text:
    No. 13,158.
    Mrs. M. A. D. Sentell vs. Mrs. Fanny B. Randolph, et als.
    Syllabus.
    1. Tins was am Action to Reform a Deed. — Two of the defendants are third persons.
    To affect third persons the property must be sufficiently described to give reasonable notice of the property sold.
    If the property is described by name and boundaries, both shonld be given with sufficient accuracy to designate the person named and the boundary of the property. If described by sections and quarter sections, the numbers should be correctly given. A third person cannot be held to know that section 27 or any part of section 27 has been sold when the number of another section is given, there being nothing positive in the deed to show that the first was the number intended.
    2. Mortgagor. — As to the remainder of the land : “to render a conventional mortgage valid it is necessary that the act establishing it shall state precisely the nature and situation of each of the immovables on which the mortgage is granted.”
    The sil nation of the immovable was not stated as required, and the court did not find with certainty that the land claimed was the land mortgaged.
    whatever error there was committed appears to have been the error of both the , contracting parties in the absence of evidence of the parties, or of evidence of such a nature as to render it certain that the land claimed was the land the mortgagor intended to mortgage in 1884.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Oullom, J.

      E. M. Hudson for Plaintiff and Appellant.

      Oouvillon & Son for Defendants and Appellees.

      Wm. B. Howard, Curator ad hoc (Vm. Ii. Peterman of Counsel), for ill’s. Sentell, Defendant and Appellee.
   Tlie opinion of the court was delivered by

Breaux, J.

This suit was brought to correct a description of land, bought by plaintiff’s ancestor in title at sheriff’s sale of the 1st of March, 1884.

It appears that in the year 18Y5, Mrs. Randolph mortgaged property belonging to her. Not long afterward, Sentell & Co. became' owners of this mortgage and of the notes it. secured.

The following is a description of the land in the act of mortgage:

“And 2d. An undivided half part, share and interest of, in and to all and singular, all those tracts or parcels of land, situated in said parish of Avoyelles, on Bayou Jack and Bayou Choupique, in Township One, South Range Five East, designated and described as the North half of 'Section No. Twenty-seven, the North half of the Southwest Quarter of said Section Twenty-seven, the Northwest quarter of Section Thirty, the Southeast Quarter of Section Thirty-two, the West half of the Southwest Quarter of 'Section Twenty-eight, the Southwest Quarter of the Northeast Quarter of Section Twenty-eight, and the undivided half of the Southwest Quarter of Section Seventeen, containing in the aggregate nine hundred and thirty acres.”

Of the seven subdivisions embraced in the foregoing description, it is claimed by plaintiff that four are misdescribed, viz:

Two ip Section 21, one in Section 28- and 'one in Section 30, and plaintiff asks that the deed be reformed by substituting 29 for 21, and the W. % of S. E. Vi of Sec. 28 for the W. Vi of S. W. Vi of Sec. 28, and the S. E. Vi of Sec. 30 for N. W. Vi of Sec. 30, in order that the act of mortgage may be made to conform with the intention of the parties.

The owner of the primordial title acquired from the State of Louisiana and the United States. At his death the title descended in indivisión to his sole heirs, Mrs. Randolph and Mrs. Stark. Mrs. Randolph mortgaged her undivided interest.

Plaintiff asserts that neither Mrs. Randolph nor her sister, Mrs. Stark, nor the two jointly, ever were the owners of record of any part of the four tracts alleged to have been described erroneously in the mortgage, and it appears that one of the misdescribed tracts, to-wit, the W. % of S. W. % of Section 28, is the property of other parties, and was such anterior to the mortgage executed by Mrs. Randolph.

At the foreclosure sale this firm (Sentell & Oo.) became adjudi-catee of the property mortgaged, and in the course of time, by regular conveyance, the plaintiff became the owner of the title and of the interest of the firm in the property.

Petitioner avers that her husband paid all the taxes due on the property up to his death, and that since that time she has paid them.

Mrs. Randolph not long since became vendor in two acts of sale, one to M. 0. Chenevert, and the other to Shelby Couvillon; to the former she sold the half interest in the North % of Southwest ^4 of See. 29, Township 1, South Range 5 East, and to the other (Couvil-lon) she sold the half interest in the West % of Southeast % of Section 28, Township 1, South Range 5 East.

These lands are portions of the legal subdivisions of the lands .claimed by plaintiff, as intended to be embraced in the act of mortgage and of the deed of sale by the sheriff to her husband.

She also avers that the deed of sale of March 1st, 1884, was complete enough to give notice to third persons.

On behalf of the defendant Mrs. Randolph, the plea of prescription was filed, setting out the number of years that had elapsed since the mortgage and conveyance, and on the merits of the case she answered pleading the general denial. Her vendees, Couvillon and Chenevert, severed in their defense, pleaded prescription, and in their answers alleged that plaintiff had no right on their lands bought by them in good faith and without any notice of any adverse claim. They called their vendor, Mrs. Randolph, in warranty.

The following plat is inserted here. On it the legal subdivisions, as set forth in the act of mortgage heretofore referred to and in the sheriff’s deed, in the foreclosure proceedings, are traced with red, and those claimed by plaintiff as the lots it was intended to mortgage and afterward to convey in the foreclosure proceedings, are traced in blue. Those correctly described and not here in dispute are dotted in blue.

Erom the foregoing it appears that in drawing the mortgage of May 15th, 1875, a mistake was by error made in the description of certain tracts of land situated in T. 1, S. R. 5 E., in that the mortgagor purported to mortgage an undivided half interest, as follows:

N. W. % of Section 30 was erroneously inserted in place of S. E. % of Section 30.

W. % of S. W. % of Sec. 28 was erroneously inserted in place of W. V2 of S. E. % of Sec. 28. The N. % of Sec. 27 and N. i/3 of S. W. y, of See. 27 were erroneously inserted in place of N..% of Sec. 29 and N. % of S. W. 14 0f Sec. 29.

Erom an adverse judgment, plaintiff prosecutes this appeal.

We have noted that the tracts of land claimed by plaintiff are separate and at some distance from those described in her act of purchase, which she avers are erroneously described, and are not the lands which she bought.

The action is exclusively one to reform a deed.

Our attention was first drawn against the defendants, Chenevert and Couvillon, who bought a large portion of the lands claimed from Mrs. Randolph, one of the defendants.

Everything of record indicates that they bought in good faith and without any notice whatever of any adverse right on the part of the plaintiff.

If we were to decree that these defendants must loose their lands, we would then virtually have to hold that they should have been aware of a fact of which plaintiff had no knowledge whatever until quite recently.

Plaintiff and her ancestors in title held for years the land described in her deed of purchase without suspecting that there was the least illegality in the title to these lands, and that she had the shadow of a claim to the lands now owned by these defendants. She, in consequence, can not, in the absence of evidence, sustain the position that they should have known that which was unknown to her and to her ancestors in title.

Not only the title since a number of years did not inform the public, as required, what property it embraced, but it did not inform the plaintiff until a comparatively recent date.

The intention of Mrs. Randolph to sell these tracts to plaintiff’s ancestor in title, if it was the intention, does not appear of record.

What plaintiff’s ancestors in title intended to do, does not in the absence of all notice concern third persons such as were the purchasers, Ohenevert and Couvillon. The maxim id cerium est quod cerium redi poiesl does not apply, for the reason that the purchaser can not have the title reduced to a certainty against these purchasers. The description does not come within the legal maxim at all, for the property was not sufficiently identified to bring.it within the rule, particularly, as relates to third persons.

True the land was described as lying in Avoyelles. The parish, the township and the range are given and the location was stated as being on Bayou Jack and Bayou Ohoupique. We are led to infer that only one of the tracts of land is situated on Bayou Jack, and the others are at some distance from both.

Be this as it may, these defendants purchased fractional tracts not in the least covered by the description in plaintiff’s title, which embraced land particularly described and which was not described by reference to parish, township or bayou as a description. The title did not cover all of the lands of the late Mr. Lambeth in Avoyelles, in a ertain tract or on a bayou, but fractional sections which were not the fractional sections these defendants bought.

We pass to the claim made against Mrs. Randolph who, after the sales made, as just stated, remains the owner of a fractional tract of some eighty acres.

While the res which is the subject matter of a contract, should bo defined with some degree of certainty, it is, we are well aware, well settled that the identity may be made to appear by evidence de hors the act.

In the first place, in order that the quoted maxim supra may have application, we are of the opinion that the description should be certain enough to render it certain that the purchaser intended to buy the property he claims and to enable the court to determine what it is the purchaser supposed he was buying. Here, the description was too indefinite to show the intention of the purchaser or to enable the court to ascertain with any degree of certainty what property it was intended to convey. The parties to the original agreements are dead, and those who have succeeded to the title know very little regarding these agreements, save that it appears that the lands mortgaged many years ago, were considered the land of the mortgagor, though they were not, and the mortgagor has never paid taxes on those lands which she did not mortgage, and which are now ■claimed as the lauds' which were really mortgaged, although incorrectly described.

This evidence does not g'o to the extent of showing error in the description.

The Civil Code, Article 3306, requires: “To render -a conventional mortgage valid it is necessary that the act establishing it shall ¡state precisely the nature and situation of each of the immovables on which the mortgage is granted.”

We have read the decisions cited by the learned counsel. In Association vs. Mason, 24th Ann. 318, the description, we are informed, was accurate enough to inform the public what property was covered by the mortgage. The description of the land was reasonably certain ;and not misleading.

In Baker vs. Bank, 2nd Ann. 371, the mortgage made mention of the parish in which the mortgaged property was situated; the number >of acres if contained; the use made of the property as a plantation, and that it was purchased by the mortgagor at a probate sale of a person named. This, we take it, was complete identification, and for that reason does not apply here.

