Martin Davie & Co. v. Carville

Citations

• 110 La. 862
• 34 So. 807
• 1903 La. LEXIS 721

Syllabus

<p>SURVIVING WIFE — ACCEPTANCE OF COMMUNITY-LIABILITY TO INDIVIDUAL CREDITORS— PLEADING AND PROOF.</p> <p>1. While a surviving wife, by failing to have the succession of her husband opened, by failing to avail herself of the benefit of inventory, by taking possession of the property of the succession, by recognizing and paying debts, and by continuing the business of a store which her husband had kept, has unquestionably committed herself to an unconditional acceptance of the community, she docs not, however, by so doing, render herself liable to each individual creditor of the community for the payment in entirety of his debt. Each creditor can recover from her under her status “as widow in community” only one-half of this debt. Had it been alleged and shown that she was in actual possession of specific property on which the creditor had a privilege or mortgage, she might have been proceeded against under proper pleadings to surrender the property, or made to pay the debt in its entirety.</p> <p>2. If the surviving widow has taken possession of community property in value beyond her share, she owes the value of the husband’s share to his succession or to his heirs, and not personally, through a direct action against her, to any particular creditor. Ludeling v. Felton, 29 La. Ann. 722, 723.</p> <p>3. Plaintiff, under an allegation that defendant had “offered to pay his debt, but without interest,” cannot, -over objections, introduce evidence to prove an unconditional promise to pay the entire debt, with interest, particularly when he himself testified that she had “offered ' to pay the account in full if h% would take off the interest, but that she would not pay the interest.” An acceptance of an offer must conform to its conditions. Civ. Code, art. 1805.</p> <p>Blanchard, J., dissenting.</p> <p>(Syllabus by the Court.)</p>