ing the case, it follows that all property acquired during the marriage, whether in the name of the one spouse or the other, is presumed to have fallen into the community, unless the contrary be shown. The wife, claiming such property to be hers, must esestablish her pretensions by legal proof. "The fact that the title was taken in her name does not even raise a presumption in her favor." 2 Hennen's Dig. p. 883. The husband is not permitted to make such proof unless his intentions to acquire for himself is made manifest in the act of purchase. Joffrion v. Bordelon, 14 La. Ann. 618; Hero v. Bloch et al., 44 La. Ann. 1032, 11 South. 821: Succession of Burke, 107 La. 82, 31 South. 391. But the forced heirs of the husband have a standing in court (to the extent necessary to protect their legitime) to attack the title to property acquired in the name of the wife and alleged to have been paid for with the separate funds of the husband, under Civ. Code, art. 1502, which provides that donations to the prejudice of the forced heirs may be reduced to the disposable portion, and under Act No. 13, p. 10, of 1882, which amends and re-enacts Civ. Code, art. 1752, to read: "A man or woman who contracts a second, or subsequent, marriage, having children by a former marriage, can give to his wife, or she to her husband, either by donation or by last will and testament, in full property or in usufruct, not exceeding one third of his or her property."

Considering, then, the question whether the plaintiff in rule has shown that the property in dispute was purchased with her paraphernal funds, or whether the defendants have shown that it was purchased with the separate funds of the husband, it appears that on the day of his marriage (April 14, 1908) Herman Graf had on deposit in bank the sum of $3,000; that thereafter, up to July 3d, he drew out $91.50, leaving the balance of $2,908.50; that on July 3d, the day upon which he made the offer of $2,500 for the Louisiana avenue property, he drew $275, which amount he did not, however, use as a deposit in support of that offer or of the offer of July 13th, which was accepted and which he subsequently refused to comply with, on the ground that his wife did not like the property.

running from July 6, 1903, and shows but five drafts in excess of $100, of which one for $120 was made a few days before his marriage; another, for $275, was made on the day of his first offer to buy the property, and still another, of $2,275, was made on the day that his wife paid that sum, as the balance of the price of the property in dispute and as the fee for the examination of the title, the other two drafts having been made in August, 1903. The account also shows that his deposits were usually of less sums than $50, and sometimes less than $5, from all of which, and from the character of the litigants, as disclosed by the evidence, we think that the large amount drawn by the decedent about the time of the acquisition of the property should appear either in his bank account or in his estate. It is however, wholly unaccounted for, save by its investment in the property here in dispute. Upon the other side we have a thrifty German woman, who had accumulated the savings from her work as a domestic servant, and habitually kept them in bank, where they bore interest, but who says that she was carrying upon her person about the time of the purchase in question something like $3,000, or $3,300, so that the payments of $250 and $2,275 on account of the property do not appear in either of the accounts kept by her in the banks. We have, however, already recapitulated the testimony given in support of plaintiff's pretensions, and do not consider it worth while to say more at this time than that it lacks originality and fails to convince, notwithstanding that counsel for appellant was by erroneous rulings precluded from completing his cross-examination of plaintiff and her witness, Mrs. Finnegan. Our conclusion upon the questions under consideration, then, is that the property in dispute was paid for with the separate funds of the now deceased husband. The decedent had, however, the right to give his wife one-third of his estate, and it was contemplated by the marriage contract that he should do so, from which, and from the law applicable thereto, it follows that, regarding the investiture of the title in dispute as in effect a donation of the property to the wife, such donation is not null but is merely reducible to the disposable portion, the manner of determining which is pointed out by law. Civ. Code, arts. 1502, 1505, et seq.

As appears from the statement of the case, plaintiff proceeded against Otto Graf as administrator and individually, and against the attorney who had been appointed to represent the four absent heirs, and she prayed that they be ordered to show cause "why the only piece of real estate inventoried in this succession should not be adjudged

"I ask leave to adopt Mr. Untereiner's return, as the return of the attorney for the absent heirs."

