text:
    No. 32.
    Succession of S. M. Farmer—On Opposition to Account of Administratrix.
    An administratrix who changes her domicil is still bound to account to the Court oi her former domicil, where the succession has been opened.
    But a tutrix who has changed her domicil, canuot he called to account to the Court of her former domicil, which has appointed her, and can only b e sued before the Court of her new domicil, even for the purpose of rendering her tutorship account. This has become a rule of property whioh this Court will not reverse.
    An administratrix cannot sue the succession she represents, and, therefore, prescription will not run against her on her claims against the succession, as long as she is administratrix.
    APPEAL from the Eirst Judicial District Court, parish of Caddo. Bell, Judge ad hoe.

    Looney & Elstner for Opponent and Appellant.
    Land & Land for Administratrix.
    Eirst. Prescription does not run against an administratrix in respect to her claims against the succession which she is administering.
    Second. Inventories are not conclusive ; they may be contradicted or explained. Error may be shown.
    Third. A tutor of the minor heir may relieve an administrator of further administration without the formality of a final account. The administrator is not responsible for property turned over to such tutor, and the court of the tutorship has jurisdiction to decree the sale of such property to effect a partition, although the succession was opened in a different parish.
    Fourth. When an administratrix is also tutrix, she should first settle her account as administratrix, but no execution should issue, and when sued for an account of .the tutorship, she has the right to offset the balance against her as administratrix by sums disbursed for the maintenance and support of the minor heir.
   The opinion of the Court was delivered by

Poché, J.

S. M. Farmer died in this parish in January, 1854, leaving two minor children, issue of his marriage with his surviving wife, Elizabeth Jane Bates, now the wife of G. A. E. Poole, and the adminis-tratrix of his succession.

The succession of Earmer was duly opened in this parish, an inventory was taken of his property, and his widow was appointed and qualified administratrix of his succession and confirmed as natural tutrix of the two minor children, William S. and Atlanta B. Earmer. William S. Farmer died when eight years of age, and his interest in the estate vested in his mother and sister, in the proportions fixed by law.

This suit was begun by a rule taken by the surviving child, Atlanta, now of age, and the wife of William A. Bishop, to compel her mother to file an account of her administration of the Earmer succession, and of her tutorship of plaintiff in the rule.

The administratrix excepted to the jurisdiction of the parish court of Caddo, on the ground that she was a resident of Bossier parish, and not amenable to the court of Caddo, either for an account of administration or for an account of tutorship.

The first branch of her exception was overruled, and the latter maintained.

The succession which she administered having been opened'in the parish of Caddo, and having never been settled or closed, no other tribunal could entertain jurisdiction over the same, and suqh jurisdiction could not be affected by the change of domicile of the administratrix. But as to the tutorship, it has been frequently held by our courts that it follows, like the minors, the person of the tutor, and must be adjudicated upon in all its incidents by the court of the tutor’s last domicile.

While our own construction of the law would lead to a different conclusion, and to rule that the court, which is originally vested with jurisdiction of the succession, and of the person of the tutor of the minors, and of their property, and which confers the delicate mandate to the tutor, should be the forum where he ought to account for his stewardship ; yet, in the face of numerous decisions to the contrary, we must recognize the doctrine of stare clecisis, Which has now become a rule of property, and we hold that the ruling of the District Judge, on both branches of the exception, should be maintained.

The administratrix then filed her account, which showed on the debit side the amount of the inventory, to wit: the sum of $10,698 62, and on the credit side, the sum of $12,724 35. The credits claimed by the ad-ministratrix consisted mainly of alleged errors of excess in the inventory, of deductions for slaves emancipated, of her paraphernal property alleged to have been received and converted to his own use by her husband, of property turned over to the tutor of her ward, of debts paid for the succession, and of real estate on hand.

The heir filed an opposition, asking for the rejection of almost all the items on the credit side of the account, and asked for additions of omitted property in the inventory. After two trials, and a laborious examination into long and intricate accounts, involving serious questions of law, and considering evidence making up a very voluminous record, the District Judge sustained several of the oppositions urged to the account, overruled others, and concluded by finding in favor of the succession and community, a balance of $2537 68 against the administratrix, which he decreed to belong to the administratrix and her daughter, in the proportions of one half in her own right, and one fourth of the ■other half, as heir of her deceased son, to Mrs. E. J. Poole, and the balance to opponent, Atlanta Bishop. The court further reversed the right of Mrs. Poole to offset against her daughter such claims as she might have against her on account of her tutorship, and ordered a stay of execution of the judgment until the final liquidation of her tutorship.

Opponent has appealed from the judgment, and Mrs. Poole, joining in the appeal, prays that the judgment be amended in several particulars in her favor.

The facts bearing on the issue are substantially as follows :

In 1850, Eliza Jane Bates, who was then the widow of L. B. McMul-len, married S. M. Farmer, who died in January, 1854, leaving the minor heirs mentioned above.

In April, 1855, she married James Bryan, without being retained by the family meeting as tutrix of her minor children, and thus forfeited said tutorship; and in the spring of 1857, she married G-. A. F. Poole, her present husband, who was appointed dative tutor of the minors W. S. Farmer and A. B. Farmer, under the advice of a family meeting in the parish of Bossier.

At the time of her marriage with Farmer, Mrs. Poole held a claim of some $2000 against Dempsey McMullen, for slave hire, in payment of which McMullen transferred two lots in the city of Shreveport in full ownership to her husband, S. M. Farmer.

She was also the owner of a judgment on a promissory note of $2000, subscribed by R. E. Bates, endorsed by Knox & Lawson, which sum, it is alleged, was collected and converted to his own use by Farmer.

It appears that at the date of the marriage Farmer owned a farm, several slaves and some personal property, and that in 1853, he sold one of his slaves to Nathan Pickett for $1000, and that he bought two other slaves from Mrs. T. T. Land for $1500, but that he died before completing said purchase by authentic act, although he had taken the slaves in his possession, it being understood between him and his vendor that the act of sale would be passed only on the payment of the purchase price, which was paid by his widow a short time after his death, taking the title in the name of the-succession.

Sometime in 1858 Mrs. Poole took a judgment in the District Court of Bossier against her minor children for $2000, alleged to be due to hel-as her paraphernal funds, collected and used by her husband, from D. McMullen, and in execution of said judgment the two lots in Shreveport were adjudicated to her for $1000, and in her account she claims credit for the balance of said judgment in the sum of $1308 and interests.

Soon after the appointment of G. A. F. Poole, as tutor of the Farmer minors, Mrs. Poole turned over to him personal property of the minors, and the settlement of some debts due by the success ion, amounting to $482,50 ; but, beyond this, she performed no act of administration to the knowledge of the courts.

We shall now revise those rulings of the lower court which, in our opinion, were erroneous.

We think the judge erred in striking out of the inventory the item of $1000, amount of a draft drawn by Nathan. Pickett, and placed in the inventory by the notary and the appraisers.

The judge gave as reasons that the draft was not sufficiently described as to date, maturity, etc., and by further reason of the testimony of Mrs. Poole, who says that she has no recollection of such draft, that she never saw it, and never collected it. The evidence shows that she had at that time moved to her mother’s residence in Bossier parish, and that she was represented in the succession proceedings by her agent, C. C. Bates. The act of the notary and of the appraisers is conclusive of the existence of the draft in question among the assets of the succession, and it was the duty of the administratrix to have taken possession of1 and collected the same, in default of which she is responsible for the amount thereof. The fact of the sale by Farmer of a slave to Nathan Pickett, the drawer, for the sum of $1000, explains the consideration and the existence of the draft, which should be charged against the administratrix.

The court also erred in crediting the administratrix with the sum of $2000, alleged. to have been collected by Farmer on the judgment against Bates and others. The evidence does not prove this fact; the administratrix, on this point, testifies that she believes that he collected it, as she did not; the record fails to show whether the judgment was ever settled or not. The judgment was rendered before Farmer’s marriage with her, and the presumption is that he did not collect it. It was incumbent on the administratrix to show, affirmatively, that the collection was made as alleged. The item for interests allowed on this claim must, of course, be also rejected.

The court was in error in refusing to allow credit for the sum of $2000, realized from the claim against Dempsey McMullen by means of the transfer to Farmer of the two lots in Shreveport.

