text:
    No. 8250.
    The State of Louisiana vs. Maimée Alphonse Et. Als.
    Act No. 98, of the Legislature of 1880, did not repeal Act No 138 of 1877, which provides for the drawing of tales jurors in criminal cases in the Parish of Orleans, under certain circumstances. The order made “by the judge a quo for an additional drawing, was not, therefore, illegal.
    It is the duty of the District Judge to carefully abstain from any expression of opinion or comment upon the facts of the case, in a criminal prosecution," not only in his iinal charge to the jury, but also in his rulings upon the admissibility of evidence, in the presence of the jury. But the complaint of the accused on this point is unfounded in the premises.
    A juror, who is by conscience opposed to capital punishment, is incompetent. But, in this case, the juror having already answered that he had no such scruples,'the judge a- quo was right in not allowing defendant’s counsel to repeat the question.
    The confession made by the accused whilst incarcerated, to a police officer, is admissible in evidence, when neither threats nor piomises were offered by the latter to obtain the said confession.
    It is now well settled, that the deposition taken before a magistrate, at a preliminary examination, and contradictorily with the accused, of a witness who died afterwards, is admissible in evidence on the trial of the prosecution.
    APPEAL from tho Criminal District Court for the Parish of Orleans. Homan, J.

      Ij. Marrero and Sambola & Hueros, for Defendants and Appellants:
    I.
    l'ho regular panel of jury of tlie Criminal District Court for the Parish of Orleans, shall only he drawn in the mode and manner prescribed by Act No. 98 of 1880, at least fifteen days before the expiration of every month in which the Court shall hold its sessions, and the persons whose names shall be so drawn and remaining after the selection of tho Grand 'Jury therefrom, shall constitute the Petit Jury for the month or session succeeding the drawing, and no other drawing can he legally ordered to take place during the month, except when the regular panel he exhausted on the trial of a criminal case, where the accused is charged with a felony, and the jury he not complete, or when in the case fixed fir trial, talesmen are or will be required. Act98of 1880, Secs. 2d and 5th; Act 138, Ex. Ses. 1877.

