*252OPINION.
By Ills Honor John St. i'aul.This is a partition proceeding in which a husband intervenes ,to claim the marital portion of his wife's estate.
Felice Sigur, wife of Jean Baptiste Edward laiche died Hovemher 27th 1907, leavinc: eight children, fier estate consisted of a small of seperate property the value of which at the time of her death, does not appear. She owed no debts, and her succession was never formally opened; hut her husband continued to reside on the property and cultivate it for his own account up to the tina ';h:n intervention was filed.
Meanwhile four of the heirs sold their shares in the property to Augustine lassiigne. The latter sued the other heirs for a partition, which was duly ordered; and on April 27th 1918 the property was sold for $2600 .pash.
At the Hrime of her death her husband was, and still is, in necessitous circumstances. On April 25 1918 he intervened in the partition proceedings, and whilst not opposing the sale,.claimed a child's share in theproceeds, to wit, ó’ne ninth, in usufruct.
Ias3eigneopposed his claim on the ground that it showed no cause of action, and was also prescribed by ten years (Hovemher 27th 1907 to April 23rd 1918.
1.
The marital'portion is not an inheritance; it is a purely personal right which the suirvivor must claim judicially. Until so claimed, the right does not vest in the survivor and is not transmitted to his heirs. Succession of Justus, 44 An 721; Succession of Rogge, 50 An 1228; Succession of Piffet, 39 An 559.
11.
is f Considering therefore that the right ftp## not an inheritance but a more right of action against the Succession and heirs, that is to say "Jus in personam". it would seem that, like all. other personal actions, it is prescribed by ten years. 0. C. 3544. And in all likehood thiB' *253prescription would tm *rom the death of the other spouse.
But however that mfcyWf he, we think that in this case prescription waa interrupted by the heirs permitting the husband to keep possession of and enjoy the whole property. As was well said by his counsel, it would have been a useless thing for the intervenor to demand of the heirs the enjoyment of one ninth of the estate as long as they remained content to allow him the enjoyment of the whole. Rex neminem ooglt ad vana sen inutilla peragenda.
Re think their adquiesoenoe was a continuing interruption of prescription. I
111.
0n the other hand we think it .contrary to every principle of equity to permit a surviving spouse to urge his belated olaim against one who has purchased of the heirs without notice of his claim. And we do not think our laws contemplate such injustice.
Our code {Articles 1444 to 1449) enjoin a duty upon all who have claims against a succession, actual or contingent, if they intend to look primarily to the assets of the succession and not rely upon the personal credit of the heirs, that they demand what is called the "Separation' of Patrimony", that is to say a segratigg of the assets of the succession for their benefit, or in other words some sort of formal administration. And above all, if they wish to preserve their claims against the immovable property of the succession, so that it may aot he alienated-to their prejudice, they must record those claims in the mortgage office within three months after the succession is opened, i. e., after the death. C. C. 3275.
We think the article, which in terms applies to creditors and legatees, applies'with equal foroe to a surviving spouse who intended # olaim the marital portion, and who (as we have said) is but a creditor of the suooossion. Certainly such interpretation is in accord with the whole spirit of our laws; for our constitution, our statutes, and our jurisprudence seem all alike to abhor the idea of secret (unrecorded) étttéi incumbrances upon immovable property.
*254March 6 1919Vía are therefore of opinion thsffc Ladse'igne acquired free from the claim which the interventor here-urges and as to him, the petition shows no cause of aotion.
As # this appeal presents only the issues raised hy lasseignc- and does not éntend to the claims &###&»# which intervenor may have upon the shares of the other heirs who did not sell, it must he —■*» 'understood that we are not passing upon those, and that in affirming the judgment appealed from we mean simply that Lasseigne is to take his one half of the net proceeds of sale free from the intervenors claim.
She judgment appealed from id therefore affirmed.
IJew Orleans
Judgmont Affirmed.