heirs of the deceased. 5 Part. tit. 10, l. 10, in notis. By the custom of Orleans, if no inventory is made, the community continues even with collateral heirs. Pothier 848 773. Part. 6, ch. 1, sect. 1, art. 3, n°. 773. A continuation of the community, not according to the Homan laws, prevails in different countries, as Spain, &c. 2 Voet, 157. The husband or marrying again, without making partition with their first children, must communicate to them subsequent profits. Siguenza de C. 402, 110.
    Thus it is clear the partnership was continued by the mere act, of the law.
    III. It was farther continued by the act of Meuillon. He forbore making an inventory as it was his duty, if he had wished the dissolution of the community.
    The surviving husband or wife, administering the effects of the community, ought to make an inventory. Ayora de partitionibus, 10, n°. 9. Ant. Gomez, Var. Resp. 594. Martinez, Azevedo, Escobar.
    
    Every thing, which Meuillon’s heirs do not prove to have been his, before marriage, must be considered as profit and be divided. The income of the estate shall be common, tho’ it belong to husband and wife, in different proportions: but the inheritance itself shall be given to the one to whom it belongs. Nueva Recop. 732, l. 4. Every thing shall be presumed matrimonial gain and be divided, unless the contrary appears. 1. Febrero de contratos 203, ch. 1, s. 22, n°. 241. Nueva Recop. 1. 5, tit. 9, l. 1, Ant. Gomez, in leg. Tauri.
    
    T h e children and heirs of the wife may proceed 
      rem for the one half of the gananciales, which the father may have sold, since the death of the wife but only when his goods are not sufficient to pay the value. Siguenza 415, 149.
    Crop growing, at the time of the decease, is to be divided: so the increase of cattle. Gomez in leg. Tauri, 623, 71.
    The children of a female slave, brought in as a marriage portion belong to the wife, if she was not valued. 4 Partida, tit. 11, l. 21.
    The increase of cattle are fruits, and belong to the usufructuary ; but it is said, not so of slaves : for it would be absurd, that man, for whose use nature has provided all fruits, should be considered as fruit himself. Inst. 1, s. 37 & ff. 22, s. 28. If there be, however, no other reason for the distinction, than this punning conceit, the conclusion is questionable : see ff 22, 1, 14 § 1, where a different doctrine is laid down. De-yise in trust to restore the inheritance, sine reditu : held that the children, born after the devise, shall not pass. See, also Ord. Roy. tit. de las ganan-ciales.
    
    Lastly, the plaintiffs are not barred from any right of theirs by the will, because -
    1. Meuielon has renounced, every advantage therein made to him, in their favour.
    2. In d e e d , nothing was therein given him for his own advantage, he was only made a trustee the will; every thing given to him in it is a fidei commissum, which he was in justice and in honor bound to restore to, the plaintiffs. They, not he,, were the objects of the liberality of the testatrix. He understood the will so, and in discharge the trust reposed on him, he executed the deed of renunciation. i
    3. If it were otherwise, the will would not stand in the way of the plaintiffs. They would take the estate as hceredes nati. It does not appear to have been dictated in the presence of the witnesses : nor subscribed by the witnesses in that of the testatrix,. Those formalities are required by law : and in the confection or execution of a will, whatever is required is matter of strict law, not to be dispensed with : and the non-performance of it imports the nullity of the instrument. This is a question of fact which it is not too late, to examine. 1 Febrero, 173, 189, Code Civil. Pandectes Frangaises.
    
    
      Mazureau, for the defendants.
    I. By the death of Mad. Meuillon, the community was dissolved ipso facto. Such is the general principle ff. de socio, l. 59.
    The partnership is dissolved by the death of one of the partners : so that, in the beginning of it, we cannot stipulate that the heirs will succeed to it. 6 Rodriguez 811. 5 part. tit. 10 l. 1.
    