Whether after thus appearing he participated in the trial is not shown. The motion for new trial was made in the name of "George J. Untereiner, attorney for Otto P. Graf, individually and as administrator of this estate," and the motion for appeal was made in the name of "Otto P. Graf, individually and as administrator," etc. The question, therefore, presents itself: Does the administrator represent the absent heirs for the purposes of the appeal, or does he merely represent his own interest, as a forced heir of the decedent? As a matter of first impression, it would perhaps appear that, as an attorney had been appointed to represent the absent heirs, he alone would be authorized to represent them for the purposes of the appeal. It will, however, be found upon examination that, whereas there is no provision of law which in specific terms confers upon the attorney for absent heirs the authority to take an appeal on behalf of those whom he represents, Code Prac. art. 572, provides that:

"Tutors, curators, and other persons charged with the administration of another's estate, may appeal for the benefit of the persons whose property they administer, if they deem an appeal necessary."

said real estate; to own and hold it as her separate, paraphernal, estate." No objection was made by either of the parties to the form of the proceeding, which was selected by the plaintiff in rule, who tendered to the administrator and to the absent heirs, represented by the attorney appointed by the court, the issue which the court has decided. It may be that the attorney did not think an appeal necessary or advisable; but the administrator thought otherwise, and, being charged with the administration of the estate, has exercised the authority, specifically conferred upon him, to appeal for the benefit of the persons whose property he administers if he deems an appeal necessary.

The case, it will be observed, is not one where, as in Kohn, Syndic, v. Wagner, 1 Rob. 275, the judgment appealed from merely establishes the privileges of the creditors with regard to each other, or, as in Succession of Pettis, 11 La. Ann. 177, Succession of Hartigan, 51 La. Ann. 126, 24 South. 794, and Succession of Trouilly, 52 La. Ann. 284, 26' South. 851, an administrator or executor undertakes to champion the rights of creditors whose claims have been rejected. In the case first cited, this court said:

"It is no part of the administrator's business to swell the amount of the indebtedness of the estate which he administers beyond the limits fixed by the court of the first instance."

And in the case next cited (Succession of Hartigan) it was said (quoting the syllabus):

tors to act for the protection of the heirs and "It is the duty of executors and administralegatees of a succession and the mass of creditors, not for that of special creditors."

In the case at bar the administrator acted (in resisting plaintiff's demand) and he has appealed (as the law says he may, if he deems an appeal necessary) for the benefit of the persons whose property he administers. Whether he would have considered it necessary to appeal, as administrator, if an appeal had been taken by the attorney for absent heirs, we do not know, nor, so far as we can see, are we called on to inquire. As matters stand, we consider that he is rightfully here, and that as administrator he represents the absent heirs for whose benefit he took the appeal. It is therefore ordered, adjudged, and decreed that the judgment appealed fron be set aside and annulled; that there now be judgment decreeing the property here claimed by the plaintiff in rule to have been the subject of a donation to her by her de ceased husband, Herman Graf; and that said intended donation be reduced to a value not exceeding one-third of the estate of the donor. It is further decreed that this cause be remanded to the district court to be further proceeded with in accordance with the views expressed in this opinion and the law, the plaintiff in rule, appellee herein, to pay

Let it be conceded that in the general authority conferred upon the attorney for absent heirs, by Civ. Code, art. 1210 et seq., the authority to appeal is included, we then have two persons who are authorized by law to appeal for the benefit of the absent heirs of the estate, the one (the attorney) upon whom the authority is conferred in general terms, and the other (the administrator or persons charged with the administration of the estate) upon whom the authority is conferred in specific and precise terms, and we have here a case in which the authority so conferred upon him has been exercised by the administrator, whilst that conferred upon the attorney for absent heirs has not been exercised. The judgment appealed from decrees that the property in dispute (claimed, upon the one hand, to belong to the plaintiff in rule, and, upon the other, to belong to the succession under administration) does not belong to the succession, but, belongs "to plaintiff