It is true that the judgment rendered thereon by the Bossier District Court was an absolute nullity on its face, for want of jurisdiction in that court to adjudicate upon a succession pending in the parish of Caddo, and for the reason that the administratrix, being the legal representative of the succession, could not sue the estate, and for the further reason that she could not sue the minors, on account of [the succession which they could and did accept only with the benefit of inventory. But, on the other hand, the District Judge having decreed the two lots purchased with these very funds, to have fallen into the community, and having correctly charged the administratrix with $2000, as the value of the same, he manifestly erred in sustaining the plea of prescription against this item.

One of the very grounds of nullity of the judgment rendered by the Bossier District Court was the legal inability of Mrs. Poole to sue the succession represented by her. This inability must also operate in her favor, so as to shield her from the plea of prescription interposed to any legal and valid claim which she had against the succession which she administered. Being incapacitated from judicially enforcing her claim by the law itself, prescription is necessarily suspended, and the doctrine of contra non valentón, etc., is clearly applicable to administrators, curators, or tutors thus situated. The case of the Succession of Durnford, in 8 R. 488, and 11 R. 183, is in point, and is conclusive on this issue. See 12 R. 155, 23 A. 682.

'This sum must bear interest of five per cent from the date of dissolution of the community, in January, 1854.

Opponent earnestly complains of the ruling of the court in allowing credit to accountant for the sum of $1500, paid by her to Mrs. Land for the two slaves sold and delivered to Farmer before Ms death, but we find no error in this ruling.

The purchase had been made by Farmer before his death, the slaves were in his possession, and thus we have a contract which his legal representative could have enforced against his vendor, and the widow was justified in completing the purchase.

As the community was dissolved at the time, and as no funds were inventoried as belonging to the community, the record fails to show that the funds used in this transaction were those of the community, and the presumption fortified by the widow’s testimony is that they were her separate funds, realized, as we believed, on her judgment against Bates and others. The credit was properly allowed, but the court erred in omitting to allow interest on this sum from the date of fits expenditure and use, as above stated.

Afflfcr a careful scrutiny of tlie evidence, and after due consideration of the law applicable to the case, we find the judgment of the lower? court correct in all other particulars.

The following statement of accounts is, in our opinion, an accurate-liquidation of the administration of the succession:

Debit.

Amount of inventory by the notary.$10,698 62

Add value of lots in Shreveport . 2,000 00

Add slave hire due by administratrix. 743 75

Deduct value of slave, Amy, sold by Farmer, $500i

Total of inventory.$12,942 37

Credit.

Amount paid Mrs. Land for slaves.$1,500 00

Interest thereon, 5 per cent from January, 1854, to date. 1,255 00-

Amount collected on debt of D. McMullen. -2,000 00

Interest thereon, 5 per cent from January, 1854, to date. 1,675 00

Commission of administratrix on $12,942 37. 323 67

Fees of attorneys — Beach, $100, Land & Taylor, $250'. 350 00

Costs of clerk and notary.. 50 00-

Taxes paid, $163 63. Costs of this account, $50..'. 213 63

Funeral expenses. 50 00-

Property turned over to tutor.:. 482 50

Land on hand. 492 50

Value of slaves emancipated.3,800 00-

Balance due by accountant :. 749 97

Equal to inventory.$12,942 37

The balance thus obtained, save possible errors of calculation, fixes, the just liability of the administratrix to the succession.

It is, therefore, ordered, adjudged and decreed that the judgment, of the lower court be amended in the following particulars:

1st. In striking out of the inventory the amount of the Pickett draft of $1000, which is recognized as an asset of the succession.

2d. In allowing to the administratrix credit for the R. E'.. BateSs note and judgment of $2000 and interests, which are rejected. '

3d. In rejecting the credit of $2000, amount of the McMullen debt,, which is allowed with legal interest from January, 1854, to date.

4th. In omitting to allow interest on the credit of $1500, amount-paid by the widow to Mrs. Land, for the two slaves, on which interest is-hereby allowed to date from January, 1854, to this day.

And it is ordered that said judgment be affirmed in all other respects, and that appellee pay the costs of appeal.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 35.
    State of Louisiana ex rel. Hamp Mullen vs. R. C. Drew, Judge Second Judicial District.
    A Mandamus will lie to compel a District Judge to sign a Bill of Exceptions when presented in proper form.
    "Whatever may he the intent of a party in court, whose objection to evidence is overruled, and whatever may be the supposed effect of the testimony admitted, such party has a right to take a bill of exceptions, and it is the duty of the judge to grant it.
    Requisites of Bills of Exceptions.
    PPLICATION for Writ of Mandamus.
    W. G. McDonald for the Relator.
    J. A. Snider for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the defendant to sign a bill of exceptions and to do other acts.

The relator avers, that on the trial of the case of the State against him, on an indictment for setting at liberty certain persons from jail, one Campbell was called by the State to be sworn as a witness ; that he objected, through counsel, to said Gampbell being so sworn, for the-reason that he had been convicted, and had served his term of sentence for a felony, having received no executive pardon ; that notwithstanding said objection and proof of the charge, the presiding judge permitted the witness to testify; that to the ruling of the court, he reserved a bill, and prayed the judge to sign it, who refused to do so ; that he then requested the judge to assign on. the bill his reason for such refusal, which the judge declined ; that he then moved, always by counsel, the court to allow the bill to be filed, although unsigned, and that this was also refused; that he then asked the judge to likewise assign the reasons for such refusal, and that the judge also declined; that the tendered bill was then returned to his counsel.

The District Judge, in justification of his conduct, returns under oath, that the bill was not taken precisely under the circumstances stated ; that when the objection was made, he-allowed evidence to be introduced in support of it, and, after hearing, permitted the witness to be sworn and heard ; that the counsel of the accused then stated that the examination could be proceeded with, and that he would take a bill; that respondent was under the impression that no bill had been reserved, and that he refused to sign the bill tendered, because he considered that no evidence, touching the guilt of the accused, had been elicited from the witness, prejudicial to him, and that the jury could not have been influenced in the least by anything which the witness had stated ; that lie declined to assign reasons for refusing to sign the bill, because ho considered it useless, and believed that the bill was presented on the part of the accused to defeat, if possible, the just verdict of the jury.

The bill prepared at the time is annexed to the 'petition for a mandamus. It states the circumstances under which it was taken, setting forth the grounds of objection urged to the witness offered. The reasons, which it is said, were assigned by the judge, when he overruled the objections, are not incorporated in the bill, but a blank was left in it with the expectation that the judge would fill it.

It is difficult, under the showing made, to state positively whether the bill was or not taken seasonably, but, as it is affirmed that it was, without any direct contradiction from the District Judge, we must infer that it was reserved at the proper time in open court.

When the judge passed upon the objections, either he gave reasons or failed to assign any. If he gave any, it was optional with the counsel of the accused to have embodied them in the bill, and to have presented it for signature. If the judge assigned no reason, it was likewise discretionary with the counsel to have mentioned the fact, and tendered the bill for verification. He could, however, leave a blank with the expectation that the judge would fill it. Had he filled the blank himself, and had the judge considered the statement of the facts and of his reasons incorrect, it would have become incumbent upon him to rectify, under his own hand, before signing, any misstatement or error committed to his prej udice, or to that of either party.

Bills of exceptions are -intended to place of record something done under the order of the court during the progress of the cause, which would not otherwise appear; that the question of law, raised by the ruling on the matter excepted to, may be reviewed by the appellate court. It should contain, as a rule, the grounds of the objection, the reasons for which it was overruled, when any are assigned, or the fact that none were given, if such be the case, but it is not essential that both the grounds of objection and the reasons of the ruling, should be incorporated. It is sufficient if the former are set forth, and the mere nature of the ruling complained of mentioned. A bill, which contains neither the grounds of objection, nor the reasons overruling them, is defective and is not entitled to notice. 12 H. 113, 332. 14 A. 808. If the judge was unwilling to sign the bill presented with a blank in it, he should have eliminated from it that portion which is preparatory to the statement that reasons had been assigned, as such assignment of reasons was, after all, a matter of indifference. We do not consider that the refusal of the judge is based, otherwise, on sufficient reasons. Whatever may be the intent of a party in court, whose objection to evidence is overruled, and, whatever may be the supposed effect of the testimony admitted, such party has a right to take a bill of exceptions and present it in proper form. It is then the duty of the judge, if the bill state correctly the circumstance under which it was reserved, the grounds of objection, the ruling, the reasons .assigned, or the failure to adduce any in support, to attest by his signature the verity of its contents. In case of a refusal on his part, a mandamus will lie to compel him to perform that duty. 3 M. 714; 73 A. 484. Under the circumstances of this case, the relief sought should be allowed.

