text:
    No. 14,062.
    State of Louisiana vs. George Banks.
    Syllabus.
    1. The rule Is that the testimony of a witness taken at the preliminary examination cannot be used on the final trial without a showing of either the death, or the permanent absence of the witness from the State; and Act 123 of 1898, organizing the Criminal City Courts for the Parish of Orleans, does not change this rule.
    2. An act will not be so interpreted as to give to Its provisions an operation beyond the scope of its title.
    3. A judicial record for the making of which the law provides, makes full proof of itself. Neither Its execution, nor Its contents, need be proved aliunde.

    APPEAL from the Criminal District Court, Parish of Orleans— Chretien, J. .

      Walter Guión, Attorney General, and J. Ward Gurley, District Attorney (Lewis Guión and S. A. Montgomery, of Counsel), for Plaintiff, Appellee.

      Henry O. Hollander, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

Defendant was tried for robbery. The prosecution, after showing that a witness was absent, not permanently absent, from the State, offered in evidence his testimony taken at the preliminary examination under the provisions of Act 123 of 1898; and the defendant objected on the ground that until the absence of the witness had been shown to be' permanent, his testimony was inadmissible. The judge let in the testimony, founding himself on the following clause in said Act 123, to-wit: — “When the testimony so taken is certified to by the stenographer and signed by the judge, it may be used as evidence in any subsequent judicial proceedings in ease of the death or absence of the witness from the State.” It is observed that the act reads, absent, not permanently absent, from the State.

We think that the objection was good. The title of Act 123 reads as follows:—

“An Act to provide for the organization of the First and Second City Criminal Courts of the parish of Orleans, providing for their officers and their duties, and for certain rules of procedure and the effects thereof in the cases within their jurisdiction.”

The object of the act, as thus stated in its title, was to provide for the organization of the City Criminal Courts and for the regulation of procedure in the City Criminal Courts, not in the District Criminal Court. The act did not undertake to regulate procedure in the District Criminal Court, and cannot be held to have done so. If the clause in question, upon which the trial judge based his ruling, were construed to have the operation of regulating proceedings in the District Court, it would be construed to operate beyond the scope of the title of the act; that is, it would be construed into unconstitutionality. And it would be unconstitutional for the further reason that it would be establishing for the parish 'of Orleans a different rule from that which obtains in the State at large. It would be in the nature of a special law regulating the practice of a court and changing the Tules of'evidence, in contravention of Article 48 of the Constitution. We think that hy the clause in question nothing more was intended than to enunciate the rule of evidence that testimony taken at a preliminary examination becomes admissible on a subsequent trial in case of the death or permanent absence of the witness.

The defendant objected to the evidence on the further ground, “That no proof had been offered on behalf of the State that the testimony as read by the counsel for the State was a true and correct report, no witness or evidence having been placed on the stand that the witness Easton was sworn, or that the testimony had been read to the witness Easton after having been taken in stenographic notes at the preliminary examination.” We think this objection was not good. The notes, if taken in conformity with Act 123, made full proof of themselves, being a judicial record, and did not need to be proved aliunde. The charge of the judge that the jury could find for any one of the lessor crimes included in robbery, was proper.

The admission of the testimony in question had the effect of vitiating the verdict.

It is therefore ordered, adjudged and decreed that the verdict and sentence herein be set aside, and that the case be remanded to be proceeded with according to law.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,961.
    Henry P. Hake vs. Lee and Beall.
    Syllabus.
    1. A sale of property for taxes which have been paid confers no title upon the adjudlcatee.
    2. A co-owner, or tenant in common, who purchases the property held In common at a sale for taxes, assessed against his co-owners and himself, acquires no greater interest In the property than he held before, except that he has a claim against his co-owners for reimbursement according to their respective shares.
    APPEAL from the Thirteenth Judicial District. Parish of Grant.— Blackman, J.

      Robert J. Bowman, and Ryan, & Blackman, for Plaintiff, Appellee.

      Williams G. Roberts, for Defendants, Appellants.
   Statement.

The opinion of the court was delivered by

Monroe, J.

This a petitory action, in which the plaintiff seeks to recover an undivided half interest in 760 acres of land, situated in the Parish of Grant and valued at about $8.00 or $10.00 per acre, and to obtain a judicial partition thereof as between himself and the defendants. The defendants claim, to have acquired the entire tract at a probate sale, made in the Succession of Henry O’Neal, and they allege that the plaintiff is estopped to attack their title for the reason that, as they claim, he was represented at said sale by an agent, who was authorized to buy, and who actually bid upon, said land.

The facts, as we find them from the record, are as follows, to-wit:

The land in question was acquired, in indivisión, by Henry P. Hake and Henry O’Neal from Wm. Hake and Wm. Coach, upon July 11th, 1888, the vendors being owners at that time, and afterwards, of other lands in the same parish, amounting to seven thousand acres, or more. The parties were residents of the State of Michigan, and Henry P. Hake continued to reside there, but O’Neal removed to Louisiana, where he died, probably, in 1897. During the year 1895, and the early part of 1896, O’Neal wrote to Hake on the subject of dividing the land, or of buying Hake’s interest, or of selling his own, but no agreement was reached. The last of these letters, which we find in the record, ’f' dated May 1st, 1896, and reads: “I wrote you some time ago to give, or take, so much cash for the lands that you and I own together in Louisiana. I got no answer from you. I am willing to divide those lands, will give you choice; the east half or the west half, or I will take $2,000 for my share, in cash. Please let me know what you intend to do, one way or the other. Would like for you to come down here. 1 think that we could fix up a trade. Henry, write soon. Eegards ♦*> all,” etc.

At the time this letter was written, the land was advertised for sale for the State taxes of 1895, and upon June 6th, following, the whole tract was adjudicated to O’Neal for $38.50, as in full payment of said taxes, interest and costs; and, thereafter, at O’Neal’s death, it was inventoried as belonging to his succession; and, later still, in April, 1898, was sold, by order of the probate court, as the property of said succession, for $1,400, to the defendants in this ease.

We find in the record the following evidence concerning the taxes for which the sale above referred to purports to have been made, to-wit:

1. A tax receipt bearing date January 27, 1896,.showing that Ilake and Coach (the vendors of Hake and O’Neal), in paying the taxes upon the large body of land owned by them, and from which they had sold the tract in question, had also paid the taxes for 1895 upon said tract. To which receipt is appended this certificate (following the description of property), to-wit:
“State of Louisiana,
“Parish of Grant.
“By authority in me vested by law, and upon the order of C. D. Kemp, tax collector, I this day cancel in full the taxes on this property for 1895, the same having been paid January 27, 1896.
“(Signed) R. S. Cameron, Clerk and recorder.”
2. A letter from H. P. Hake, dated “South Grand Rapids, Michigan, February 9, 1897,” addressed to C. D. Kemp, tax collector, Colfax. La., and reading as follows:
“Let me know what the taxes are on the O’Neal and Hake lands, as I wish to pay them, and also let me know when they must be paid. Please let me hear from you by return mail, and oblige.
“Yours respectfully,
“(Signed) Henry P. Hake.”
Which letter was returned to the writer with the following indorsement, to-wit: “The above has been paid by Hake and Coach.
“(Signed) C. D. Kemp, Tax Collector

Why the property was again sold for taxes, which appear thus to have been paid, is unexplained. Nor does the record inform us how it happened that the tax collector, in so indorsing H. P. Hake’s letter of inquiry, should have overlooked the fact that, in June, 1896. he had made sale of the land to which that letter referred.