      When the petit jury have not been drawn strictly in the mode prescribed by law, the trial, conviction and sentence are null. 20 A. 356; 20 A. 442; 29 A. 543; 24 A. 259; 19 A. 105; 30 A. 603.
    A judge cannot apply fora purpose the provisions of a law enacted for a special and different purpose, nor can he amend said law to meet an emergency not provided for.
    Under Act 138 of 1877, the Court may direct either the Sheriff or one of his deputies to draw the tales jurors in certain cases, but under Act 2To. 98, 1880, which was subsequently enacted, the Commissioners, together with the Criminal Sheriff in propria, persona shall draw the jury for the regular panel.
    All proceedings pertaining to or affecting a criminal trial should bo strictly kept by the minute clerk appointed for that purpose, and omissions or irregularities occurring through neglect or otherwise, cannot ex parte be corrected, amended and made valid, after a number of days, by a nunc pro tunc entry taken and recorded in the minutes, now for then, and courts will not sanction such action.
    H.
    Any allusions, hints or remote allusions from the judge, by inadvertence or otherwise, upon the facts in a trial, is an infringement on the province of the jury, and when there are doubts as to the language actually used by the judge, where it is ambiguous, or when the bill of exception is so expressed as to show discrepancies between the statement in the body of the bill and those appended by the Court, the accused will have the benefit of the doubt, and it is safer to grant a new trial. 30 A. 600; 7 hTev. 377; lb. 149; 127 Cal. 310; 2 Winston,47; 17. C., 3 Jones Law, p. 6; 17Mo.l42; 11A.537; 17Mo.329; 38 Mo. 213; 16 Cal. 137; 19 Peck, 311; 12 Peck, 521; 27 Tex. 759; 12 Cal. 34; 16 Cal. 137; 5 Ohio, 309 ; 2 Bibb. 89; 3 Gt. & Wat. on 17. T., p. 872; lb. 706.
    HI.
    A person for trial for a capital offense has full scope to interrogate a juror, and inquire into the state of his mind as to conscientious scruples, his opinion or policy, to enable him to exercise his constitutional rights to peremptory challenges and challenges for cause. 3 ParkerC. R. 199; 17 RewHamp. 171; 13 17. H. 556; 48Barb.274 ; 36 R. Y. 276; 14HI. 433 ; 16 Ark. 58; Whart. Cr. L. 857; 7 Cal. 140.
    IY.
    An examination before a committing magistrate is not a trial or criminal prosecution in the sense of Article 6th of the Constitution, which contemplates that both the accused and the jury should see and hear the witnesses, and never intended to make it a rule of evidence that the testimony of a deceased witness, taken before a Recorder, could be read or used against a prisoner on trial before a jury. Art. 6, Const. 1879; 20 Mo. (3 Jones) 436; lb. 446.
    When prisoners on trial have not had fall advantage to cross-examine a witness, either on account of intimidation, excitement or ignorance, or on account of being too deaf to know the nature of the testimony of the witness, his deposition, if he be dead, is not admissible in evidence against the accused.
    Y.
    Any inducement, however slight it may be, made by one in authority will vitiate a confession induced byit, Wharton Cr. Evid. (8fch Ed.) §651; Greenleaf on Evid. 264, (notes.)
    So, also, if there be collateral inducement. State vs. Grant, 22 Maine R. 171.
    Words of advice and adjuration coming from one in authority, couched in such terms as might have led the prisoner to believe that his position may be bettered by a confession, will render the confession obtained thereby inadmissible in evidence. Meynell’s case, 2 Lewin, C. C. 122; Greenleaf on Evid. pp. 392 and 393, (notes); Whart. Cr. Evid., §673; Arch. Cr. PI. & Pr., vol. I., (13th Ed.) 388, 305, 306. See also R.„vs. Thomas, 6 Car. & P. 353.

      J. G. JSgarhj Attorney General, for tlie State, Appellant:
    1. Sections 2 and 3, of Act JSo*. 98 of 1880, provide for tlie manner of selecting the jury to "be presented to thepiisonor, and Section 5 as directing how the jurors shall be presented to the prisoner from the venire.
    2. The challenge to the tales jurors is without merit j it can never be known in advance that tales jurors will be required, and the law does not say they shall be drawn fifteen days in advance of the trial of the case.
    3. The Court may, of its own action, set aside a juror in a capital case when said juror has conscientious scruples on the* subject of capital punishment. Wharton’s Am. Crim. Law, 4th Ed., Sec. 3035.
    4. In an examination of a juror as to his competency, all questions are properly excluded which do not affect the competency oí the juror in any way.
    5. The testimony of a deceased witness, which was taken before a recorder contradictorily with the accused at his preliminary trial, is good evidence and was properly received. Bishop on Cr. Pr., vol I., Secs. 1195, 1197 and 1201; Wharton’s Cr. Ev., 8th Ed., Sec. 227 ,- Wharton’s Am. Crim. Law, 5th Ed., vol IT., Sec. 667; Archbold’s Crim. Pr. and PI., vol. I., p. 478, and foot note to Sec. 1010.
    6. A bill of exceptions cannot be considered by ibis Court when the judge a qua denies the statement therein contained, when said statement is the express ground of objection urged by the accused.
   The opinion of the Court was delivered by

Todd, J.

The defendants wore indicted and tried for the murder of one Robert Burton, the first named, ’ Alphonse, was convicted of manslaughter and sentenced to five years imprisonment, and tlie other to a life imprisonment at hard labor, in the penitentiary. From, these sentences they have appealed.

Bills of Exceptions in tlie record suggest errors in the rulings of the Judge presiding at the trial, complained of as follows :

1. The overruling the challenge to the array.

2. The alleged comment or remark of the Judge, during the course of the trial and in the presence of the jury, touching a question of fact.

