(Spofford, J., and Lea, J., dissenting.) The plaintiffs, not content with describing themselves in their petition as children and representatives of Juan Truxillo, deceased, further aver, that they are “ the only children and sole heirs of said Juan, deceased.” This allegation was no doubt introduced out of abundant caution, and to strengthen ¿¡he plaintiffs case not only on the ground that they, the plaintiffs, represented Juan Truxillo, but because they were also his heirs.
Article 982 of the Code declares, that the simple acceptance of a succession may be either express or tacit; that it is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding. We understand a petition to he a judicial proceeding, and think the expression referred to was intentionally introduced into plaintiffs petition at the time it was drafted, but perhaps without a very accurate knowledge of the condition of the succession of Juan Truxillo, deceased.
La loi considére également comine une acceptation expresse le fait du suc-cessible qui prend, d’une maniere méme purement énonciative le titre d’héri-tier dans un acte, soit authentique ou sous'seing privé, soit judiciaire ou extra-judiciaire. 2 Zacharise, sec. 611. Sirey, 88, 2. 349 Limoges, 19 February, 1881.
We attach no importance to the exception filed by the defendant, 21st of March, 1858, that the plaintiffs had not accepted the succession of Joseph Truxillo.
It is therefore ordered by the court, that the judgment heretofore pronounced in this case, by this court, remain undisturbed.