DissektiNg Opinion.
EenneR, J.This is the same partition suit which was before us two years ago, and in which we rendered the opinion and decree'reported at p. 1370, 33 Annual.
In that case, the holders of conventional mortgages granted by Mrs. H. P. Dickson upon her interest in specific community property, and standing in identical case with the present opponent, were parties, and asserted the same rights with reference to their mortgages which the opponent here asserts with reference to her own. *460In disposing of the questions thus necessarily arising, we said: “Much learning and ingenuity are expended in discussing the validity and effect of certain conventional and judicial mortgages which were created by or against Mrs. H. P. Dickson upon her interest in the community property. Tn the view we take of this case, these questions are of no importance. They are sufficiently disposed of by the following considerations : The interest of the widow in community is residuary only, resembling the interest of an individual partner in the partnership property. It can only be ascertained and defined after the settlement of the marital partnership.
“ From the date of Michael Dickson’s death, this entire estate, movable and immovable, has belonged to Mrs. Dickson and the heirs of Michael Dickson as partners in community. As legal usufructuary as well as administratrix, she has had the use and administration of the entire property, entitled under the law to all the revenues for herself, but under the obligation, at the termination of her usufruct, to produce in such condition as the law requires, the property susceptible of perfect usufruct, and to account for that used or consumed by her in the exercise of the imperfect usufruct. All the property or its equivalent held by her in indivisión, and administered and nsecl by her, must enter into and form the basis of the settlement and partition; the debts due by the partnership must be paid; the accounts of the partners must be settled and their respective interests ascertained, and according to these interests the partition must be made. The residuary interest of the widow, thus finally ascertained and settled, is the only source to which her individual creditors, whether secured by mortgage or not, can look for satisfaction of their claims. Inasmuch, therefore, as under these circumstances the mortgages referred to cannot affect the obligation of the administratrix and usufructuary to account to her co-partners and cannot prejudice the rights of the heirs to have the interests coming to them under such accounting satisfied out of the entire mass of the community, it follows that the validity or invalidity of said mortgages are matters exclusively between Mrs. Dickson individually and the mortgagees, and do not figure as factors in this partition.”
I am at a loss to conceive, upon what ground it can be said that the above passage was a mere dictum, “not necessary to the decision of the cause.” Tf it was not necessary in that case to pass upon the rights of mortgage creditors there asserted, neither is it necessary to pass upon the rights of opponent as asserted here.
*461In my humble judgment, with clue deference to the majority of the Court, their opinion herein does not grapple with the true question in this case, nor is it touched by any of the decisions quoted.
The general proposition is not disputed that, at the dissolution of the community, the surviving partners and the heirs of the deceased partner become undivided proprietors of the community property, subject to the payment of the community debts. They become so precisely in the same manner and on the same principle declared, in reference to heirs inter cese, by Art. 1292 of the Code, which says:
“When a person, at his decease, leaves several heirs, each of them becomes an undivided proprietor of the effects of the succession, which forms among the heirs a community of property, as long as it remains undivided."
This “community of property” is subject to be terminated by “partition” which is defined to he a “division of the effects, of which the succession is composed, among all the co-heirs, according to their respective rights.” C. C. Art. 1293.
The right of every co-heir to such a partition and the manner in which it is to be made are recognized and specifically defined in the following articles of the Code. It involves a conqdete accounting between the heirs, which must include not only “the sums which each of the co-heirs owes to the deceased,” but also “those which each of the coheirs may have received or disbursed on account of the succession,” and “those which each of the co-heirs may owe by reason of damages or injury which have been caused by his fault to the effects of the succession.” C. C. Art. 1350.
The Code distinctly provides that, in the formation of the aetivo mass, it is to include not only the property movable and immovable remaining in the succession or the proceeds of sale thereof, and the sums to he collated, hut also the debts due by the heirs on account of succession funds which may have been received and converted by them as above indicated. Art. 1356.
■ From this- aetime mass, the deductions pointed out in Art. 1359 are to be made, and the balance is to he divided according to the interests of the heirs. Of course, the shares of the heirs who owe nothing are to be first satisfied out of mass, while the shares of the heirs who do' owe, are to he diminished by the amounts so due by them.
Thus is ascertained the final*share coming to each heir.
*462The Code recognizes the power of each heir, during the pendency of the indivisión or “community of property,” to affect his interests by “ mortgages, liens or privileges,” but, it expressly provides that “ the mortgages, liens or privileges existing against one of the co-proprietors, shall, by the mere fact of the judicial partition, attach to the shares allotted to him by the partition, and cease to attach to the shares allotted to his co-proprietors.” Art. 1338.
It would have been impossible for the legislator to declare in plainer terms that co-'. eirs in indivisión, although they are “undivided proprietors”'of all tlio effects of the succession, hold the same subject to the necessity, not only of settling succession debts, but also of a full accounting between themselves : that their Anal shares are only determinable after such settlement and accounting j and that any mortgages, which they may grant upon their individual interests, will attach only to their shares as thus Anally determined.
That like principles apply to the case of an unsettled community,T think, does not admit of serious question.
A reference to our former opinion and decree in this case, will show that we applied them in all their length and breadth. 33 A. 1370.
1 cannot think that we erred,in so doing.
If the widow and heirs be regarded merely as co-proprietors, these rules apply ex vi terminorum of Art. 1290 of the Code. If the community effects bo regarded as the property of a dissolved, but unsettled partnership, it is elementary that like rules apply and that one partner cannot alienate his interest in particular assets or in the whole estate, to the prejudice either of creditors or of his co-partners. Claiborne vs. Creditors, 18 La. 501. Indeed it is difficult to understand upon what grounds of law or reason rules should be applied to the interest of the widow in this unsettled community, different from those applicable to the interests of the heirs, her co-proprietors.
The case presented is this: A large community estate fell to the widow and heirs, several of the latter minors. It consisted of immov-ables and of movables of great value. The widow, as administratrix of the succession and as legal usufructuary, entered into the possession of the entire estate. She converts into cash all the movables, exceeding in value her entire share, and appropriated it to herself. She then mortgaged for her individual debts her share of the imhiovable property. But for this mortgage, it would not be disputed that upon a set--tlement with the heirs by partition, the debt due by the widow for the community funds, received and converted by her, would form part of *463tlie active mass, and that the immovables, or proceeds thereof, would go to the heirs to the extent necessary to make them equal with the widow.
It is claimed, however, that by reason of this mortgage, the mortgagee succeeds to rights which the widow would not_ havelhad, and may withhold one-half the proceeds of these immovables from the accounting due to the heirs.
The answer is: Nemo plvs transferre potest quam hahet. The very case is presented which was anticipated in Gestae vs. Florane, 31 A. 496, where, in discussing the effect of a mortgage .granted by the widow on a particular immovable of an unsettled community, this Court said: “ The heir, as well as the creditor, is entitled to have the administration of the succession, as an entirety, completed. Non constat Jbut that the widow has already received her full half of the"entire succession; and if a mortgage given by her upon parts of its remaining property were held good and the property alienated by its foreclosure, the heir would be denuded of his inheritance.”
I am aware that the decisions are conflicting as to the right of the surviving partner in an unsettled community to mortgage her share in particular assets; but, conceding that right, no decision exists holding that such mortgage by a widow administering the entire community, could defeat her obligation to account to the heirs, or could have effect to reach more than the share of such_community resulting to her after such account and settlement made according to the law regulating partitions.
If such be the law, a more efficient recipe for “denuding heirs of their inheritance” could hardly be devised.
I, therefore, dissent from the opinion aud decree.