In April, 1898, when the tract in question was offered at the probate sale, in the Succession of O’Neal, there was present Mr. D. E. Corbitt, who, for many years, as the evidence shows, had represented Wm. Hake (one of the vendors of O’Neal and Hake) as his attorney, and who, on that occasion, was authorized to purchase, for Wm. Hake, the undivided half interest of O’Neal in said lands, which interest his principal appears to have understood was all that was to be, or could be, lawfully sold. Mr. Corbitt was, also, authorized, at that time, by Henry P. Iiake, to deliver to Lee and Beall (the defendants herein) a deed, which Hake had executed as the result of previous correspondence with said parties, to his interest in said land, provided that they paid the price which had been agreed on, or considered, to-wit: $3,300. In this situation, when the whole tract was offered, as the property of the Succession of O’Neal, Corbitt gave public notice that one-half of it belonged to Henry P. Hake, and that no interest in such half would pass by the sale. And he afterwards bid on the interest of, O’Neal, for Wm. Hake, whose money he held for that purpose. But the property was adjudicated, as has been stated, to Lee and Beall. Corbitt nevertheless, still made an effort, though unsuccessful, to sell, to the adjudi • catees, the interest of H. P. Hake.

But the adjudicatees, notwithstanding the notice which they had received, assumed to have acquired the whole tract, and began cutting the timber, which gave it it’s principal value, and the plaintiff brought this suit, and several others, which have been before this court, in one form or another, to vindicate his rights. The trial in the District Court resulted in a judgment for the plaintiff.

Opinion.

If, as appears to have been the case, the taxes for 1895 had been paid prior to June 6th, 1896, when the tax collector attempted to sell the land in order to recover them, it is quite evident that no title could have passed to any one as the result of such attempt. But, even if they had not been paid, the adjudication of the property to O’Neal, who was a co-owner, or tenant .in common, with Hake, gave to the adjudicates no greater interest in the property than he held before, except that he had a claim upon Hake for re-imbursement according to their respective shares. Black on Tax Titles, 141; Clark vs. Lindsey, 47 Ohio St. (9 L. R. A. 740, and note.) As O’Neal had never become the owner of Hake’s interest, it follows that such interest could not, lawfully, have been sold as the property of his succession. And as the defendants were fully informed of the situation and notified, at the time, that no title to Hake’s interest would pass; and moreover, as the amount for which they pretend to have purchased the whole tract was less than the value of O’Neal’s half interest, they appear in this litigation without a shadow of either law or equity to support their position.

Some attempt was made to show that Corbitt bid upon the whole property, at the succession sale, as the authorized representative of Henry P. Hake. It is sufficient to say that the attempt was wholly unsuccessful, and that the plea of estoppel has, therefore, not even the foundation upon which it is predicated.

Judgment affirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,708.
    In the Matter of Browne & Jenkins Company, Limited, in Liquidation.
    Syllabus.
    1. The liquidator of a partnership or corporation which has been dissolved by vote of the parties in interest and gone into liquidation is without authority to continue its business as a going concern, and will be held to strict responsibility for so doing.
    2. Where several parties carry on business of a commercial partnership in the name of a limited corporation which has never had the capital required to give existence to such a corporation, its liquidator, who was one of the partners, has no grounds to complain of a judgment on final liquidation which does not extend his liability beyond that for which he would be legally liable as a partner.
    APPEAL from the Civil District Court, Parish of Orleans.— Theardj J. .

      Hugh G. Gage, for Plaintiffs, Appellees.

      Benjamin Bice Forman, for Heirs of C. W. Sterry, Intervenors, Appellees.

      Florance & Rosen, for Lewis Voight & Sons Co., Intervenor, Appellee.

      Dufour & Dufour, for National Wall Paper Co., Intervenor, Appellee.

      F. Rivers Richardson, for Administrator, J. V. Gilmore, Intervenor, Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

On the 21st of June, 1897, A. H. Browne, Jacob M. Jenkins, and Douglas Jenkins, presented a petition to the Civil District Court for the Parish of Orleans in which they alleged that on the 19th of that month, at a general meeting of the stockholders of the Browne & Jenkins Co., Ltd., a corporation organized under the laws of Louisiana, the said corporation was dissolved and its affiairs placed in liquidation, and that they, the petitioners, were elected commissioners to liquidate the same under the provisions of its charter and according to law; that they were willing to accept said position and to furnish such bond as the court might deem necessary. That it was proper and necessary under the facts that the court should confirm and ratify the proceedings then had and the appointment of petitioners as liquidating commissioners; that they be made officers of the court and that it should take charge of the liquidation and assets of the corporation and that the liquidation should proceed under the orders of the court. That to that end an inventory be taken. That so far as advised the corporation was solvent, but that it owed debts of different rank and character and it would be necessary to marshal the assets and determine the relative rank and rights of the creditors in due course of law, and under proceedings usual in cases of involved or insolvent concerns.

They prayed accordingly.

The District Court acted upon this petition. It homologated and ratified the proceedings of the meeting of stockholders and the appointment of petitioners as liquidating commissioners of the corporation; it ordered that upon their taking the oath and furnishing bond in the sum of $6,000, letters issue to them as liquidating commissioners; that they proceed to liquidate and settle the business affairs of said corporation under the orders, direction and control of the court. It directed that the assets of the corporation be taken possession of by the court; that an inventory be made and that the notary taking the same furnish a list of the debts and liabilities of the corporation as far as he could ascertain the same.

On the 27th of June an inventory of the property of the corporation was made by E. L. Simonds, notary, showing assets to the amount of seventeen hundred and seventy dollars and thirty-seven cents.

The three persons appointed liquidators qualified and letters as sucli issued to them on the 22nd of June, 1897, but on June 28th the court accepted the resignation of A. H. Browne and Douglas Jenkins, upon their suggestion that the affairs of the corporation could, in their opinion, be properly liquidated by the other commissioner, Jacob M. Jenkins, and that their services were unnecessary. The district judge, in his reasons for judgment, gives the following detailed account oí subsequent occurrences:

“Thereupon began what was intended as a liquidation, but what was merely a continuance of the affairs of the admittedly insolvent corporation, as though no liquidation proceedings had been initiated, and as though the corporation was a going concern in a perfectly solvent condition. The only effect of the court’s order for a liquidation seems to have been to prevent the creditors from bringing suit. So far from proceeding to dispose of and marshal the assets with a -view to an equal distribution among all the creditors, the liquidating commissioner, without applying for or obtaining the necessary authority from the court, went on with the business uninterruptedly, soliciting and filling contracts, making purchases of goods and employing labor, disbursing and collecting money, and otherwise carrying on the business of the corporation as though no legal proceedings were pending and as though the court and the creditors had no concern in what he was doing. Among other acts of the liquidating commissioner was the employment of his brother, Douglas Jenkins, who had just resigned as one of the commissioners, as book-keeper at a monthly salary, at the same time that he himself was drawing a monthly compensation as liquidator. In the meantime not a cent was being applied to the extinguishment of the debts due by the corporation prior to the liquidation. The liquidator, apparently ignorant of his duty to the court, failed to seek advice from his counsel, and acted throughout upon the. assumption that he knew all about the law and had no one to consult.
“This state of things continued until February 28th, 1899, when one of the creditors, The National Wall Paper Company, averring that the liquidator had been administering the property of the defunct corporation for nearly two years, and had, in course of administration, collected moneys which should be accounted for and distributed, ruled him to show cause why he should not file an account and tableau of distribution. This proceeding was followed on April 11th, 1899, by a rule taken on the liquidators by another creditor, The Lewis Yoigt and Sons Company, to show cause why all the property of the Browne & Jenkins Company, Limited, which had been under administration for nearly two years, and which had not been converted into cash, should not be sold at once by the liquidator according to law. "Upon the trial of this latter rule it was ordered by the court that an inventory of all the property now in the hands of the liquidator be taken by_ a notary, assisted by appraisers, and that said property be sold at public auction by a designated auctioneer, for cash, after ten days advertisement and according to law. As ordered, an inventory was taken on May 16, 1899, which showed assets in the liquidator’s hands aggregating in value $3,855.86. The auction sale of these assets realized only $301.45 gross.
“It was not until November 3, 1899, and not until he bad been threatened with punishment for contempt of court, that the liquidator did file an account of his administration. That account, to which opposition has been made, is hardly worthy of consideration.
“After setting forth, as mere memorandum, the amount of the inventory taken on June 24th, 1897, $1,770.37, and the amount of the inventory taken on May 16th, 1899. before the sale, $3,855.86, the liquidator proposes to account only for the proceeds of sale .amounting gross to................................................ $301 45 and for cash in the hands of his attorney for costs, etc...... 375 00
or say a total of........................................$676 45
out of which must be deducted sundry privileged claims
which are not contested and aggregate................. 262 56
leaving a balance of...............................•.....$413 89 for distribution among the ordinary creditors.
“The account was supplemented on April 16th, 1900, during the trial of the oppositions, by what purports to be a ‘ detailed statement of the business of Browne & Jenkins Company, Limited, in liquidation, from the date of the appointment of receiver to final sale’; which statement was filed in answer to opponent’s repeated calls for the liquidators’ books and to avoid punishment for contempt for refusing to respond to the calls. The statement was accompanied by such books as had been used by the liquidator. According to the first part of it the liquidator collected $16,770.61, and disbursed $16,395.61, showing an excess of receipts over expenditures of $375.00, which, added to the $301.45 gross proceeds of sale of the stock, foots up the $676.45 for distribution. But an examination of the latter part of the statement discloses that there was an apparent profit, in 1897, of $1,429.14, as against a loss, in 1898, of $541.79, andia further loss, in 1899, of $452.62, or say a profit during the liquidator’s entire administration of $434.73, instead of $375.00 as stated. And when called upon to specify the items of daily receipt! and disbursements, and when asked to point out in the books the entries from which the statement was prepared, neither the liquidator nor his book-keeper could do so. The accounts and statements supplementary thereto are entirely inadequate, save as to certain items hereafter to be referred to, to assist the court in fixing the liquidator’s liability under his trust.

