On Rehearing
McCALEB, Justice.The questions for decision herein arise out of the seizure of real property formerly belonging to a succession, under a writ of fieri facias in execution of a judgment obtained by plaintiff against the heirs of her former husband for the widow’s homestead provided by Article 3252 of the Civil Code. The facts of the case are fully stated in our original opinion and will be repeated here only to the extent necessary to bring the legal problems into focus.
Isaac Washington, Sr., died in 1953. He had been married twice and was survived by plaintiff, his second wife, three children of his first marriage (one of whom died shortly thereafter leaving one child as her only heir) and two grandchildren. The main asset of his estate was his undivided one-half interest in a piece of improved real property which had been acquired during the existence of the first community. At the death of Washington’s first wife, the children of that marriage inherited their mother’s undivided one-half interest in the property subject to their father’s usufruct. In 1954, these children and grandchildren opened the successions of Washington and his first wife, which they accepted unconditionally, and were put in possession of all the succession property by an ex parte judgment. Two days later one of the children, Isaac Washington, Jr., acquired from his co-heirs the piece of real estate above mentioned on which plaintiff had lived since her marriage.
Soon after his purchase, Washington, Jr., brought ejectment proceedings against plaintiff, who subsequently, filed the instant suit against the heirs of her deceased husband for recovery of the widow’s homestead of $1,000, and other items of indebtedness, alleging that she was in necessitous circumstances at the date of her husband’s death. Her claims were resisted by the heirs but, after a trial, judgment was granted in her favor for the widow’s homestead less certain credits chargeable to her for rent of the premises involved after the death of her husband. The heirs did not appeal from this judgment and, when it became executory, plaintiff caused the real estate to be seized under a writ of fieri facias. Thereupon, Washington paid the *55amount of his virile share due under the judgment into the registry of the court and then proceeded by rule to have the seizure of his property set aside. At the hearing on this rule, plaintiff contended that she had a privilege on the real estate for the payment of the judgment recognizing her widow’s homestead and that the seizure should not be released. The judge rejected this contention and released the seizure, stating that plaintiff must be held to have waived her privilege since she failed to claim it in her suit against the heirs and have it recognized in the judgment. Thereafter, plaintiff sought recognition of her privilege by supplemental petition filed in the original suit but this pleading was rejected by the judge. Then she appealed from the judgment rescinding the writ of fieri facias to the Court of Appeal, First Circuit, where the judgment was reversed, that court holding that plaintiff’s failure to request recognition and enforcement of her privilege in the suit claiming the widow’s homestead did not constitute a relinquishment and further that her legal privilege on the real estate of the succession was not affected by the prescription of 90 days pleaded by defendant, Washington, Jr. See Washington v. Washington, 116 So.2d 125.
This writ of certiorari was granted to review the holding of the Court of Appeal. On first hearing, we concluded that plaintiff’s privilege had become extinguished by her failure to institute a suit for a separation of patrimony within 3 months from the acceptance by the heirs of their father’s, succession.
During oral argument on rehearing counsel for Washington, Jr. reurged his contention, which was sustained by the district court, that plaintiff waived her privilege on the succession property by failing to have it recognized in her demand for recovery of the widow’s homestead.
We find no merit in this point. The circumstance that plaintiff did not seek recognition of the privilege accorded her by Article 3252 of the Civil Code1 in her suit against the heirs cannot be viewed as a waiver of her right to claim this privilege at the time it became necessary and expedient to have it enforced. The property herein was lawfully seized under a. writ of fieri facias and, while it is true that Washington, Jr. was personally liable for only his virile share of the judgment in plaintiff’s favor, the property he acquired, from the succession of his father by inheritance and purchase was burdened with plaintiff’s legal privilege, which was not required to be recorded. We can think of no valid reason why plaintiff should be held *57to have lost her privilege because she did not seek judicial sanction of it when she sought recovery in personam from the heirs. There was no necessity for assertion of the privilege in that action; the law granted the privilege and failure to seek recognition cannot be rightly said to equate abandonment.