In Ellis vs. Sims, 2nd Ann. 254, the boundaries were correctly stated, and the court said: “There has been a fair compliance with the requisition of the law that the mortgage and its registry shall state precisely the nature and situation of the property.” A quotation, we take it, without any application here.

We grant counsel’s proposition that the validity of a mortgage will not be affected by the number of the “range” in which the property ■covered by the mortgage is situated, if the property is otherwise described in the mortgage with sufficient certainty as to clearly identify it, and that the proposition is sustained by the cited decision.

The difficulty in reaching plaintiff’s conclusion in regard to her claim arises from the fact that the property claimed was not all described in the mortgage.

For reasons assigned, the judgment is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,260.
    Robert Brown et als. vs. W. RaymoNd Fry et als.
    Syllabus.
    A homestead claim filed during the existence oí the community to land in possession of, and cultivated by, the community, during five years .(proper application having been filed and final proof made), is property of the community, although the final receipt was issued after the dissolution of the community by the death of the wife.
    IN RE John Rollo applying for certiorari or writ of review to the Court of Appeals, Third Circuit, State of Louisiana.

      Cline & Cline for Petitioner.

      E. L. Wells for Respondents.
   The opinion of the court was delivered by

Breaux, J.

Relator urges that the decision rendered in this case heretofore is erroneous, and that the judgment should be annulled.

The facts are, that Essex Brown, under the United States land laws, made an application to enter a tract of land, and, on the 22nd day of November, 1880, his application was granted. He paid the required amount for the entry and went into possession. Having complied with the law regarding- the entry of land, on the 20th day of November, 1886, testimony for final proof was taken; subsequently final payment was made and final receipt was issued to him by the government on the fourth day of February, 1887.

The entryman was married at the time that he presented his application to enter the land, and he had a family consisting of his wife and children. The evidence shows that after he entered the land, and during the existence of the community, he resided thereon and cultivated it during five years, that is, from the date of the filing of the affidavit to the day that final proof was made. The entry was a homestead entry and no question-of the irregularity is raised as relates to it.

We have already stated that proof of entry was made on the 20th of November, 1886. ' The wife of Essex Brown died in December, 1886, and the final receipt of the register and receiver issued February 4th, 1887.

Soon after Essex Brown had obtained his final receipt, he sold the land to several persons. They, in turn, sold to others whose names are given in relator’s petition.

In May, 1897, Robert Brown and others who are the heirs of Mary Ann Kelly, late wife of Essex Brown, brought suit to recover from these vendees of Essex Brown the undivided half interest in the land, claiming it as community property. We are informed by the pleadings, that judgment was pronounced in favor of plaintiffs,' Robert Brown el als. The case, on appeal, was remanded at the instance of defendant, relator here, by the Court of Appeals for another trial. A second judgment was entered, and on the second appeal before the Court of Appeals, judgment was again pronounced in favor of plaintiffs.

In the decision of which the relator complains, the Court of Appeals found, as a fact, that final proof was filed in the land department of the government before the death of the wife, but that the final certificate only issued after her death, that final proof settled the right of the community in the land and that, in consequence, plaintiffs are entitled to the undivided interest from the defendants.

Relator complains of the decision and seeks to have the judgment-reversed.

We have not found that relator’s grounds of defence are well founded. The title, in our view, was, beyond question, in the community and not exclusively in the surviving husband. The community, at the date of the wife’s death was entitled to the homestead.

It only remained for the government to issue the final receipt. No power, not even the government itself, could, in law, divest the community of a right to a homestead which it had well earned, although a final receipt had not been issued at the date that the community was dissolved by the death of the wife.

The right of the community dates from the day of the marriage.

When Essex Brown ,the surviving partner in community, obtained his final receipt, the date of the right related back to the date of the original homestead entry of the land in so far as the community was concerned.

From the first, the wife had, as relates to the property, as much riglit, as partner in coinmuity, to look forward to a complete ownership of the property as her husband.

The home of the husband, while in possession, was her home, his cultivation was her cultivation of the property. The retroactive effect of the final receipt issued by the government covered her right as well as that of her husband. The final receeipt was only evidence that the-community had acquired the right to land by complying during five years with the law’s requirements of its possession and cultivation.

In Morris vs. Covington, Executor, 2 Ann. 259, the court held that the heirs of the wife are entitled to one-half of the property purchased by the husband during the community subject to the debts of the community, though not paid for until after the death of the wife.

The entry of the land in the case before us for decision and subsequent compliance with the homestead was-, in our view, as complete an acquirement by the community as was the sale mqde in the case from which we have quoted supra. In another decision, property was acquired during the existence of the community and, .after the dissolution of the community, the title was perfected by the survivor paying: the purchase price. The court held that the property belonged to the community, and the purchase price so paid is a community debt.

Nicholas Moniotte vs. F. O. Lieux et als., 41 Ann. 528.

In the case before us, the property was acquired during the community, and the evidence of the right was delivered after the community had been dissolved. The property was that of the community.

In answer to relator’s proposition that a final receiver’s certificate is not sufficient evidence of title upon which to base a petitory action, and that it followed in the. case here that it was not sufficient evidence to sustain the defence presented, we can only say that the courts have repeatedly decided that such receipts are evidence enough to base a petitory action thereon. In Simien vs. Perrodin, 35 Ann. 931, the court determined that land held under a certificate of entry was sufficiently vested in the grantee to enable him to sustain his action for the land.

Relator’s counsel have attempted to difference the force and effect of a receiver’s receipt in homestead entries from those issued under the preemption and other laws. We have not found that the contention is sustained by authorities. We have found no authority upon which to base the conclusion that a receiver’s receipt in a homestead case is not evidence enough to enable one holding, under the homestead law to hold the land as owner. The patent is only a cum-ulation of proof regarding his rights and is not essential to make proof of ownership, if the entryman had previously complied with the law. Moreover, all parties ground their claims on this certificate. If it is not sufficient evidence as relates -to the rights to the land claimed by the heirs of the wife, as coming to them from the community, it is not evidence enough as relates to the husband. The title would be incomplete and lacking- in essentials as relates to all the parties, but such is not the case; it is valid and binding- and one which niay support a petitory action.

Those who held the property under his certificate connot be heard to assail the title under which they have possession and claim ownership.

The foregoing we consider reasons enough to deny the writ.

Relator presses upon our attention an asserted error, he contends in the brief, was committed by the District Court in rejecting certified copies of the evidence forwarded to the commissioner of the land office, taken when Essex Brown filed his proof papers before the Land Department. Brown, it appears, swore, while being1 examined in his own behalf, that his wife died some time prior to the date of the final proof. This was manifestly error, as all the evidence and the pleading show that she died some time after the date of the final proof. It (the final proof) was dated, we have already said, November 20th, 1886. TIis wife, Mary Ann Kelly, died December 24th, 1886.

Plaintiff’s counsel (respondent’s counsel here) objected on the ground that so far as Essex Brown’s testimony was concerned, it was ex parte.

Other objections might have been urged to this evidence. • It was clearly testimony in a previous proceeding to which plaintiffs were not parties. The ruling of the district judge was proper.

Relator claims and further objects that the present holders of the title are purchasers without notice and that their vendors were also pxxrchases without notice. We think it sufficient answer to say that one cannot avail himself of the plea of the want of notice when he is the vendee of an immovable not owned by his vendor or by their authors.

Moreover, one is charged with notice when he buys in the face of the fact that the vendor was not, under the statute, the owner of the whole property, one-half, under the regime of the community being, the property of the wife:; it being in the name of the vendor and survivor of the community at its dissolution.

It is therefore ordered, adjudged, and decreed that the order nisi which was issued in this case be recalled and cancelled.

It is further ordered and decreed that relator’s application be rejected and the proceedings dismissed.


author: Beeaux, J-

text:
    No. 13,271.
    The State of Louisiana vs. James Flint and George Calloway.
    Syllabus.
    Í. JultY Commissioned!!? Must Qualify. — The law mating power has not left it to the courts to determine that one may discharge the functions of a Jury Commissioner without having qualified by taking the oath. “The Jury commissioners shall take the oath”, is the legislative command.

      2. Tiib Commissioxeh Did Rot Hold Ovkk. — Tinder a law repealed after his appointment, and after he qualified originally as Jury commissioner, he (the commissioner) does not hold over until his successor is appointed.
    3. Tint want of Qualification Is Not Cowshed by Statute 133 of 1898.— Though it is not shown that fraud was committed in drawing the panel of Jurors for a term of court, none the less, the law, and the decisions rendered, as relates to the commission, and the necessity of its qualifying, is imperative. The commissioner must take the oath required.
    There is a difference observed between the illegality of acting without having-qualified and the irregularity which may arise in the drawing and summoning of the Jury. As to the former, they must qualify, 30th Ann., 1028 ; 32nd Ann.. 879; 33rd Ann., S96; and as to the latter, it rauqt appear that the accused has been prejudiced by fraud or other wrongs perpetrated While engaged in drawing or summoning them.
    APPEAL from the Sixth Judicial District Court for the Parish of Richland. Ellis, J.

      M. J. Qunmngham, Attorney General, and L. A. Thompson, District Attorney, for Plaintiff and Appellant.

      O. L. Berry for Defendant, Appellee.
   The opinion of the court was delivered by

Beeaux, J-

Flint and Calloway were indicted for murder on August 30tb, 1899.

On .the sixth day of September, following, Flint through his attorney, filed a motion to quash the indictment, for the reason that one of the jury commissioners who participated in the drawing of the grand and petit juries, had not taken the oath required. This motion was sustained, and from the court’s ruling, the .State prosecutes this appeal.

On the trial of the motion, the evidence'disclosed that Lem, Scott, one of the jury commissioners, was appointed to that office in 1896, and under that appointment he took the required oath. lío was reappointed in 1898 and took part in the drawing of the jury for the August term of court, 1899. Having received no notice of his reappointment, he did not qualify under it. The judge appointed the jury commissioners in compliance with Statute 135 of 1898. Section 3 of the act required such appointment. The same section of the law, requires that before entering upon the duties, the commissioners appointed shall take the oath prescribed by the statute.