3. The exclusion of a juror as incompetent on account of his declared scruples regarding the infliction of capital punishment.

4. The refusal of the Judge to permit a question to be answered by a juror sworn on his voir dire, touching his scruples as to the infliction of the death penalty.

5. To the admission in evidence of the confession of one of tlie accused; and

6. To the admission of the deposition of a deceased witness taken in the preliminary examination before the Recorder.

These we will proceed to discuss seriatim.

i.

Challenge to the Array.

The facts on this point, as we gather from the record, are, substantially, as follows:

The case was tried in January, 1881.

On the 14th December, preceding, the Judge of the Criminal Court of Section B, parish of Orleans, under A.ct 93 of 1830, issued an order to the sheriff and jury commissioners to draw from the jury wheel three hundred names of persons, to constitute the grand and petit juries of the Court for the ensuing term thereof, in Januaiy.

The drawing took place on the I6th of December, under the order, and the names of the three hundred jurors were returned into Court as prescribed by the Statute.

Prom these three hundred, the grand jury was first drawn and empanelled, leaving two hundred and eighty-four remaining. Of this remainder, one hundred and thirty-four were attached to Section “A” of the Court to serve as petit jurors. Prom this last number the Judge of Section “A” qn’oceeded to select the jurors in conformity to Section 6 of the Statute, and excused for cause, all on the list but thirty-five names.

After thus proceeding, the Judge of Section “A” on the 3d of January, 1881, issued an'order to the jury commissioners and the sheriff, to draw forthwith from the jury wheel, fifty additional names, setting forth as a reason for the order, that this number was required to complete the jury panel for the January term.”

This additional drawing was effected, and the panel made up from these two drawings; and from this panel, and from talesmen subsequently called after the trial began, the jury was constituted that tried the case.

The alleged irregularities in these proceedings complained of, are two: First, that all the names composing the venire were not drawn fifteen days before the beginning of the term of Court, as required by law, and, if any single name appears on the panel, not so drawn, it justified a challenge to the entire array; and, secondly, that the jurors, from the first drawing, were not selected by the Judge of the Section in which they were to serve. This, we take to be the second ground of objection, though the language both of the bill and of the brief is not entirely clear on the point.

In regard to the first objection, the Statute referred to, Act 98 of 1880, does require that the number of jurors ordered to be drawn by the Court, shall be drawn fifteen days next preceding the beginning of the month in which the term of Court is to be held. This was done as stilted above, but did not furnish — after selections had been made therefrom, and the list reduced in the manner shown — in the opinion of the Judge, a sufficient number to answer the requirements of the Court, and hence the fifty more ordered to meet the exigency. It is this order that is attacked as unwarranted, and the jurors drawn under it alleged tobe illegally drawn and incompetent to serve.

The-statute in question makes no provision for meeting the exigency that- arose in this case on the partial exhaustion of the panel, and evidently contemplated that sufficient jurors would be provided from the drawing prescribed at the time specified. It did not, .however, repeal all laws on the same subject matter, but only such laws and parts thereof, as were inconsistent with its provisions.

Act No. 138, extra session of 1877, provides: “ That whenever, on the trial of any criminal case in the Parish of Orleans, where the accused is charged with a felonious crime, * * * in the opinion of the Judge in the case fixed for trial, talesmen are, or will be required to complete the jury, the Judge shall enter an order directing the criminal sheriff to draw such number of tales jurors as iu the opinion of the Court may he necessary to complete the jury, from the jury wheel containing the jurymen, by the jury commissioners, etc.”

This Act evidently conferred authority on the Judge to render the order in question, audit was not repealed or impaired by the later Statute 98 of 1880, since the latter contains no provision in conflict with it, and the provisions of both Statutes can well stand together. And the ease having been fixed for trial when the order was made, it being certain or highly probable that the jurors first drawn would not be sufficient, for the appointed trial — as proved to he the case — the condition of things existed that justified the. Judge, and even made it his duty, to enforce the clause of the previous act referred to, to meet the emergency for which no adequate provision was made in Act 98 of 1880.

