put into possession of the succession of their father, continues, they can not in any manner alienate the immovables by them thus possessed, unless it be under the authority of the court, at public auction, and in cases in which their alienation is deemed necessary.

ART. 933. [927.]-The surviving husband or wife and natural children, who shall fail to fulfill any of the formalities or obligations prescribed in the preceding articles, shall be liable to dam-. ages toward the heir, if any should be incurred.

C. N. 772.

CHAPTER 4.

In what Manner Successions are Opened.

ART. 934. [928.]-The succession, either testamentary or legal, or irregular, becomes open by death or by presumption of death caused by long absence, in the cases established by law.

C. N. 718, 719; 6 N. S. 196.

ART. 935. [929.]—The place of the opening of successions is fixed as follows:

In the parish where the deceased resided, if he had a fixed domicile or residence in this State.

In the parish where the deceased owned immovable property, if he had neither domicile nor residence in this State, or in the parish in which it appears by the inventory, his principal effects are, if he have effects in different parishes.

In the parish in which the deceased has died, if he had no fixed residence, nor any immovable effects within this State, at the time of his death.

C. C. 1644 (1637); C. N. 110; C. P. 929; 7 N. S. 51; 2 L. 270; 13 L. 375; 16 L. 11; 11 R. 67; 15 A. 699; 21 Á. 399.

ART. 936. [930.]—If several persons respectively entitled to inherit from one another, happen to perish in the same event, such as a wreck, a battle, or a conflagration, without any possibility of ascertaining who died first, the presumption of survivorship is determined by the circumstances of the fact.

C. N. 720.

ART. 937. [931.]-In the absence of circumstances of the fact, the determination must be guided by the probabilities resulting from the strength, age, and difference of sex, according to the following rules:

ART. 938. [932.]-If those who have perished together were under the age of fifteen years, the eldest shall be presumed to have survived.

If both were above the age of sixty years, the youngest shall be presumed to have survived.

If some were under fifteen years, and some above sixty, the first shall be presumed to have survived.

C. N. 721.

ART. 939. [933.]-If those who have perished together were above the age of fifteen years and under sixty, the male must be presumed to have survived, where there was an equality of age, or a difference of less than one year.

If they were of the same sex, the presumption of survivorship, by which the succession becomes open in the order of nature, must be admitted, thus the younger must be presumed to have survived the elder.

C. N. 722.

ART. 940. [934.]—A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person whom he succeeds.

This rule applies also to testamentary heirs, to instituted heirs and universal legatees, but not to particular legatees.

C. N. 724; 9 L 146; 15 L. 527, 562; 7 R. 183; 12 R. 258; 2 A. 339; 5 A. 113; 12 A. 577; 19 A. 75, 428.

4 A. 571;

ART. 941. [935.]-The right mentioned in the preceding article is acquired by the heir by the operation of the law alone, before he has taken any step to put himself in possession, or has expressed any will to accept it.

Thus children, idiots, those who are ignorant of the death of the deceased, are not the less considered as being seized of the succession, though they be merely seized of right and not in fact.

C. N. 724; 9 L. 146; 15 L. 527, 562; 7 R. 183; 12 R. 258; 2 A. 339; 4 A. 527, 562; 7 R. 183; 2 A. 339; 12 A. 577; 18 A. 285.

ART. 942. [936.]—The heir being considered seized of the succession from the moment of its being opened, the right of possession, which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession.

C. C. 944, 945; C. P. 965; 9 L. 146; 15 L. 527; 7 R. 173; 2 A. 339; 4 A. 571; 5 A. 113; 19 A. 75; 21 A. 253, 255.

ART. 943. [937.]—The right of possession, which the deceased had, being continued in the person of his heir, it results that this possession is transmitted to the heir with all its defects, as well as all its advantages, the change in the proprietor producing no alteration in the nature of the possession.

Thus the extent of the rights of the deceased regulates those of the heir, who succeeds to all his rights which can be transmitted, that is, to all those which are not, like usufruct, attached to the person of the deceased.

18 A. 337.

ART. 944. [938.]-The heir being considered as having succeeded to the deceased from the instant of his death, the first

effect of this right is that the heir transmits the succession to his own heirs, with the right of accepting or renouncing, although he himself have not accepted it, and even in case he was ignorant that the succession was open in his favor.

C. C. 942 (936), 948 (942); 2 L. 299.

ART. 945. [939.]—The second effect of this right is to authorize the heir to institute all the actions, even possessory ones, which the deceased had a right to institute, and to prosecute those already commenced. For the heir, in every thing, represents the deceased, and is of full right in his place as well for his rights as his obligations.

C. C. 942 (936), 2315 (2294); C. P. 21, 113, 361; 2 A. 405; 19 A. 75, 76. ART. 946. [940.]-Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he decide whether he accepts or rejects it.

If the heir accept, he is considered as having succeeded to the deceased from the moment of his death; if he rejects it, he is considered as never having received it.