The State, through her officers, objects to the ruling of the District' Court in quashing the indictment, on the ground that the motion was not timely filed.

Section 16 of the statute cited above, requires that defects be taken advantage of before going to trial.' This objection falls, as the case had never been tried.

The next position of the appellant is, that the jury commissioner having been appointed under the statute of 1896, and having qualified under that appointment, he held over until his successor had qualified.

In the face of the repeal of that statute by the statute of 1898, cited supra, which specially requires an oath to be taken, we do not think that it was the intention of the Legislature to leave it to the courts to determine that one might continue in the discharge of the functions of a jury commissioner, though he failed to take the oath under the new law.

The statute is imperative, both as relates to the necessity of appointing jury commissioners, and the oath to be administered.

The successor could not qualify and suceed him, the old jury commissioner, under a law which had been repealed; so that he could not hold over until his successor was qualified. He had no successor. The commissioner under the new appointment came in under another and original power created by the Legislature.

In the last place, appellant urges that the defendant (appellee here), did not, in his motion to quash the indictment, complain in the least of injury or damage, and that, unless it is shown, that some fraud has been committed, or wrong, done the accused, the irregularity in drawing will not avail him, citing in support of this position, State vs.Taylor, 44 Ann. 183. In that case the court held:

“There is no evidence to show that fraud has been practiced, or “ any wrong committed in the drawing or summoning of the jury, “ that would work a great and irreparable injury to the defendant.”

All the decisions that we have found, and there are a number bearing upon the question, hold that the informalities charged in the drawing of the jury or the summoning of the jurors, are demurrable.

But they all relate to mistakes of officers in drawing the jury, and none relate to the absolute neglect or omission of the commissioners to take the required oath. The following decision holds, in terms not to be misunderstood, that the oath must be taken by the commissioner. In State vs. Williams, 30 Ann. 1028, the defect arising because the clerk had not taken the required oath, having been timely made, the court held that it was fatal to'the indictment.

This view was reaffirmed in State vs. Thompson, 32 Ann. 879; and again in State vs. Washington, 33 Ann'. 896, the question was considered, and the court again affirmed the ruling. A difference has been made, as we read those decisions, between an informality in drawing and summoning a jury, and, on the other hand, the omission or neglect of the commissioner to.take the required oath..

We are of the opinion that it (the jurisprudence) should remain unchanged, and for that reason, we must refuse to set aside the judgment of the district court in this case.

The judgement is affirmed.


author: Blanchard, J. Miulek, J, Blanchard, J.

text:
    No. 12,808.
    Mrs. M. E. Cockerham vs. M. H. Bosley, et al.
    Syllabus.
    On Motion to Dismiss.
    1. All motions to dismiss appeals are not required to be made within three days.
    2. There are motions to dismiss which may be filed any time prior to appearance or answer.
    S. Of the latter class are those where the proper parties are not before the court, or where the appellant has acquiesced in the judgment, or where there has been no citation of appeal.
    4. An appeal will not be dismissed on account of failure to cite the appellee where the petition for appeal asks for citation and it is ordered, and the want of it is not imputable to appellant.
    5. In such case the court will grant a reasonable time to make proper parties by citation.
    On the Mekits. (Millek, J.)
    (1) The surviving partner of a commercial partnership will not be deemed an intermeddler because on the dissolution of the partnership by the death of one of the partners, the survivor collects debts due the partnership, and because he makes sales of its property.
    (2) But the surviving partner will be held to a faithful account for ail debts of the partnership collected and for all proceeds of such sale.
    (3) The surviving partner of the partnership will not be relieved of his liability for the partnership property sold by him in block for less than its value, on the ground urged by him that with the proceeds of the sale he was enabled to compromise the partnership debts.
    On Keheaking. (Blanchakd, J.)
    where a liquidator disburses money for account of the partnership he represents he should, in accounting, present an itemized statement of the expenditures showing how, -when, to whom, and /or what paid out, present the vouchers therefor, and if there are no vouchers, make due proof of the payments. as well as the necessity therefor.
    Bach item of disbursement should be specifically proven.
    Ana the account should be so made out as to be susceptible of easy understanding by those who have to deal with the same and who are not professional book-keepers, or expert accountants; and where" it is not, the ease will he remanded at the expense personally of the liquidator.
    The members of the Bench are not supposed to bo expert book-keepers and accountants.
    The practice of appointing auditors and experts in matters of complicated accounts is favored.

      APPEAL from the Ninth Judicial District Court for the Parish of Red River. — Hall, J.

      Elam, & Egan for Plaintiff and Appellant.'

      William Cross (John I. Teer, of counsel), for Defendant and Appellee.
   The opinion of the court on the motion to dismiss was delivered by Blanchard, J.

On the merits,, the opinion was delivered by Miller, J.

On the.rehearing, the opinion was delivered by Blanchard, J.

ON Motion to Dismiss Appeal.

The opinion of'the court was delivered by

Blanchard, J.

Defendants,' appellees, move to dismiss this appeal on the ground that no notice or citation of appeal has been served on them.

Appellant replies that the motion was not seasonably presented because filed more than three days after the filing of the transcript,, and urges that a motion to' dismiss an appeal must, in all cáses, be made within three days of the filing of the transcript.

The transcript was filed April 11th, 1898; the motion to dismiss on May 16th, 1898.

But it is a mistake .that all. motions to dismiss are required to be made within three days.

There áre motions' to 'dismiss that may be filed any time prior to appearance' or 'answer. For. instance, in cases where the proper parties are not before the .court, or where the appellant has acquiesced' in the judgment. Francis vs. Lavine, 26 La. Ann. 311; Evans & Taylor vs. Succession of Etheridge, 29 La. Ann. 576; James vs. Followes, 23 La. Ann. 37.

And where there has been no citation of appeal it would be impossible to hold appellee to the rule of filing motions to dismiss within three days. lie is not before the appellate court at all until cited or given notice of appeal as provided by law. He is not supposed to know there is an. apppeal until -cited, or given notice by the taking of the appeal in open-court at the-session of court whereat the-judgment Was-rendered. But if he should happen to become apprised in some other way that an appeal had been petitioned for, an order •granted- and the transcript filed in the appellate court, he may- at. any time appear and move its dismissal for want of notice, or citation, where the -appearance is for that sole purpose. ,- - .

It is such a motion as this that is now before us — one predicated upon want of notice, or citation.

The judgment herein was rendered on August 14th, 1897. On January 6th, following, plaintiff petitioned for a devolutive appeal and an order therefor was granted returnable to this court on the .second Monday of April, 1898. Citation of appeal to appellees to 'answer the appeal was asked and ordered, and we find in the record what purport to be citations, addressed to each of defendants, but no return of service whatever thereon.

It appéars to be a fact that there was no service.

Besides, the citations referred to notify the appellees to appear in the office of the clerk of the Ninth District Court, Parish of Red River, in the town óf Coushatta, and file their answer to the demand of the petition within ten days, whereas Act No. 6 of the Acts of 1896, amending and re-enacting Article 683 of the Code of Practice, requires the appellee to be cited to appear before the court of appeal at its next term or return day for the parish, if there be sufficient time for doing so after allowing a delay of fifteen days from date of service of citation, or from the date of adjournment of the court when -the appeal has been granted in open court.

Appellees insisting upon their objection of want of citation and not waiving same by subsequent appearance or answer, the court must take action thereon. But it is well settled that an appeal will not be dismissed because of irregularity in the citation of appeal and return thereon when citation has'been prayed for, nor because of insufficient service of citation .of appeal not attributable to the appellant, nor because of failure of the clerk to issue proper citation when asked for, or the sheriff to serve when issued. Phillips vs. Creditors, 37 La. Ann. 701; Murphy vs. Ins. Co., 33 La. Ann. 454; Borde vs. Erskine, 33 La. Ann. 873; Succession of Townsend, 36 La. Ann. 447.

Indeed the matter is settled by the statute law itself. . Section 36 of the Revised Statutes declares that “no • appeal ■ to the Supreme Court shall be dismissed on account of any defect, error, or irregularity * * * in the citation of appeal or service thereof * * * whenever it shall not appear that such defect, error, or irregularity is imputed to the appellant, but in all (such) cases the court shall grant a reasonable time to correct such errors or irregularities.”

It is, therefore, ordered, adjudged and decreed that the motion to dismiss be denied, and that this case be continued until the next term of this court with directions to the appellant meanwhile to cause proper citation of appeal to issue to and be served upon the appellees.

Oh the Merits.

Miulek, J,

The plaintiff appeals from judgment on her demand for the liquidation of a commercial partnership, "and to recover the amounts she claims will be found due her on that liquidation by the defendants, one of whom is her co-partner, and the other the widow of the deceased partner and the tutrix of her minor children.