“That liability, it seems to me, must be measured as follows:

“The first inventory placed only a nominal value upon the stock; its real value, as shown by the second inventory, was $3,855.86. It was error on the liquidator’s part to allow this stock to be sold at auction, under order of court, for less than two-thirds of its appraisement. The sale, ordered in due course of liquidation of an insolvent concern, was judicial and subject to all the formalities prescribed by law for that character of sales. Vide Act 159 of 1898, which assimilates receivers and liquidators to syndics, also R. S. 688; C. P. 680; 7 N. S. 180; 2 R. 187, 201; C. C. 2184. If the liquidator thought the appraisement too high, he should have asked for a re-appraisement; for if the bids at the sale did not reach two-thirds of the appraisement, it was his duty to cause the property to be re-advertised and re-sold. Having allowed the stock to be sold for less than the amount prescribed by law, he is responsible for that amount, or, say, two-thirds of $3,855.86 — $2,570.57, instead of $301.45 as appearing on the account.

“The liquidator is also responsible for the amounts paid to himself, to his brother, Douglas Jenkins, as book-keeper, and to A. H. Browne, as clerk, being respectively $1,344.45, $1,201.10 and $49.25; or say a total of $2,594.80. Aside from the fact that there was no authority asked for for the continuation of the .business, or for the employment of the clerks, an authority which would hardly have been granted in view of the avowed insolvency of the dissolved corporation and the insufficiency of its assets for the payment of its debts, it is not permissible that the same two persons who had resigned the trust of liquidators, upon the representation that the liquidation could properly be conducted, by a single liquidator, should at once secure employment as clerks to assist in the liquidation, thus leaving to the one liquidator the entire commission presumably deemed too small for three, and burdening the liquidation with clerks’ salaries. Besides, the clerical services of at least one of them, Douglas Jenkins, appears to have been of little, if any, value, his knowledge of book-keeping being so limited that he could not even explain the books kept by him. The liquidator can claim no other compensation for himself than the commission allowed by law of 5 per cent, on the amount to be distributed.

“Therefore I am of the opinion that the liquidator must be held to have for distribution the following amounts:

“Two-thirds of $3,855.56, the appraised value of the stock illegally sold ..................................... $2,570 57
“Amount unduly paid to himself for labor .'.........'.... 1,344 45
“Amount unduly paid to Douglas Jenkins for labor....... 1,201 10
“Amount unduly paid, to A. H. Browne for labor.......... 49 25
“Cash in the hands of H. C. Cage, attorney, for costs, etc.. 375 00
“Total assets.................■.....................$5,540 37
“From this must be deducted:
“1st. — The privileged claims placed upon the account and not
contested, amounting to.....•.........................$262 56
“2nd. — The liquidator’s commission, 5 per cent, on $5,540.37 ........................................... 277 01
“3rd. — The claim of C. W. Sterry for rent from January 1st, 1899, to June 1st, 1899, that being the time at which the leased premises were vacated — five months at $45—
$225, less credit of $6, or say.......................... 219 00
“With interest at 5 per cent, on $39 from February 1st, 1899, and like interest on instalments of $45 from the 1st of each succeeding month, and ten per cent, attorney’s fees.
“Out of the balance, after payment of these privileged claims, there must be paid the following ordinary claims, which have been either proved or admitted:
“Lewis Yoight and Sons Co.............................. $951 05
“National Wall Paper Co............................... 2,090 38
“J. Y. Gilmore......................................... 51 00
“With legal interest from February 8th, 1898.
“The claims of the other ordinary creditors have not been proved and must be stricken from the account.
“It is therefore ordered, adjudged and decreed, that the account filed herein by J. M. Jenkins, liquidating commissioner, on November 3rd, 1899, be re-cast and amended as hereinabove stated and, that as amended, be approved and homologated and the funds distributed accordingly.”

Opinion.

' The evidence shows that on-,--, 0 acob M, Jenkins, Douglas Jenkins, and A. II. Browne, having in view the carrying on the business of paper hangers and sellers of wall paper, went before a notary public in the City of New Orleans, and caused to be drawn up the charter of a limited corporation of which they declared themselves to be stockholders. The amount of the capital of the concern was entirely below that required by law for the - creation and existence of such a corporation, none the less business was commenced and carried on for a long time in its name and as a corporation. Finding that the business was a failure, the parties met together, declared the “corporation” “dissolved” and placed “in liquidation” for settlement.

They appointed themselves liquidators and were, subsequently on their petition, recognized and confirmed as judicial liquidators by order of court. Two of these parties (A. H. Browne and Douglas Jenkins) immediately resigned as such and Browne appeared no longer thereafter in connection with its affairs. How much property belonged, in point of fact at the time of this dissolution, to the concern, does not appear, for the inventory taken at that time was evidently unreliable.

Instead of disposing of the property, collecting the outstanding debts due to it and paying the creditors, Jacob M. Jenkins, the remaining liquidator, ignoring the fact that the “corporation” had “resolved” itself out of existence and gone into liquidation, and ignoring the orders of court in respect to that matter, carried forward the business precisely as it had always been with the difference that Browne had disconnected himself from the concern and Douglas Jenkins, though continuing his connection with it, had withdrawn his name, and matters thereafter were conducted in the name of “Browne & Jenkins Co., Ltd., in liquidation.”

Purchases were made and debts created by Jenkins, liquidator, private sales effected by Mm also, contracts entered into and executed and moneys received paid out to tMrd parties and drawn out by the two Jenkins’ without consultation with, or orders or permission front any one. During the continuance of this condition of affairs, sixteen thousand dollars or more went into the hands of the liquidator. How much of this business was based upon the old stock of goods, and how much upon new purchases of new stock, does not appear. When certain parties, claiming to be creditors, finally brought matters to an end, it appeared, from a new inventory, that there was then in hand thirty-eight hundred and fifty-five and 56-100 dollars worth of stock. This stock was sold at auction for the price of three hundred and one and 45-100 dollars.