It is, therefore, ordered that the alternative mandamus herein issued be made peremptory at defendant’s cost.


author: Todd, J.

text:
    No. 38.
    J. Lamorere, for use of, vs. S. S. Cox.
    when Plaintiff's Petition states that a certain document is thereto annexed and made part thereof, and in point of fact, the document has not heen annexed to the Petition or tiled, on Defendant’s exception to the cause of action or sufficiency of the Petition, the document should not he considered as forming part of the latter.
    The rents of seized property belong to the seizing creditor from the moment of seizure, aud he has an action against the tenant to recover them, which is not suspended during the delay resulting from either the usual proceedings to effect the sale, or a contest over the proceeds after the sale is made.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.
    Wise & Herndon and Alexander & Blanchard for Plaintiff and Appellant.
    J. Henry Shepherd and Land & Land for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The first question that presents itself for our consideration in this case is one of practice.

That question is, whether a document or record, alleged in a petition to be annexed and form part of the petition, but is in fact not annexed and not offered in evidence on the trial of an exception to the sufficiency of the petition, is to be considered a part of the petition.

Art. 172 of the C. P. prescribes :

“ The petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the title or the cause of action on which it is founded.”

As a matterof convenience it has become the practice where a document or writing is either the basis of the suit or is calculated to assist in explaining the nature of the title or cause of action, for those reasons to annex and make it part of the petition, and so allege in the petition. The very fact and purpose for which it is thus annexed imply that such writing is material and important, and that the petition would be incomplete without it.

A defendant is entitled to be fully informed of the cause of action, and it would, therefore, seem to follow when documents are annexed for the purpose of fulfilling this requisite of the law, of fully declaring the character of the demand and cause of action, that a copy of such annexed document should accompany and make part of the copy of the-petition to be served on the defendant. This Court has, however, in repeated decisions, declared that copies of such writing need not be served on the defendant.

We have, however, no hesitation instating that where the allegation-is formally made that a document, record or other writing is annexed- and made a part of a petition, and it is not so annexed, nor even filed in evidence, when exception is made to the cause of action or sufficiency of the petition, that then it should not be considered as forming part of the petition.

For these reasons we shall consider the record alleged to be part of the petition in this case as making no part of it, and as improperly copied into the transcript, and the motion to exclude it therefrom is sustained. Eliminating this record then from .the petition, we shali proceed to consider the case as presented by the pleadings.

This is an attachment proceeding, instituted against the defendant, a non-resident. The petition, in substance, alleges : That on the 14th of May, 1878, the sheriff of the parish of Caddo seized, at the suit of the plaintiff against the succession of W. B. Cox, in the District Court of Caddo, certain property in the city of Shreveport, known as the “ Elk Horn Wagon Yard.” That the seizure was made under an order of seizure and sale to foreclose a mortgage on said pioperty belonging to said succession. That the sale of- the property was enjoined by the administrator of the succession, which injunction was dissolved by a judgment of this Court, rendered in February of the present year. That the property was sold under the writ, on the 17th of the following April, and was purchased by one P. Yomce. That from the 17th of August, 1878, the defendant in this case, through her agents, went into possession of the property and occupied it and received the rents and revenues of it until' it was sold as stated. The rent is charged at $75 per month. That the-defendant was notified by the sheriff that she would be required to pay the rent, which she refused to do either to the sheriff or plaintiff. That, owing to certain oppositions filed in the succession of Cox, claiming a preference on the grounds of the sale made under his writ, his mortgage debt could not be satisfied out of said proceeds, and that there was a necessity for applying the revenues of the property while under seizure to the payment of his claim, and that the full amount owing him by defendant on account of the rents and revénues of the property was-$1500, for which judgment was asked. The attachment issued ané a seizure was made under it, affidavit having been made to the facts of the-petition, and the required bond given.

The defendant filed an exception and motion to dissolve the attachment. Among the grounds urged for the dissolution of the attachment,, we find the following, in substance — being the only ones insisted on. before this Court — to-wit:

First — “That the affidavit for the attachment was insufficient in-law.”

Second — “ That the action was premature, because plaintiff does not allege that any final judgment had been rendered on the oppositions-filed, and until such final judgments are rendered, non constat, that the-plaintiff will not be paid in full out of the proceeds of the sale of the-property seized.”

There was judgment sustainihg the motion, and dismissing the suit,, with one hundred dollars damages against the plaintiff, and from this-judgment the plaintiff appealed.

First — We see no defect in the affidavit. Plaintiff swore that the-allegations of the petition were true. These allegations, on which he-based his right to the attachment, were, that the defendant owed him the amount claimed, $1500, and that she, the defendant, resided out of the State. These facts were distinctly stated, and that was enough, so far as relates to the affidavit.

Second — In the disbussion of the second ground of the motion, the-counsel for defendant urge some arguments in their brief which might have much force, if the matters discussed were raised by the pleadings-,, but the issue presented by this part of the motion or exception, and the-only one we, can consider, relates solely to the prematurity of the suit,, and not to the absolute right of plaintiff to the attachment nor to tbe-eause of action.

Was the suit premature ? Defendant insists thatit was, and assigns; as the reason for it the fact that the plaintiff had caused the sale of the-mortgaged property, and that when this suit was brought the contest for-the proceeds of that sale was then pending on the oppositions mentioned in the pleadings. To determine the force of the exception on this point, and the weight to be given to the argument in support of it, the allegations of the petition, as to this matter, are to be taken as true. The petition distinctly alleges that nothing had been realized from the proceeds of the sale, and that, owing to the oppositions claiming these proceeds, that his debt could not be paid out of them.

Was he bound to wait until that litigation was ended before instituting his demand for the revenues of the property accruing during the seizure ? We think not.

The Civil Code, art. 466, declares :

“ The fruits of an immovable, gathered or produced while it is under seizure, are considered as making part thereof, and inure to the benefit of the person making the seizure.” See, also, 17 L. 203 ; 2 A. 450;

But can the seizing creditor proceed directly against a tenant of the property seized to recover the revenues accruing during the seizure, or is his recourse therefor against the sheriff ?

In the case of Stockton vs. Hyde, 5 A. 300, this Court held :

“ If the attaching creditor succeeds in his suit, the rents and profits during the attachment belong to him to the extent of his claim, and he may recover the same in a direct action against the tenant if he has not paid the rents to the sheriff. See, also, 21 A. 743.

We do not think that this right to receive the fruits of the seized property is suspended during the delay that may ensue resulting from the usual proceedings to effect the sale, or caused by a contest over the proceeds after the sale is made. For instance, supposing that no opposition should be made to the sale, and there should be a delay of two months between the date of the seizure and the sale, and the property was “bringing a revenue during that time,” it would be the duty of the sheriff to collect this revenue and apply it to the credit of the writ in his hands, and the balance of the debt paid out of the funds realized from the sale. So, if a much longer interval should ensue from the seizure to the time of realization of the proceeds of the sale growing out of contest over the proceeds, the principle would be the same. The right to receive the revenues of the property under seizure is a right that exists in favor of the seizing creditor from the moment of seizure and continues during its existence. The seizing creditor has two sources opened to him for the collection of his debt, the revenues derived from the property whilst under seizure, and the funds derived from its sale. The natural and legal order in which these means would accrue for the satisfaction of his debt would seem to be first, from the rents and revenues yielded by the property during its seizure, if any, and then from the proceeds of its sale ; and, in the same order does the right to receive or recover these means exist. On the trial of the suit, or suits, over the proceeds of the sale of this property the plaintiff could be compelled to account for sums received from the rents of the property during its seizure, the same to be credited on his claim then in contestation. But he was not bound to wait till that litigation was ended before seeking to enforce a plain right that the law in the mean time accords to him. Should he wait till that time, the right might be lost and the effort for ■■the enforcement vain.