The partnership organized in December, 1893, composed of plaintiff, the defendant, Milton II. Bosley, and John.H. Scheen, plaintiff contributing as her share of the capital two thousand dollars, Scheen & Bosley agreeing to contribute one thousand dollars each, was dissolved by the death of Scheen in December, 1895. The plaintiff and Bosley contributed their portions of the capital, and it is claimed that the portion of John H. Scheen was represented by a note for one thousand dollars used by the firm, but it is shown that the note was the paraphernal property of the plaintiff, which she alleges was placed in the firm’s safe to be kept for her, and was appropriated wrongfully for the firm’s purposes and the amount of that note is part of her present demand. At the dissolution’ of the firm in December, 1895, there were book accounts, other assets due the firm and its stock of merchandise. The plaintiff contends the stock was worth three thousand five hundred and forty-seven dollars, and there is in the record an estimate’ placing the stock at that value, made by or under the direction of Bosley. He continued the business after Scheen’s death, and was appointed liquidator on the 11th of January, 1896. It is shown that Bosley, from Scheen’s death to the date of his appointment as liquidator, sold merchandise of the partnership to the amount of nine hundred and seventy-eight dollars, and on the 11th of February, 1896, sold the residue of the merchandise to L. E. Scheen, and it appears that Bosley was engaged with L. E. Scheen in his business. On this branch of the case the plaintiff claims Bosley should be charged with the sales from Scheeen’s death to the sale of the residue of the merchandise, to L. E. Scheen, nine hundred and seventy-eight 70-100 dollars, less a credit of one hundred and thirty-nine 22-100 dollars; that the liquidator .should be charged also with the value of the stock, three thousand five hundred and forty-seven dollars, less the amount of these sales, one hundred and thirty-nine 20-100 dollars, and less also fifteen hundred dollars, proceeds of sale of the residue to L. E. Scheen. On another branch of this case, it is shown that in December, 1895, there was remitted to Bosley by Hardie & Co. the sum of one thousand dollars, and plaintiff claims Bosley should be charged with these remittances.

A previous suit brought by plaintiff for the liquidation of the partnership, was dismissed on the exception of prematurity, i. e., that the Code allows one year to the liquidator to settle the partnership dissolved by death of his co-partner. This suit followed, and though the petition is broader in its allegations, the controversy placed before us relates to the asserted liability of Bosley for the note belonging to plaintiff of one thousand dollars, his liability for the stock of merchandise on the basis of three thousand five hundred and forty-seven dollars, and the amount of the remittances by Hardie & Co., and plaintiff’s demand is that he should be charged accordingly. The defendant excepted that the petition united distinct causes of action, directed, we presume, against the allegation of Bosley’s liability as liquidator and his personal liability for the note of one thousand dollars arising from his alleged participation in the asserted fraudulent use of the note by the partnership. Subject to the exception, the defendant pleaded the general issue, with the averments that the one thousand dollar note had been transferred to John H. Scheen, by him was furnished to the partnership as the capital he was to furnish; that the stock on hand on the 16th of February, 1896, was sold for fifteen hundred dollars, by means whereof the defendant, Bosley, was enabled to compromise the firm’s debts at 66 2-3 cents on the dollar; that the liquidator had paid out of his own funds one thousand three' hundred and twenty-eight dollars, for which he claims judgment, and that the accounts of the partners be liquidated. Subsequently, the liquidator filed his account, showing the assets of the firm, the debts paid by him, and the amount due him of one 'thousand three hundred and twenty-eight dollars. The petition of the plaintiff was ordered to stand as an opposition to the account, and 'the result of the litigation was a judgment directing that 'the liquidator be debited and credited with sundry amounts omitted in Ms 'account, rejecting the demand that he be charged with the estimated value of the stock: and rejecting also the demand that he be charged with the money remitted by ITardie & Co. The judgment maintains, as against the partnership, the plaintiff’s demand for.the amount of the note of one thousand dollars, but not as to the individual obligation of Bosley. He is ranked as a creditor for seven hundred and eighty-nine dollars tó be paid before any dividends are paid; the Succession of John IT. Scheen is decreed to be indebted to the partnership in the amount of nine hundred and seventy-one dollars; the account filed by the liquidator, thus amended, is. homologated, 'and, in other respects, the plaintiff’s opposition is dismissed. In this court, the defendant, answering the appeal, asks that the judgment be amended so as to decree that the seven hundred and eight-nine dollars, awarded him, be paid by preference, especially over the one thousand dollars awarded the plaintiff.

It is contended on behalf of the defendant that the husband of plaintiff had agreed, or, at least, was expected to furnish on behalf of John Scheen, his portion of the capital of the partnership; or as we understand, that plaintiff’s husband being indebted to Scheen, transferred to him the note of one thousand dollars for the uses of the partnership, 'and that Scheen being credited with the amount of the note on the' capital account, the partnership stands before us as the holders for value of the note. It is distinctly testified the note, the property of plaintiff, was entrusted to Scheen for safe keeping, and we think the current of the whole testimony is that neither the husband and still less the wife ever transferred the note or consented to its use by the firm. Nor can we appreciate that because of the credit given Scheen on the books of the partnersMp, the partnership is to be deemed the holders of the note for value in any sense that defeats the right of the plaintiff. She was no party to that credit, nor was her husband even, if he could have thus disposed of his wife’s property. It is claimed that the use of the note by the firm was a fraud on the plaintiff, committed by Scheen and by Bosley, and in that view the plaintiff is entitled to judgment against Bosley individually. The plaintiff is the sister of Scheen, and Bosley is her brother-in-law. It is argued that this relationship authorizes the conclusion that Bosley is to be charged with knowledge that the note was improperly used, and, hence, with participation in the alleged fraud. It is testified by him that he did not know the note belonged to plaintiff. There is in the record testimony of the communications by Scheen to Bosley, well calculated to leave on his mind the impression that plaintiff, the sister of Scheen, interested in his welfare, would not object to his temporary use of the note in promoting the business of the partnership. There is in the record a writing from Scheen to the effect the partnership should have no liability arising from his use of the note for its purposes. The note was about the amount Scheen was to furnish to the firm, and Scheen’s view seems to have been to use the note temporarily, as the substitute for the cash he was to furnish, It is in proof that Scheen pledged the note for the firm’s debt, we think with the expectation of being able to redeem it, but the expectation failed. In this condition the note was discounted by the maker, and with the funds thus obtained the note was relieved from pledge, the firm’s debt paid, the' note discharged and returned to the maker. ' Bosley conducted the negotiation resulting in the discount of the note, but the discount was the sequel of pledging the note which was the act of Scheen. ’We can not find the basis to charge Bosley with fraud and, on that basis, hold him liable, but as the note of plaintiff was used by the firm, there was'the firm’s obligation and the liability of each of the partners, incident to all commercial partners, and this was the view of the court, the judgment properly directing that the amount be paid before any distribution of dividends or payment to partners.

We think it is manifest from the record, then, the remittances of Hardee & Co. were not for any debt to the firm, but for the purchase of cotton. The remittances would haVe produced debts of the firm, but seem to .have been paid from the proceeds of the cotton. We find no basis to charge Bosley with these remittances.

The argument on behalf of the plaintiff treats the defendant, Bosley, as an intermeddler with the property of the partnership, and urges that as such he should be held liable for its assets because, after Scheen’s death, in December, 1895, Bosley continued the bush ness, not having been, appointed liquidator until' February —, 1896. The surviving partner can not, in our view, be deeméd an intermed-cller with respect to the partnership property. It is his duty and his right, when the death of his co-partner occurs, to contribute his efforts to realize the assets of the firm, pay its debts, and do such other acts as are requisite to wind up the business of the firm. To that end the Code authorizes his appointment as liquidator, but, in our view, he is not to be held as an intermeddler merely because before that appointment he has collected assets and made payments of the debts of the firm. Story, on Partnership, Sec. 486, Civil Code Articles 1102, 1103, et seq. But it is equally clear the surviving partner is bound to faithfully account for all the property of the partnership when, at its dissolution, he takes charge of it, and it is no less his duty to keep and furnish when required proper accounts of his administration of the partnership. The account, such as it is, we find in the record is headed: “Bosley, liquidator, in account with Scheen & Bosley,” supplemented by the account of John T. liar die & Co. with that firm. The first named account begins 1st of January, 1896, and from an examination, we reach the conclusion that neither the amounts received by him from Scheen’s death to the 1st of January, 1896, nor the disposition made of such amounts finds any place on that account, beyond one of the debits “to balance $139.00,” which in Bosley’s testimony is stated to have remained on 1st of J anuary, 1896. It is true we find in his testimony that the amounts received by him prior to that date were applied in the business of the partnership; we have the reference to a diary and cash book, and to pages in the record, which furnish us no aid on this point. We find nothing in the record that conveys the explanation of the application of the amounts received prior to the 1st of J anuary. They should be debited to him in the account he should have filed, and was ordered to file; the items of his expenditure for the partnership, whether in payment of its debts, or for its other purposes, should have been stated on the credit side of his account and under the very explicit issues in the controversy, one specially directed to the amounts he received prior to the 1st of January, 1896, he should have supported these debits and credits by proof. We find no such accounting or proof. We have paused on this branch of the case, reluctant to charge the liquidator with the December sales in view of his general statement the amounts were applied for the partnership, not at all the equivalent of that account that should have been filed or proof of items that the law exacts. In our view, as the record is placed before us, the liquidator is to be charged with these sales claimed to s have amounted to nine hundred and eighty-seven dollars, and sustained in our view by the testimony, and the credit of one hundred and thirty-nine dollars deducted leaves eight hundred and forty-eight dollars for which he is chargeable. We find the stock of goods estimated a few days after the death of Scheen at three thousand five hundred and . forty-seven dollars. The estimate was made by the direction of the defendant, Bosley. It is offered to 'charge him with the amount it shows. If incorrect the burden was on him to show the real value of the stock, but without contrary proof we must take that estimate as our guide. Deducting nine hundred and eighty-seven dollars from three thousand five hundred and forty-seven dollars leaves the stock at two thousand five hundred and sixty dollars, and for this residue the' defendant proposes to charge himself with fifteen hundred dollars, the price derived by him from the sale in block to L. E. Scheen. It is claimed that the husband of the plaintiff desired to become the purchaser of the stock, was consulted with reference to the sale, and consented to it. His testimony is to the contrary, at least to the extent that he gave no consent. It is further claimed that the defendant, Bosley, negotiated a compromise with the firm’s creditors, thereby reducing the debts fully one-third, and the compromise depended on the quick realization of the cash requisite to be effected f only by the sale to t. E. Scheen. It is argued that if the goods sold for less than their value, the deficiency was fully compensated by the reduction of the firm’s debts, the result of the compromise. The sale of the stock of goods in the ordinary course of business is, at least,. the general rule for the liquidating partner. When he departs from that course and proposes to account for goods valued at twenty-five hundred dollars by two-fifths less, in our view, he can not escape liability by urging the sale in block for fifteen hundred dollars was to make a compromise" with the creditors.accomplishing a reduction of their debts. The proof shows the compromise was effected, and that the creditors insisted on its consummation within a final period of thirty days. But for all of that we can not hold that a liquidator, charged with accountability for property in his hands, can discharge himself from liability for disposing of the. property for less than its value by a compromise with a creditor effected with the cash he obtains, but what we must hold a sacrifice of the property. We are not prepared to establish that method as a guide for liquidators. In our view the liquidator is to be charged with twenty-five hundred and sixty dollars, the value of the stock disposed of for fifteen hundred dollars.

