(dissenting).
The holding of the majority that the children of the second marriage unconditionally accepted the succession of their father, W. W. Belcher, is premised wholly upon the mortgage executed by three of the four children on June 2nd 1921. This is said to be an act which “necessarily supposed their intention to accept and which they would have had no right to do' but in their quality as heirs.”
It is my opinion that appellants are correct in their contention that the documentary evidence and other circumstances evince that the children of the second marriage did not know that the property belonged to their father but considered it as the property of their mother and that, therefore, their act mortgaging it is not to be held as an acceptance under the law. Articles 990 and 991 of the Civil Code.
The majority concede that this argument would be meritorious but for the testimony of two of the children of the second marriage to the effect that they honestly believed that the property belonged to the community existing between W. W. Belcher and their mother, his second wife.
For my part, I cannot give to these self-serving declarations of the two children of the second marriage the credence accorded by the majority. It is stated in the main opinion that this testimony is not contradicted. But how could it be, when it is merely an expression of the witnesses’ belief or opinion! Certainly, aside from these self-serving statements, there is nothing in the documentary evidence or other facts of the case to sustain a holding that, until it was discovered that appellants had a legal interest, the children of the second marriage believed that they were, by their dominion over the property, accepting the succession of their father.
The case of Scott v. Briscoe, 36 La.Ann. 278, cited in support of the majority ruling, is hardly appropriate to the facts of this *586case. There, an heir, who was also the administrator of the succession, joined with his co-heirs in mortgaging the property of their ancestor and, later, in his capacity as administrator, opposed the title of the mortgage creditors derived from a sale, under foreclosure of the mortgage against the heirs. The court correctly held that his joinder in the mortgage of the property constituted an acceptance terminating his adminstration and he was, 'by his conduct, estopped “from setting up such contradictory pretensions”.
It is to be borne in mind that appellants are heirs at law of equal standing with appellees and it is only because of the decision in Tillery v. Fuller, 190 La. 586, 182 So. 683,1 which counsel for appellants do not assail, that a resolution that appellants have lost title under Article 1030 of the Civil Code (by failing to accept their father’s succession within 30 years while appellees had accepted) can be sustained. Under these conditions, it seems to- me that proof of acceptance by appellees should be either express or, if tacit, the circumstantial evidence must be of such a nature as to exclude any other reasonable hypothesis than that it was appellees’ intention to render themselves liable for the debts as well as their willingness to receive the benefits. The probative proof administered here does not convince me that appellees ever thought or considered, until this lawsuit was in the offing, that the property in contest belonged to their father, who died in 1901 and whose succession was never opened.
I respectfully dissent.
. The holding in Tillery v. Fuller is based on dicta contained in Bendernagel v. Foret, 145 La. 115, 81 So. 869. The landmark case on the subject (application of Article 1030, C.C.) is Generes v. Bowie Lbr. Co., 143 La. 811, 79 So. 413.