YOUNG v. RAPIER, 94 F. 283

Having stated the case, the opinion of the court was delivered by PARDEE, Circuit Judge. The only bill of exceptions found in the transcript is irregular and insufficient. It recites that “the plaintiff offered in evidence, to support the allegations of her petition, written and printed documents as hereinafter set forth and numbered, and of the tenor and in the words and figures as therein appear, and' as herein made part, and hereto annexed,” while there are no documents thereafter set forth and numbered, and thereinafter appearing, or as thereinafter made part, or thereto annexed.

In the transcript, preceding the bill of exceptions, is inserted, although making no part of the record proper, an alleged note of evidence, identified by no one; and, following the same, appear alleged copies of certain records and documents, no one of them identified in any respect. If a motion had been made to affirm the judgment of the circuit court because the.re was no sufficient bill of exceptions showing the ruling of the court complained of, we would have been inclined to take that course in disposing of the case.

A careful reading of the petition leads to the opinion that the suit is one to recover an undivided half interest in certain real estate described in the petition, and one third undivided interest in the Picayune plant; the same being claimed as belonging to the plaintiff, as the widow in the community of the late A. M. Holbrook. The theory of the case advanced by the learned counsel for the plaintiff in error is that the suit is one to recover an estate, to wit, the one undivided half of the community existing between the plaintiff and the late Alva M. Holbrook during their marriage.

It is on this theory that the pleas of prescription interposed are sought to be avoided. It is very doubtful whether the suit, in any aspect, is on the right side of the docket. It seems to be a suit for the ascertainment of a community interest, where the plaintiff can only recover after a settlement and accounting. Taking the case, however, as presented, we are of opinion that the ruling of the trial judge directing the verdict in favor of the defendant was proper, because of insufficient evidence to warrant a Arerdict in favor of the plaintiff for any specific property or any specific sum.

Neither of the two pieces of real estate which appear to have been acquired by A. M. Holbrook during his marriage with Jennie Bronson is shown to be now in the possession of, or to be in any wise claimed by, the defendant. There is no evidence in the record showing or tending to show that Eliza J. Poitevent, widow and testamentary executrix and universal legatee of Alva M. Holbrook, ever came into the possession of either piece of said real estate. The plaintiff was certainly not entitled to recover from the present defendant an undivided half interest, or any interest, in either one of these pieces of property.

The evidence in the record shows that the Picayune plant was acquired by A. M. Hol-brook prior to his marriage with Jennie Bronson. This being the case, for the community interest existing between A. M. Holbrook and Jennie Bronson the latter could only claim the increased value of the same growing out of the expenditures "of community assets, and on this subject the record is silent. The plaintiff herself testifies: “As to the amount of property possessed by A. M.

Holbrook at the time of our marriage, and its value, I have no means of knowing, nor of wbat it consisted, except that we had real estate and personal property.” Of course, all the real and personal property owned by A. M. Hol-brook at the time oí his marriage with Jennie Bronson formed no part of the community.

Aside from the failure to prove any interest sufficient to warrant a verdict, a conclusive reason why the plaintiff in error could not recover is the fact that, within the delay given by the law after the dissolution of the marriage, she did not accept the community, nor obtain a prolongation of the time for deliberation from the judge, and she is therefore conclusively presumed to have renounced the community.

Article 2411 of the Revised Civil Code of Louisiana provides as follows: “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 or extradotal.”

Article 2420 of the same Code also provides as follows: “The wife, sejiarated from bed and board, who has not within the delays above fixed, to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prolongation from the judge, after the husband was heard, or after he was duly summoned.” These articles of the Code have been construed by the supreme court of the state in precisely similar cases. In Herman v. Theurer, 11 La.

Ann. 70, it was held: “Where the community is dissolved by the death of the husband, the surviving wife is presumed to have the intention to accept the community, and her right to renounce is subject to the same rules as govern the beneficiary heir. But a different rule prevails where a divorce has been pronounced. Unless the wife accepts the community within the delay allowed by law, or obtains from the judge a prolongation of that delay, she is supposed to have renounced the community. Civ. Code, art. 2389.” In Succession of Ewing v. Altmeyer, 15 La.

Ann. 410, it was held: "Where a marriage has been dissolved by a judgment of divorce, if either party brings suit to recover Ms or her share of the community property, it must he shown that he or she accepted the community within the legal delays after its dissolution by the senlence of divorce; otherwise, the pretensions are without foundation in law.” In Weller v. Von Hoven, 42 La. Ann. 602, 603, 7 South. 702, the question wa.s further considered, and the court say: “The exception is founded on

article 2420, Kev. Civ. Code: ‘The wife, separated from bed and board, who has not within the delays above fixed, to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prolongation from the judge after the husband was heard, or after lie was duly summoned.’ It is shown, and is undisputed, that plaintiff did not accept within the term prescribed, and obtained no prolongation thereof from the judge. The above

article is taken from

article 1463 of the French Code, and its meaning and effect are conclusively settled by both our own and the French jurisprudence. It is universally held to mean that the failure of the wife separated from bed and board to accept the community, either expressly or tacitly, within the prescribed delay, operates a conclusive renunciation thereof, which is irrevocable, and which bars any subsequent acceptance or assertion of community rights.” In the instant case the record shows conclusively that the marriage between Alva M. Holbrook and Jennie Bronson was dissolved on the 15th day of December, 1871.

There is no evidence to show, nor tending to show, that Jennie Bronson, the divorced wife, accepted the community at any time thereafter until the institution of this suit. The suit instituted in the state court (32 La. Ann. 13), and proved, was to obtain the nullity of the judgment decreeing a divorce and for alimony. That case seems to have been disposed of by the supreme court of thé state of Louisiana in January, 1880, and adversely to the plaintiff in error, since which time, until the institution of this suit, no action appears to have been taken, accepting or renouncing the community.

The judgment of the circuit court is affirmed.