Haight v. Johnson , 10 Teiss. 16 ( 1913 )

His Honor

HORACE L. DUFOHR,

rendered the opin, ion and decree of the 'Court, as follows:

After granting a rehearing in this cause, we certified the questions of law involved and asked the Supreme Court for instructions under Article 101 of the Constitution.

To the questions thus propounded the Supreme 'Court made the following answers:

First: .

“It does not appear that the deceased'husband disposed of his estate by last will, hence, the widow in community, joint owner with her major and minor children of the community property, became, imme--diately on the death of her husband, the usufruc-tuary of the interest inherited by the children and, in the double capacity of owners in indivisión and usu-fructuary, was authorized to pay the debt of the community which was secured by mortgage on the entire property, or obtain extensions of the terms of payment by paying the interest from time to time, and such payments operated as interruptions of prescription as to the whole debt and this, though she had never been judicially recognized as tutrix, ad-ministratrix or usufructuary, and had not been authorized by her children to make such payments.”

• Second:

“The doctrine of Long v. Dickerson, to the extent to which it is applicable to the facts, is to be applied in such case, and not the codal provisions of R. C. C., 3552.”

It becomes necessary to modify our original decree m order to comply with the instructions of the Supreme Court.

It is therefore ordered, adjudged and decreed that our original decree be amended so as to read as follows:

■ The judgment of the lower Court is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of Charles H. Haight, plaintiff, and against defendant, Mathilda Monroe, widow of Pleasant Johnson, Mrs. Sarah Johnson, wife of Ernest G-audet and the said Ernest Gaudet to aid, authorize and assist his wife, Mrs. Mathilda Johnson, wife of Charles Lewis, and the said Charles Lewis to aid, authorize and assist his wife, Isaac Johnson, Mrs. Fanny Johnson, wife of Seymour Brown, and the said Seymour Brown to aid, authorize and assist his wife, Pleasant Johnson, Jr., Martha and Ernest Johnson, each for his or her virile share of the sum of $250, with 8 % interest thereon from March 26th, 1910, '10% on the aggregate of said principal and interest as attorneys’ fees, four dollars cost of copy of act of mortgage and costs of suit in solido, with recognition of tbe mortgage for the full amount of principal, interest, attorneys’ fees and costs on the property described in plaintiff’s petition.

Note by reporter: Original opinion Yol. IX, page 366. Opinion and decree January 13th, 1913.

Amended.