      This principle is equally applicable to the conjugal partnership as to all other partnerships. The conjugal partnership, being a consequence of marriage, the marriage ceasing, must cease with it. It cannot extend farther; for being contracted for a determinate period (the duration of the marriage) it must end at the expiration of that period. 1 Febrero de juicios, tit. 1, ch. 4, s. 4, n°. 89.
    II. The will has put an end to all the effects of the community : nothing is left to the plaintiffs, in the community. Hence there was nothing to liquidate, no inventory to make.
    He alone, who has an account to give, is bound to make an inventory. 1. Febrero de Juicios ch. 1, s. 2, tit. 1, n°. 42. Meuillon having no child, even if he had an account to render, would not have been bound to make a formal inventory. Febrero, loco citato n. 100. verbo pero por omitir, &c. The want of an inventory does not, therefore, cause the community to continue.
    If there was no common property, in the hands of Meuillon—if every thing belonged to him under the will, or if he was thereby left free of disposing of every thing, without rendering any account, the will may well be said to have left nothing common, between him and the collateral heirs of his wife.
    But the will is said to be void, all the witnesses not having subscribed it, in presence of the tés- , tatrix. . The contrary appears on the face of the instrument; it purports that it was subscribed by the testatrix and the witnesses, after having been read. Febrero holds that this suffices.
    III. By his renunciation, Meuillon has con- ■ tracted no other obligation, but that wlíich is formally expressed. The renunciation could have no other effect, than that which it has had during his life. Supposing that the parties had the intention to renew the community and had expressly renewed it, the stipulation would have been iniquitous and void.
    The renunciation took place ten months and four days after the death of the wife. Thus, at that time, the will and death of the wife had put an end to the community, it could not, therefore be continued; the continuation of a community being its uninterrupted duration. Iiepert. dejurisp.
    
    No new one was intended to be contracted. Meuillon in this act, says he renounces all the advantages he has under the will. This manifests no intention of contracting a partnership. Did he and the plaintiffs contract any ?
    It is the intention of the parties'that ought to direct us rather than the words they have used— Code Civil 211, art. 56. Domat 17, s. 2, art. 10—18 art. 13.
    If the parties had intended to renew the com-mun*ty> or to contract another partnership, would they not have mentioned it? Would the act have been silent ? Had the plaintiffs imagined that there existed a partnership between Meuillon and them, would they have suffered twenty years to elapse, without acting as partners ? We find that as long as Meuillon- lived, they never interfere, never ask even an account.
    On the contrary, on the 6th of January 1793,' Meuillon publicly sells all his property : the plain- . tiffs are present, bid and purchase, as all other persons, without speaking of any right or pretention of theirs. Since the death of Meuillon, they have been present at the sale of his property, and again made a purchase of part of it, as other bidders, without disclosing any claim of theirs.
    Wh At better proof can we have of their intension, at the time of the renunciation ? It is this intention which we are seeking for. In every convention, the intention of the parties is rather to be attended to than their words. Jf. de verbor. sign. 1. 219. 18 Rodriguez, 366.
    'How can we presume that Meuillon intended to renew the community, or contract a partnership with the plaintiffs ? The property was all his own : the plaintiffs were without any thing. We are told he was only a trustee ; the property holden by a Jidei-commissUm.
    
    The disposition, in the will, has none of the characters of a. fidei-commissum or trust. The... trustee may be compelled to dispose of the trust, according to the intention of the person who created it : Meuiiion was authorised by the will to dispose of every thing, as he saw best, without being holden to render any ’account. Even if his intention had been to renew the partnership or contract a new one, I contend the convention would not have been a lawful one.
    Let us attend to the following very important truths.
    1. The community had expired without leaving any gain or profit. '
    2. Under the will, Meuiiion was at full liberty to dispose of the gains or profits, if there had been any, without being holden to render any account of them.
    3. Even, without the will, Meuiiion was master of every thing, since those pretended gains were not sufficient to cover his legal claim.
    4. The heirs of his wife, in whose favour he was renouncing, far from bringing any thing-into the partnership, received from him two thousand dollars.
    5. Before, then, and since that period, Meuii-ion always managed the property alone. -
    Now in order to constitute a lawful partnership, it is Tequisite that every partner" should fuf¿ nish a part of the stock in cash, goods or industry. Dómat, b. 1, s. 1, art. 1 ,p. 73, 3 Febrero de escrituras 165 ch. 9, n. 1, 166 n. 2,
    
