(109 So. 403)

No. 27709.

#### Succession of PAVELKA.

(March 29, 1926.

On the Merits May 31, 1926.

Rehearing Denied June 28, 1926.)

*(Syllabus by Editorial Staff.)*

On Motion to Dismiss.

1. Appeal and error, &wkey;>786.

Motion to dismiss appeal cannot be based on ground that appeal is frivolous.

2. Appeal and error <&wkey;786.

Motion to dismiss appeal cannot be predicated on ground that appeal was prosecuted to obtain delaj and to harass appellee.

3. Costs <&wkey;262.

Demand for 10 per cent, damages for taking frivolous appeal cannot be made on motion to dismiss appeal, but can only be requested' in answer to appeal under Code Prac. arts. 887, 907.

On the Merits.

4. Husband and wife &wkey;?274(l) — Daughter by former marriage of deceased wife may inherit interest of mother in community property acquired during second marriage (Act No. 160 of 1920; Rev. Civ. Code, arts. 888, 902, 1495, 2406).

Under Act No. 160 of 1920, providing that descendants of either husband or wife shall inherit his or her share of community property, and under Rev. Civ. Code, arts. 888, 902, 1495; 2406, regulating the descent of property, daughter by former marriage of deceased wife may inherit interest of mother in community property acquired during second marriage.

5. Husband and wife <&wkey;>273(l).

Under Act No. 160 of 1920, if deceased, whether husband or wife, leaves descendants, surviving spouse is excluded from inheriting share in community,of decedent dying intestate.

*7296. Costs <&wkey;260(4).

Where matter in issue is- res nova, depending on construction of statute, and is argued with honest conviction, damages for frivolous appeal cannot be recovered.

Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.

In the matter of the succession of Veronica Pavelka. Suit by Mrs. Caroline Repak, wife of John Repak, against Frank Pavelka. Judgment for plaintiff and defendant appeals.

Motion to dismiss the appeal was denied, and judgment was affirmed.

See, also, 157 Da. 480, 102 So. 579.

Jos. J. Ritayik, of New Orleans, for appellant.

Louis H. Gosserand, of New Orleans, for appellee.

On Motion to-Dismiss.

OVERTON, J.

Prank Pavelka, the husband of the deceased, Veronica Pavelka, is the appellant from a certain judgment rendered in this cause against him and in favor of Caroline Repak, the daughter of the deceased by a prior marriage. Caroline Repak, the appellee, has moved to dismiss the appeal. The motion for dismissal, in so far as it is necessary to quote it to show the grounds therefor, reads as follows:

> “On motion of L. H. Gosserand, counsel for appellee, Mrs. Caroline Repak, and on suggesting to the court that on the face of the papers the appeal herein taken is frivolous, and should be dismissed for the following reasons, to wit:

> “(1) That it is an appeal from a judgment sending a child and forced heir into possession of the property belonging to the mother who died intestate, on the ground that appellant, the widower of deceased, is entitled to inherit to the exclusion of said forced heir, appellee herein.

> “(2) That the purpose of appellant herein is to harass the appellee, delay and retard the proper procedure of the court, and deprive the appellee and heir of possession of the property which, under the law, belongs to her.”

[1, 2] From the foregoing it appears that the grounds for dismissing the appeal are that the appeal is frivolous, and was taken for delay and to harass the appellee. A motion to dismiss an appeal cannot be based upon the ground that the appeal is frivolous. This is so, because to determine whether the appeal is frivolous requires an examination into, and a decision on, the merits of the appeal. Such examination and decision can be made properly only after the appeal has been heard, in due course, on its merits., Reiners v. St. Ceran, 27 La. Ann. 112; Baker v. Frellsen, 32 La. Ann. 822; Succession of Baumgarden, 35 La. Ann. 675; Thomas v. Guilbeau, 35 La. Ann. 927; Pasley v. McConnell, 39 La. Ann. 1097, 3 So. 484, 485; John Barkley & Co. v. Ham & Seymour, 157 La. 874, 103 So. 245; Succession of Jake Damico (No. 27018) ante, p. 725, 109 So. 402; Keen & Woolf v. Caldwell (No. 25767) ante, p. 150, 108 So. 318. Nor can a motion to dismiss an appeal be predicated upon the ground that the appeal was taken, and is being prosecuted, to obtain delay and to harass the appellee. State ex reL Duffard v. Whitaker, Recorder; 45 La. Ann. 1299, 14 So. 66; Succession of Damico, supra.

[3] Appellee has included, in her motion to dismiss, a demand against the appellant for IQ per cent, damages for the taking of a frivolous appeal. Such a demand has no place in a motion to dismiss an appeal, and, in reality, is inconsistent therewith. Its only proper place is in the answer to the appeal. Code of Practice, arts. 887, 907; Thomas v. Guilbeau, supra.

For the reasons assigned, the motion to dismiss is denied, reserving to appellee the right to ask for damages for a frivolous appeal, in her answer, if she deems proper.