The liquidator being ruled into court for an account presented aa such, that which is referred to by the district judge in his reasons lor judgment. Oppositions to this account were filed. On the trial of these oppositions the fact was developed, through testimony adduced therein, of the continuance of the business, as has been stated, and the receipt of the large amount mentioned was shown without any attempt to explain how this money was expended. It was made to appear, however, that Jacob M. Jenkins had drawn thirteen hundred and fifty-four and 45-100 dollars, and Douglas Jenkins had drawn twelve hundred and one and 10-100 dollars from this fund.

The District Court, with the light wMch it had before it, rendered the judgment which has been appealed from. Appellant claims that he has been harshly and unjustly treated; that he has acted throughout in good faith and in the interest of creditors. ' That had he sold the stock on hand at the time of going into liquidation, at public sale, it would have brought practically nothing; that the only way to give value to it was to sell it at private sale and to dispose of it through contracts made to hang it up, and this was done. That, from that standpoint, the services of Ms brother and himself became necessary; that those services were rendered and were paid for at rates for which like services of third parties would have justly and legally called. We would have been glad to have found good faith in these transactions, but we have not been able to do so. This whole business, from beginning to end, has been wrong. There was really no corporation formed. The business carried on under that name was in reality the business of Browne & Jenkins, not of Browne & Jenkins Co., Ltd. The debts created in that name were debts due by them.

It is no hardship and no injustice that J. M. Jenkins should be held personally to pay for those debts. That is what practically the judgment appealed from amounts to. If the judgment has been rendered against him for a sum in excess of debts, the parties will not be injured thereby.

We are of the opinion that the judgment appealed from was really for an amount smaller than the court would have been warranted m rendering under the evidence. It is shown beyond question that over sixteen thousand dollars went into the hands of the liquidator, while m office, and he made no showing of his disbursements, which would bring his indebtedness below that at which the court fixed it. If there be, in fact and law, an indebtedness to that amount and over, the ascertainments of the particular elements which go to make up the same becomes a matter of no moment. If there be any mistakes in that matter it is the fault of the appellant. Granting that he was entitled to have had credit for the disbursements which he made, he did not place the District Oourt in position to ascertain what they were.

He complains to this court of the action below, but we are in no better position as to details than that court. Were we to reverse the judgment, we would have to substitute in place of it a judgment to be rendered by ourselves. This we could not do «with the data, furnished us. We have not been asked to remand and, had such prayer been made, we would not have been justified in granting it. Appellant, though knowing precisely what he was called upon to prove, failed to make any proper showing.

For the reasons assigned, the judgment appealed from is hereby affirmed.


author: Monroe, J. Nicholls, C. J. Breaux, J.

text:
    No. 13,738.
    Succession of Dr. Edward B. Benton.
    Syllabus.
    1. Where the conduct of the husband justifies the wife In leaving him, and furnishes grounds for divorce, she is necessarily authorized to acquire a separate domicile, and the law of the domicile so acquired will determine her marital status. Hence, a judgment of divorce, rendered by a court of a State in which such domicile is acquired, and valid where rendered, is valid in other jurisdictions, without regard to the place of marriage, the offense, or the domicile of the husband, and the latter may be brought into court by publication, or otherwise, as provided by the lex fori.

    2. It is settled jurisprudence in this State that a marriage will not be dissolved on grounds antedating the establishment here of the marital domicile, but it does not follow that this court will not recognize the validity of a divorce granted upon such grounds in another State.
    3. In such a ease, the decree of divorce is open to attack upon questions of jurisdiction, among which is good faith as to the acquisition of domicile. But where, in such decree, all necessary facts are found, it presents, upon its face, no intrinsic nullity, and will serve as a basis for a presumption of good faith with respect to a subsequent marriage.
    4. A dative executrix should deposit the funds coming into her hands in a bank, established in the parish where such succession is opened, which pays interest on deposits, if there is such a bank, and if there is no such bank, she should deposit such funds in a solvent bank in such parish which pays no interest. And if she fails so to do, and fails to file annual accounts, and pays out such funds without authority of the court, for matters in which the sue cession is not concerned, she should be destituted of her office.
    5. The fees and expenses of attorneys, and the expense of litigation between different heirs, or claimants, as to their respective rights, do not constitute general charges against the succession.
    6. It being shown that an opponent had originally been employed by decedent as ' housekeeper, but that, in the course of time, there had ceased to be any question of wages between them, and that she and her children and grandchildren were, equally with the decedent, the beneficiaries of the home which he provided and which she made comfortable; and that the decedent further provided for them all in his will, a claim for years of back wages and for nursing during last illness was properly rejected. •
    7. It appearing in this case that there are conflicting claims with respect to the ownership of land which derives its principal value from the timber on it; that the probability is that it will be denuded of such timber if allowed to remain, or to go, into the possession of either of the claimants; that the judge a quo has ordered the judicial sequestration of such land, and has refused an application to bond the same, this court finds no reason for Interfering with such ruling.
    8. Nor, where a will has been probated, whereby the testator disposes of his entire estate, does this court discover any reason for reversing the ruling of the judge a quo in refusing to probate an alleged will of older date, which gives nothing which is not given in the will already probated.
    On Rbhearinq.
    1. A marriage only putative produces civil effects as relates to the party In good faith and his or her children. Smith vs. Smith, 43 A. 1148.
    2. Without determining that the marriage is valid, it is entitled to weight in determining the good faith of the wife or of the husband.
    3. After the second marriage had been contracted, apparently in good faith, those who have for years recognized its validity are scarcely in a position to he heard to have it decreed void, and the children of the marriage illegitimate • and without the least rights.
    4. The marriage as relates to the daughter is entitled to complete legal effect.. As relates to the other parties concerned, the original opinion remains, as well as the decree.

      APPEAL from the Twenty-sixth Judicial District, Parish of St. Tammany. — Thompson, J.

      Stephen D. Ellis, Benjamin M. Miller and Benjamin Bice Forman, for Instituted Heirs and Legatees, Plaintiffs, Appellants.

      Wickliffe & Falls, Stifft & Madison and T. M. Burns, for Dative Testamentary Executrix, Defendant, Appellee.
   On the application for rehearing by

Nicholls, C. J.

On rehearing by

Breaux, J.

The opinion of the court was delivered by

Monroe, J.

Edward B. Benton, a resident of the Parish of St. Tammany, died in New Orleans, June 4th, 1897, leaving real and personal property in said parish, and in the Parish of Orleans. Upon June 7th, following, his sister, Ella S. Benton, a resident of New York, presented to the District Court of St. Tammany an instrument, purporting to be her said brother’s olographic last will, dated May 29th, 1897, whereby, after-certain particular legacies, the testator gives “the remaining, disposable, portion” of his estate to his two sisters, Ella S. and Charlotte E. Benton, and names the former as his executrix, without bond. This instrument was duly proved and ordered to be recorded and executed, and the proponent took the required oath and received letters testamentary. Upon June 28th, a petition was presented to the court in the name of Mrs. Rachel Benton, in which it is alleged; that the petitioner resides in New Orleans; that she was married to the decedent, at Cairo, Illinois, August 11th, 1869, and lived with him, thereafter, in New Orleans, for many years, until he withdrew from the matrimonial domicile, and that said marriage was never dissolved; that she loaned him money, before, and placed in Ins hands property belonging to her, after, said marriage, and is a creditor of his succession with respect to the same in an amount exceeding $5,000.00; that the decedent left property in this State, acquired during said marriage, and which fell into the community superinduced thereby, and that she is entitled to be recognized as owner of one-half thereof; that he also left a daughter, issue of said marriage, now the wife of Jules E. Peytral, of New Orleans, and that the instrument, purporting to be the will of said decedent, which has been admitted to probate, ignores the rights of petitioner, and of said daughter, and is, to that extent, null and void. She further alleges the illegality of the confirmation of Ella S. Benton as executrix, and avers that said executrix has failed to give bond and to cause an inventory to be made; that the property of the succession is worth over $40,000, and that, as a creditor, she has a right to demand a bond, and she prays for citation of the parties interested, and for judgment ordering the executrix to furnish bond and recognizing her as widow in community and as a creditor.

