On Rehearing.
O’NIELL, J.This suit was brought to revive a judgment for $20,000 against the succession of the late Ferdinand Beer, and to obtain a judgment against his widow and heirs individually for the debt represented by the judgment. The widow, individually, is sued for $10,000; the allegation being that the debt was contracted during the marital community. Each of the five heirs of the deceased, being his three sons and two daughters, is sued for $2,000.
*681The suit was dismissed on an exception of no cause of action, because plaintiff did not allege that the widow had accepted the community, either expressly or tacitly, or that the heirs had accepted the succession, either expressly or tacitly, or that any of the defendants had signed or done anything indi-eating an intention to accept, or that their right to renounce was lost by prescription.
On the original hearing of plaintiff’s appeal from the judgment dismissing her suit, a majority of the members of this court were of the opinion that the widow wras presumed to have accepted the community, and that the heirs were presumed to have accepted the succession of the deceased. The court therefore concluded that the heirs, who had neither accepted nor renounced the succession, or the widow, who had neither accepted nor renounced the community, might be sued and held liable individually for a debt of the deceased or of the community, as the case might be, without being first compelled by suit to accept or renounce.
[1] After a more careful consideration of the subject, we have concluded that the provisions of the Civil Code and of the Code of Practice with regard to the obligations of an heir who has accepted a succession, either expressly or tacitly, or of a widow who has accepted the community, would have little or no meaning if it were true that the mere failure of an heir to renounce the succession should render him liable individually for the debts of the succession, and if it were true that the mere failure of a widow to renounce the community should render her liable individually for one-half of the debts of the community. If the framers of the Civil Code had intended that an heir who had neither accepted nor renounced the .succession should be deemed liable for the debts of the succession, such a provision would have been written in the Code; and it would be entirely inconsistent with the rules for determining what acts on the part of an heir : : ■ : i . shall and what shall not render him liable individually for the debts of the succession. On the contrary, article 1055 of the Civil Code declares that at the expiration of the term (30 days) allowed an heir for deliberating the creditors and legatees of the succession, by bringing suit for that purpose, “can compel the heir to decide whether he accepts or rejects the succession.”
¡ ; Article 1056 declares that if, in answer to such suit, the heir declares that he accepts the succession, the estate must immediately be delivered to him, and he then becomes responsible personally for the debts of the succession, not only to the extent of the value of the estate, but to the full extent of its obligations ; “and the creditors of the deceased can obtain judgment against him.” Article 1057 declares that, if the heir allows a judgment to go by default in such a .suit, “he shall be considered an unconditional heir and be bound as such.”
Article 924 of the Code of Practice declares:
“Courts of probate have the exclusive power * * * to compel such heirs as have taken time to deliberate to declare, when required by the creditors of deceased, whether they accept or renounce the succession.”
Article 977 of the Code of Practice, substantially like article 1055 of the Civil Code, declares that the creditors or legatees of a deceased person, or any of them,' may, by a suit brought for that purpose, “demand that the beneficiary heir be cited and made to declare whether he accepts or refuses the succession.” Article 979 declares that, if the presumptive heir has not prayed for time to deliberate, .any creditor or legatee of the deceased may, ten days after the opening of the succession, “cite such heir to appear before the judge of probate, and call on him to declare whether he accepts the succession or refuses it.” And article 980 declares:
'If the heir thus cited declares that he accepts, or if he be silent or make default, he *683shall be considered as having accepted the succession purely and unconditionally, and ' may he sued as if he had done so.” (The itálics are by the court.)
It appears, therefore, that an heir cannot “be considered as having accepted the succession,” or “he sued as if he had done so,” unless he has accepted the succession, unconditionally either expressly or tacitly, or lias allowed a judgment to go against him by default in a suit to compel him “to declare whether he accepts the succession or refuses it.” There is reason in the requirement of the law that an heir who has not accepted the succession, either expressly or tacitly, should not be sued individually for any particular debt of the deceased until the question of responsibility of the heir for the debts of the succession generally has been established 'by a judicial decree; for the heir, individually, is not concerned with any debt or obligation of the deceased, unless the heir is personally or individually responsible for the debts and obligations of the deceased.
[2] Article 2414 of the Civil Code declares that a widow is allowed the same delay for deciding whether she will accept or renounce the marital community that is allowed a beneficiary heir for deciding whether he will accept or renounce the succession; and that “after the expiration of these delays she may be, in the same manner, forced to make her decision, and judgment may be rendered against her as a partner, unless she renounces.”
Act 4 of 1882 declares:
“That at the dissolution for any cause of the marriage community, it shall be lawful for the wife to accept the community of acquets and gains under the benefit of inventory, in the same manner and with the same benefits and advantages as heirs are allowed by existing laws to accept a succession under the benefit of inventory.”