Under this view of the subject, considered in connection with the allegations of the petition, we are satisfied that the motion and exception should have been overruled. Of course it- must be understood that in coming to this conclusion, we are governed alone by the allegations of the petition, without regard to the record excluded therefrom, and that apart from these allegations, we decide nothing as to the right of the plaintiff to recover on the trial of the case, nor as to the existence of the facts upon which the alleged right is based; nor do we intend to affect the rights of third persons to assert their claims to the revenues of the property, as well as to the proceeds of its sale.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court is annulled, avoided and reversed, and the case remanded to that court, to be proceeded with according to law, defendants to pay the costs of appeal.


author: Fenner, J.

text:
    No. 39.
    Willberga Schneider vs. Ætna Life Insurance Company.
    The fixing by the Court of a return day on a commission to take testimony out of the State, does not, of itself, involve the continuance of the case, if it is, in regular order, reached and called for trial before the return day. The propriety of such continuance depends upon legal showing of sufficient diligence used in getting out the Commission.
    The issue between Plaintiff and Defendant being, under a policy of life insurance, whether the insured was alive or not, Plaintiff contended that the best and only conclusive evidence of that fact was the personal presence before the Court of the person claimed by Defendant to be the insured, and that no other proofs should be admitted. Held that Plaintiff’s position is untenable, the insured being no party to the suit and not being within reach of the process of the Court.
    APPEAL from the Eirst Judicial District Court, parish of Caddo. A. D. Land, J., ad, hoc.

    ' Looney & Elstner for Plaintiff and Appellant.
    T. E. Bell and T. Alexander for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff herein, holding policies of insurance upon the life- of her husband, William Wackerle, brought this suit against the defendant, and, on a former trial, recovered judgment. An appeal was taken to this Court at the Monroe term of 1878. At that term, defendant filed affidavits to the effect that, since the trial in the District Court it has been discovered that William Wackerle, the husband of plaintiff, and the person upon whose life the insurance was effected, was not dead, but was then actually living in California. Upon these affidavits the court set aside the judgment and remanded the case to the District Court, with instructions to receive proof solely as to the existence of the insured, and then to render judgment between the parties upon such new proofs and the evidence taken on the former trial. See case reported in 30 A. 1198. Upon a second trial in the District Court, had in compliance with .above decree, judgment was rendered for the defendant, and plaintiff has ■taken this appeal therefrom.

Appellant excepts to two rulings of the judge a quo in the course of the trial, viz.:

First — In refusing .a continuance applied for by appellant on sundry grounds, of which only one deserves notice, viz.: that plaintiff had applied for and obtained commissions to take testimony, made returnable on a day fixed by the court itself, and that said commissions had not ■been returned, and the delay allowed for the return thereof, had not expired, when this case was called for trial. The court overruled the motion for continuance, for the following reasons: " This case was continued at the last November term of this Court on the affidavit of plaintiff. The motion for continuance does not show any good reason why plaintiff or her counsel did not apply for commissions to take the desired testimony in time to secure the return of said commissions before the case was called for trial at the present term. The fixing of the return day by the court did not excuse the prior want of diligence of plaintiff.”

The ruling of the court was manifestly correct. A party is entitled to a commission to take testimony of non-resident witnesses, at any time before trial, and in granting such commission, it is the duty of the judge to fix a return day ; but the fixing of such return day does' not, of itself, -involve the continuance of the case, if, in the regular order of procedure, it shall be reached and called for trial before the return day. The propriety of such continuance must depend upon the diligence which the party applying has displayed in getting out his commission; Otherwise, a party by taking out a commission shortly before the time when the ■cause would be tried in its regular order, and having the return day fixed, as prescribed in Art. 439 O. P., might always obtain a continuance, and thus take advantage of his own láches.

In the case of Oalhoun vs. Bank, 28 An. 260, relied on by appellant, it did not appear that there had been a want of diligence in applying for the commission, but, on the contrary, it is expressly stated that the plaintiff took out the commission “ shortly after the suit was filed.” The dicta of that decision must be limited to cases where there was no want of due diligence in applying for the commission.

Second — Error is alleged in the ruling of the judge a quo admitting, over the objections of counsel for plaintiff, the testimony of certain witnesses of defendant taken under commission. The grounds of objection were as follows: “ The only issue in this ease being the actual living existence oí William Wackerle, * * * * the best and only conclusive evidence or proof of the issue thus made, is the personal presence before this court of the person “ claimed by defendant to be the said living Wackerle,” and plaintiff urged her right to ■examine said person personally and before this Court; and, further, that tne testimony offered in this form was secondary, and at the utmost but mere opinions of witnesses.”

There was nothing whatever in these objections, and they were rightly overruled. If the person, whose identity was in issue, had been himself a party to the action as claimant of some right based on such identity, as in the famous Tichborne ease, the opposite party might have demanded a view of his person and the opportunity of personal examination in presence of the court. Such was not the case here. The person, whose identity was in question, ypas not a party to this suit and was not within reach of its process, and was in no manner subject to its orders. If he had been within the reach of process of the court, plaintiff would have had the same right to invoke it to compel his attendance that the defendant had. As he was not within reach of its process, neither party had power to enforce his attendance; and the law imposes impossible duties on no one.

A free man is not subject to the possession and control of another, his body cannot be offered or filed in evidence, and he is not to be treated like a document of which proferí or oyer may be claimed.

It would have been of no advantage for any purpose to have brought the person here. Wackerele had never lived in Shreveport, and was not known either to the judge or to any other person here.

Defendant obtained his personal attendance at a place where he and Ms wife had lived together, and where there were many persons who knew them both. He gave ample notice to plaintiff of the time and place, when and where, he would be produced and testimony of witnesses taken as to his identity.

This is more than the law would require. Where the question is whether a party is dead or not, the testimony of persons who knew him, and who swear that they have seen and conversed with him living, since the date of the alleged death, is, under every aspect, competent evidence.

The testimony conclusively establishes that Wackerle, the identical person whose life was insured, is still living, and unmasks one of the boldest and most scandalous schemes of fraud upon defendant, the court and plaintiff’s own counsel, ever conceived and carried to the very verge of success.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s cost.


text:
    No. 40.
    State of Louisiana vs. Cyrus Hudson.
    This Court cannot take cognizance of the evidence upon -which the accused was denied a new trial hy the Court a qua, unless that evidence is embodied in a Bill of exceptions. State vs. Nelson, 32 An. 842, affirmed.
    A previous conviction for a similar offense should not be charged in the Indictment ,• but, after verdict and before sentence to the double penalty under Section 974, Rev. Sta., the prisoner must be allowed to show cause, if any he has, why the increased punishment should not be inflicted by the Court on account of the previous conviction.
    APPEAL from the Tenth Judicial District Court, parish of DeSoto. Logan, J.
    W. Pike Hall, District Attorney, for the State, Appellee.
    C. M. Pegues for Defendant and Appellant.
    First — That if counsel for defendant had not been informed of the existence of certain important facts at the time of trial, because of the ignorance of his client, and failed to make proof of them in consequence thereof, a new trial ought to be granted on a proper showing. Bishop on Crim. Pro., sec. 1281.
    Second — That an affidavit of defendant, sufficient in itself to entitle him to a new trial, ought not to be .disregarded on the ground that th.e court deems him unworthy of belief.
    Third — That upon a charge of petty larceny, the court can not sentence . defendant to eight years' imprisonment in the penitentiary, under sec. 974 R. S.
    Fourth — That the State must allege and prove the previous convictions of the defendant for a similar offense'before he can be sentenced to extra punishment. Bishop on Crim. Pro., secs. 77 to 88, inclusive, new edition.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was, on a charge of petty larceny, prosecuted, tried, convicted and sentenced to the State penitentiary, at hard labor, for the term of eight years.

From the verdict and sentence he appeals, and assigns as errors, on the face of the record :

1st. That the judge should have granted him a new trial on the affidavits filed with his application.

