Plaintiff proposed to make a partition of the proceeds of the sale of the community property acquired by her and her deceased husband, between her children, on the condition that they paid her a certain amount monthly, as an annuity.
Defendant was father and tutor of some of her grand-children, and he, as their tutor, accepted for them the partition, and received for them the amount of their share.
In the act of partition the proposed annuity was omitted.
He subsequently refused to sign a written contract stipulating for the payment of the annuity, and suit was brought to compel him to pay a part of the annuity (which it is alleged that he owed) amounting, at th® time of the inception of the suit, to $576 00.
The District Judge gave judgment against him for the sum claimed, with interest and costs, and he has appealed.
*116Defendant acted, when consenting to the partition, and receiving his children’s share in the partition, in a representative capacity; and in no part of the evidence is it shown that he agreed to be personally responsible for any part of the annuity.
It is ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered, adjudged and decreed, that there be judgment in favor of defendant, and that plaintiff pay the costs of both Courts.
Howell, J., recused.