In Herman v. Theurer, 11 La. Ann. 70 (in 1856), it was said:
“Where the community is dissolved by the death of the husband, the surviving wife is presumed to have the intention to accept, * * * and her right to renounce is subject to the same rules as govern the beneficiary heir. But a different rule prevails where a divorce has been pronounced. Unless the wife accepts the community within the delay allowed by law, or obtains from the judge a prolongation of that delay, she is supposed to have renounced the community. Code, 2389.” R. C. C. 2420. (The italics are by the court.)
It is plain, therefore, that the question of responsibility of a widow for one-half of the community debts is governed by the same rules, and must be determined by the same method, that the Civil Code and the Code of Practice have established for determining the responsibility of the beneficiary heir for the debts of the succession. The rule, however, before the enactment of the statute of 1882, was not the same when the marital community was dissolved by a judicial decree. In that case, by the terms of article 2420 of the Civil Code, if the wife did not accept the community within the prescribed time, she was supposed to have renounced it irrevocably.
In the Succession of Richardson, 14 La. Ann. 1 (in 1859) where the widow had taken possession of the community estate, having had an inventory taken of the property, a creditor of the community contended that the widow was presumed to have accepted the community, because she had not renounced it within the prescribed delay, and that she was therefore liable for the community debts and could not assert her paraphernal claim against them. But the court ruled that the taking of an inventory of the community property- counteracted the presumption that might otherwise have resulted from the widow’s taking possession of the property. The court said:
“In the present ease it appears that the widow caused an inventory to be taken, and, as the creditors have taken no steps to compel her to accept or renounce, we think she still has the privilege of renouncing the community.. *685But this privilege would be of no value, unless she had the right of enforcing her paraphernal claims against the estate of her husband in the interim. So long as she has a right to renounce, she cannot bo charged as a partner. C. C. 1043 [now 1050], 1048, 2383 [now 2414]; C. P. 980, 982.”
The doctrine of the decision last quoted is expressed in the syllabus thus:
“Where the widow has caused an inventory to be taken of her deceased husband’s estate, she has the privilege of renouncing the community, as long as the creditors have taken no steps to compel her to accept or renounce.”
[3] In the case before us it is alleged that the succession was not opened; hence it is presumed that an inventory was not taken. But, as it is not alleged that the widow or heirs took possession of the estate, it is not necessary that an inventory should have been taken, to preserve the right of the widow to renounce the community, or of the heirs to renounce the succession, whenever called upon to accept or renounce, by a suit brought under the provisions of articles 1055 and 2414 of the Civil Code and articles 977 and 979 of the Code of Practice.
In the case of Titche v. Lee, Administratrix, 22 La. Ann. 435 (in 1870), the plaintiff proceeded, as in the present case, to obtain a judgment against the succession of the deceased debtor and also a x>ersonal judgment against the widow, individually, for half of the community debt. Plaintiff alleged that, inasmuch as the widow had not renounced the community within the 30 days allowed her for' deliberating, she was presumed to have accepted the community, and was therefore responsible individually for half of its debts. The ruling was that the plaintiff had a right of action against the succession of the deceased husband, but not against the widow individually, because the suit was not brought in the form of an action, under articles 1055 and 2414 of the Civil Code and articles 977 and 979 of the Code of Practice to compel the widow to decide whether she would accept or renounce the community. The court said:
“The pleadings and evidence do not justify the personal judgment appealed from, nor do we feel authorized, m this form of action, to render the judgment contemplated in article 2383, O. GArticle 2414 Rev. Civ. Code. (The italics are by the court.)
The doctrine of the decision quoted is expressed in the syllabus thus :
“The surviving wife has 30 days within which to make a choice between renouncing and accepting the succession of her husband. But after this delay she still has the right of renunciation, which is continuous until she has been compelled by an action to make the choice. Therefore no personal judgment can be rendered against her until the action by the creditor, to compel her to make the choice, has been passed upon.”
In Mumford v. Bowman, 26 La. Ann. 413 (in 1874) the court announced very rigid rules for determining whether any particular writing or conduct on the part of an heir should be construed as an acceptance of the succession, having the effect of binding the heir for the debts of the deceased, viz.:
“The acceptance of a succession is express, when in an authentic act or private instrument, or in some judicial proceeding, the purpose of the heir is declared in terms so clear and distinct that no doubt can exist of his intention to accept under the responsibilities that result from an aceptancepure and simple. To incur the liability arising from an acceptance pure and simple, something more than styling himself heir in some written act, authentic or judicial, must appear in the instrument, in order to bind the party absolutely to pay all the debts of the succession out of his own means.