For curbing on Common street.
For retaining wall on Common street
For curbing on Cleveland street.
For retaining wall on Cleveland street
For driveway on Cleveland street...
For two driveways on Common street
For concrete drain on Common street
For two flights of steps on Common

$75 15

62 00 98 00

92 40 12 00 24 00

62 00

18 00

9 00

43 00

$496 30

In argument, both in the brief and at bar, we were informed by the learned city attorney that the defendant "does not question its liability to plaintiff to the extent of paying actual damages done to plaintiff's property and the necessary expense to place said property in as good and accessible a position as it was before the street was brought to grade. The defendant contends that it is un

just and unfair to require that plaintiff's property should be made more accessible and improved and beautified at public expense." It follows:

The defendant cannot question plaintiff's right to actual damages. The amount allowed by the judgment is her ground of complaint.

Whatever benefit may be derived by owners of property from the improvements made is not taken into account in this case. Plaintiff may share in common with other owners in the benefits. They are not to be deducted. They are not appreciable in money. sides, it does not appear that plaintiff has been very much benefited by the cutting down of the street.

Be

We pass all other issues, and take up for decision in detail the different items of damages claimed by the plaintiff.

Taking first the item allowed for drive ways, we found no difficulty in deciding that plaintiffs have a right to recover damages for these. The driveways which they had before the cutting down of the street was their property, made at their expense, and they could not in justice be destroyed without replacing them to the extent required by the new grade of the street. There were three of these driveways.

Plaintiffs also have flights of steps which will be of no service. Others are due them by the municipality.

The amount allowed for driveways and steps is not excessive.

In addition to the testimony heard, as before stated, the judge ad hoc repaired to the place, and, after having examined it, arrived at the conclusion that plaintiffs should recover the amount.

Claim for driveways and steps.

The municipality for the purpose of improving the sidewalk has the authority to move trees without having to pay for their value, provided the removal is not wanton.

Ornamental trees inspire a commendable sentiment which moves the owner nearly always properly to consider them valuable. But the municipality, when an improvement becomes necessary, cannot in the nature of things be made to pay a considerable amount for shade trees. The trees growing on plaintiff's land, subject to a public servitude, belong to him unless needed to repair the Elliott on Roads and Trees (2d Ed.) way.

p. 743.

the judge of the district court. The amount for trees was not allowed by

We agree with him in disallowing it. We will again refer to trees in passing on the claim for a sidewalk.

We are next brought to consider the item charged by plaintiff for curbing, or strengthening the sidewalk by a curb.

The municipality is liable for expenses of placing in curbs. The plaintiffs need curbs along their sidewalks made necessary by the cutting down of the street. The testimony is that curbing is necessary to drain the water, prevent erosion, and strengthen the sidewalks, to prevent caving.

We next take up for decision the item charged by plaintiffs for damages caused by the water which was diverted from another

direction to the front of plaintiff's property.

According to defendant, it is a kindly stream of artesian water trickling by plaintiffs' property.

We infer from the testimony that it is a constant stream, and that the water is not always the pure artesian water. Sometimes on its way other waters mix with it, and it comes down with force enough to wear away the gullies in which it runs, and to spread on the road and make it muddy. That the street has been muddy and boggy is evident.

The work suggested by the testimony appears reasonable and economical.

Leaving the diverted drain, we are led to consider the claim for the sidewalk.

If nothing be done, it will be necessary, in order to get to plaintiff's sidewalk from the street, or in descending to the street, to go through acrobatic feats that are not always pleasant or graceful. This brings us to a consideration of the expense for the sidewalk, as a sidewalk is a part of defendant's plan of improvement. A retaining wall will also have to be constructed. It is a necessary part of the sidewalk.