2d. That the maximum of punishment for petty larceny is imprisonment at hard labor for two years, and that the District Judge has sentenced him to eight years at hard labor in the State penitentiary.

3d. That the court can not condemn him and inflict extraordinary punishment., unless the indictment or information charges, and the State proves, previous convictions for the same offense.

I. There being no statement of the facts adduced on the motion for a new trial, or bill of exception, to «how what they were, we have no authority to pass upon this first ground. State vs. Nelson, decided in June, at Monroe, and not yet reported.

II. It is true that under sec. R. S. 812, the maximum of the punishment for the offense charged is two years; but it is equally true that under sec. R. S. 974, the judge has the power to sentence any person who may be convicted for a second or third offense to double and triple the penalty imposed by law, and for a fourth offense, the person so convicted may be sentenced to perpetual imprisonment, and but for the error thirdly assigned the judgment and sentence could not be reviewed.

The information does not charge any previous conviction. From a statement of facts, prepared after trial and conviction, we perceive that the judge admits that no evidence was offered to the jury or to him to show previous convictions, but that he took official notice, as it were, of the same as the facts were of record before his court.

We do not think that the previous convictions should have been charged in the information, as they were not essential ingredients constituting the offense charged, upon which the jury had to pass, and might prejudice the jury. . Although the judge is not allowed to pass upon the facts tending to prove the innocence or guilt of the accused, still he has the right, after verdict, to know whether the accused was or not previously convicted of the offense. The State can so inform the judge, or the judge may, upon his own suggestion, act upon the existence of such facts after verdict, but in either case it is nothing but just that a proceeding should be taken against the defendant before sentence to show cause why the fact of such previous convictions should not be brought to the knowledge of the court to enable it to exercise its peremptory powers under sec. 974 of the Revised Statutes. The defendant would then be afforded an opportunity to show, if such be the fact, that the judgments and sentences in the cases referred to were arrested or reversed and annulled, or that he was pardoned

It is an axiomatic truth universally accepted that there can be no punishment without an accusation, * * * therefore an accusation must precede the punishment.

Bishop on Crim. Proc., 79.

It is, therefore, ordered' that the sentence of the court be annulled and set aside, and that the defendant be remanded for sentence according to, the views herein expressed and according to law.


author: Poché, J. Fenner, J.

text:
    No. 7689.
    Mrs. S. S. B. Kingsbury et al. vs. J. S. Whitaker, Executor, et al.
    Partial insanity does not render a person legally incapable of making a •will.
    Even persons subject to complete insanity, if tbey have lucid intervals, may make a valid will during those intervals.
    The test of tlie law on the subject is, whether, at the moment of making his will, the testator was of sufficiently sound mind to fully understand the nature of the testamentary act and appreciate its effects.
    "When the will was made by the testator himself, unaided by others, and its provisions and expressions are sage and judicious, containing nothing “sounding to folly,” it will be pre sumed, even in the case of a person habitually insane, that it was made during a lucid interval j and the burden of proof will be on those who attack it, to show insanity at the moment when it was made.
    English, French and American authorities reviewed.
    REPEAL from the Second District Court, parish of Orleans. Tissot,

    Merrick, Race & Poster, for Plaintiffs and Appellees.
    J. S. & J. T. Whitaker, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This is a contest over the will of G. M. Bowditch, a resident of this city, who died in Sherborn, Massachusetts, on the 1st of August, 1877, and whose succession was opened and is now pending in the Second District Oourt of the parish of Orleans. The plaintiffs, widow Sarah KiDgsbury, a sister, Granville Bowditch, a brother, William B. H. Dowse, a nephew, and Deborah P. Dowse, a niece, of the deceased, seek to have said will annulled on the ground of the insanity of the testator at the date of the will, and for several years before.

Defendants filed a general denial, and specially deny that at the date of said will the testator was of unsound mind, or, in any way, incapacitated from makiug a will.

The judgment of the lower court was in favor of plaintiffs, annul-ing the will and rescinding all orders for the probate and execution of t he same, and defendants have appealed.

The will was made in this city, under the olographic form, and is in' the following words:

“New Orleans, June 24th, 1876.
“ Knowing the uncertainty of human life, I, Galen Melvin Bowditch, make this my last will and testament. Having never been married, and h iving no children, I give and bequeath all my property, real, personal, and whatever I may die possessed of, to my sister Mary Ann Bowditch, now married to Samuel Fiske, in the town of Sherborn, Massachusetts.
“ I appoint John S. Whitaker executor of this my last will, with seizin of my estate. G. M. Bowditch.”

The case has been very warmly and ably contested; the evidence is vary voluminous, and somewhat conflicting, but after a careful perusal and comparison of all the testimony, aided by the able briefs of counsel in the case, we are compelled to disagree with our learned brother of the District Court in his conclusion that G. M. Bowditch was of unsound mind, and under mental incapacity to make a valid will on the 24th of June, 1876. Sanity, or soundness of mind, being,the natural condition of man, insanity is never to be presumed, but must be a "Amatively and contradictorily established. This rule, which is founded o a reason and common sense, is sanctioned by the jurisprudence of England, France and of our own country, and has been consecrated by the most distinguished authors on this subject. This wholesome rule has a peculiar application in a case like this, when the will, written by the testator himself, presents a series of wise and judicious dispositions, contains no contradictions, no extravagance, not a sentence, not a word indicating that it was the offspring of a “ mind diseased,” and it throws ■ upon the heirs attacking the will the burden of proof of the unsound-noss of mind of the testator at the date of the testament. 21 A. 60. This task was undertaken by the plaintiffs, and, in our opinion, they have failed. After a close inspection of the record, which contains nine hundred and two pages, we have gathered the following facts which bear upon this controversy:

Galen Melvin Bowditeh, a native of Massachusetts, moved to and .settled in Louisiana in the year 1830.

By reason of his early experience in marine affairs, he was soon employed in the service of the United States Customs as Boarding Inspector at the Southwest Pass of the Mississippi river, in which employment he was retained for twenty-five years.

With a good salary, and living in a dreary and lonely place, where he bad few or no opportunities of spending his means, being naturally industrious and economical, he soon accum.ulated.some money, which he invested mainly in railroad,insurance and bank stock and other securities. After the war, and during the damaging administrations which controlled the destinies of our State, and under the various financial commotions which shook the whole country, his investments were subjected to serious losses, and his handsome competency was materially reduced. These circumstances, coupled with the character of his associations, and the habits contracted at the Balize, mainly his too free indulgence in ardent spirits, preyed upon his mind, and rendered him, as bo ■says in one of his letters to his favorite sister, Mrs. Fiske, irascible, sad and despondent.

Under these exciting causes, he became subject to delirium tremens, manifested by paroxysms of rage and violence bordering upon madness, and producing temporary or' intermittent insanity.

These attacks, rendering him intolerable and at times dangerous, he was frequently arrested and confined, sometimes in jail and three ■times in different insane asylums.

One of these attacks occurred in the year 1874, in Massachusetts, •where he was visiting his relatives ; it was of unusual violence, and culminated in his incarceration in the Worcester asylum of that State.

This circumstance drew the earnest attention of his relatives to his condition, and some of them, not from a feeling of kindness for him, but ■of keen interest for the safe-keeping of his fortune (which was exaggerated), were instrumental in procuring his direct confinement, and from that time, were relentless in their efforts to deprive him of the adminfe - tration of his property.

This is apparent from a letter of Rev. Mr. Dowse to Mr. Peterson, on Sept. 18,1874, and by the course of Dowse, jr., in the interdiction pro'ceedings instituted by him on the 24th of June, 1876. And the evidence fails to show that at any time the Dowse family had given proof of any particular friendship or kindly feelings for the deceased.

A great deal has been said about the insane delusion under which the deceased had conceived an unfounded prejudice against the Rev. Mr. Dowse and his children, as well as against Mrs. Kingsbury and Granville Bowditeh.