      Meuxi-lon furnished all the stock, all the industry, ran all risks.
    Let us then conclude, that if Meuillon had consented to the partnership, his agree-toent would have been illegal and void—binding neither in law, nor in equity—or rather Jet us conclude he never intended to contract a partnership with the plaintiffs.
    If the behaviour of the parties—the absence of a stipulation—their silence for twenty years—the situation of the old community, do. not disprove the intention of contracting a partnership, these circumstances render the pretentions of the plaintiffs in this respect, at least doubtful. ■ A doubt suffices for us. In dubiis semper quod minimuin est sequimur, ff. de oblig., act. 1. 47, 16 Rodriguez, 113. Domat, 18 art. 15, Code Civil 271, n. 62, ff. de verb. obi. 1. 38 § 18 ; 16 Rodriguez 148.
    This principle is so extensive, that when every thing tending to restrain the obligation is not” expressed, it is presumed to have been omitted, ff. de verb. obi. 1. 99, 16 Rodriguez 193. Quia sti-pulatori liberum fuit, verba late concipere;
    I conclude that by the renunciation Meuillon contracted no other obligation than that of paying the two thousand dollars mentioned therein.
    IV. Had Mad. Meuillon died intestate, the society iiot dissolved by her death, and had Meuil-Ion remained in possession of all the property, after her death, still there would bé no continuation of the community.
    The law del Fuero, invoked by the plaintiffs and the only one which may be said to have any bearing on the present case, relates only to lawful children or issue; the plaintiffs are brothers, collateral heirs.
    V. The will is to decide this cause. It gives Meuillon power to dispose of the property, in fa-vour of the heir of the testatrix, whom he may deem the most worthy, or in any other manner, without being held to give any account. '
    This disposition is either a legacy, in favour of Meuillon, or an authority to act as he pleases.
    1. If it be a legacy—he became by the death, : of the testatrix the absolute owner ; because being in possession, he needed no delivery.
    2. If it be an authority : by accepting it, he has contracted the obligation of disposing of the property, to some person, besides himself.
    The plaintiffs contend that the acquets belpng to them. Has Meuillon disposed of them in their favour ? If he has, in what capacity has he done so ; as owner under the legacy, or in execution of the authority given him ? In either case, they are bound to produce an express title.'
    If the disposition was made as legatee, a donation was necessary—where is it ? In the renun-c'iaí:'10n ? None of the sacramental expressions are found there. - It was requisite that he should for-málly declare that he gave : for he had both the title and the possession—because he was owner; and a donation is never presumed. If the clause of renunciation is pretended to be equipollent to a donation, it ought to bé (insinuated} recorded, before the Juez Mayor and on failure, it is void. Part. 5, tit. A, l, 9.
    
    If the disposition- was made in execution of •the authority given him, it ought to have been expressly stated he was acting under that authority, and not that he was renouncing an advantage—for the charge of executing a power is no advantage to the person, entrusted with it. Where is the proof then that he disposed of the property, in that manner ? Not surely in the renunciation. If on the next day the plaintiffs had talked to him about the acquets, he would have answered “ I have renounced, in your favour, all the advantages I had under the will of your sister—• these do not include the acquets, which I am au-thorised to dispose of in the manner I shall think proper. _ This disposition has been made and you have nothing to do there with. ”
    ,The renunciation relates to the portion of Mad. Meu ilion of the succession of her mother: this is evident from the precaution which has been taken to stipulate that all the legacies should be - paid by the plaintiffs.
   By the Court.

This is a case of great import tance, both as to the amount of property in dispute, and the legal principles involved in its de-cisión.

I. The first question, that presents itself for the decision of the Court, is, whether the claim of the appellants is barred by a prescription of ten years.

Several authorities have been cited and, at first view, it would appear that some of them (particularly Febrero) support the doctrine contended for by the appellees; but, upon a close examination of the subject, it will bé found, that thirty, not ten years, is the period of prescription in an action for the division of gains, or the partition of an estate.