The second objection does not seem to he insisted on in argument, but if urged, it is enough to say, that the record, which we have referred to above, plainly shows that the jurors, after their allotment to Section A of the Court, were “ selected ” by the Judge of that Section; the selectiop consisting in revising the list, examining into the legal qualifications of those composing it, and rejecting therefrom all such as were disqualified.

YvTc find, therefore, that the objections urged to the drawing, selection and empanelling of the jury, were not well taken, and the challenge to the array properly overruled.

ii.

Tlio facts relating to the alleged remark of the Judge, complained of are as follows :

One W. B. Stansbury was on the stand, under examination as a witness, and the matter of inquiry at the time seems to have been touching the identity of the prisoners; some question relating- to this subject had been asked by the counsel for the State and objected to by the defendant’s counsel, when the objection was made, the Judge remarked as follows: “ As the identity lias already been established in the”-

At this point the counsel for the defense interrupted and interposed the objection, that the Court had no right to i>ass on a question of fact, whereupon the Judge made the following statement, which we copy from the bill: “ The testimony of Rachel Burns, on the question of the identity of the prisoners, as contained in her deposition before the Recorder, was already given to the jury this morning. The Court expressly disclaims pronouncing any opinion as to the effect to be given to that testimony or even as to what that evidence was. The Court, in making these remarks, meant them as an intimation that the question now i>ropouuded to the witness' on the stand, as to the identity of the accused, by the same Rachel Bums, was of doubtful projnlety, and should not be put. These remarks were made on an objection raised by the defense to the question put to the witness. Counsel for the defense not permitting the Court to conclude its remarks, asserted that the Court had passed on the facts in the case, and insisted on immediately writing a bill of exception. Upon the above facts and remarks of the Court, defendants, through their counsel, objected, and reserved this their bill of exceptions, and tendered it to the Judge for signature.”

By the Court.

“ At the time of its interruption by counsel for the defense, the Court denied, and does now, that it expressed any opinion on any part of the evidence in this case; and afterwards told the jury emphatically, that the Court has no opinion to express on the evidence; that it was the province of the jury and not of the Court to determine what the evidence in the case was, and what effect should he given to it.”

Section 991, of the Revised Statutes of 1870, provides that “in charging the jury in criminal cases, the judge must limit himself to giving them a knowledge of the law applicable to the case. In doing- so, lie shall abstain from stating or recapitulating the evidence so as to influence their decisions on the facts. He shall not state or repeat to the jury tlie testimony of any witness, nor shall he give any opinion as what facts have been proved or disproved.”

The language of the statute, construed according to its letter, would seem to limit the prohibition against the Judge making any remark or comment, touching the facts of a case, or evidence relating thereto,, to his final charge to jury; but this is not the spirit of law, and such comment, reference or allusion, at any stage of the trial, is opposed to our .system of criminal jurisprudence, as established not only in practice, but by constitutional provision, and we do not hesitate to declare that any expression of opinion by the Judge during the progress of the trial made in the presence of the jury, or out of their presence, is to be condemned; that it is the duty of the Judge to carefully abstain from such expression, both in ruling upon the admissibility of evidence and in his charge to the jury, and any clear, though hasty and inadvertent expression of opinion, touching any material fact developed by the evidence, might well be regarded as fatal to the proceedings.

