delivered the opinion of the court.
This is an action instituted by a part of the children of Francisco Placencia and Franijoise Poulonne Simoneau, his wife, lately deceased, against the surviving husband and father, together with the other children, with a view of compelling a partition of the effects of the community formerly existing, and the further partition among the children of the half belonging to them in the right of their mother.
The defendant, Francisco Placencia, in answer alleges, that he is entitled during life to the usufruct of all the Pr0Perfy composing the community, in virtue of a mutual donation,- stipulated by marriage contract, in favor of the . r . ° . survivor, in support oí his pretensions he relies on an instrument which appears of record, purporting to be a marriage contract, passed before Don Nicholas Veret, com-o ■> í 3 of Valenzuela, in Lafourche, in the year 1793. This instrument is not authenticated by the signatures of any witnesses, nor is mention made in the body of it of any witnesses. All the parties sign by their ordinary marks, and ^ onty signature susceptible of proof is that of the commandant. We are therefore of opinion, the judge did not . , . ... err m disregarding it as authentic evidence of a contract,
The Court of Probates gave judgment in favor of the pi9™^®3? an(l ordered an inventory with appraisement, and subsequently a sale of all the property, for the purpose of *577effecting a partition. This part of the judgment, we think, ought to be modified, because the sale must depend upon the fact that the property cannot be conveniently partaken in nature, which according to the Louisiana Code, must be made to appear by the report of experts. The surviving husband has also a right first to have his half set out to „ . i t mm m nature, if it can be done.
xhe surviving partner of the community, has the right to have his half set out to him in nature, ifitcanbedone.It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be aifirmed, with costs; reserving however to the defendant, Francisco Placencia, the right of having his half set out to him in nature, if practicable, and that no sale take place unless it shall appear to be necessary according to law, and without prejudice to the rights of the tutors of the minor children.