It is therefore ordered, adjudged and decreed that the Judgment of the lower court be amended so as to charge the liquidator with the amount of the sales prior to January 1st, 1896, eight hundred and forty-eight dollars ($848.00), with the stock at $2560, less $1500, andi that in other respects the judgment be affirmed with costs.

On Eeheaeins.

Blanchard, J.

A careful re-examination of this case, made at leisure during the summer vacation of the court, has served to convince us that the Judgment of the court below is in the main correct. Its view of the controversy, we now see, is more accurate, more nearly in accord with the disclosures of the record, than that expressed in our former opinion, although;/ as' to certain of its features, we find it uece'ssary to remand the case. ' . .

Jno. H. Scheen, H. M. Bosley and M. A'. Coekerham, agent (repre^ senting his wife who is separate in property) constituted the commercial partnership of Scheen •& Bosley. Coekerham, agent, was the silent partner. .lie put $2000 of capital into' the concern, and the other partners put, or were to put, in $Í00Ó each. Notwithstanding this disproportion, they were to share e'qually in the profits of the enterprise. The reason for this Was' that Scheen and Bosjey were to contribute their services to the business and attend to its. management. '

The partnership had continued- Tor about two years when, . on December 5th, 1895, Jno. TL'Scheen died. This.was in the midst of the business season, the time-when the sale of goods was most active, when cotton was being marketed, and when collections, of outstanding accounts were being made.'

The partnership was dissolved by the death of Scheen, but.to close the doors of .the business house'at that season meant great Toss to owners and creditors alike. And so, by'the consent pf the. surviving partners and the representative of the dead one, and with(the.acquiescence of the.creditors, the business kept right on under the, management and control of M. II. Bosley, who was advissed .with and consulted constantly by Coekerham, agent — he being present .in the town and in the store off and on every day.

This continued until January 16th, forty-two days after'the death of Jno. ÍL Scheen, when, by the written consent of' Oockerham, agent, and that of the widow of the deceased partner, M. H. Bosley was appointed liquidator. He qualified as such and continued to conduct the business in that capacity, collecting its assets, disposing of ‘its goods, paying its debts and seeking to wind Up and terminate its affairs.

The'concern was insolvent, but not greatly so. Its largest creditor was Wni. T.' Iiardie & Oo., commission merchants of New Orleans, but this claim was secured by the pledge of sufficient cotton to about cover it.

Unsecured creditors for six or seven thousand dollars were induced to accept 50 per cent, of their claims cash, and 16 2-3 per cent, in twelve months time. Some of. the smaller creditors were paid a larger percentage, and a few were settled with in full.

The net result of the effort at compromising the indebtedness was a saving to the firm of Scheen & Bosley, in liquidation^ of about $1900.

The creditors' who had agreed to the offer of compromise stipulated that the cash payments of 50 per cent, must be made in thirty days. To obtain the funds to meet these payments, it was necessary to make quick collection of assets and sales of goods. The creditors authorized the disposition at private sale of the goods and assets.

The liquidator kept the store open and sold off the goods as rapidly as possible. This continued until about the middle of Eebruary, when he sold the remnant stock remaining- in globo to L. E. Scheen for $1500.

The cotton in the hands of Iiardie & Co. was gradually sold by them and a settlement of accounts with that firm shows a balance of $127.00 in their favor.

The closing out pf the stock of goods and cotton left in the hands of the liquidator, at the time he filed the account under consideration, notes and accounts due the partnership of the face value of $4,120.00, and real estate valued at $1000. He stated in the petition accompanying the account that a large per cent, of the notes and other assets, he had reason to believe, could be collected the ensuing year. The account was not a final one, and the liquidation is not ended.

The present suit is one to settle the affairs of this partnership as between the partners themselves. No creditor is concerned herewith. The plaintiff sued for an accounting by the liquidator, and she now opposes in numerous particulars the account he filed.

One of her principal contentions is that the liquidator had no warrant or right to dispose of the remaining stock of goods to L. E. Scheen at private sale for $1300, and that he should be charged in his settlement with their full value, which is averred to have been $2500.

With reference to this transaction, the district judge'says: “The sale was' made after much discussion and deliberation; with the full knowledge of plaintiff’s husband and agent, who had acted for her in everything, and without a word or murmur of opposition from either. It was made to raise the money necessary to effect a compromise of the debts at 66 2-3 cents, with the written consent of the creditors whose assent to the compromise depended upon the cash payment in thirty days of 50 cents in cash on the dollar. And this cash could only be realized by making this sale. By making- it and thus effecting the compromise, about $1900 were saved, or about one-third of the indebtedness of the firm, exclusive of the Hardie account which was secured by cotton pledged.”

This is a fair statement of the case, and to it we will only add that the plaintiff, through her husband and agent, not only was consulted and advised with about the sale, without opposing it, but she requested to be allowed to take the goods herself at private purchase for fifteen hundred dollars and was given the refusal of them at that price.

The evidence satisfies us that a reasonable time was given her, or her agent, to raise the money and take them, and it was only after it became apparent she would'not, or could not effect the purchase that 'the sale was made to E. L. Scheen. There was no opposition to the sale of the goods in this way, no protest; and plaintiff, as a member of the firm of Scheen '& Bosley, having benefitted by the compromise made with the creditors, of which the rapid disposition of the assets of the partnership in order to raise funds was a constituent part, can not now be heard to contest the sale of the goods and to hold the liquidator responsible for an alleged value thereof over and above the fifteen hundred dollars realized.

Another contention of plaintiff is that the defendant, Bosley, without right or authority used a $1000 mortgage note belonging to her. With reference to this the district judge says: “It (the note) seems to have been entrusted by her to her husband and that he, without her consent, authorized J. EL 'Seheen to use it in making up his part of the capital stock. It was during the year 1895 pledged to Jos. Bowling Company, Limited, to secure a debt of $800, and about the time of the death of Seheen it was offered to- the maker for $800, which he accepted and the Bowling debt was thereby paid. This was done by Bosley during the illness of Seheen. While the note was made payable to the maker, and by him endorsed, and Mrs. Cooker-ham’s name did not appear on it, still I am inclined to think that Bosley should be charged with knowledge that it belonged to her. But whether he knew it or not, it did belong to her in fact, and the firm had no right to use it without her consent, and having done so it is responsible to her for its full amount of one thousand dollars, with 8 per cent, interest from December, 1893. Her demand for a personal judgment against Bosley for the amount can not be allowed. The note was not used to pay his separate debts, but to pay a debt of the firm for which she, with other members, was equally bound. The effect of this finding is to debit J. El. Seheen with the amount placed to his credit as the proceeds of the note, $800.”

The facts disclosed by the record with reference to this note and its use in the business of the firm fully warrant this ruling, and the law governing and guaranteeing the rights of this married woman, under the circumstances disclosed, has found its proper application therein. Nor do we think that this is a case where C. C. 2324, which provides that he who assists or encourages in the commission of an unlawful act is answerable in solido with the other party to the offending for the damages caused by the act, applies. . The act by which this note was used in the partnership was that of J. EL Seheen, and he left a written statement signed by himself to this effect. But the partnership benefitted by its use, and since it is not shown that Seheen had the right in fact, or in law, to so use it, it follows that the partnership, which, through Seheen, used the note, must return it or account for its full value to the owner. It quite suffices, therefore, that the partnership be charged with its reimbursement.

Bosley, while conducting the business after the death of Seheen, and before his appointment as liquidator, collected a considerable amount of money representing the cash sales of goods, and, in addition, drew $1000 in cash from Hardie & Co.

The account he has filed herein does not make a sufficiently full and satisfactory showing of what he did with this money. If he disbursed it for account of the partnership- he should present an itemized statement of the expenditures showing how, when, to whom, and for what paid out, present the vouchers therefor, and if there are no "vouchers make due proof of the payments, as well as the neceessity for the samé. Each item of disbursement should be, if possible, specifically proven. And .the account should be so made out as to be susceptible of easy understanding by those who have to deal with the same, and who are not professional book-keepers, or experts, in the matter of commercial accounting. The members of the Bench are not supposed to be skilled book-keepers, or experts, in the understanding; of accounts.

If need be auditors and experts should be appointed to make these matters cloar to the court, and the Code of Practice provides for the appointment of such. The practice of appointing auditors and experts is favored in cases like the present one.

The liquidator attempts to eke out his account in the particulars we have mentioned by filing as exhibits certain pages of his cash book for December, 1895, and certain “pages of what he calls “the liquidator’s book.” But these are confused accounts, without dates, leaving-much to be supposed, understood and guessed at. Skilled accountants might perhaps understand the same and arrive at the results they are supposed to disclose, or be able to point out wherein they are lacking in results they should disclose. We decline to essay the difficult and doubtful task, and will reverse the judgment appealed from on this branch of the case, and remand it at the liquidator’s personal expense, with directions to present such an account of his disbursements of cash received as will permit a proper understanding of the same to be easily arrived at.

