Smith v. Nelson

Citations

• 121 La. 170
• 46 So. 200
• 1908 La. LEXIS 647

Syllabus

<p>1. Husband and Wife — Community Property — Surviving Spouse — Usufruct—Remarriage.</p> <p>The usufruct in favor of a surviving spouse, which ceases when such spouse remarries, is that established by law upon so much of the share in the community property of the deceased spouse, who has died intestate, as may have been inherited by the issue of the marriage. The usufruct established by the will of the deceased in such share does not so cease.</p> <p>2. Judgment — Res Judicata.</p> <p>Where the major children (by a prior marriage) of a deceased wife, and the surviving husband, upon their joint petition, obtain a judgment ordering the execution of the will of the decedent, and putting them in possession in accordance therewith (the surviving husband as usufructuary of the share of the testatrix in the property of the second community), such judgment is conclusive as to the rights of the parties, unless set aside upon allegations of fraud or error.</p> <p>3. Partition — Sate.</p> <p>Where one who owns an undivided half interest in real estate, which is not susceptible of division in kind, holds the other half interest as usufructuary, the owner of the naked title to the half so held cannot force the sale of either the naked or the perfect title -in order to effect a partition.</p> <p>(Syllabus by the Court.)</p>