_ There was also filed upon the same day (June 26, 1897), a petition on behalf of Mrs. Peytral, in which it is alleged that the petitioner is the only child, and forced heir, of the decedent; that the instrument probated as his will is void for the reason that it was not “dated, written, and signed by the hand of said decedent, nor without assistance,” and because he was non compos mentis at the date at which said instrument purports to have been executed, and was under the control of his sister, Ella Benton, and of one of the particular legatees.

It is further alleged that, in any event, the bequest to said particular legatee is void, for the reason that she was the concubine of the decedent, with whom he lived, whilst his wife, the mother of the ■petitioner, was, and is, living. She prays that the probate of the said alleged will, and the confirmation of the executrix, be annulled, and that said instrument be decreed to be of no effect; or, if that be denied, and said instrument be maintained as the will of said decedent, that the particular legacies therein be declared null; that said Ella Benton be removed, as executrix, and that petitioner be appointed in her stead; and that petitioner be also recognized as the sole heir of the decedent and sent into possession of his entire estate; or, in the alternative, that she be recognized as his forced heir, to the extent of two-thirds of said estate. And she further prays that an inventory be ordered. Upon this petition, the judge a quo made an order directing the executrix to give bond in the sum of $25,000, within thirty days, and to show cause, within a shorter time, why she should not be removed, for failure to cause an inventory to be made, or begun, as required by law. Thereafter, a petition was filed in the name of Mrs. Rachael Benton, which recites the order of court above mentioned and alleges that the executrix has failed to comply therewith, and that her office is, therefore, ipso fació vacated, and the petitioner prays that an inventory be taken and that, after publication of her application, she be appointed dative testamentary executrix.

The inventory was accordingly taken, and, in due time, there being no opposition, the applicant took the oath, gave bond, and, upon September 24, 1897, received letters as dative testamentary executrix. In May, 1898, she filed a provisional account, which was opposed by two persons, claiming to be creditors, and, by the particular and universal legatees. The legatees also appeared, and, for answer to the petitions, filed on behalf of Mrs. Benton and Mrs. Peytral, deny the averments and charges therein made and insist upon the validity of the will.

In May, 1898, Mrs. Mary E. Monroe, claiming as creditor and paftcular legatee, presented a petition asking that the dative testamentary executrix be ordered to file a true statement of her accounts, together with her bank book, and, in default thereof, that she be dismissed from office, condemned, with her sureties, for all monies collected by her and not deposited and accounted for, and the executrix was, accordingly, ordered to file an account and to show cause why she should not be divested of her office. In February, 1899, another petition was filed, on behalf of said particular legatee and the two universal legatees, praying that said dative executrix be deprived of her office, condemned for certain monies alleged to have been received, and decreed to have no interest in the succession; and the two petitions thus mentioned were, in regular course, put at issue. In July, 1900, the dative executrix provoked the seizure by judicial sequestration, of certain property said to belong to the estate and to have been put in the possession of the particular legatee mentioned, who moved, without avail, to set aside, and to bond, said seizure. Thereafter, said particular legatee offered for probate an instrument purporting to be a will, made by the decedent in April, 1898, and the probate thereof watrefused, on the grounds, that the will, of later date, already probated, disposed of the entire estate, and that it was useless to probate the other. From the issues as made up by those varied pleadings, it resulted that a number of judgments were rendered, four of which were to the following effect, to-wit:

1. A judgment rejecting the demand for the destitution of the executrix and praying that she be decreed to be without interest in the succession.
2. On the oppositions to the. account.
3. Refusing to set aside, or release on bond, the judicial sequestration.
4. Refusing to probate the will of April, 1893.

These judgments have been brought up for review by means of an appeal taken on behalf of the particular, and universal, legatees, and they will be considered in the order in which they have been mentioned.

I.

The appellants pray that the dative executrix be destituted of her office and decreed to be without interest in this succession upon the grounds, inter alia, that she obtained her appointment by falsely and fraudulently representing herself to be the widow of the decedent, when, in fact, she was never legally married to him. The evidence shows that, in' 1863, she was married, in Mississippi, to Burrill J. Manscoe, and that she lived with him, in said State, except during certain intervals of separation, until, probably, the year 1866, when they came to New Orleans. Whether they came with the intention of establishing a permanent domicil here is not altogether free from doubt, but, as a matter of fact, after a separation, the duration of which is not shown, they resumed their relations, as husband and wife, in New Orleans, about the beginning of the year 1867, and remained together until the middle of that year, when they separated finally, and the next definite information we obtain as to the defendant’s whereabouts is from a petition for divorce, filed, in her name, in June, 1869, in the Circuit Court of Knox county, Indiana. In said petition, and in an amended petition, filed at a later date, she alleges that she is a bona fide resident of said county, and has lived there for more than a year; and she charges her husband with want of support, drunkenness, brutality, and adultery, and prays for a judgment of divorce. The defendant was summoned, by publication in a Knox county newspaper, and, thereafter, upon the testimony of four or five reputable witnesses, taken under commission in New Orleans, and fully sustaining the charges contained in said petition, there was a decree of divorce, which was entered upon what is called the “judgment book,” as of date August 12th, 1869. It is now claimed that said judgment was really rendered upon August 10th, 1869, and that, by a proceeding had, for the purposes of this litigation, in 1898, the date of said judgment has been changed, nunc pro tunc, to that which it should originally have borne. Be that as it may, upon August 11th, 1869, the defendant, as Rachael L. Davidson, which name the decree of divorce authorizes her to resume, was married at Cairo, Illinois, to E. B. Benton, whose estate is the subject of this controversy. The couple, shortly afterwards, came to New Orleans,, where, with the exception of an interval spent at Bay St. Louis, Mississippi, they lived together for about nineteen years. During that time, there were three children born to them, viz: a boy and a girl, who died, and another girl, now Mrs. Rachael Peytral, one of the present litigants. There was never, at any time, the slightest question raised, or suggested, as to the validity of the divorce so obtained, or the marriage so entered into, or as to the legitimacy of the children born of said marriage. Benton introduced the defendant as his wife, and she was so recognized by every one in New Orleans who came in contact with them, and also, through correspondence, by his own family, including the universal legatees now before the court. In 1888, however, the decedent went to Honey Island, in St. Tammany Parish, where he engaged in saw-milling and other business. And if, from that time until the day of his death, he ever saw or communicated with his wife, the record fails to show it, as it also fails to show why hé so acted. Nevertheless, for a number of years, he continued to write frequently and in terms of interest and affection to his daughter. But she married upon April 3rd, 1895, and never saw him afterwards, nor does it appear that she ever heard from him after he was informed of her marriage. His sister, Ella S. Benton, and the particular legatee, Mrs. Mary E. Monroe, were with him during his last illness and they sent word to the daughter, who called to see her father, that he could not be seen.' And when he died they failed to notify her, so that her first intimation of the event came through a notice in a newspaper, several days after he was buried.