It is manifest that he had no fondness for them, especially the Rev¿ Mr. Dowse, whom he styled an “ orthodox thief ” in one of his letters. But we fail to see any insane delusion in this circumstance. This antipathy resulted from natural Causes, and sprang up long before any suspicion arose as to the soundness of his mind, and, in our opinion, it was rational and well founded. In a letter of the 17th of November, 1864, to his sister, Mrs. Fiske, the testator, who was paying to Rev. Mr, Dowse $3 a week, for the board of his mother, complains that Dowse had called for an increase of board, on the pretext that the old lady gave too much trouble to his daughters, and Bowditch uses the following-language about the reverend gentleman: “ I felt very much irritated to-think he should want me to pay mpre, and to hire a house, particularly at this time when my affairs look so bad, therefore I wrote him a very abrupt letter, perhaps too much so.”

And the same feeling prevails in every letter when he happens to mention him. He also complained of his other relatives, to whom he had at times loaned money, and who declined to settle with him, even when requested to turn it over to Mrs. Fiske, his sister, who was very-poor, in debt, and in need. '

These feelings of coolness and apathy were kindled and crystalizecl into hatred and rage when he discovered that these same relatives had co-operated in having him incarcerated in the Worcester Asylum.

Soon after his release from that asylum, in a letter to a friend, on-October 30th, 1874, he uses the following language: “ You will recollect-the day I saw you in Boston, and that I promised to meet you the next day at the ‘ Advertizer Building.’ I went there and could not find you. The same day I heard that Dowse was trying to get me back again at Worcester Asylum, and as I have no friends at Ashland or Sherborn, they care nothing further for me than to get my money; I concluded to return at once to New Orleans, and get clear of the d — d s. Here I have friends, and Dowse would stand a worse chance than I did at-Sherborn.”

In addition to close reasoning, and a remarkable composition for a-man recently released from an insane asylum, this letter shows very good) reasons for the bitterness of the testator’s feelings for his “ orthodox, brother-in-law.”

Another feature of incurable insanity, relied upon by plaintiffs, is in. his mania for picking from the streets cigar stumps, rags, garbage, and other stuff, and carefully storing the same in his room as valuables. This certainly proves an acute mania, and partakes of the nature of insanity, but it appears from the evidence that this mania was" apparent only during his attacks of mania apotu, and were brought about by the-same causes which we have heretofore described and accounted for and these circumstances fail to show insanity or mental incapacity to make a will or enter into a binding contract at the date of the execution of this will.

In the case of Chandler vs. Barrett, reported in 21 A. 60, it was-proved that the testatrix had once ran upon the roof of a house, trying to escape from an imaginary robber; that she once burned all her clothing ; that she suspected her children of intending to boil her in a kettle, and had committed many and more incongruous acts than those charged against the testator in this case, and yet the Court refused to set aside the will in that case. See, also, the case of Hebert, Tutor, vs. Winn, 24 A. 386. We fail to see how this mania of itself could incapacitate him from administering or disposing by will, or otherwise, of his property, especially as the evidence shows that he was at that time, and always, an intelligent and close business man; well posted on current events and financial developments. These qualities are conclusively shown by his letters, of which a great number are of record, and have been read by us with particular care and great interest. And it will be conceded that the letters of a man in the condition of Mr. Bowditch, covering a series of years, from 1864 to 1877, written before and after the occurrence of his fits of temporary insanity, afford the very best, mode of judging of the soundness or unsoundness of his mind.

A careful perusal of these letters has satisfied us that Mr. Bowditch was not only not an idiot, an imbecile, or a confirmed maniac, but that he was a man of more than ordinary intelligence, of considerable learning, and with commendable facility of writing, a close observer of men,, things, and of passing events, and of strong and ardent convictions on business, politics, political economy, and on many other subjects.

Plaintiffs rely with great confidence upon the testimony of experts, physicians, who had attended to Bowditch at various places and on different occasions.

Drs. Hunter, Logan and Stone, of this city, were examined on the subject. Neither of them was called to treat the deceased for mental disease, but alJ of them had been called to prescribe for a sore foot,, which had caused him great suffering, confinement and trouble.

Dr. Logan does not state absolutely that Bowditch was insane, he-says: “I can’t tell what his state of mind was, because it seemed to be a kind of intermittent state of insanity.”

Drs. Hunter and Stone venture to state that he was incurable, and that he must have been insane on the 24th of June, 1876, although they did not see him on that day, nor for several days or weeks before. The physician!^ examined in Massachusetts lean to the same opinion. It is evident that these physicians saw Bowditch only during his attack or paroxysms, and not during his lucid intervals. In the nature of things, they were not sent for when the patient was quiet and causing no trouble to his friends or nurses.

But in a case of this nature and of this importance, we are not to be guided or influenced solely by the opinions of medical men, who have examined the patient under the most unfavorable circumstances, none of whom saw the deceased on the day that he wrote his will, or immediately before, or soon after the completion of the act. We take the opinions of the several physicians as worthy of the most careful examination, and the most respectful attention, to be weighed along with other testimony, and all to be considered together in assisting us to our own conclusion. 21 A. 60 ; 29 A. 302.

■ For the same reasons, we are not to be concluded by the judgment of interdiction pronounced against Bowditch, by the District Court, and now on appeal before this Court.

On the other hand, we attach great importance to the facts and incidents of the testator’s life, as related by his sister and by her husband, by his'life-long friends, and by those who were his daily and constant associates for many years.

When we are told by physicians and other persons that in 1873 the testator was insane and unable to administer his own property, we turn to his letters of that date, which are well written, in good style, well connected, full of wise reflections, showing a correct appreciation of all the author’s surroundings, and comparing letters written by the deceased from and after the year 1873, to the end of July, 1876, with other letters written by him during previous years, as far back as 1864, we see no marked difference to justify the conclusion that his mind had been permanently impaired or disabled.

On the contrary, we detect the same style of writing, the same run of thought, the same views on politics, on the state of the country, on business, and on the various members of his family. In all of them wc find repeated expressions of great friendship and growing fondness for his sister Mary Ann, the universal legatee, a legitimate solicitude for her welfare, great appreciation of the kindness and attention which she had shown him, and an unshaken determination to provide for her in his will to the full extent of his means. In support of these views we insert a few extracts from his letters.

In a letter of June 17th, 1874, written to Mr. Sinnott, from Ashland, Massachusettes, we find the following passage, which shows also that Bowditch was a hard drinker:

“Since I came here last everything seems to be so different, so improved, that the only way I can account for it is this : when I was here before I was | drunk all the whole time, and could not see beauties and improvements. There has been immense alterations and changes in the 'city of Boston and vicinity. The roads are free of stones, houses prettily painted, with little and big flower gardens, blooming with flowers, I think they look so nice. I am now sitting in my sister’s little parlor, so called. * * * My sister’s little grand-daughter brings me my slippers, a glass of water, and says: ‘ God bless Melvin.’ This is caused by kindness and candy, I presume.”

When physicians tell us that Bowditch must have been insane on the 24th of June, 1876, we turn to his will, written entirely by himself, as shown by the testimony of Whittaker and Spearing, two witnesses of unimpeached character and veracity, who saw and conversed with him on that day and at that moment, to whom he spoke very rationally of his will, and we must conclude that the physicians are mistaken, and this conclusion becomes irresistible when we read the following passages taken from his letter of July 14,1876 :

“ Yours of the 9th instant, received a few moments ago. * * * I have read it to Mrs. Canterbury, she says you are worth all the rest of my relations at the North; and so says Melvin, your brother” (the writer).

“About my case (interdiction), the courts here are closed, and postponed during the hot summer, and I shall have plenty of time to make the defense before the case is called up. * * * It is a very pretty state of affairs for them to think I am incapable of managing and taking care of my own money that I worked hard and honestly for.” * * *

“Peterson is here, and will assist me in all his power, which I think is very important, as his character is unimpeached. * * * I don’t know what Mr. Lawyer Nutt could do in my favor out here ; if the case was in Massachusetts, he would be an important witness in my behalf.”

It provokes a smile to read such reasoning from the pen of an unfortunate man, who was then sought to be, and was subsequently inter-■dieted. "We could quote many such passages from his numerous letters, but it would unnecessarily add to the length of this decision, which has ■already acquired formidable dimensions.

Our conclusion is, therefore, that on the 24th of June, 1876, G. M. Bowditch was of sound mind, fully capable of contracting and of making a valid will, and that his will of that date should be executed according to law.

