delivered the opinion of the court.
The plaintiff was heir of the testator, whose estate the defendant represents, and he sues the latter to establish a debt which the ancestor owed him. The claim is resisted on the ground that by his acts he has made himself unconditionally liable for all the debts of the succession, by which, according to the principles of our law in regard to confusion, the debt is extinguished.
By the 1022 article of the Louisiana Code, heirs who have embezzled or concealed effects belonging to the estate, lose the faculty of renouncing, and remain unconditionally heirs.
In a suit by an heir to recover of the ex-alleged to^be due to him by his ancestors estate, the ex-troducema5evidence to show that the heir has lost all eiybyattemptzle or cl an destinely carry aoTthePsucces^ si°n. clandestinely^ tyofhiPancestor’s successionoutofthe state, or attempts to do so, he becomes alfthe debfaof the succession, wMch he'prea'creditor'are extinguished by con usion.Evidence was offered to show in the court below that the clan(jestinely took and carried out of the limits of the state, several slaves which had been inventoried as the property of the estate, and that he was followed by the executor who retook them.
4 _ _ . . , 1 The court below rejected the testimony as irrelevant, ana in our opinion erred in doing so. The act, if proved, brought the case within the provisions of the law already cited; and ^ that law, by making the party guilty of it responsible for all the debts of the succession, extinguished any right which had previously existed in him as creditor. There can be no doubt 1 J that the heir by taking property clandestinely and carrying it out of the limits of the state, is guilty of an act of .embezdement. And it is not necessary the attempt at fraud should be successful, to subject him to the penalty of the law. The article already cited, says he shall lose all share in the property g0 embezzled, which necessarily supposes that it has been recovered and in the hands of those who represent the estate.
As the plaintiff may have rebutting testimony which he did not offer in consequence of the decision of the court below, the cause must be remanded.
^ *s’ th®refbre, ordered, adjudged, and decreed, that the judgement of the Probate Court be annulled, and reversed; and it is further decreed, that the cause be remanded for a new ^rial, with directions to the judge not to reject evidence which may show the plaintiff carried slaves belonging to the successjon? ou£ 0f |be limits of the state; and it is further ordered, that the appellee pay the costs of this appeal.