On Rehearing.
DAWKINS, J.[8] After a further consideration of this cause, we are convinced that the judgment of separation rendered between Mrs. Ernest Naquin and her husband in 1877 was without effect, both because there was no bona fide effort to collect the moneyed portion of the judgment, or to otherwise execute it, in so far as a separation of the physical property belonging to her and her husband was concerned, and because there was no sufficient proof to establish the embarrassed financial condition of her husband. The proof shows that the husband owned the identical property which is now (or its proceeds) the subject of this litigation when the judgment was rendered, although it was mortgaged; but this did not prevent her issuing execution and obtaining whatever equity he may have had therein. The only proof as to his financial embarrassment was an ex parte affidavit of Mrs. Naquin’s brother to the effect that such was the condition of his affairs, without any showing whatever as to what that, opinion (it being nothing more than an opinion) was based upon. In fact, there was no change whatever with regard to their relations or property other than the mere rendering of the judgment. The community therefore was not dissolved, and the property in controversy continued to belong to it until the death of the husband in 1917. Hence the claim) of the wife did not begin to bear interest until the community was dissolved by the death of the husband. In re Succession of McCloskey, 144 La. 438, 80 South. 650.
[9,10] It is conceded that this court erred in ordering a division of the proceeds of the property before deducting the amount of the *371claim of Mrs. Naquin with, interest. This claim should bear interest until paid, as we do not think that the agreement by which the money was deposited in bank can be said to have waived her right to collect the interest at the legal rate, just as could be done on any other claim against the succession or community, one-half of which will bo paid out of her half of the funds. She is also entitled to the fruits and revenues of the property “up to the date of the sale” only, as this was all that was prayed for in her petition. The interest accruing on the deposit should be added to the principal and divided as a part thereof.
The proceeds of the sale, with accrued interest arising from the deposit, should be treated as the mass, and out of this the plaintiff, Larose, should be paid one-sixth of one-half or one-twelfth of the whole; since Mrs. Naquin concedes she is not entitled to be paid any part of her claim from that interest, six-twelfths of the whole should be paid over to Mrs. Naquin in satisfaction of one-half of her paraphernal claim due by the community and also as her one-half part of the proceeds of the property as partner in community, and out of the remaining five-twelfths she should also be paid five-twelfths of her said paraphernal claim of $3,702.02, with legal interest from the death of her husband, less payments aggregating $2,364.75, as of the dates when they were made; and the remainder of the said five-twelfths should be divided equally among the remaining- five heirs, to wit, Olay, Clovis, and Etienne Naquin and Mrs. L. Lasseigne, and the minor, Agnes Boudreau, and out of each of the amounts thus payable to Clay, Clovis, and Etienne Naquin there will be deducted the amount of $125, and out of the amount payable to Mrs. L. Lasseigne there will be deducted the amount of $130, and all of the amounts so deducted will be paid to Mrs. Naquin. As heretofore indicated, Mrs. Na-quin is ,to receive the revenues arising from the property after the death of her husband “up to the date of sale,” and her rights against Mrs. Sidonia Naquin Boudreaux are reserved.
It is therefore ordered, adjudged, and decreed that this case be, and the same is hereby, remanded to the lower court for partition and distribution of the funds as herein directed, the costs to be paid out of the mass before distribution.
O’NIELL, J., adheres to the opinion heretofore handed down by him.