It will not do to say that Bosley is accounting in this litigation merely as liquidator and that, therefore, he is concerned herein only with the cash balance on hand at the time of his appointment as liquidator. By consent of those interested, he conducted the business for over forty days before he was appointed liquidator, and it is as much his duty to make a full and complete showing of receipts and disbursements while acting without the sanction of a formal appointment as liquidator as .it is of receipts and disbursements since such appointment. As we have seen, the-suit is one to settle the affairs of the partnership as between the partners.

For the reasons assigned, it is- ordered that the decree of this court .hereinbefore handed down, be set aside, and it is now adjudged and decreed that the judgment appealed from, in so far as it sustains the sale of the remnant of stock of goods to L. E. Scheen for fifteen hundred dollars, and in so far as it holds the partnership re.--sponsible to the plaintiff herein for the $1000 mortgage note, and directs that the amount of same with interest be paid to her before any dividend is declarad, and in so far as it adjusts among the partners their separate accounts, and in so far as it debits the liquidator with certain items aggregating $539.07, mentioned in the opinion of the court, and debits and credits him 'with certain other items mentioned in -the opinion, and in so far as it decrees the estate of I. Ii. Scheen to be indebted unto the partnership in the sum of $800, and the further sum of $171.16, and in so far as it holds that the plaintiff did not put into the business fifty-five bales of cotton as she contends, Ibut only forty bales, be and -the same is affirmed.

It is further ordered, etc., that in all other respects the said'judgment is annulled, avoided and reversed, and the case remanded with directions that M. H." Bosley and M. IL Bosley, liquidator, be ordered to file such an account in detail of his receipts and disbursements ®f cash as is described in the opinion of the court, any balance «claimed by him as against the partnership, or the partners, on account of his personal funds used in settlement of the debts of the partnership, to await the final determination and settlement of his accounts as liquidator.

It is further ordered, etc., that the costs of the lower court be paid iby the estate of Scheen & Bosley, in liquidation, those of this appeal b„y the liquidator .personally.

MoNeoe, J., takes no part.


author: Rlanohard, J.

text:
    No. 13,036.
    Succession of Francois Meunier, Deceased. On Petition of Heirs to Annul Will.
    Syllabus.
    On Moi'iON to Dismiss Aepeap.
    X. Tlie Judgment appealed from annulled the will and the probate thereof, and ■recognized plaintiffs -as heirs of the deceased. Bat It did not in terms send them into possession, nor was there any award against the executors, specifically, for a sum as representing the net proceeds of the estate in their hands. Held : A case where the trial judge could fix the amount of the suspensive appeal bond.
    2. One of the executors, acting in his individual capacity, was competent as surety on such appeal bond for the legatee who had appealed.
    3. Objection that the appeal was taken in the name of the agent and attorney in fact of the legatee, instead of in the name of the legatee, held under the facts and pleadings of the case, not tenable.
    On the Merits.
    1. Donations and bequests are permissible to trustees for educational, charitable, or literary purposes, or for the benefit of institutions, existing or to be founded, the object of which is to promote education, literature, or charity. Act No. 124 of 1882.
    2. But this permission is restricted to educational, charitable, and literary objects within the State of Louisiana, and to institutions founded and to be founded under the laws of the State for such purposes.
    3. To avoid the dispositions of wills and testaments it must plainly appear they come within the prohibitions of the law.
    4. Where a bequest in a will, in one view, is illegal; in another view, lawful, the latter will be adopted and the will sustained.
    5. A legacy to the Commune of Carouge, Canton of Geneva, Switzerland, which is directed to be placed at interest and with the interest to endow annually two poor girls and to give a pension to ten old persons of the two sexes, is held to be a legacy to pious and charitable uses, and sustainable.'
    APPEAL from the Civil District Court, the Parish of Orleans. — • ■ Monroe,-J.

      Q. V. Boniat and James McConnell for the Heirs, Appellees.

      Oharles Louque for the Executors and the City of Carouge, Trustee, Appellants.
   The opinion of the court was delivered by

Rlanohard, J.

-Francois Meunier died leaving a last will and testament, olographic in form, by which he bequeathed to the city of Carouge, Canton of Geneva, Switzerland (his native city), all the property in the city of New Orleans, owned by him, consisting of several pieces of real estate, shares of stock, money and bills due him, all of the aggregate value of about $25,000.

He directed this property to be sold and then followed a declaration to the effect that the city of Carouge “shall place the said sum at interest, and with the interest shall endow each year two poor girls and shall give a pension to ten old persons of the two sexes without any distinction of religion”.

He named Jerome Meunier, Joseph Bayle and Emile Hoehn as testamentary executors.

The will was admitted to probate, the executors were confirmed as such and letters testamentary issued to them.

Subsequently, collateral heirs of the deceased, his first cousins, residing in Switzerland and France, presented a petition for the an-nullment of the will.

They represented that the deceased left no ascendants nor descendants, and that they, with others mentioned, were his closest of kin and sole heirs.

The will is attacked as being against public policy and in derogation of the laws of the State of Louisiana, where the properties it deals with are situated, and where the will is to have effect.

It is averred that the city of Carouge is a foreign municipal corporation incapable of receiving and taking charge of an estate here; that the dispositions of the will in its favor are not sanctioned by the laws of Louisiana nor by the treaty ratified between the United States and the Swiss ^Republic; that the laws of Switzerland did not, at the date of the execution • of the will, nor .that of the probate thereof, authorize the city of Carouge to accept the legacy burthened with the conditions stipulated; and that no comity in this respect exists between the State of Louisiana or the United States and Switzerland.

As further ground of avoiding the will, it is charged that the bequest to the city of Carouge creates a trust or fidei commissum obnoxious to the law of Louisiana; that by the terms of the will the said city is not vested with full ownership of the property or funds bequeathed, but, on the contrary, is required to invest the funds and to hold the same in trust perpetually for the purpose of endowing each year “two poor girls” and pensioning “ten old persons” whose existence is uncertain and whose names, residences and nationality are not given; and that this is'an attempt to will by testament through the intervention of a commissary or attorney in fact and constitutes a prohibited substitution.

The petitioners represent that, with the will declared void, the inheritance of the property of the deceased devolves upon them under the laws of Louisiana and the treaties in force between Switzerland and the United States.

The judgment of the court a qua sustained the opposition to the will, decreed its nullity and recognized the claimants as heirs at law of the deceased.

An order for a suspensive appeal from this decree was taken by the executors and the representatives of the city of Carouge.

MotioN to Dismiss Appeal.

A motion is made here to dismiss the appeal on several grounds, ■one of which is that the record is incomplete. It suffices to say we do not find it so. .

Another ground is that the trial -court was without authority, to fix the amount of the suspensive appeal bond, and that no. appeal suspending the execution of the judgment, could be taken without the giving of a bond exceeding by one-half the sum of $15,887.50, which was the net amount of the estate left in the hands of the executors after the payment of the debts of the deceased and the expenses of administration. The bond given was for less than the sum mentioned, but was for the amount fixed by the court.

The judgment appealed from annulled the will- and the probate thereof. It further recognized the petitioners as heirs óf the deceased. and as such entitled to the dead man’s estate.

But it did not, in terms, send them into possession; there was no order directing the recognized heirs to be put- into possession. Neither did the judgment mention the amount of the net proceeds of the estate then in the hands of the executors. There'was no judgment against the executors' specifically for a sum as representing such proceeds. ' :

Under these circumstances it was a case where the District Judge was empowered to grant a suspensive appeal and fix the amount of the bond to be given as such.

Succession of Edwards, 34 La. Ann. 216; Coyle vs. Succession of Creevy, 34 La. Ann., 539; 30 La. Ann. 285; 29 La. Ann. 327.

A further objection is that the only party who signed the bond as surety is Edward Hoehn, who in his capacity of co-executor is appellant herein.

The contention is that Iioehn individually cannot be surety for Hoehn, executor, appellant.

Neither can he. State vs. Judge, Etc., 2 R. 449; Lafon vs. Lafon, 2 N. S. 571.

It may be, too, though on this we express no opinion, that Hoehn in his individual capacity is not competent as surety for his co-executor, Jerome Meunier, on an appeal bond given by the two executors. It is not necessary to decide this question, for Hoehn, individually) was clearly competent as surety on the appeal bond for the other appellant, the city of Carouge.

Even, therefore, were the appeal held not good as to the executors, it must be maintained as to the real party in interest — the legatee under the will — and this, necessarily, would bring the casé before us on its merits.

But it is contended the city of Carouge has hot appealed. This contention is based on the fact that the motion and bond of appeal recite that “Louis Rittener, the duly qualified’ agent of the Commune of Carouge,” appeals. It is urged that this is not an appeal by the city of Carouge.

We find that citation in this proceeding tc annul the will was prayed for against “the City of Carouge, Switzerland, through her accredited agent, Louis Rittener”; that the answer of the city of Carouge to the demand reads: — “Into court comes Louis Rittener, the duly qualified agent and attorney in fact of the Commune of Oar-ouge,” etc.; and that the judgment upon the issues made up by this answer is against “the City of Carouge, Switzerland, herein represented by Louis Rittener, its duly qualified agent and attorney in fact”. Under these circumstances, while the way in which the appeal was taken and the bond drawn may be objectionable from the standpoint of technically correct' pleading, the appeal taken by the party filing the answer which joined the issue and who is recognized in appellees’ pleadings as the agent and attorney in fact of the city of Carouge, must be held to be the appeal ó £ the latter.

The motion to dismiss is denied.

ON the Merits.

Testamentary substitutions and fidei commissa .have been prohibited in this State from the earliest times.

This prohibition was established in the interest of public order and State policy, and held to embrace within its scope the trust estates of the common law.

Numerous decisions of this, court attest the jealous care with which this policy of the law has been enforced.

From the adoption of the Code of Louisiana of 1808 down to the year 1882, no legislative enactment appreciably modified its force or weakened the stringency of its application to testamentary dispositions.