C. N. 777; 8 L. 321; 2 A. 466; 4 A. 571; 17 A. 38.

ART. 947. [941.]-The heir, who accepts, is considered as having succeeded to the deceased from the moment of his death, not only for the part of the succession belonging to him in his own right, but for the parts accruing to him by the renunciation of his co-heirs in the succession of the deceased.

C. N. 777.

ART. 948. [942.]-When all the heirs in the nearest degree renounce the succession, which is accepted by those in the next degree, these last are considered as having succeeded directly and immediately to the rights and effects of the succession from the moment of the death of the deceased.

Therefore the heirs, thus succeeding by the renunciation of relations nearer in degree, transmit the succession to their own heirs, if they die before having accepted it, in the same manner as if they had succeeded in the first degree to the deceased.,

C. C. 944 (938); C. N. 777.

ART. 949. [943.]-Natural children and the surviving husband or wife before being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of action to cause themselves to be put into possession of successions thus falling to them, this right and this action form a part of their succession, which they transmit to their heirs.

4 L. 267; 11 A. 59; 18 A. 592.

CHAPTER 5.

Of the Incapacity and Unworthiness of Heirs.

ART. 950. [944.]-The incapacity of heirs is the absence of those qualities required in order to inherit at the moment the succession is opened. He who wants these qualities at this time can not be the heir.

It is at the moment of the opening of the succession that the capacity or incapacity of the heir, who presents himself to claim an intestate succession, is considered.

6. L. 560; 17 L. 46.

ART. 951. [945.]-All persons, even minors, lunatics, persons of insane mind and the like, may transmit their estates ab intestato and inherit from others.

(Am'd.) 8 M. 161; 17 L. 312; 12 R. 585; 24 A. 581.

ART. 952. [946.]—The incapacity of heirs is not presumed. He who alleges it must prove it.

17 L. 46; 12 R. 585.

ART. 953. [947.]-In order to be able to inherit, the heir must exist at the moment that the succession becomes open.

C. N. 725; 17 L. 46.

ART. 954. [948.]—The child in its mother's womb is considered as born for all purposes of its own interest; it takes all successions opened in its favor since its conception, provided it be capable of succeeding at the moment of its birth.

And the child legitimated by a marriage posterior to its conception only takes those successions which are opened since the marriage of the father and mother.

17 L. 46.

ART. 955. [949.]-Nevertheless, if the child conceived is reputed born, it is only in the hope of its birth; it is necessary then that the child be born alive, for it can not be said those who are born dead have ever inherited.

17 L. 46.

ART. 956. [950.]-When the child is born alive, though it may have been extracted by force from its mother's womb, and may have lived but an instant, provided the fact of its living be ascertained, it inherits the successions opened in its favor since its conception, and transmits them accordingly.

5. M. 93.

ART. 957. [951.]-There are two things to be proved in order to vest the child with the right of inheriting; one, that the child be conceived at the moment of the opening of the succession; the other, that the child be born alive.

5. M. 93.

ART. 958. [952.]—In order to ascertain if the child has been conceived in marriage, and can inherit from the husband deceased after its conception, reference must be had to the rules concerning the filiation of legitimate children established in the title: Of Father and Child.

C. C. 193 (212).

ART. 959. [953.]—In all cases in which the husband can not, by law, contest the legitimacy of the child, born before the hundred and eightieth day of marriage, he will have a right to the succession of this child and to those successions which fall to this child in the same manner as if the child had been regularly legitimated. C. C. 186 (205), 190 (209).

ART. 960. [954.]-If the mother marry again within two months after the death of her husband, and a child is born five months after the second marriage, if the child be born capable of living, it is considered the issue of the first marriage, and is admitted to the succession of the first husband.

C. C. 137 (134).

ART. 961. [955.]-In the calculation of the number of months necessary for a child to be considered as born capable of living, thirty days are counted for each month, and the day begun is counted for a whole day, because it is for the interest of the child.

ART. 962. [956.]—Though in general it is incumbent on those who allege incapacity to inherit to prove it, nevertheless, those who claim rights under the child, on account of its having survived, are bound to prove that it was conceived at the time the succession was opened, and that it came into the world alive.

ART. 963. [957.]-With regard to the proofs necessary to establish the existence of the child at the moment of its birth, it must not be determined that it was born alive by the simple palpitations of its members, but by its respiration, or by other signs which demonstrate its existence.

ART. 964. [958.]-They are called unworthy, in matters of succession, who, by the failure in some duty towards a person, have not deserved to inherit from him, and are in consequence deprived of his succession.

C. N. 727.

ART. 965. [959.]-There is this difference between being unworthy and incapable of inheriting, that he who is declared incapable of inheriting, has never been heir, whilst he who is declared unworthy, is not the less heir on that account, if he has the other qualities required by law to inherit. Thus a person unworthy of inheriting remains seized of the succession, until he is deprived of it by a judgment, which declares him divested of it for cause of unworthiness.

C. C. 975 (969).