“Both in the express and tacit acceptance it must be made clear that it was the intention of the party assuming the quality of heir to abide the disadvantages, if any should arise, of accepting simply and purely, as well as to enjoy the benefits that might accrue from it. In the one case the intention is to be found in a fair interpretation of the terms and expressions of written instruments; in the other it is to be inferred from acts, the motives of which cannot be ascribed to any other purpose.*’
*687In Griffin v. Burris, 109 La. 216, 33 South. 201, it was held:
“Where there is no claiming of anything by those styling themselves heirs, no affirmative action by them in assertion of the rights of heirship or ownership, no obliging themselves as heirs, or contracting as heirs, acceptance of the succession cannot be inferred against them.”
F4] An analysis of the decisions cited in appellant’s brief and in the original opinion rendered herein, and an analysis of the decisions referred to in the cases cited, discloses that they do not maintain that an heir who has not renounced the succession within 30 days or a widow who has not renounced the community within 30 days is presumed to have accepted and may he sued individually for a debt of the succession, or of the community, as the case may be, without being first sued to compel an acceptance or renunciation of the succession or of the community, in the method provided by articles 10S5 and 2414 of the Civil Code and by articles 977 and 979 of the Code of Practice.
In the Succession of Dejean, 5 La. Ann. 594, the ruling was merely that the widow could not assert her paraphernal claim against the marital community, to the prejudice of other creditors of the community, without having renounced the community. The reason, obviously, was that, as a member of the dissolved community or partnership, the widow would be responsible for its debts and therefore could not set up her claim against the claims of other creditors of the community or partnership.
Audrich v. Lamothe, 12 La. Ann. 76, is authority for the proposition merely that a widow who had.obtained a separation of property during the lifetime of her husband was not presumed to have accepted the community after her husband’s death merely because she did not have an inventory taken. It was also held in that case that the heirs were not personally responsible for the debts of the succession without proof that they had accepted it, either expressly or tacitly.
In Snoddy v. Brashear, 13 La. Ann. 469, the ruling was that a widow who had obtained a separation of property during the lifetime of her husband, without having either accepted or renounced the community within the time prescribed by law, was not presumed to have accepted the community after her husband’s death.
In Decuir v. Lejeune, 15 La. Ann. 569, and in the Succession of Ewing, 15 La. Ann. 416, the ruling was that a divorced wife who had not accepted the community within the time allowed, was, by the terms of article 2420 of the Code, supposed to have renounced it.
Ludeling v. Felton, 29 La. Ann. 719, is authority for the doctrine that a widow who sells a part of the community property for her own individual account and benefit thereby tacitly accepts the community and becomes personally liable for half of its debts. It was said, in the course of the opinion, that, when a marital community was dissolved by the death of the husband, the widow who had not formally renounced the community was, at the expiration of 30 days, presumed to have accepted it, although, when a marital community was dissolved by a judicial decree, the wife was supposed to have renounced if she had not accepted the community within the time prescribed. What was said with regard to the effect of a widow's failure to renounce the community within the prescribed time was not altogether appropriate to the decision. The court was merely illustrating that a wife who was separated from her husband by a judicial decree was governed by article 2420 of the Civil Code, declaring that, if she had not accepted the community within the time fixed, she was supposed to have renounced it, which supposition or presumption had no application to a widow who was not separated from *689her husband by a judicial decree. What the court meant to say was that a widow’s failure to either accept or renounce the community within the 30 days, unlihe the failure of a wife separated by judicial decree, in that respect, did not deprive her of the right either to accept or to renounce the community. Hence it was said that, when the surviving wife did, after her husband’s death, accept the community, the effect was the same, whether she was or was not previously separate in property by a judicial decree. The case was decided before the enactment of Act 4 of 1882, which makes no distinction between a dissolution of the community by death of the husband and a dissolution by judicial decree.
Edwards v. Ricks, 30 La. Ann. 926, is authority for tbe xiroposition that among the debts and obligations for which the widow and heirs of a deceased debtor render themselves personally liable by an acceptance of the succession are included claims for actual damages, but not for punitive damages, resulting from a tort that was committed by the deceased.
The decision in Weller v. Von Hoven, 42 La. Ann. 600, 7 South. 702, was merely an announcement of the test of article 2420 of the Civil Code (before the enactment of the statute of 1882) that a wife who was separate from bed and board, who had not, within the prescribed delay, accepted the community, was supposed to have renounced it, unless, within the prescribed delay, she had obtained from the judge a prolongation of the time, after the husband had been cited and heard.