In the latter year, however, a marked divergence from the beaten path of the law, in this respect, appeared among’ the statutes of the State. Act No. 124 of the Acts of 1882 was adopted, the object of which is to exempt all donations mortis causa or inter vivos made to trustees for educational, charitable or literary purposes, or for the benefit of educational, literary or charitable institutions already existing- or to be founded, from the operation of the laws of the State relative to substitutions, trusts and fidei commissa.

It is part of the history of the State of that xseriod that this departure from, or rather modification of, the ancient policy of the law was coincident with the munificent dispositions made, or then about to be made, by the venerable and philanthropic Paul Tulane, for the laudable purpose of founding in the city of New Orleans, where his active life had been spent and his fortune amassed, a great university, which, bearing his name, stands to-day alike a justification of the aforesaid modification of the law of trusts, a monument to his memory, and a blessing to mankind.

As the law of Louisiana now stands, therefore, donations and bequests can be made to trustees for educational, charitable, or literary purposes, or for the benefit of institutions, existing or to be founded, the object of which is to promote education, literature, or charity.

But it is clear from the language of the Act of 1882 that its intention is to restrict this permission to edubational, charitable and literary objects within the State of Louisiana, and to institutions, founded or to be founded under the laws of the State for such purposes.

As the city of Carouge, a political institution in a forejgn jurisdiction, can never exercise authority of any kind within the State of Louisiana, nor incorporate itself under our laws, nor authorize trustees to incorporate themselves here for the purpose of dispensing-charity, it must be held that the Act of 1882 can have no bearing, operation, or effect on the legacy under consideration, and no influence in the settlement of the question raised.

it is equally clear that the charity intended by the bequest of the testator was to find its practical application in Switzerland and not in Louisiana.

We may, therefore, dismiss the Act of 1882 from further consideration.

The legacy to the city of Carouge is to be judged by the codal provisions of the law as the same stood prior to the Act of 1882, and stand or fall according as it may, or may not, measure up to the requirements of a valid testamentary disposition.

The question, then, just now to deal with is: — does this bequest evidence a substitution or fidei commissum- prohibited by the law ? •

To create a substitution- is to bequeath property to one or more, to be succeeded in the enjoyment thereof by others designated by the testator.

The fidei commissum-is to bequeath property .to be held for and delivered to another. It is a mandate or- trust, with no interest conferred on the legatee who is charged only to preserve and deliver. Succession of McCann, 48 La. Ann. 157. It is a charge to receive for and deliver to another. 5 N. S.' 303.

To fall, this legacy must come clearly within the scope of one or the other of these prohibitions, for the law and the courts lean to the upholding of the dispositions made by testators of their estates.

Eminent civilians have declared that'“wherever-the testamentary power has been established, a will or testament -is an exertion of human liberty and of 'human volition over property”, and by others truly has it been said -that “the last will of those who depart this life is the last expression of their love, friendship and gratitude”, to be regarded as sacred, and where it violates no law to be respected even as the grave of the dead is respected. - Succession of lilichon, 30 La. Ann. 217.

To anathematize the dispositions of wills, to decree them null, it must clearly appear they come within the prohibitions of the law. 7 N. S. 416. A doubt existing must be resolved in favor of their validity. C. C. 1713; 4 R. 204, 409; 7 N. S. 417; 4 N. S. 47; 4 La. Ann.. 504; 8 La. Ann, 173; Succession of Auld, 44 La. Ann. 593.

The argument against the will is it was the intent of the testator that the Commune of Carouge should have his estate-and be charged with the, duty or trust bo preserve the same for indefinite third persons, to-wit: — “two poor girls” and “ten old persons of the two sexes”, to whom, annually, its profits should be paid — not to the same “two poor girls” and “ten old persons” each year, but to such persons fulfilling that designation whom, each year, the Commune may, in its discretion, select as beneficiaries of the charity. The requirement is that it be paid out each year to such persons. As to that, the Commune has no discretion; but has discretion as to the choice of persons to become the recipients of the bounty, provided they are “poor girls”, in the one instance, and “old persons” in the other instance.

The argument, further, is that while this clause in .the will may not constitute a substitution, it does create a trust and fidei commis-sum; that it is a bequest in trust to the city of. Carouge, which • is charged with the duty of holding, preserving, administering' and investing' the legacy and applying its profits to the amelioration of the condition of certain indefinite and innominate persons, to-wit: — two poor girls and ten old persons; that the city is, the instrumentality made use of by the testator for preserving and conveying his estate to the indefinite persons named; that if the bequest had been made to “two poor girls” and “ten old persons”, residents of the city of Ca-roug'e, it would be void for uncertainty; for instance, what “two poor girls”, what “ten old persons”; that to avoid this uncertainty the bequest is made to the city of Carouge as trustee to select the “two poor girls” and “ten old persons” who, annually, shall be the beneficiaries of the bounty of the testator; that, thus, to the city' of Carouge a commission in perpetual trust is given to be executed; that the funds representing the legacy are to remain unimpaired, are to be preserved indefinitely and the proceeds of the investment of the same are to be distributed by the city as the commissary or attorney in fact of the testator to the girls and old persons annually who may be selected by the trustee; and that the clause in the will, therefore, is a.testamentary disposition committing to the choice of a third person the institution of the beneficiary of the will and comes under the express ban and prohibition of Art. 1573 of the Code. ,

This argument would prevail if it were the only interpretation of which the will is susceptible. J3ut there is another view to be taken of the will and, we think, a legal one.

While the testator willed his estate real and personal in Louisiana to the Commune of Carouge, he directed his executors to sell the property and to convert all the effects of the estate into cash and to transmit the funds thus derived to the legatee. The executors have obeyed this injunction by selling the property and the proceeds thus derived, minus the debts and charges of the''administration, are the subject of this controversy.

This will, therefore, does not complicate the simple tenures by which alone our laws' permit the property to be held, nor does it tie up indefinitely and take out of commerce the property of the succession. -Money was really the thing - donated and it was contemplated it should be used by the legatee so as to produce an annual revenue, which is not to be preserved and returned to another; but is to be applied to pious or charitable purposes.

The title intended is one to the-city of Carouge in full ownership, with a destination to pious or charitable uses. Such a disposition is lawful and may be carried into effect if the uses to which it is to be put be such for which the city would be otherwise bound to provide. One of the directions of the will is 'to provide for old persons of the two sexes, and one of the duties recognized in all enlightened countries as resting upon communities incorporated into cities is to care for the indigent. 8 La. Ann. 259.

Legacies for pious uses are described to be those which are destined to some work of piety, or object of charity. 8 La. Ann. 171.

They are not only not prohibited by the law, but viewed with favov Id. It is no objection to the validity of a legacy to pious uses that it is for the benefit of the poor. The legatee of such a legacy is vested with the title, even though the destination affixed to the property by the testator follow it in his possession. 8 La. Ann. 172.

The law makes no distinction between a legacy to the poor of a city and a legacy to the city for the poor. In both cases it is a legacy for pious uses and the city is the recipient. McDonogh Will Case, 8 La. Ann. 247.

Legacies for pious uses are recognized by the law for the purpose of procuring aid from individuals in supplying those wants which the State itself, or the communities into which it is divided, aré bound to provide for in -the interest of society and as -a function of government, falling within the circle, or coming within the scope of, the duties of government. 8 La. Ann. 249.

The police and good order of a city include the education of youth and the care of the poor within its limits. Deduced at first from the principles of Christianity it has become an elementary principle in the theory of government. McDonogh Will Case, 8 La. Ann,, 255; Domat, Des Comm., 107.

When analyzed the provisions of this will are found to’ be lawful, simple and reasonable, to contain nothing hostile to any consideration of public policy. There is no trust created by it. The bequest is absolute to the city of Oarouge for all time, burthened only with a charge to dedicate it to pious and charitable uses.

It is not obnoxious to the maxim “le mort saisit le vif”, for the title of the estate is immediately vested in the Commune of Oarouge. It is not to'be surrendered at any time to any one. No one is named to whom the estate is to be transmitted.

The direction that the proceeds of the property are to be placed at interest and the profits thus derived are to -be used in the way indicated in the will, does not bring it within the scope of the prohibitions. of- the law. This direction is, we think, more to be regarded as in the nature of a request to the legatee. It was the expression of a wish, a desire. It was not a disposition. It was advice and recommendation. O. C. 1713, we think, authorizes this meaning to be given to the words. 8 La. Ann; 237. -

It will be observed that it was only with regard to the interest on the-fund representing-the estate that any request is'made or direction given, and even that is not required to be preserved for, or disbursed to' any particular person named. In a general'way; two pdoi- girls and ten old persons annually are directed to be aided from the" profits' of the fund, but this must be held to be within the discretion of 'the commune as to the persons to be aided, for no-particular poor girls or old persons are invested with the right of enforcing the disposition.

This does not come within the scope of fidei■ dommissum which, as we have seen, is understood to be a disposition; causa 'mortis', by which the heir, or legatee, is requested to give, or return, a certain thing to another person. Domat, Lib. 4, tit. 2, Sec. 2. By “another person” is meant a person or institution so named or indicated as to individualize, him, or her, or it. That is not the case here: This bequest is to the city of Oarouge, and to it alone. 8 La. Ann. 172. It' was in no sense a legacy to any other person. The direction to use the interest for a given purpose did not vest any part of the legacy in- any particular person as beneficiary thereof.

The city of Oarouge is instituted universal legatee. By virtue of this institution, it is clothed with full right of ownership over the funds of the succession. There is and can be no substitute to take the estate at any time. The city has perpetual existence. It is á moral person perpetually renewed by the successive renewal of its inhabitants.