In Perot’s Estate v. Perot, 177 La. 640, 148 So. 903, 904, the plaintiff sued for and obtained a personal judgment against the defendant for $96 for rent due on a store building. Plaintiff did not ask in those proceedings for recognition of the landlord’s lien or obtain a writ of provisional seizure and no mention was made of the nature of the debt in the judgment rendered. Later a writ of fieri facias was issued under which the constable seized a lot of store fixtures in the leased building. Before sale was made, the party holding a chattel mortgage on the fixtures filed a third opposition and requested payment in preference to the seizing creditor out of the proceeds of the constable’s sale. In answer to the third opposition, plaintiff averred that the judgment in favor of the estate was rendered on a claim for rent and asserted that the landlord’s lien, although not claimed or recognized in the judgment, was superior to the chattel mortgage of the opponent. On the trial, these facts were proven and judgment was rendered rejecting the third opposition. Thereafter, the case reached this Court on writ of certiorari issued at the instance of the third opponent who complained mainly of the introduction of parol evidence to. prove the landlord’s lien at the trial of the third opposition. After review here the judgment was affirmed, it being observed that plaintiff’s failure to ask for recognition of the landlord’s lien in the suit in which the monied judgment for rent was. obtained “ * * * had no significance,, one way or the other”. The Court further said:
“A plaintiff whose claim is secured by a lien does not waive his lien by failing to ask for recognition of it unless and until there is some necessity for having the lien recognized. If there is no demand for recognition of the lien, the judgment rendered for the debt, without mention of the lien, does not have the effect of a denial that the debt is secured by a lien. Nalle v. Baird, 30 La.Ann. [1148] 1150; Battalion Washington Artillery v. St. Charles Skating Rink Co., 7 Orleans App. 431; Cazzo v. Ulrich, 13 Orleans App. 257; 34 C.J. 853, § 1265; 15 R.C. L. 977, § 452.”
If, under the law, the debt creates a privilege or there is a conventional mortgage, such privilege or mortgage exists independently of the judgment rendered upon it. See Parker v. Starkweather, 7 Mart., N.S., 337; Holmes v. Holmes, 9 Rob. 117; Gustine v. Union Bank of Louisiana, 10 Rob. 412 and J. Davidson Hill & Co. v. *59Bourcier, 29 La.Ann. 841. Hence, in the instant case plaintiff was not obliged to pray for recognition of the privilege given her by law on all of the property of the succession until her right to sell the seized property securing the debt was questioned by Washington, Jr. at which time she properly asserted her preferential right and sought judicial recognition of it.
This brings us to a reconsideration of our decision on first hearing that plaintiff’s privilege on the property of her deceased husband’s succession was extinguished after expiration of three months from the acceptance of the succession by the heirs. In reaching this conclusion we relied on the 1935 decision of the Court of Appeal, First Circuit, in Danna v. Danna, 161 So. 348 and rejected the contrary ruling in 1938 of the Court of Appeal, Second Circuit, in Beck v. Beck, 181 So. 635, which the present members of the Court of Appeal, First Circuit, in ruling herein for plaintiff, believed to be a correct view of the law.
The Danna and Beck cases involved the same question presented here — i. e., whether the privilege granted to a widow in necessitous circumstances prescribes under Article 1456 of the Civil Code, if she fails to institute a suit for separation of patrimony within 90 days of the acceptance of the succession by the heirs. The affirmative conclusion reached in the Danna decision was predicated on the assumption that the codal provisions dealing with the separation of patrimony “ * * * will not admit the existence of any preference after three months, * * [161 So. 351]
On the other hand, the opinion in the Beck case, after considering the stated purpose of a suit for separation of patrimony and the requirements essential for the maintenance of the action (Articles 1445 and 1457 of the Civil Code) concludes that the institution of such a suit is not essential in order to preserve a privileged debt.
Our further study of this case has convinced us of the soundness of the Beck decision2 and we are now of the opinion that the privilege, accorded to the widow in necessitous circumstances does not prescribe by reason of her failure to sue for a separation of patrimony. The object of a separation of patrimony, as stated by Article 1445 of the Civil Code, “is to prevent property, out of which a particular class of creditors have a right to be paid, from being confounded with other property, *61and by that means made liable to the debts of another class of creditors.” This being so, the period of three months allowed creditors for the institution of a suit for separation of patrimony is a prescription which affects only the right of succession creditors to institute such a suit. Indeed, that is all that Article 1456 prescribes for it states that “The suit * * * must be instituted within three months * * .*; after the expiration of this term, it [the suit] is not admitted.” It cannot be justifiably construed as a prescription either of the debt or of the privilege created by law to secure the payment of the debt. An ordinary succession creditor who fails to institute an action for separation of patrimony within the time prescribed by Article 1456 incurs only the loss of his right to be paid out of the succession assets to the exclusion of the creditors of the heirs; he does not lose his right to recover from the heirs who accept the succession unless his claim is otherwise prescribed under positive provisions of law.