In Citizens’ Bank v. Heirs of Jorda, 45 La. Ann. 184, 11 South. 876, the ruling was that the universal legatee of a deceased mortgagor was the proper person on whom to serve, the demand for payment and the notice of seizure in executory proceedings against the mortgaged property. The suit was an action to annul the sale resulting from the executory proceedings, on the ground, among other grounds, that the universal legatee, not having formally accepted the succession, had not authority to stand in judgment as its representative. The court stressed the fact that the executory process was not a personal action against the legatee, but merely an action against the property of the succession; hence it was said:
“It is contended by plaintiff that a legatee or heir cannot be treated as such until he has evidenced in some form his intention to accept the inheritance. This proposition cannot be questioned, when there is an attempt made to hold him responsible for an acceptance pure and simple. C. C. 998; Mumford v. Bowman, 26 Ann. 417. But in this case there is no attempt made to hold the heir liable for an act of acceptance pure and simple, to fasten upon him a liability as heir. He is pursued only in a representative capacity, as being of right seized of the succession property, such as it may bo. 0. O. 874.
“ ‘He who is called to the succession, being seized thereof in right, is considered the heir as long as he does not manifest the will to divest himself of that right by renouncing the succession.’ 0. O. 1014.”
The ruling in Generes v. Bowie Lumber Co., 143 La. 811, 79 South. 413, repeated in the companion case of Bendernagel v. Foret, 145 La. 115, 81 South. 869, was that a forced heir who had not renounced the succession stood to lose by the prescription of 30 year’s, according to article 1030 of the Civil Code, only the right to renounce, although an heir who has renounced the succession stands to lose, by the prescription of 30 years, only the right to accept, subject, of course, to the conditions prescribed in article 1031 which are: (1) That the succession has not been accepted by other heirs; and (2) that rights acquired by third persons, either by prescription or by lawful dealings with the succession representative, shall not be preju*691diced. It was not held, in either of those cases, that -an heir who had not renounced the succession was within the period of 30 years presumed to have accepted, and might be held liable personally for a debt of the deceased, without having been proceeded against by the method provided .in article 1055 of the Civil Code and in articles 977 and 979 of the Code of Practice to compel the heir to elect whether he will accept or renounce the succession.
[5] It is true article 1000 of the Civil Code declares that an heir becomes liable as such if, when cited before a court of justice as heir for a debt of the deceased, he allows judgment to go against him in that capacity, without claiming the benefit of inventory or renouncing the succession. But that article must be read in connection with article 1055 of the same Cbde, and articles 977 and 979 of the Code of Practice, prescribing the method by which an heir may be compelled to elect whether he will accept or renounce the succession. It was so decided, plainly, in Titche v. Lee, supra, and in Citizens’ Bank v. Heirs of Jorda, supra.
[6J Articles 940, 941, 942, and 1014 of the Civil Code, declaring, substantially, that an heir, being invested with seizin or the right of possession of the estate by the mere operation of law immediately at the death of the ancestor, is considered the heir so long as he has not renounced the succession, must be read in connection with article 946, declaring that, although the succession is acquired by the heir at the moment of the death of his ancestor, the heir’s right, nevertheless, remains in suspense until he decides whether he will accept or renounce the succession. In other words, so long as the heir has not renounced the succession, he is considered the heir for the purpose of being cited and of standing in judgment in a suit against the succession, as such, if there is no administrator or other such representative of the succession ; and the heir who has neither accepted nor renounced the succession is likewise considered the heir for the purpose of being cited in an action to compel him to declare wh'sther he will accept or renounce the succession, under article 1055 of the Civil Code and articles 977 and 979 of the Code of Practice. But an heir is not deemed liable personally for the debts of the succession, merely because he has not formally renounced, until his liability is fixed by the prescription established in article 1030 of the Civil Code.
Our conclusion is that the petition in this case discloses a cause of action on the demand to revive the original judgment against the succession, but not on the demand for a personal judgment against the widow and heirs of the deceased debtor.
The judgment appealed from and the judgment heretofore rendered on ax>peal are annulled, and it is now ordered, adjudged', and decreed that defendants’ exception of no cause of action be, and it is hereby, sustained against plaintiffs demand for a personal judgment against the defendants, widow and heirs of the deceased Ferdinand Beer, and the suit against them individually is therefore dismissed, reserving whatever right of action plaintiff may have to proceed according to the provisions of articles 1055 and 2414 of the Civil Code, and articles 977 and 979 of tire Code of Practice. It is further ordered, adjudged, and decreed that the exception of no cause of action be, and it is hereby, overruled as to plaintiff’s demand to revive only against' the succession of Ferdinand Beer the judgment dated the 17th of February, 1908. It is therefore ordered that this case be remanded to the civil district court for further proceedings not inconsistent with the foregoing opinion. The costs of this ax>peal are to be borne by the succession of Ferdinand *693Beer. All other costs are to await the final judgment.
BAKER, J., dissents.