While this legacy to it is to be viewed as one Lurtheñed with the charge of a specific destination for the behoof of the city, the latter is not encumbered with the duty of returning- it at any time to any one. • . -

It is an obligation consisting in faciendo, nothing more. 8 La. Ann. 230. It is a gift to .the city made in presentí, with the charge of specific destination, and since talcing oare of the destitute is a duty devolving on municipalities, this legacy is really to be viewed as one to the city of Oarouge with the charge of investment for its own interest. , . .

The most that can be said against the legacy is. that it is one with a charge. But this does .not make it a- fidei commissum, for, under the law, charges and conditions may be placed on all heirs and legatees, except forced heirs as to their legitime.

We hold that the city of Oarouge, under the proper view to be taken of this will, is in no sense a trustee. It holds the legal 'estate of the property or funds donated to it. The terms of the will are terms of disposal. They express the transfer of ownership from the person of the testator to the legatee. The disposition and control of the fund after it is placed in the city’s hands would be in virtue of ownership, not trusteeship. The testator did not devise the legacy to persons needing and entitled to receive charity, though it was the object and intention that needy persons are to be benefited by it; if carried out.

Succession of Burke, 51 La. Ann. 538; City of New Orleans vs. Hardee, 43. La. Ann. 255.

But even if the legacy had been devised directly to the poor of the city of Oarouge,'it would come within the letter-.of the law, for the city could and would take charge-of it and administer it for the beneficiaries. C. C. 1549; Fink vs. Fink, 12 La. Ann. 301; 8 La. Ann. 256.

We think the needy persons intended to be benefited by the provision of the will are those of the city of Oarouge coming within the description of the will.

This case, we think/comes within the rule of those decisions of this court .of which Milne’s Heirs vs. Milne’s Executors, 11 La., McDon-og-h Will Case, 8 La. Ann.,-and the-Westefn 'Star Masonic Lodge'Case, 38 La. Ann., are types, lather than within the rule of those decisions of which the. Succession of Franklin, 7-La. Ann., is'a type.

The case of the Succession of Burke,-51 La. Ann. 538, cited by plaintiffs, is not in point; and that of the Succession of J. E. Kernau, 52 La. Ann. 48, is to be differentiated from the instant case. There the devise was to Archbishop Janssens, of the diocese of Louisiana, and to his successors, of certain real property (lots and houses) in the city of New Orleans, “upon condition that out of the revenues or rents thereof an asylum oi1 home for the poor of both sexe's shall be founded, endowed and maintained similar, so far-as possible, to that of St. Michael’s, in the'city of Rome, Italy”. Sustaining the attack of the heirs on the will on the ground that it sought to create a fide l commissum and proposed a prohibited substitution, the court said:— “Whether we hold the church or the Archbishop to be the legatee, we áre confronted with the difficulty arising from the title the will seeks to create. The will conveys no ownership. The title, such as it is, is one of mere administration. Whether held by the church or the Archbishop, the property is to be forever inalienable”.'

The court held the will obnoxious in seeking to introduce an impossible and illegal tenure, and that'no such title as that conveyed has any place under our system' of laws.

Here the real bequest was a legacy of money, for the will directed the sale of the property, the proceeds of which were devised to the city of Carouge for pious and charitable uses. No property here was to be held forever inalienable.

Had the 'argument advanced by plaintiff in the case at bar been sustained in the McDonogh Will Case, where substantially it was made, the munificent bequests made by that philanthropist to the cause of education in the cities of New Orleans and Baltimore would have failed, and the enduring monuments to' his memory, in the form Of commodious and substantial public school buildings which dot the former city all over, would never have been erected.

' Had it been made and sustained against the bequest of .Alexander Milne in 1841, the town of Fochabers in Scotland would never have enjoyed the bounty of its native son, who, amassing a fortune here, devised a portion thereof ($100,000) to that'municipality for'the establishment and maintenance of free schools, and thq Duke of Richmond’s suit in its behalf (17 La. 320) would have been in vain.

If it had been made by the legal heirs of James Smithson in the courts of Great Britain, and sustained, against the princely bequest of one hundred thousand pounds sterling devised by that enlightened Englishman to the United States for the purpose of founding at the Capital of the Republic a great scientific institution “for the increase and diffusion of knowledge among men”, the 'Smithsonian Institute would not. to-day be in existence.

The law of Louisiana is not the illiberal institution the argument against the validtiy of-Francois Meunier’s will presupposes. We find nothing prohibitive of the transmission of the funds of the legacy to the Commune of Carouge, there to be dedicated to-the charitable uses intended by the testator. . .

But it is insisted, the city of Carouge is incapable of receiving- the legacy and one óf the- grounds advanced for this contention is that the treaty of 1850 between the United States and the Swiss Republic restricts the right of acquiring property in the territory of the other to citizens, and that this excludes the city of Carouge, which cannot be held included within the term “citizens”, .

The city of Carouge is 'a political corporation, such an one as is defined by our Code as “an intellectual body”. C. C. 427. It is a college of inhabitants, the members of which succeed each other, so that the body continues always the same, notwithstanding the change of the individuals which compose it, and which, for certain purposes, is considered as a natural person. 0. O- 427. Such corporations are substituted for persons, may possess an estate, have a common treasury and are capable of receiving legacies and- donations. 0. 0. 433:

It is too narrow a construction, therefore, which excludes the city of Carouge from the benefits of the I. and V. articles of the treaty with the Swiss Confederation. The latter article gives to heirs, whether by testament or without, of citizens of each of' the contracting- parties the right to succeed to property, to inherit it and take possession thereof, with the further stipulation that where one, who, on account of being an alien, cannot hold real property (if such be the case), he is to be accorded the right to sell same and remove the proceeds.

Our law declares “all persons may dispose or receive by donation inter vivos or mortis causa, except such as the law expressly declares incapable”. C. 0. 1470. Cities and corporations are ranked among persons and they are not incapable.

“Corporations are placed by our laws on the same footing- as natural persons as to their capacity to take by devise”. 17 La. 54..

“Donations may be made in favor of a stranger, when the laws of bis country do not prohibit similar dispositions from being made in favor of a citizen of this State.” 0. 0. 1490.

The treaty with Switzerland permits citizens respectively of the United States and of the Swiss Republic to make such dispositions of property in favor of each other, and the laws of Switzerland do not prohibit dispositions of property from being made in favor of citizens of this State or of the United States.

The Procureur General of Switzerland certifies that no law of that Confederation places any obstacle in the way of the acceptance of a legacy of the nature of that of Francois "Meunier’s will when the Council of State authorizes the acceptance, and it is shown that this authorization has been duly given.

But it is insisted, as further ground .for the contention that the city of Carouge is incapable of receiving the legacy, that this authorization by the Council of State was, necessary because the legacy contained a charge, and the law of Switzerland does not permit municipalities to accept “any legacy or donation containing any charges or conditions”. From this the argument proceeds that at the time of the death of the testator and the probate of his will, the legatee, city of Carouge, did not possess the capacity of inheriting-or taking the legacy, that the legal heirs did, and that the ownership and seizin thus invested in the latter could not by any subsequent event be taken away.

We do not find that there is any prohibition in the laws of Switzerland against municipalities accepting legacies. Only that where such legacies contain a charge or condition the permit of the Council of State to accept must be'had. The capacity to accept, therefore, exists — to become executory, however, in case a charge or condition is attached to the legacy, only upon permission being- granted by the Council of State. Where the legacy contains no charge or condition the capacity to accept is executory in full right; where there is a charge or condition this capacity to accept is merely suspended until the permit is granted. There' was, then, no want of capacity in the city of Carouge to accépt, aiid when the Council of State acted, as it did, and gave the permission to accept, the bar was removed.

The case of the First Congregational Church vs. Henderson, 4 R. 210, cited in opposition to this view, is not in point, for there, at the time of the testator’s death, there was a positive prohibition in the charter of the church against receeiving any legacy exceeding $1000. So the court held properly that “the want of capacity at the death of the testator, resulting from a positive statutory prohibiion then in force, cannot be supplied, cured or removed, by any subsequent legislative enactment”.

In the instant case there was no “absence of those qualities required in order to inherit” at the moment the succession was opened. C. C. 950.

The legatee here existed at the time the testator died (O. 0. 953) and possessed the heritable quality, the exercise of which was merely suspended until permission to accept was had from the Council of State. The capacity to receive was one thing, and existed; the exercise of it was another thing, and was merely inoperative until the Council of State acted. C. C. 1413; Milne’s Heirs vs. Milne’s Executors, 17 La. 46.

Many years ago in this State Julian Poydras, dying, bequeathed by will thirty thousand dollars to the parish of Point Coupee, and a like sum to the parish of West Baton Rouge, the interest on which he directed to be appropriated as dowries to the indigent young women of the parishes to encourage their marriage. Trouble arising as to the power or capacity of the parishes to accept the legacies, the Legislature passed acts authorizing the police juries of the said parishes to accept the same, and it was done. 17 La. 55; Acts of 1825, p. 82; Acts of 1837, No. 29.

We hold against plaintiffs on both the grounds urged against the capacity of the city of Carouge to receive and take the legacy, and deeming the legacy not one coming within the prohibitions of the law, it follows that the will attacked must be sustained as a valid disposition of the testator’s estate.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that the demand of plaintiffs’ herein be rejected and dismissed.

It is further ordered, etc., that the last will and testament of Francois Meunier, deceased, be sustained as a lawful testamentary disposition of property, and the executors thereof are directed to recognize the city of Carouge, Canton of Geneva, Switzerland, as the universal legatee under said will, and to pay over to the said city, or its duly accredited representative, the funds on hand representing the net proceeds, after payment of the debts of the deceased and the charges of administration, of the sale of the property of the estate of the testator.

It is further ordered, etc., that costs of this proceeding in both courts be taxed against plaintiffs.

BREaux, J-, concurs in the decree.

Monroe, J., having decided the case in the court of first instance, takes no .part in the decision on the appeal.

Rehearing refused.