There is no evidence in the record (save the finding in the decree of divorce to the effect that all the facts necessary to the obtention of that decree had been established) as to the plaintiff’s bona fide residence in the State of Indiana. Upon the other hand, there is no evidence sufficient to overcome the prima facie effect to which that finding is entitled. The most that can be said concerning such evidence being that it raises a suspicion that the animus manendi may have been wanting. In view, therefore, of a ruling heretofore made upon this point, whilst we should hesitate to maintain the validity of the divorce so obtained without further proof of the good faith of the plaintiff (defendant here) in the matter of the acquisition of domicil in Indiana, we are, nevertheless, of the opinion that the decree in question discloses, upon its face, no intrinsic nullity, and is “subject to attack only upon proof of extrinsic facts undermining the jurisdiction.” Smith vs. Smith, 43 Ann. 1140. Under the circumstances, however, we prefer to pretermit, as did the learned judge a quo, any decision as to the validity of such decree, and to proceed to the inquiry whether the said plaintiff (defendant here) can be held to have believed in good faith, that she was at liberty to marry again. It has already, been shown that for nineteen years, from 1867, when the marriage was celebrated at Cairo, until 1888, when the decedent left the defendant and went to Honey Island, E. B. Benton and the defendant lived together as husband and wife, and that during that time the validity of the divorce which the defendant had obtained, and of the marriage which she had thus contracted, was never impugned. To this it may be added that, even after Benton left the matrimonial domicil, and up to the date of his death, in June, 1897, he never repudiated said marriage, and that during the greater part of that time, he continually recognized his daughter, issue of that marriage, and wrote to her of her mother, and that, in his last will, written only a few days before his death, he plainly recognized his daughter’s rights, and, impliedly, those of the mother, by the words “the remaining disposable portion” used in bequeathing the residuum of his estate to the universal legatees. And it may be further remarked, in this connection, that the plaintiffs herein insist that for thirteen years of the time during which the defendant herein and the decedent lived together, in and about New Orleans, the divorced husband, Manscoe, was also in and about here, and that it has not been suggested that he any more than any one else questioned the status of the defendant as the lawful wife of E. B. Benton. It is proper to bear in mind, also, for the purpose of the present inquiry, that the finding of the decree by which the divorce from said Manscoe is claimed to have been affected — that the plaintiff in the suit had resided for a year in Indiana — is entirely uncontradicted. In fact, it is not suggested, even in argument that she did not, as a matter of fact, reside there during that time prior to the obtention of the decree, and it would be hard to believe that, having done so, and having obtained said decree, she still believed herself to be the wife of Manscoe, and, so believing, united herself to Benton. Viewed in the light of her conduct throughout, we therefore conclude that the defendant was sincere in the belief that she was a lawfully divorced, and lawfully married woman. And, viewing the matter in its legal aspect, and inquiring why she should have entertained such belief, we find that, if she had been reasonably well informed as to the law and jurisprudence of the country upon a somewhat difficult subject, she would have known that it is the universally recognized exception to the general rule (which determines the domicil of the wife by that, of the husband) that, where the conduct of the husband furnishes grounds for divorce, and justifies the wife in leaving him, she is necessarily authorized to acquire a different domicil; that the law of the domicil controls the marital status; that a judgment rendered by a court 'in one of the States of the Union, having jurisdiction of the parties and of the subject matter, and valid where rendered, is valid in the other States, and in the courts of the United States; that in most of the States it is held that a proceeding for divorce may be instituted by the wife at her domicil, and that, in such cases, the place of the marriage, of the offense, and of the domicil of the husband, are of no consequence; and that the husband may be brought into court by publication or otherwise, as the law of such domicil may direct. Cheever vs. Wilson, 9 Wal. 108; Bishop on Marriage and Divorce (6 Ed.), Vol. 11, Sections 128, 155 et seq. It may properly be said that she would also have known that it is established jurisprudence in this State that a marriage contracted elsewhere will not be dissolved on grounds antedating the establishment of the marital domicil here. But she could not have been expected to have assumed that, because the courts of Louisiana do not recognize certain grounds as sufficient to justify decrees of divorce, in cases presented to them, they will therefore decline to recognize the validity of divorces granted upon such grounds in other States, where jurisdiction raiione materiue et personae have been acquired. As to the discrepancy between the date of the divorce, as shown by the original transcript of the record, and the date of the marriage, the testimony of the counsel for the defendant, who examined the judge’s docket of original entries, and the “judgment book” in which the decree was afterwards entered, is clear to the effect that the judgment of divorce was actually rendered upon August 10, 1867, and we consider the matter of the correction of the record as immaterial for the purposes of the present question, since if the plaintiff (defendant here) was present when the judgmenr was rendered, she might very well have believed that she was a divorced woman from that time.

As to the suggestion that the marriage was null, because entered into within ten months after the divorce, by reason of the provisions of the Code, Article 137. If it be assumed that the article in question is applicable to the defendant, and to the marriage contracted by her, in Illinois, we are, nevertheless, of the opinion that said article is not framed in such terms of prohibition, especially when considered in connection with Articles 115 and 960 of the Code, as to justify the conclusion that a marriage entered into in contravention of its provisions is stricken with nullity. Our conclusion upon this branch of the case, then, is, that the defendant believed, and had reasonable grounds for believing, that she was a lawfully divorced, and a lawfully married woman, and that she, and her daughter born of such marriage, are entitled to the benefit of the civil effects resulting therefrom. C. C. 117, 118; 1 Marcade 522; 1 Baudry Lacantinerie 329; Patton vs. Cities, etc., 1 Ann. 98; Succession of Navarro, 24 Ann. 298; Blasini vs. Succession of Blasini, 30 Ann. 1388; McCaffery vs. Benson, 40 Ann. 10; Smith vs. Smith, 40 Ann. 1140; Jerman vs. Tenneas, 44 Ann. 620; Bothick vs. Bothick, 45 Ann. 1382; Succession of Hernandez, 46 Ann. 962.

The plaintiffs allege that the defendant failed to furnish a sufficient bond, with solvent sureties; that she failed to deposit the funds of the succession in a bank in the parish, paying interest on deposits; that she has failed to file annual accounts; and that she has paid out the money of the succession without authority. These charges are all substantiated' except the first, with regard to which, it appears that the amount of the bond furnished by the defendant was fixed by the court, and is ample, and that new sureties were furnished when ordered to replace those who died or were doubtful. As to the failure of the defendant to file an annual account, it is not, of itself, sufficient cause to justify destitution, unless such failure continues after demand and order for an account. But the failure of the defendant in this regard acquires a cumulative effect, when considered in connection with the more serious charges, which are fully established. Our learned brother of the District Court held, upon the authority of Succession of Peytavin, 7 R. 477, that the defendant was excused for the failure to deposit the funds of the succession in a bank, in the parish, paying interest on deposits, by reason of the fact that there was no such bank in the Parish of St. Tammany. The evidence shows that there is a bank, recently established, in the parish, and whilst it has not, as yet, paid interest upon any deposit, it is not conclusively shown that it would not do so. In any event, it was the duty of the defendant to have deposited in such bank the money received by her as executrix, as the decision in the case relied on must be considered as having been overruled by the decision in “Succession of Christy,” 6 Ann. 427, in which it was said: “But the greatest object of the law was to insure the safety of the funds by their deposit in bank. Thai is the essential requirement of the law. The deposit in an interest paying bank is but an incidental requisition of the law.” It may be said that the executrix should be excused in this respect because she deposited in a bank in New Orleans, and this argument would be. entitled to serious consideration if she had complied with the other requirements of the law by which her duties are defined, though it does not appear that the bank in which her deposits were actually made pays any interest thereon, and we hold it to have been her duty to have deposited the money coming into her hands in a bank within the territorial jurisdiction of the court by which she was appointed, if there was such a bank to be found. And so, although the law requires an executrix to file her accounts annually, her failure to do so may not require her dismissal from office where she files her account when demanded, or when the demand for such dismissal is not made until such delayed account is filed. Succession of Head, 28 Ann. 800; Congregation vs. Farrally, 34 Ann. 533. But to these omissions, we have, in the instant case, the additional, established, charge, that the executrix has paid out the funds of the succession under her administration without authority and in connection with matters with which that succession has no concern. She appears to have been authorized by means of a motion, which was approved by the, then, presiding judge, December 28, 1897, but which was not filed until Julv 13, 1900, to pay $450 to her counsel and $365 to herself, as money “by her expended in opening said succession and obtaining evidence therein.” This authorization is distinctly open to criticism in that it fails to specify the purposes for which the payments so authorized were to be made, and we are at a loss to understand why it should have been withheld from the files of the court for nearly three years. But, even by the most liberal construction, it does not acquit the defendant of the charge that she has paid out money of the succession without authority, since the vouchers filed by her show that she has paid $1,061.05, or $246.05 more than the motion calls for. It is true that there are a few eases in which demands for the destitution of executors, for making- payments without authority, have been denied, where they have satisfactorily shown that such payments were made in discharge of debts justly due by the successions administered by them. Succession of Dickson vs. Succession of Dickson, 23 Ann. 583; Congregation vs. Farrelly, 34 Ann. 533; Succession of Sparrow, 39 Ann. 704. Upon the other hand, in Reed vs. Crocker, 12 Ann. 445, an executor was held liable for the penalty imposed by the Act of 1837 (now C. C. 1150) for withdrawing funds from bank without authority, irrespective, apparently, of the disposition made of such funds, and, in Succession of Boutte, 32 Ann. 556, the sureties of the executors wer~ released, upon their demand to that effect, because said executors had failed “to deposit all moneys of the estate in bank,” and because they had paid out money without an order of court, although such payment had been made in discharge of privileged claims, such as funeral expenses, law charges, etc. This court said that in that case, through Mr. Justice Fenner, after referring to C. C. 1150, executors and curators, where their violations of these provisions have been merely technical, such as the payment of debts found to be really privileged, and reasonable in amount, though without order, may plead equity against the enforcement of the penalties of twenty per cent, damages and dismissal from office, but the right of the surety to require a termination of his liability and the substitution of a new bond is rather a privilege to the surety than a penalty on the executor,” etc. We have been referred to no case, however, in which an executor has been excused where it has been shown that he has paid out the money entrusted to him without an order of court, in satisfaction of claims for which the succession administered by him was not liable.