It is, indeed, said by Febrero that among persons of full age, after a lapse óf ten years, a division of the inheritance shall be presumed ; but it is clear, from his subsequent observations, that the claimants, upon whom the burthen of prbof is thrown, are permitted to shew that no division was made. In this case, so far fr,om its being pretended, that this has been done, the right of the appellants to partition,-at any time, is denied. The Court are of opinion that even, could the argument of prescription be attended to, at this stage of the cause, it would not avail the ap-pellees.

II. The will of Mad. Meuilion is the next subject, for the consideration of the Court. It is said by the appellants, that it does not appear, from the notary’s certificate of the execution of the will, that it was dictated by the testatrix, in the presence of the witnesses. It has been very correctly observed, that all the solemnities required, in the execution of testaments, are matters of strict la\ir, and ought to be observed. But the objection, to the validity of the will, comes with an ill grace indeed from the heirs of Mad. Meuil-lon, who twenty years ago, recognized its legality, in the most solemn manner, before the proper authority, and accepted from the husband of their sister ,a renunciation of considerable advantages, held under it. If there had existed any doubt, upon this subject, at that period, there can be no question that efforts would have been made to destroy it, by a regular suit, instituted for that purpose, and that would have been the proper time; but the Court are of opinion that, after the solemn act of the very parties appellant, and the long period that has elapsed (in the course of which some of the witnesses have died) it would he xan act of great injustice to permit the validity of the will to be shaken. But, independently of this serious objection, if we attend to the cer-J , tificate of the notary, we shall find that all the essential requisites were complied with : he certifies that the testatrix declared, and dictated the will to him, and that it was made and1 signed by the testatrix, and the witnesses, after it was read ; from which, it may fairly be inferred, that the four wit-⅝ nesses and the notary were all present during the dictation and execution.

III. On the part of the appellees, it is contended that the renunciation of Mr. Meuillon was not executed, with all the solemnities, required by the then existing laws; and is consequently void. This instrument appears to have been made before Jacques Massicot, captain of militia, Commandant and Judge of the parish of St. Charles. It is said, that by the laws of the par-tidas, it is declared that all acts respecting property, above the value of 1500 maravedís d’oro, shall be executed before, and with the knowledge of the Juez Mayor, or superior'Judge of the plape; and this is construed to mean, before the Auditor or principal Judge of the colony.

We can never believe that it was the intention of the monarchs of Spain, to require all that strictness in the execution of acts in their distant colonies, which was required in their populous 'European villages and towns, or that the inhabitants of their most remote Districts in this, or any otheri of, their colonies, should be compelled to execute instruments for the conveyance of property above the value of a certain amount, before the Auditor, or principal Judge of the Province. Eveuin Spain, they might be' made, in the prer sence of a Corregidor, Alcalde-Major or other principal officer. This country was laid out in Commandantcies, or Districts, and all acts within the District, were executed before the Commandant or Judge, and deposited with him. To require a strict compliance with a law, made seven or eight hundred years ago, before America was known, intended for a different region of the world, and a different state of things, and which would shake the titles of half the people of the Country, would in our opinion be. iniquitous and absurd. We believe the practice of the country to hávé been, as stated above. , The Court are of opinion that the Judge of the District was sufficiently authorised, to receive the declaration of Meuillon, and that, consequently, the renunciation was executed with the necessary solemnities.