Upon the point now under consideration, we must, however, judge of the matter, and form our conclusions from the entire record relating to the subject, and what do we find 9 In the first place, the remark complained of, is contained in a sentence uncompleted, broken off by the objection suddenly interposed. Wo» constat that, had the Judge finished the sentence, it would have justified the inference that any distinct reference was made, or opinion avowed, as to the existence or non-existence of any fact developed by the evidence. Besides, as part of the bill, we find the judge’s explanation, and his positive denial that any allusion was intended or any opinion expressed, relating to the question of fact or inquiry then before the Court. And, moreover, we have the Judge’s express disclaimer to the jury, made at the instant, that any such opinion was expressed, and his emphatic declaration to them that it was their province, and not the Court’s, to determine what the evidence was and what effect should be given to it! All this it is our duty to weigh, and giving it the weight that we deem it properly entitled to, we cannot construe the language complained of as possessing the significance and importance ascribed to it by the defendants’ counsel, and as operating, after the explanations and disclaimers made, to the prejudice of the accused. We find no case in which such chance, careless and incomplete expressions, even without the denial and explanations attending it, has been deemed sufficient to set aside a verdict.

III.

The next question presented is, whether a person otherwise qualified, who has conscientious scruples against the infliction of capital punishment, and avows sucli scruples wlien examined in his voir dire, is a competent juror in a trial for murder or other capital offense ?

The original punishment prescribed by our laws for murder was death. When, by subsequent statute, a jury was permitted to qualify their verdict by imposing imprisonment at hard labor for life, instead of the death penalty, it was intended by the la w-maker to invest them with a certain discretion, to be exercised by them according to facts and circumstances of the case, as they might bear on the enormity, depravity or cruelty that marked the commission of the crime. If such was the reason of the law, it is plain to see that no juror would be competent in sucli case, unless ho could exercise the discretion in the making up and rendition of his verdict, that the law designed to invest him with. Without such discretion, and possessing such scruples about the mode of punishment, he would fail to possess the essential qualifications required of a juror.

The question of competency in such case, is not, therefore, affected by the change in the law authorizing a qualified verdict, and this has been repeatedly ruled since the change was made. II A. 81, 283, 535 $ 13 A. 276; 14 A. 570.

IV.

On the trial of the case, a person called as a juror was asked the following questions:

If you were to be sworn as a juror in this case, and the evidence in your opinion justified a verdict of guilty, would you or not hesitate in rendering such verdict because you knew that the prisoners would in consequence thereof be hanged V’

The question was objected to, and the objection was sustained. The juror, it appears, had already stated that he was not opposed to capital punishment before the above question was asked him by the defendants’ counsel. We see no necessity or purpose in repeating the question or the answer to it, and there was no error in the refusal of the Judge to have it answered.

V.

The next question is that presented by the following bill of exceptions, which we copy:

“Be it known that on the trial of this cause, on the 28th day of January, 1881, one Joseph Lang, a witness, called and sworn for the State, was about to give, the declaration made to him by Maimée Alphonse, one of the defendants, whilst under arrest, which declaration was made under the following circumstances and after the witness, who is a police officer, had told him : ‘ Maimée don't cry; I would, not cry if I was not guilty ; you would do better if you told me who the parties are.’ That, subsequently, when the said witness had placed him in a cell in the police station, lie, the said witness, was called back by Alphonse, and at that time the said officer told him: ‘ Now, remember, if you know the parties you had better tell me; Iwoiddnot suffer for any one else.’ Witness being about to repeat the declaration, counsel for the defendant objected, on the ground that if said declaration amounted to a confession, it was inadmissible in evidence, the same having been obtained by inducements from the witness who was an officer, and whilst accused (Alphonse) was under arrest and incarcerated, which objection of defendants the Court overruled, on the ground that the words used by the witness did not amount to an inducement, to which ruling of the Court defendants excepted and reserved this their bill of exceptions and tendered it for signature.”

This brings up one of the most important questions that the record presents. The subject of the admissibility of confessions has been a matter of frequent adj udications, and from the nature of the question, has been the subject of conflicting decisions.