The amount allowed for this improvement in the light of the evidence is not excessive. The defendant objects to the amount al

urges that curbing is not necessary on that

street.

The waters in this section of the city flow to Pithon coulée, including the flow of water from Cleveland street.

In order to complete the drain, the plan is, we take it, to conduct the drain to it. In order to carry out the plan after having cut the street to grade, canals are needed. The improvement has resulted in enhancing the costs considerably.

The work on the street just named is not ordinary repairs which municipalities can require of property owners. It requires more than the usual outlay of money. Unusual requirements should not be.

Under the rule adopted in matter of sidewalks, their repair can be imposed on the owner, but not the making of entirely new sidewalks-entirely out of the ordinary-after the owner had already furnished a side walk. 2 Abbott, p. 1097.

In the case of Manning v. Shreveport, 119 La. 1044, 44 South. 882, 13 L. R. A. (N. S.) 452 (a very similar case), the work was done by the municipality in accordance with the decree of this court.

[ which is not supplied by knowledge of the existence of a suit.

Cent. Dig. 88 25-33; Dec. Dig. § 17.*] [Ed. Note. For other cases, see Judgment,

3. APPEARANCE (§ 20*)-JUDGMENT (§ 232*)— WAIVER OF CITATION.

A defendant may waive his right to citation by appearing in the case for any other purpose than to plead the want thereof; and he may acquiesce in a judgment, illegally rendered, by voluntarily executing it, or by permitting it to be executed; he being in the parish where the execution takes place. But a promise to pay the amount of a judgment is not such acquiescence.

[Ed. Note.-For other cases, see Appearance, Cent. Dig. §§ 91-102; Dec. Dig. § 20;* Judgment, Dec. Dig. § 232.*]

4. SET-OFF AND COUNTERCLAIM (§ 6*)-RECONVENTION-GROUNDS OF REMEDY NON

BESIDENCE.

allowed.

Nonresidents cannot be brought into the courts of this state, whether as original defendants or as warrantors, upon ordinary demands for money, by substituted service.

[Ed. Note. For other cases, see Process, Cent. Dig. § 85; Dec. Dig. § 71.*]

2. JUDGMENT (§ 17*)-WAIVER OF CITATIONPRESENCE AT TRIAL.

The facts that a nonresident for whom a curator ad hoc has been appointed is present at the trial and is placed on the stand as a witpess are irrelevant, as affecting the jurisdiction of the court, ratione person; and testimony to show that he knew that a personal judgment would be rendered against him would be inadmissible as such judgment could legally be rendered only after citation, the want of

5. APPEAL AND ERROR (§ 173*)-CHANGING THEORY OF CASE ON APPEAL.

sonal judgment rendered through a curator ad Where a nonresident, suing to annul a perhoc, is met with a demand in reconvention (made in the alternative) for judgment as in the original suit, and he invokes the jurisdiction of the court for the determination of the questions, whether such demand discloses a cause of action and can be made in the alternative, he cannot afterwards, and on the appeal, into court solely for the purpose of having an be heard to raise the question that, having gone illegal judgment so declared, he did not subject himself to the jurisdiction for any other purpose.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 173.*]

(Syllabus by the Court.)

Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupée; L. B. Claiborne, Judge.

Action by Charles L. Andrews against George B. Sheehy, who filed a plea in reconvention. Judgment for plaintiff and also for defendant on his plea of reconvention, and both parties appeal. Affirmed.

See, also, 122 La. 464, 47 South. 771.

Wm. C. Carruth and Claiborne & Kearney, for plaintiff. Jacob H. Morrison and Hall & Monroe, for defendant.

Statement of the Case.

MONROE, J. George B. Sheehy, defendant herein, instituted suit in the district court for the parish of Pointe Coupée against Simonds and Perkins to confirm his title to certain land which he alleged had been acquired by Andrews, plaintiff herein, at tax sale, and sold by Andrews to him, with warranty of title, and he prayed that Andrews,