It is, therefore, ordered, adjudged and decreed that the judgment ■of the lower court be annulled, avoided and reversed, and that plaintiffs’ ■demand be rejected, with costs in both courts.

Ox Application foe Reheaeing.

Fenner, J.

The earnestness, ingenuity, and learning with which the application for rehearing in this case is pressed, and the growing • importance of the subject, have induced us most carefully to review the-voluminous testimony found in the record, and, also, to consider and investigate very closely the legal principles by which courts should be-guided in determining questions of testamentary capacity as affected by mental unsoundness.

The right of testamentary disposition is not, as suggested in the brief of counsel, a mere concession by the law, in favor of the testator, of a function, otherwise properly resting in the law itself, to decide what-shall become of his property after his death.

It is not necessary that we should interpose in the disputes between Grotius and Furgole on the one hand, and Yinnius and Bynkershoeck on the other, as to whether this right finds its origin in the law of nature or in the civil law. Suffice it to say, that the civil law recognizes it as a clear and distinct corollary of the right of property, jus utendi et abu-tendi, under which the owner, provided he harm no- other, may destroy and annihilate that which belongs to him. If lie may thus destroy it, and thereby defeat all possible control of the law, it is difficult to perceive why, in exercising the option of leaving it in existence, he should not have the right of determining its disposition after his death.

The law, moreover, recognizes its own unfitness to regulate such dispositions. Its absolute rules of inheritance necessarily ignore the-myriad circumstances which should properly exercise their influence-over the distribution of the dead man’s estate, such as the differences-in condition, sex, age, infirmity, necessity, of those equally related, and the claims of friendship, love, services, favors and kind treatment. It also considers the protection and care secured for old age or infirmity by the possession of this salutary power. “ It is one of the painful consequences of old age,” says Chancellor Kent, “ that it ceases to excite-interest, and is apt to be left solitary and neglected. The control which the law still gives a man over the disposal of Ms property, is one of the-most efficient means which he has, in protracted life, to command the-attentions due to his infirmity.”

Yan Alst vs. Hunter, 5 John. Chy, 159.

The desire thus to provide for his old age, and to secure such influence over his relatives and friends, is a just and efficient incentive to thrift and frugality; and to be able, even in the shadow of death, to extend his bounty to those whom he loves and who have loved and cherished him, is a consolation in a man’s declining years of which he should not be lightly deprived.

This hasty and partial review of the principles and motives underlying the freedom of testamentary disposition suggests and enforces the greatest reluctance on the part of enlightened courts to interfere with it. To wrest a man’s property from the person to whom he has given it„ and to divert it to others from whom he has desired to withhold it, is a-’ most violent injustice, amounting to nothing less than post mortem robbery, which no court should sanction, unless thoroughly satisfied, either that the dispositions of the will are reprobated by law, or that the testator was legally incapable to make a will. The testator, in the present case, has violated no provision of the law. His will is legal in form. Its dispositions are appropriate and conflict with no requirements of' public policy or of natural duty.

It is not within the description of the testamentum inofficiosum of the Boman law, which only applied to wills disinheriting children or-parents. The testator left neither ascendants nor descendants. The law imposes no obligation to provide for collateral relations, either during-life or at death.

The position which the law assigns them in the order of intestate-inheritance is based, in no degree, upon the idea of duty due them from, the deceased, but simply upon the presumption of affection ; and when, this presumption is rebutted by the facts, their claim has nothing to. rest on and falls to the ground.

A man hath as complete liberty to deprive them of any share in his-estate as if they were strangers to his blood. This testator, however, has not displayed forgetfulness of the ties of consanguinity. He has-left his entire estate to a sister; and those who attack his will are only equally related. They charge that the will is void by reason of the incapacity of the testator, in that he was not of “ sound mind.”

Accepting (as we most unreservedly do) the teachings of both natural and revealed religion, that the human mind is an independent and. imperishable entity, merely temporarily embodied in the human frame, and connecting this idea with the teachings of modern physiology, it-may well be doubted whether there is sufficient evidence of the existence of any such thing as an unsound mind.

A most acute and learned writer on the pathology of insanity says : “ It is an undoubted truth, that the manifestations of the intellect, and those of the sentiments, propensities and passions, or generally of the intellectual and affective powers, are connected with and dependent upon the brain. It follows, then, that abnormal conditions of these powers-are equally connected with abnormal conditions of the brain. But this is not merely a matter of inference, the dissections of many eminent observers, among whom it is enough to mention the names of Greding,. Gall, Spurzheim, Oalmeil, Eaville, Ealret, Bayle, Esquiral and Georget, have placed it beyond a doubt.

Bay’s Med. Jur. g 50.

He proceeds : “ The various diseases included in the general term, insanity or mental derangement, may be conveniently arranged under two-divisions founded on two very different conditions of the brain; the first being a want of its ordinary development, and the second, some lesion of its structure, subsequent to its development. In the former of these divisions we have Idiocy and Imbecility — in the latter, Mania and Dementia.” Bay, § 52.

“ Whatever opinion may be entertained of the nature of the mind, it is generally admitted, at least' by all enlightened physiologists, that it must, of necessity, be put in connection with matter, and that the brain is the part of the body, by means of which this connexion is ■effected.” Id. 1123.

“ Throughout the whole history of mania, in its various forms, we ■clearly discover the evidence of a bodily disease, of a suffering organ ; and in not a fact respecting it can we discover anything anomalous, or •at variance witli the principles of diseased action.” Id. 1127.

If it be admitted, then, that the brain is not the mind, but merely the physical medium or agency through which the mind manifests itself, we see no sufficient reason for assuming that structural defects or lesions of the brain, a purely physical organ, are mental diseases.

Modern pathology, though it has not reformed the ancient terminology, regards and treats insanity as a purely physical cerebral disease ; of which there are infinite varieties, affecting different functions, ■some curable, others incurable, some permanent, others intermittent, ■some disordering only certain manifestations of the intellectual or affective faculties, others involving many of them, and some the whole.

The controversy between jurists as to the effect of monomania, or partial insanity, upon the will-making power, we think, may now be ■considered settled in favor of the humane theory, that such partial insanity does not necessarily destroy the capacity to make a will.

Troplong and Sacase adopt the opinion that the mind is a unity, • •and that, if it is diseased in part, it is diseased as a whole.

Troplong, Don. et Test., vol. 2, ?¿?¿ 451-7.

Sacase, La Folie Consideróe, p. 16.

On the other hand, the vast majority of writers on the civil law agree that insane delusions, monomania, or partial insanity, do not destroy the power of making a will if the testamentary action was unconnected with the particular derangement of the faculties.

Demolombe, O. N., B. Ill, T. 2, ch. 2, § 330.

2 Pothier, Ob. Appendix, 24.

Hoffbauer, Med. Legale.

Paris & Fonblanque, Med. Jur., 1, 302.

LeGrand de Saule, La Folie, p. 146.

■Oasteluan, Sur LTnterdiction des Alienes.

Maygorri’s Institutizioni.

In England, Lord Brougham held that “ we cannot, in any correctness of language, speak of general or partial insanity,” because, he says, “ the mind is one and indivisibleand he holds that the mind must be sound throughout in order to entitle a man to exercise the power of will-making.

Waring vs. Waring, 6 Moore, P. C. C., 341.

The same rule was followed by Lord Penzance, who held that “ if disease be once known to exist in the mind of the testator, it matters not that the disease be discoverable only when the mind is addressed to a certain subject, to the exclusion of all others, the testator must be pronounced incapable.”

Smith vs. Tebbit, 1 L. R. Pro., 398.

The foregoing cases were clearly opposed to the doctrine of Sir John Nicoll, in an older and leading case. '

Dew vs. Clark, 3 Add., 79-205.

They have, moreover, been reviewed and distinctly overruled in a recent case in the Queen’s Bench. The testator was shown to have been confined as a lunatic at a date some years'prior to his death. After his release he continued, to the day of his death, subject to delusions, such as that he was followed and molested by a man who had been dead for years, and that he was pursued by evil spirits whom he believed to be visibly present; but Lord Oockburn, Chief Justice, as the organ of the Court, held that if these delusions did not have influence upon him in disposing of his property, there was no ground for holding the will to be invalid.