IV. The next point, for the decision of the Court, is the true construction of this act of renunciation. It,was passed on the 10th of November Í792. . By the statement of facts it appears that Madame Meuillon, on the 31st. of December 1791, made her will and by the ninth clause, she gives the enjoyment of her part, coming from the succession of her niother, tp her: husband j during his life, and at his death to her heira, Meuillon had received in account 2,000 dollars, and more was in expectancy. By the 10th clause, Mad. Meuillon declares her intention, to leave to her husband the absolute disposition of the goods acquired in the community, that is to say, to, “ give them to such of her relations, as he shall believe worthy, ok to dispose of them., in any manner, without being held to an account. ” By this testament, Meuillon had a life estate, a usuT fruct of the succession of his wife, and the abso7 lute disposition of-the community of gains. He remained in possession, and did no act, fbi a considerable time, by which he evinced an iiv téntion to give, to the heirs of his wife, any part of the community. On the 10th of November, 1792, Meuillon by a written act declares, that of his own will he renounces all legacies, dispositions and all other advantages generally whatever, stipulated in his favour in the will of his wife: of . which legacies, donations, dispositions and rights and alf other advantages generally whatever, for the friendship, he bears her brothers and sisters he makes an abandonment, purely and simply : to which effect he agrees tp pay back, the 2000 dol-v lars, he had received, under the express condition of their "paying the legacies charged on the succession. The heirs accept the renunciation and promise to stand in the place of Meuillon. It *s contended by the appellees, that the renunciation relates solely to the property, which was to come from the inheritance of the wife, and n'ot to ally' part of the property, acquired during the marriage : of this opinion was the Judge below, and from that Judgment is this appeal.

It must be confessed that the conduct of the parties goes far to impress a belief that such was their understanding at the time—the long silence of the heirs of Mad. Meuilion, and the several purchases they made at the sale of Mr. Meuillon’s estate are certainly strong circumstances to shew their opinion of the renunciation—this, however, is not conclusive. The Court must decide.the rights of the litigants, by the instrument they have executed and thé law arising from it. Courts wall no doubt give such a construction to a deed, as will fulfil the intention of the parties, when that intention is evidently seen. General declarations will sometimes be restrained by subsequent particular limitations and dispositions; and attention must always be given to the principal object of the contract or agreement. So, in this instance, if, from any part of the instrument, it could be clearly ascertained that the object of the parties was merely the inheritance of Mad. Meuillon, we would restrain the general words of the renunciation, and confine it to that particular estate. But, is there any thing in the deed, restrictive of the general words? Mr. Meuillon renounces all legacies, dispositions, donations, adVantages and rights, stipülated in his favour, by his wife’s will. Was not the absolute disposition of the community, a stipulation, disposition, right or advantage under the will ? If so, it is as clearly renounced, as is his claim to the usufruct or life-estate in the succession of his wife. The Court are of opinion, that the wife’s share, in the community of acquets, was renounced to the heirs of Mad. Meuillon.

But, it is contended that the community continued for the benefit of the appellants to the death of Mr. Meuillon : and to this point, many authorities have been cited. Admitting some of the cases to have weight, there are circumstances, in this transaction, which take it completely out of the principles relied on. A community can only be said to continue, when a copartnership existed, and when no act has been done, evincing a determination to dissolve it, or when no circumstance occur amounting to a dissolution.

But, in this case, there never did exist a community, between Mr. Meuillon and the heirs of his wife. He succeeded to the rights of his wife, and enjoyed them for a considerable time—he was bound to no account, and therefore made no inventory ;, and if, by an act of liberality, he afterwards gave to the heirs of Mde. Meuillon whát he was entitled to, under the will (that is ^ s^lare the acquets at the time of her death,) ⅛ shall riot be construed to work a penalty, and injury on himself, or be presumed that he meant to contract a partnership, with those who had never been associated with him, who had never lived with him, to whom he had already sufficiently exhibited marks of kindness, and who surely have rio right now to claim from his heirs a moiety Of the income of an estate, acquired by his exertions ; in which the appellants had no participation.

This doctrine of the continuation of the community is founded in the fuero real of the kingdom of Spain.. We think it would be easy to shew, from the authority of Febrero, Azevedo and others, that it is necessary to prove the fuero real to be in use and force, in the place, where the continuation of the community is contended for. Febrero, de particiones, b. 1, chap. 4, declares,^ “ the continuation of the conjugal community exists in four cases : one of which is where by custom it has prevailed in a particular place ; but it must llave prevailed, without interruption, or by unquestionable use of the laws of fuero ; and this usage must be proved by other partitions, or divisions, which have been made in those places; but if the usage of those laws be not conclusively proved, they have nq effect, because, the laws of fiero ought to be respected, only when they are '•‘^‘Tved and used: as is ordained by the first law of Toro. The laws of‘Toro (which were made and published in 1505, about 30Ó years after those of the fuero real) having expressly ordained, that . they, who attempt to avail themselves of the laws, shall prove that they are in force, in the place where the continuation of the community is claimed. Nothing of that sort being offered here, * no instance being shewn of the partition of an estate according to such principles, altho’ thousands have been partitioned, the Court, upon this ground alone, would be authorised to reject it— but were they in force, we are of opinion they • would have no application to the present case.

