The opinion
MONROE, O. J.
(concurring in decree, but dissenting from certain passages in the opinion handed down). I concur in the decree in this case, but dissent from the statement in the opinion referring to the cases of Generes v. Bowie Lumber Co., 143 La. 811 , 79 South. 413 , and Bendernagel v. Foret, 145 La. 115 , 81 South. 869 , which reads:
“It was not held, in either of those cases, that an heir who had not renounced the succession was, within the period of 30 years, presumed to have accepted, and might be held liable personally for a debt of the deceased, without having been proceeded against by the method provided in article 1055 of the Civil Code and in articles 977 and 979 of the Code of Practice, to compel the heir to elect whether he will accept or renounce the succession.”
In the opinion in the Generes Case ( 143 La. 822 , 79 South. 416 ) I find the following:
“At the expiration of the 30 years the status of the person or relation is irrevocably fixed by the prescription established by article 1030 of the Code, either as an heir or not an heir, depending upon what his status was before the 30 years ended. To illustrate: If he was a forced heir, or if he was a legal heir, and there was no forced heir nor universal legatee, he is presumed, if he has not renounced the succession, irrevocably to have accepted it at the end of 30 years, for his right or faculty of renouncing is then prescribed.”
And, upon the same reasoning, the same conclusion .was reached in the Bendernagel Case ( 145 La. 132 , 81 South. 875 ), after which it was said:
“With regard to article 1030 of the Code, we adhere to our ruling in the recent case of Generes v. Bowie Lumber Co.”
Articles 1030 and 1031 of the Civil Code read:
“Art. 1030. The faculty of accepting or renouncing a succession becomes barred by the lapse of time [30 years] required for the longest prescription of the rights to immovables.”
How can the prescription thus declared ever be applied if the heir is always presumed to have accepted within 30 years?
“Art. 1031. So long as the prescription of the right of accepting is not acquired against the heirs who may have renounced, they have the faculty still to accept the succession, if it has not been accepted by other heirs, without prejudice, however, to rights which may have been acquired by third parties upon the property of the succession, either by prescription, or by lawful acts done with the administrator or curator of the vacant estate.”
According to the plain language oí the law, then the right of the heir either to accept or renounce is barred by his failure to exercise it within 30 years, with the necessary consequence that he then becomes a stranger to the succession, as much so as though he had never been an heir. No one denies that the acceptance of a succession, purely and simply, binds the acceptor for the debts; but it is shown, to a demonstration, by the main opinion herein handed down, that no presumption of acceptance arises from mere lapse of time, and that the acceptance, to be effective, must be in writing and specific, or must be evidenced by acts which plainly indicate the intention to accept. I am therefore of opinion that the doctrine of this case is in direct conflict with that of the two cases hereinabove mentioned, and that it should be so stated, and those cases declared overruled.