Banks vs. Goodfellow, 5 L. R, Q. B., 549; also Broughton vs. Knight, 42 L. J. P., 25.

The current of American authorities is strongly in favor of Lord Cockburn’s view.

Thus, in one case, it is said: “ Eccentricities of conduct, absurd opinions, or belief in things appearing to us extravagant, although they may be and are evidence of testamentary incapacity, do not necessarily constitute it. A man may believe in witches and witchcraft, as it seems this testator did, or, like him, he may have believed his health to have been permanently affected by slow poisons, surreptitiously administered to him, and yet be- competent to make a will where such will is not shown to have some connection with such absurd opinions or extravagant beliefs.”

Leech vs. Leech, 4 Am. d. J. N. S., 179.

In another case it is said : “A man may profess an absurd fondness for music, and play the Pandean pipes, behave like a fool occasionally, may tell his dreams, and call them visions, and believe them; he may be addicted to telling lies about his will, yet we could not, on these ac■counts, pronounce him unfit to manage his affairs, or dispose of his property.”

Turner vs. Hand, 3 Wal. Jr., 120. See, also : 5 Ind. 137, 39 Miss. 19, 47 N. H. 120, 15 N. J. Chy. 52, 8 Watts 71, 24 Geo. 640, 43 Barb. 625, 24 Ain, 241, 1 Litt. 371, 2 R. S. 255, in which this subject is discussed from various points of view.

The Supreme Court of Connecticut, in a leading case, lays down the doctrine broadly, as follows: “If the testatrix had mind enough to know and appreciate her relations as the natural objects of her bounty, and the character and effect of the dispositions of her will, then she had a sound and disposing mind and memory, although her mind may not toe unimpaired.”

Durham’s Appeal, 27 Conn., 192. '

A learned author says: “ There are many cases where mental health is impaired, where old age has caused a certain dilapidation of •the mental structure, where there are curious mental eccentricities of ■thought and action, and, in all these cases, if the individual retains sufficient of the reproductive faculty to collect in his mind, without the suggestions of others, the particulars of the business in hand, and the possible objects of his bounty, if he has the power of retaining these in his mind a sufficient length of time to perceive their relations to one another, and if he is able to form a sound and rational judgment with respect to them, then he is, according to law, in a position to exercise this privilege of disposing of his own property and in support of this he ■cites a multitude of authorities.

Browne’s Med. Jur. of Insanity, | 23.

Again : It is essential to the exercise of the testamentary power that the individual should be in condition to understand the nature of ■the testamentary act, and appreciate its effects, that he should know what property he has to dispose of, the claims that are upon him, and their relative importance, and should desire that his property should be disposed of in a certain manner.”

Id. J152.

Another writer thus summarises the doctrine of the English Ecclesiastical Courts: “ The object is not so much to settle the question of soundness, or unsoundness in general, as it is in reference to the particular act. The principle is, that a person may be capable of testamentary acts, while technically and really unsound, and incapable of doing other acts requiring much reflection and deliberation, * * accordingly the testamentary capacity is to be determined, in great measure, by the nature of the act itself. If it.be agreeable to instructions, or declarations previously expressed, when unquestionably sound in mind, if it be consonant to the general tenor of his affections ; if it be consistent and co■herent, one part with another; and if it have been obtained by the exercise of no improper influence, it will be established, even though the medical' evidence may throw strong doubts on the capacity of the testator.”

Ray, Med. Jur. of Insanity, g 355, citing, 1 Hagg. 146, 577, 502 ; 3 Hagg. 790; 2 Hagg. 142-84 ; 1 Lee, 130 ; 2 Lee, 229.

The doctrines thus expounded by judges and jurists command our unqualified approbation. The fact that a man is subject to disease of the brain is, per se, no better reason for depriving him of testamentary power than would be his having a disease of the liver. On the contrary, as we have seen, the liability to infirmity which is the inheritance of man, and the consequent need of care and attention, are amongst the most powerful reasons for testamentary freedom. The real question is, whether the brain or other physical organ, whatever it may be, which is the medium through which the action of the mind is manifested, is so diseased or impaired as to make it an untrustworthy vehicle for the conveyance of- the true wish or will of the testator, unbiased by any delusion which may be the result of such disease. The law fixes the time for the application of this test, at the moment when the will is made, and expressly recognizes the capacity of persons, subject at times even ■to complete dementia, to make a will in lucid intervals. When the will is established to have been made by the testator himself, unaided by others, and when its provisions and expressions are sage and judicious, containing nothing “sounding to folly,” these facts establish a presumption, even in the case of persons habitually insane, that it was made during the existence of a lucid interval, and impose upon those who attack the will the burden of proving insanity at the moment when it was made.

Coin-Delisle, Don. et Test, pp. 81, 82.

3 Toullier, p. 45.

3 D’Aguesseau, pp. 367-8.

Swinburne, Test, and Wills, Part II, ji 3.

1 Phillimore, 90.

Scruby vs. Pinch, 1 Adams, 74.

McAdam vs. Walker, 1 Dow. 178.

It is here fully established that Bowditch wrote his own will, without assistance from others, except in wisely asking beforehand the advice of his lawyer as to the necessary form. The only persons who testify as to his appearance and demeanor at and about the time of its execution, declare that they were thoroughly rational, composed and intelligent. The will is well expressed, and exhibits his consciousness of his right to dispose of his property in the mode adopted, by declaring that he had never been married, and had no children. The disposition in favor of bis sister is conformable to the state of bis affections, as exhibited in a long series of bis letters,'extending over several years prior to bis death, which fully establish that he loved her above all his other relatives, and more than any one else in the world ; and it, moreover, carries out an intention formed, expressed and persisted in, without variation, for many months prior to its execution. After a careful review of the evidence, we find nothing to shake our conviction of the validity of this will.

The evidence does establish that, prior to the will, Bowditch had been subject to occasional attacks of acute mania, which had twice necessitated his confinement in insane retreats for a short period. These attacks were not unconnected with excessive use of liquor, but they were doubtless complicated with, and aggravated by, cerebral disease. He was also exceedingly eccentric in his actions, and was certainly subject to a distinct monomania in his habit of gathering up trash, and even garbage from the streets, regarding it as having value, and storing it in his room. These symptoms indicated the existence of cerebral disease, which continued to increase, and doubtless culminated, some months after the making of his will, in continuous dementia. His letters, however, and the testimony taken as a whole, satisfy us that up to, and for sometime after, the execution of the will, Bowditch was, at nearly all times, possessed of every faculty necessary to the making of a will; that he knew the nature and value of his property, and could at any time have made a correct inventory of it, as, on one occasion, he actually did ; that he thoroughly understood his right to dispose of it; that he was, at all times, aware of the existence of his several relatives, of their claims upon his bounty, and was capable of an intelligent appreciation of their conduct towards him ; and that his final testamentary disposition was but the carrying out of a deliberate, rational, and persistent purpose, formed many months before the will.

Regarding insanity as a physical disease, we should naturally yield great respect to the opinions of medical experts upon the subject; but the evidence of the distinguished physicians who have testified in regard to Bowditchis insanity, is robbed of all value, on account of its generality, and the failure to direct their attention to the particular kind and degree of mental impairment which destroy the will-making power.

We venture to say that not one of them could read Bowditch’s will, and his numerous letters written prior to, contemporaneously with, and subsequent to its date, without admitting that his disease, had not deprived him of the degree of intellectual capacity which we have indicated as sufficient to sustain a will. The human mind is the mystery of mysteries, and the shadowy confines, which separate the sanity of insane men from the insanity of sane men, are peopled with infinite perplexities. Swedenborg, Pascal, Luther, Ben Jonson, Goethe, Brougham, Napoleon Bonaparte, and many other eminent men, were the subjects of delusions or eccentricities, difficult -to reconcile with perfect intellectual health. On the other hand, the books are full of cases of persons undoubtedly insane in some respects, who, at some times, and in regard to many subjects, manifest the most wholesome sanity.

The presumptions of the law are in favor of capacity. These must be rebutted by conclusive proofs. Doubts must be resolved in favor of the will. In the case at bar, the evidence satisfies us that the testator was of sound mind, within the meaning of the law, and with reference to the testamentary act, and that his will should be sustained.

Rehearing refused.