The holder of a privilege, defined by Article 3186 of the Civil Code to be a right which the nature of the debt gives the creditor entitling him to be preferred before other creditors, “even those who have mortgages”, has no reason to seek a separation of patrimony. The law grants him preferential rights on the succession property, so there is no possibility of the creditors of the heirs priming his rights. If the debt itself has not prescribed, the privilege, which is an accessory right to secure payment, does not, in the absence of positive law on the subject, prescribe before the debt itself. Accordingly, since the widow’s homestead claimed by plaintiff was recognized by final judgment in these proceedings, from which no appeal was taken, it necessarily follows that the privilege the law gave to secure preferential payment of that claim could not be avoided on the basis of prescription in the absence of a claimed statutory provision different from that applicable to the debt.
As noted in our original opinion, we have been favored with an amicus curiae brief filed by the Title Examination Committee of the New Orleans Bar Association. This Committee argues that the 90-day prescription allowed for the filing of suits for separation of patrimony is applicable to the privilege accorded to the widow in necessitous circumstances in view of Article 1458 of the Code, which states that succession property cannot be sold within 90 days from acceptance, and Article 3275 declaring, in substance, that creditors and legatees who demand a partition of the patrimony “ * * * preserve their privilege, as against the heirs or representatives of the deceased, on the immovables of the succession, only by recording the evidences of their claims against the succession within three months after it is opened.”
*63We fail to discern the pertinency of Article 1458 to this case. That article merely denies to the heirs the right to alienate the succession effects within the three-month period allowed for the filing of a separation of patrimony. It cannot be interpreted as meaning that a privileged creditor, whose claim is not required to be recorded (such as a claim for widow’s homestead), loses the privilege upon failure to file a suit for separation of patrimony within the time prescribed by Article 1456.
Nor does Article 3275 have any bearing on the question for decision. A reading of that article readily reveals that it applies only to privileged claims which do not affect the immovables of the succession unless they are recorded.
The codal article applicable to the case at hand is Article 3276, providing that succession charges, law charges, fees for settling the succession, the $1,000 secured in certain cases to the widow or minor heirs and all claims against the succession “ * * originating after the death of the person whose succession is under administration, are to be paid before the debts contracted by the deceased person, except as otherwise provided for herein, and they are not required to be recorded.”
Plainly, since plaintiff’s privilege on the property of the succession was not required to be recorded, it would be inappropriate to conclude that she lost the privilege because she did not file a suit for separation of patrimony and record her claim as a privilege against the real property seized under the writ of fieri facias within three months after the succession was opened.
While we are of the view that the Court of Appeal was correct in reinstating plaintiff's seizure of the real property now owned by Washington, Jr., it does not appear that the court set forth the extent of plaintiff’s privilege. This privilege bears only on the succession property of Washington, Sr., who owned at the time of his death (when plaintiff’s lien came in esse) an undivided one-half interest in the real estate seized, the other undivided one-half interest having vested in the heirs of his first wife at the date of her death. See Succession of Harper, La.App., 163 So. 177 and cases there cited. Under the circumstances, the judgment must be amended.
For the foregoing reasons our original opinion and decree are set aside and it is now ordered that the judgment of the Court of Appeal be and it is amended by recognizing that plaintiff has a privilege on an undivided one-half interest in the real estate seized herein under the writ of fieri facias to secure payment of the judgment in her favor amounting to $890.73 and costs and the seizure of the real estate is maintained to that extent. As thus amended, the judgment of the Court of Appeal is reinstated and affirmed at the cost of Isaac Washington, Jr.
SANDERS, J., concurs in the decree.. The article declares that the widow’s homestead “ * * * shall be paid in preference to all other [succession] debts, except those secured by the vendor’s privilege on both movables and immovables, conventional mortgages, and expenses incurred in selling the property.”
. It is to be noted that this Court in Rapides Grocery Co. v. Vann, 230 La. 829, 89 So.2d 359, disagreed with the observation in Beck v. Beck that the Civil Code articles require that the petitioning creditor must join the creditors of the heir as defendants in order to sustain an action for separation of patrimony. While we think that the Beck opinion went too far in the above stated respect, the result reached in that matter and the reasoning of the court in reaching that result conforms with a proper interpretation of the articles of the Oivil Code dealing with separation of patrimony.