On the Merits.

LAND, J.

Mrs. Caroline Repak, wife of John Repak, was recognized by a judgment of the civil district court for the parish of Orleans as the daughter and sole heir of Mrs. *731Veronica Pavelka, who died intestate in the city of New Orleans on March 22, 1924. She was sent, under said judgment, into possession of the undivided one-half interest of her deceased mother in community property acquired during her marriage with Frank Pavelka, the second husband of decedent.

Mrs. Repak is of full age, and is the child by a former marriage of her mother with Joseph Kurucar.

After having been placed in possession of the estate of her mother, Mrs. Repak, as co-owner, instituted suit against Frank Pavelka, surviving husband in community, and prayed for a partition of the property by licitation. Pavelka answered the demand for partition by denying that Mrs. Repak was an heir, or that she had any interest in the community, and averred that he was entitled to the entire property as surviving spouse.

Frank Pavelka has appealed from a judgment in favor of Mrs. Repak ordering a partition of the community property in kind, and from a judgment maintaining an exception of no cause of action to an action in nullity brought by appellant to annul a judgment sending Mrs. Repak and appellant into possession of the community property.

[4] 1. The ’ legal rights of the respective parties depend upon a proper construction of the provisions of Act 160 of 1920, which reads as follows:

> “When either husband or wife shall die, leaving neither father nor mother nor descendants, and without having disposed by last will and testament of his or her share of the community property, such undisposed of share shall be inherited by the surviving spouse in full ownership. In the event the deceased leave descendants his or her share in the community estate shall be inherited by such descendants in the manner provided by law.”

It is the contention of counsel for Frank Pavelka that, as Mrs. Repak is not a child of the second marriage, she cannot inherit the interest in her mother in the community property acquired during that marriage, but that he, as surviving spouse, is entitled to the entire property.

There can be no question in this case that Mrs. Caroline Repak is the daughter and sole heir of her mother by a former marriage. It is conceded that her mother died intestate, and that the property acquired during her second marriage with Frank Pavelka belongs to that community.

Necessarily, at the dissolution of the second marriage by the death of Mrs. Pavelka, her undivided one-half interest in the community descended to her daughter and sole’ heir. R. C. C. art. 2406. .

[5] Act 160 of 1920 places the husband and the wife upon a basis of perfect equality as to the inheritance by either of the share of the deceased spouse in the community. If the deceased, whether husband or wife, leave either father, or mother, or descendants, the surviving spouse is excluded from inheriting the share in the community of the decedent dying intestate.

If a child of the surviving wife by a former marriage is excluded, then the child of a surviving husband by a former marriage is likewise excluded from inheriting the half of the community acquired during a second marriage. Such construction, however, cannot be placed, in our opinion, upon the provisions of Act 160 of 1920.

It is immaterial under the statute whether the children of a deceased wife or husband are the issue of the same or of a different marriage, as the language of the act does not limit the right of inheritance by descendants to the children born of the particular marriage during which the community property has been acquired.

In other words, it .is not made a condition precedent that the child inheriting the share of a deceased father or mother should be also the child of the surviving spouse in community.

*733On the contrary, the language of Act 160 of 1920 is of the most general and unrestricted character, when referring to descendants, as shown hy the following clause:

> “In the event the deceased leave descendants his or her share in the community estate shall be inherited by such descendants in the manner provided by law.”

It is provided by the law of this state that the nearest relation in the descending line is called to the legal succession. R. C. C. art. 888.

Legitiinate children or their descendants inherit from their father and mother, grandfather or other ascendants, without distinction of sex or primogeniture, and though they may be born from different marriages. R. C. C. art. 902.

Legitimate children are forced heirs, and cannot be deprived of the estate reserved for them by law, except in cases where there is a just cause for disinherison. R. O. C. art. 1495.

It is clear, therefore, that the judgment of the court below recognizing Mrs. Caroline Repak as the heir of her mother, and as a co-owner of an undivided one-half interest in the community property, to the exclusion of the surviving spouse, Frank Pavelka, is founded upon a correct construction of Act 160 of 1920.

[6] 2. Mrs. Repak has prayed for damages for a frivolous appeal; the contention being that the appeal in this case was only for delay.

This is the first time that the question here presented has been decided by this court.

As the matter at issue is res nova, and as the point raised has been urged in this court with seriousness, and evidently with honest conviction on the part of counsel for Pavelka, we do not deem that this is a proper case for the infliction of the penalty claimed.

A litigant naturally desires an appeal from an adverse judgment, and hig attorney may actually believe, though erroneously, that an appeal is the proper course for him to pursue in order to vindicate the rights of his client.

To inflict damages for a frivolous appeal in a matter upon which this court has not passed at any time, especially as to the construction of a statute of this state, would be going to extremes, except in a case of patent delay and obvious trifling with justice.

Judgment affirmed.