ROBIN ET ALS vs. CASTILLE, 7 La. 292

Bullard J., delivered the opinion of the court. The plaintiffs sue as heirs at law, of the deceased wife of the defendant, for the sum of one thousand four hundred and sixty-nine dollars, received by him during the marriage, as the share of his wife, in the succession of her grandmother, and which constitute her paraphernal estate.

The defendant resists their claim, on the plea, that there existed between him and his late wife a community of acquests and gains, which the plaintiffs have never renounced, but which on the contrary, they have accepted purely and simply; that the community has never been in any way settled, nor partaken between him and the plaintiffs; that it is only in settling the community, that-the rights of the.parties against it, can be ascertained and liquidated, and that the plaintiffs have no right to set up any claim against the .respondent, until the said community is brought to a final settlement; that the plaintiffs are bound to pay one-half of the debts of the. community, and that on a fair settlement, it will be found,' that the defendant is not indebted to the amount claimed.

The heirs of the who dies without antThlvea right at once to 5e-mand her paraphernai proper^gToi-TTetUecommunity of TuTsTvith The ™"ivlns lms" . The wife durence of the comrighTto resume *en of\“Tparaphernai proponty' When the wife seized of Til'the “Tárate estate, from the decease, This exception presents, for the consideration of the court, the question, whether the heirs of the wife have a right, at once to demand her paraphernal property, without waiting for a settlement and liquidation of the community of acquests • ,. , -ci and gains.

The argument in support of the negative of that proposition, goes to assume as a principle,- that money received by the husband during the marriage, on account of his wife, is mixed and blended with the property composing the community, and forms a charge upon it, rather than a debt due by the husband. And yet it is admitted, that the wife, on renouncing the community, has a right to claim her paraphernal property. The 2380th

article of the Louisiana Code, declares that “ the wife who renounces, loses every sort of right, to the effects of the partnership or community of gains. But she takes back all her effects, whether dotal, extra dotal, hereditary or proper.” The counsel for the appellant infers from this article, that it is only on her renunciation, that she has a right to take back her paraphernal estate. This reasoning is not satisfactory to this court.

Such a principle would be inconsistent with certain well settled doctrines of our law; 1st, That the wife herself, even during the existence of the community, has a right to resume the administration of her paraphernal property ; and 2d, That constituting her separate estate, her heirs are seized of it, at the moment of her decease. If instead of money, the husband had received property, still existing in nature, the heirs would undoubtedly have been entitled at once, to the possession of it. Indeed the converse of the proposition, contained in the

article of the Code above cited, cannot be correct,; to wit: that if the wife does not renounce, she shall not take back her separate estate, because the only consequence of accepting the community, is to render her liable for one-half of the debts. Moneyreceived during marriage °v1fet°°does°fnot fail into the commumty, but remains her »eparate property. The authorities cited from French commentators, refer to a sys|:em different from that established by the Louisiana Code.

It is believed, that under the Code Napoleon, a sum of money received by the husband on account of his wife, during marriage, belongs to the matrimonial community, and consequently is affected to all the charges upon it, and C0UM only be accounted for to the heirs on a final liquidation and settlement of the community.

By our Code, it is different: . , . , . money so received, does not fall into the community. gut jt ¡s contended, that the heirs of the wife in this case, are bound to pay one-half of the community debts, out of her separate estate, and that consequently, they ought not to be permitted to withdraw this fund from the hands of the surviving husband, until the debts shall have been paid. Whether the heirs be bound to pay the debts, is in our opinion, a question between them and the creditors.

The husbancPis, at all events, liable for the whole, and a partition of the community cannot be made, without provision for them; but it does not, in our' opinion, follow that the husband is authorised, after the dissolution of the marriage, to retain, the paraphernal property of his deceased wife. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.