delivered the opinion of the court.
The plaintiff alleges that she is one of the heirs of Pouponne Darembourg, deceased, wife of André Latour; that the formalities required by law, for the liquidation and settlement of the succession, were duly complied with by the sale of the property held in community; that André Latour, Pierre Latour, and Prosper Latour, purchased the greater part of the property on long credits; that the succession has never been settled, and that the interests of the heirs require that a partition and final settlement be made. She prays that the surviving husband and all her co-heirs may be cited; that a partition and final settlement be made, and that she may have judgment for her share.
Two of the heirs excepted to the action, on the ground, that the partition now prayed for, had already taken place, and the share coming to each, ascertained by deed or act passed before the parish judge, acting as notary public, at the request of the plaintiffs; and that said partition could be attacked only by way of opposition, and that plaintiffs could claim only a specific sum, thus ascertained.
This exception was sustained, and the plaintiffs appealed.
The partition made by the notary, must govern, as to the share of each heir, and if a*>y of them received more than their share, at the sale of the estate, an action will lie in favor of the otlier heirs, to recover and equalize the shares, in courts of ordinary jurisdiction.The act of partition relied on in support of tbe exception, recites, that “tbe surviving husband and the heirs, properly-represented, appeared before the notary, who was the same judge of probates, in pursuance of previous notice, and that the notary proceeded to open the present procbs verbal of partition.” It then sets forth the net amount of the estate, in money, after deducting tbe charges, and concludes by exhibiting tbe distributive share of each of tbe heirs. It appears to be signed by all parties interested, tbe married women duly represented by their husbands.
We are of opinion, that the Court of Probates did not err in sustaining the exception. While this act remained in force, and not rescinded, no new partition could be provoked. The parties are to be governed by it, as to the shares they are respectively entitled to; and if any of the heirs have received more than their share, at the sale of the estate, their co-heirs are entitled to an action to enforce the contract and to equalize the shares in courts of ordinary jurisdiction.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.