We therefore conclude, in view of the several irregularities which have characterized the administration of the defendant, that some other person should be placed in charge of this succession.

II.

Considering the opposition to the accounts, we find that the executrix had received, prior to the date at which said account was prepared, $1375, and that she had charged herself with $1175. She should be required to debit her account with $250 additional. The proposition that as widow in community of the decedent she has a right to appropriate to herself one-half of the revenues or property of the succession, whilst it is still under administration, and that the opponents are estopped from insisting upon her accounting for what she has actually received in her capacity of dative executrix, because they have here, or elsewhere, alleged that the property, of which such receipts are the revenues, does not belong to the succession, are equally untenable. The widow in community can take nothing save her interest in the residuum, after the community has been administered and its debts paid. And as 'to the other proposition, its enough, for the present, that (lie executrix actually collected certain moneys for account of the succession, and that the opponents are testamentary heirs. If there is any estoppel in the matter it is double, and she should be first estopped to set up the plea, as against a demand for an accounting for moneys so received. The suggestion, in the brief, that this court should decree that the executrix, who had charged herself with $1125, as collected for account of the succession, and who is before the court only as an appellee, and who has not even filed an answer to the appeal, should be credited back with one-half of the amount so charged, upon the ground that, to that extent, the charge is erroneous (she being entitled to retain it as widow in community), can hardly be seriously intended.

Considering the items on the credit side of the account:

Items 1 and 2, amounting to $150, it is admitted, were properly disallowed.
Item 8 — $225. The credit in connection with this item is $223.60, which, it is said, was paid to redeem the Honey Island property. The evidence upon the subject is not in the record before us, and the question of the correctness of the credit must rest in abeyance until the issues presented in the record No. 13,739 are determined.
Item 4 — $175, for taxes, interest, etc., on the Honey Island property. We find no evidence in the record concerning this item, but will reserve the rights of the defendant with respect thereto.
Items 5 — $6; 6 — $47; 15 — $6; 16, 17, 18, 19, 20. 21, amounting to $72; 25 — $19.35; 26 — $19.35; 27 — $2; 28 — $10; 29 — $25, being costs and charges disbursed by the defendant, from the funds of the succession, in connection with her efforts to establish the validity of her divorce from Manscoe and her subsequent marriage to E. B. Benton, hávé no proper place upon her account as general charges against the succession.
Item 9 — $450, “To John C. Wickliffe, attorney for Mrs. Rachael Peytral, legal heir of the succession.”

This item also falls within the ruling applied to the items last above mentioned. Succession of Gourjon, 10 R. 541; Succession of Hasley, 27 Ann. 586; Succession of Hughes, 14 Ann. 863; Succession of Florence, 36 Ann. 304.

Items 7 and 14 — $100 and $20, respectively, costs of court on account. These items are sustained by the evidence and are admitted.

Item 8 — $450, “On account attorney’s fees to Stifft & Madison, for succession.” There is some confusion as to what is meant by the items of attorney’s fees which appear on the account, it being claimed by the counsel representing the defendants, Mrs. Benton and Mrs. Peytral, in the brief filed by them, that the item No. 9, to John C. Wickliffe, attorney for Mrs. Rachael F. Peytral, legal heir of the succession, does not represent a claim for attorney’s fees due by Mrs. Peytral, but by the succession, and therefrom arises the confusion. If the item in question is not intended to represent the claim of Mrs. Peytral’s attorney, why does the language used express that idea, and no other?

The learned judge a quo relegated both of these questions to a future account, saying: “Items eight and nine, attorney’s fees, must be placed in a new account, and the services specified so that the court can decide what service was rendered on behalf of the estate.” We have concluded, however, that item 9 has, by its terms, nothing to do with the estate, and we have rejected it for that reason. Upon the other hand, item 8 is, by its terms, a charge for services rendered to the estate, and we are of opinion that there is sufficient evidence to justify us in allowing it. We agree with the judge a quo, however, that the necessity for the expenditures for telegrams and trips to Amite and Covington is not made sufficiently apparent.

The particular legatee ,Mrs. Mary E. Monroe, asks to be recognized as a creditor, partly privileged and partly ordinary, first, for $1605, for services as housekeeper, from July 23, 1888, to June 4th, 1897, at $15 per month, and, secondly, for $1,395 for services as nurse during the last illness of the deceased. There is not the least evidence in the record to sustain the charge made by Mrs. Peytral and her husband with regard to the relations which subsisted between this opponent and the decedent. Upon the contrary, it is shown, without contradiction, that the opponent is a woman of good character, who, whilst in charge, as housekeeper, of the decedent’s establishment, has lived there, surrounded by her grown children and, more recently, grandchildren. And it is a significant fact, that, during that time, the house was visited by the decedent’s sister, who lived with him for a while, and who, with’ other reputable witnesses, gives to the opponent her unqualified approval. But the relations between the opponent and the decedent, unobjectionable though they were, ceased, at an early date,’ to be those of master and servant in the ordinary acceptation of the term. She and her children lived at Benton’s house and made it a home for him, and he provided for them and appears to have given employment in his mill to those of them who were able to work there. When he met with accidents, as he did on one or two occasions, or fell sick, he was nursed back to health and strength and showed his gratitude by some extra liberality, but the evidence does not justify the belief that there was any question of wages between him and the opponent for a long time before his death. And it was because of that fact that he made the opponent his particular legatee and left her $5,000 and the house in which she lives. Under these circumstances the claim which she sets up for wages should not be allowed.

III.

In support of his judgment upon the application to bond the sequestration, the judge a quo says: “Up to the time of Dr. Benton’s death, he retained possession and control of this property, though his sister, who lived with him, claimed under a tax title. Mrs. Monroe was on the property, as his housekeeper. After Benton’s death, the sister, who had the tax title, sought to administer the property under the will, of the deceased constituting her a legatee and testamentary executrix. She claims that she redeemed the property sold at tax sale * * *. After the alleged redemption, Miss Benton gave Mrs. Monroe a quit claim deed to the property, without warranty. The widow of Benton claims to own one-half of the property, as belonging to the community, but the legality of her marriage is disputed by Mrs. Monroe and the Bentons. The daughter of Benton disputes the validity of the will and claims the estate as a forced heir.' Her legitimacy is contested by the Bentons. It also appears that the property is under seizure by a mortgage creditor. Thus, we have the following parties claiming the property: Benton’s sister claiming, under the will, and as legal heirs; Mrs. Mary E. Monroe, claiming under tax title; Mrs. Benton claiming as widow in community; the daughter claiming as forced heir,’a mortgage creditor claiming under executory process. The property has on it two saw mills and a railroad. The parties running the mill are extending a private road in order to enable them to haul the timber more rapidly. It requires no testimony to convince me that if this tract of land is turned over to the party applying for permission to bond, there will be very little to litigate about by the time of the final decision of this suit. It would be unjust to allow Mrs. Monroe to bond the property, even if the bond could be made to cover all'possible damages, because, if the property is not hers, it is unjust to compel the true owners to practically sell her the timber, which is yearly increasing in value. As well might a trespasser claim the right to bond an injunction against his depredations. The timber constitutes the principal value of the estate. It would be an almost impossible task to ascertain the value of the timber cut from a tract of over 13.999 acres. For these reasons, the application to bond is refused.”