' In order to establish what was the share, to 'which Mad. Meuillon’s heirs were entitled, it will be necessary to refer to some of the leading prin- . tiples which prevail, on the subject of the com- / munity of gains. At the time of the dissolution of the marriage, all the effects, which the husband and wife possess are presumed common gains, unless they shew which of the effects, they brought in marriage, or have been given them separately,' or they have respectively inherited. After having deducted the amount which the husband and wife have proved they brought into marriage or after-wards, and the debts which have been contracted during the marriage, the rest is considered the property of the partnership.

It would have been sufficient for this Court, to have reversed the judgment of the District Court, on the ground ol the erroneous construction of the renunciation, and to have sent the case down with instructions to ascertain the amount of the community, at the death of Mad. Meuillon; but, anxious to cause justice to be done, in the shortest possible delay, we have been induced to express the opinion of the Court, on several points that have been mentioned in the; course of the argument.

Í. With respect to the plantation and ne-groes, possessed by Mr. Meuillon, before his marriage, and which afterwards went to Mather, it is the opinion of the Court, that the community cannot be credited for any part of the supposed profits, during the five years of marriage—this property had been acquired before, and Mr. Meuillon, by the laws of the country, had a right to make what disposition of it he pleased. We do not think, the production of a loose receipt (and that too found in the possession of Mr. ' Meuillon) by which he acknowledged to have received a certain quantity of indigo, as (the last payment of the plantation, nnaccompanied by other explanatory evidence, sufficient to overturn the solemn allegation of Meuillon himself in a Court of justice, and the answer of Mather confessing all the facts charged, as appears recorded in the proceedings of the late Superior Court, It is there also acknowledged by Mather, that the small advances made, were but a trifling indemnification, for the slaves that he (Mather) had sold, and for the enjoyment of the rest for twenty two or twenty three years.

2. With respect to the notes gi.vén by the relations of Meuillon, for certain slaves sold to them, and which were acquired during the marriage, the Court are of opinion, that they ought to be considered, as part of the acquets or gains. It appears that Meuillon, at a period which cannot be ascertained, made an indorsement on the notes, declaring that, if they should not be paid during his life, the debtors should be discharged— - there is no doubt that Meuillon might have made any disposition of the notes he pleased, during the marriage, provided it was not in fraud of his wife. At the death of the wife, the right of her heirs or legatees accrued, and these notes, being unpaid, at the dissolution of the community, by the death of thfe wife, and Meuillon having renounced all advantages under the will, the appellants are entitled to a moiety of the amount of the notes. Had he made this disposition of the notes, and the wife had survived, still she would have had her moiety of the amount;( because, at the very instant’ §f his death, her right would have been complete.

3. The Court is further df opinion that the amount -of'sides of the negroes, bought from Ma- ? ther and Strother, should be brought into the community and that the amount^ due by James Mather and Mather and Strother, be deducted j from the total gains. j

4. As to the lots and houses in New-Or- ,1 leans, we are of opinion that the lots purchased, ⅛ during the marriage, and all such items, as may J; be , within the principles of this decision, be ^ brought into the community, and accounted for in the partition of the estate, and that there be ⅞ deducted therefrom the value of the buildings and improvements, made by Meuillon, subsequently to the dissolution of the marriage, and also the value of the lot of eleven feet adjoining those, purchased after the death of the wife.

It is ordered and decreed that the judgment of , the District Court be reversed with costs. 
      
       Derbigny, J. did not join in this opinion, having befell of counsel in the cause.
     