These reasons, we think, are amply sufficient to sustain the conclusion reached. Aside from, which, the question of the ownership of thi9 property is now pending in another suit, which is soon to be decided in this court, and no good purpose could be subserved by changing the status quo in the meanwhile. C. P. 273. 274. Schwan vs. Schwan, 52 Ann. 1183.

IV.

In the matter of the refusal of the judge a quo to admit to probate the alleged will of April, 1893, we find no sufficient reason for making any change in the judgment. The instrument offered for probate gives nothing to anyone which is not given by the later will, which has been probated, and which disposes of the entire estate of the testator.

It is, therefore, ordered, adjudged and decreed, that the judgment ol the District Court, of date September 4th, 1900, rejecting the demand of Misses Ella S. and Charlotte E. Benton, universal legatees, and ol Mrs. Mary E. Monroe, particular legatee, for the destitution and removal from office of Mrs. Rachael L. Benton, dative testamentarv executrix of Edward B. Benton, deceased, be annulled, avoided, and reversed, and that there now be judgment in favor of said parties first named, and against said Rachael L. Benton, destituting her of, and dismissing her from, said office of dative testamentary executrix. It is further ordered, adjudged and decreed, that the judgment of said court, of date August 27th, 1900, upon the oppositions of Misses Ella ‘S. and Charlotte E. Benton, and of the said Mrs. Mary E. Monroe, to the account filed by said Mrs. Rachael L. Benton, dative testamentary executrix, be reversed, and affirmed, in the following particulars, respectively, to-wit:

In so far as said judgment approves and allows the items 3 and 4 of said account, and rejects, as in case of non-suit, the two items of $450, each, for attorney’s fees, that said judgment be annulled, avoided and reversed, and that there now be judgment rejecting said items 3 and % as in case of non-suit; approving and allowing item No. 8, being an item of $450, attorneys fees to Stifft & Madispn; and rejecting the item of $450, attorneys fees to “J. C. Wickliffe, attorney for Mrs. Rachael F. Peytral, legal heir of the succession.” It is further ordered, adjudged and decreed that, in all other respects, said judgment be affirmed. It is further ordered, adjudged and decreed, that the judgment herein rendered, of date August 8th, 1900, denying the application of Mrs. Mary E. Monroe to release on bond the judicial sequestration of the Honey Island property be and the same is hereby affirmed. It is further ordered, adjudged and decreed, that the judgment of said District Court, of date July 12, 1900, refusing the application of Mrs. Mary E. Monroe for the probate of the alleged will of April —, 1893, be and the same is hereby affirmed. It is further ordered, adjudged and decreed, that the costs in both courts be borne by the succession.

Provosty, J., takes no part.

On the Application for Rehearing.

Nicholls, C. J.

An application for rehearing has been made on behalf of Misses Charlotte Benton and Ella Benton and Mary Monroe, to which has been annexed certain documentary evidence bearing upon the question of the bona fides of the dative executrix, Mrs. Rachael L. Benton, in the matter of the obtaining of her divorce from Burrell, J Manscoe, together with affidavit's going to show that this evidence has been newly discovered. Without expressing any opinion as to what may be the further action of the court in the premises, we are ’of opinion that the application, as thus made, justifies the re-opening of the case quoad the -particular questions hereinabove referred to, and matters incidentally connected therewith and to be affected thereby.

It is, therefore, ordered, that the rehearing as prayed for by the parties above named be granted. And it is further ordered that the rehearing, as applied for by the dative executrix, be denied.

On Rehearing.

Breaux, J.

The dative testamentary executrix has been destituted. The judgment is final both as to the destitution and the writ of sequestration which was issued in the case and which is to remain for the time being undisturbed. It is also final in matter of the opposition to the account filed and approved.

This court granted a rehearing in matter of the good faith of Mrs. Rachael Benton and upon questions incidental to that issue.

The ease having been argued on the rehearing, further consideration was given to the issues.

It was not deemed advisable, in order that the issues may be tried before the District Court, to recall and set aside the judgment (decreeing that Mrs. Benton was in good faith) of this court -and of the District Court, and let the case be remanded to try this issue and to determine again the effect to be given to the proceedings for divorce and to the judgment rendered between Mrs. Benton and Burrell J. Manscoe in Indiana. Mrs. Peytral, daughter of E. B. Benton and Mrs. Rachael Benton, is also a party to this litigation. She sued to destitute the executrix, and to annul the will, and claim the succession. She asked to be recognized as Dr. Benton’s sole and only heir.

On the trial of the case, her evidence was heard. It was made manifest that the late Dr. Benton always treated her as his daughter. After having left the matrimonial home to reside in another parish of this State, it was to her always that he wrote. His letters to his daughter are advisory and kind. He admonished her to keep good company or none; says to her that he is pleased with her letters; that her mind is improving, and that good books are excellent companions; says to her that she is near and dear to him. At all times he seeks to protect and shield her. All his letters contain a number of expressions to that end. The family of Dr. Benton have always considered her ns one of its members. In letters, the mother of Dr. Benton refers to this daughter when she was a child as “Baby Rachael.”

Whatever errors the mother may have committed, and however void the decree, of divorce obtained in Indiana may have been, it would be a sad necessity if ever it becomes necessary, under the law, to decide that this daughter must be considered an outcast from all family ties and be numbered as one among the disinherited of humanity. She, until recently, as we understand, had no cause to suspect that she was not the daughter of a legal marriage.

It is true that in the last few years prior to his death the father, who it seems was an eccentric man, became estranged from his daughter. He was, it appears, opposed to her marriage and her husband was not in favor with him, but in all this he was never heard to disown her. During his last illness, the daughter called to see him. She failed in getting admission to his room, but not owing to any fault of hers. She was not at his funeral, it is true, but no one gave her notice of his death, upon whom it devolved to give the notice.

' The mother of Dr. Benton, and the other members of her family, while he lived, always looked upon him, so far as the record discloses, as the husband of Mrs. Benton and the father of Rachael. The letters addressed to them by Mrs. Benton, mother of Dr. Benton, lead to the inference that they considered her as united in lawful wedlock.

There remain two sisters and a brother of the late Dr. Benton. The sisters are the claimants. The brother has not sought to have the decree of divorce declared void, or to attack the will. The plea of the sisters to have the marriage of their brother decreed void and the child illegitimate is not persuasive.

The license in due form is produced and evidence of the marriage which took place in Cairo, Illinois. This was preceded by a decree of divorce.

As relates to the daughter, we are thoroughly convinced that the marriage must be given complete legal effect. As relates to the father and mother, we are of the opinion that it falls within the principles laid down in Smith vs. Smith, 43 Ann. 1148.

As relates to Mrs. Benton, and particularly to the late Dr. Benton, we are not prepared to hold that plaintiff had made out such a case as requires us to decree that the marriage was not at least a putative marriage.

The good faith of the parties sufficient to give it effect as such has not been rebutted to an extent that would justify us in recalling the views heretofore expressed by us, and in setting aside our original decree.

Our order granting the rehearing is rescinded and recalled.

Our former decree is reinstated and is the decree of the court.

Mr. Justice Blanchard, dissents.