As a general rule, both in civil and criminal cases, the confession of a party, when conclusively established, is regarded as the highest species of evidence. Indeed, when we reflect on the powerful motives that would induce a guilty party to deny his guilt and seek to hide his crime, we can scarcely conceive of the possibility of an innocent person of sound mind, falsely confessing his guilt of an offense with which he is charged. Such confession, wdien made, might, therefore, be reasonably viewed as the very strongest, if not conclusive evidence. Such confessions are, however, under certain circumstances, excluded. Such exclusion is based on the hypothesis that under some conditions, confessions may be made under fear so abject, or hopes so powerful, the one caused by threats or terrorism, and the other prompted by promises of reward or benefits, as to induce even an innocent person to make a false acknowledgment of guilt. Reason would teach us, that under the laws governing the conduct of men, the influence, whether of fear or hope, thus brought to bear upon a reasonable mind, must be strong and powerful indeed in their nature, to produce a result so at variance with human nature itself, because it must be presumed, that no man would make a confession against himself, if the facts confessed were not true. It is difficult to deduce any positive rule on this subject from the decisions, which, as stated, are not uniform, for the reason, that in each case, the question is, whether the influences applied in that case were likely to produce untruth — a question which rests, to a considerable extent, on the discretion of the Judge who is called on to decide it.

Wharton lays down the following general principles on the subject:

A free and voluntary confession by a person accused of an offense, whether made before his apprehension or after; whether on a judicial examination or after commitment; whether reduced to writing or oral; in short, any voluntary confession, made by a defendant to any person at any time or place, is strong evidence against him, and, if satisfactorily proved, when there is j>roof of. the corpus delicti, sufficient to convict, according to the common law, without any corroborating circumstances.” Wharton on Criminal Law, vol. I., Sec. 683.

Russell on Crimes, vol. II., 824.

Archibald Criminal Practice, vol. I., 403.

Hawkins, P. C., c. 46.

State vs. Hauck, 28 Mo. 218; 36 Ala. 211.

Again : A confession can never be received in evidence where the defendant has been influenced by any threat of harm, or .where it has been extorted by pain, or made under the influence of fear.” Wharton vol. I., Sec. 685; 2 Russ. 826.

“ A confession will not be excluded where there is a mere adjuration to tell the truth, unaccompanied with a threat.” Ib. 636.

Confessions made even to constables or police officers cannot be excluded, unless it apj>ears that there was a threat of harm or promise of worldly advantage.” Ib. 12; Eng. Law and Eq. 591; 5 Cox, C. C. 523.; 37 Ala. 106 ; 14 Minn. 105.

Under these general principles, it has been ruled as follows:

Where the sheriff said to his prisoner, that it would be better in the long run for her to tell the truth about the matter and not any lies,” the confession, made a few minutes thereafter, was held admissible. Hawkins vs. State, 7 Mo. 190.
“ Saying to a prisoner, that it would be better for him to confess, 07-words to that effect, or that if he was guilty, it could not put him in a worse conditio7i, and that he had better tell the truth, will not exclude his confession.” Fonts vs. State, 8 Ohio, N. S. 98.

Aaron vs. State, 37 Ala. 106.

Young vs. Conn., 8 Bach. 366.

We recognize the weight of these authorities, and believe they are. sound law.

In the light of these principles and the rulings above cited, let us consider the question touching the admissibility of the confession before us.

Maimée, the accused, whose confession is in q7iestion, had been arrested, and it was to the officer making- the arrest, that the confession was made.

In the first place, we gather Horn the language used by the officer to the accused, upon which his counsel relies as holding out the inducement, something that takes it out of the strict line of the authorities on the subject. It is this: these, authorities, and the decisions we have examined, relate to cases where the question asked, or the remark made by the witness to the prisoner preceding the confession, showed au assumption on the part of the witness that the prisoner was guilty of the offense charged .against him.

This is a matter of no slight moment, for we can well conceive that a remark from an officer or other person having the prisoner in custody, conveying his, the officer’s belief, that the prisoner was guilty, and expressly or impliedly charging him with guilt, is calculated to impress the mind of a prisoner and destroy or impair its equipoise., much more than a question or a remark conveying no such charge. The prisoner might naturally conclude that the officer believed he was guilty, and perhaps every one else shared that belief, and the idea of a false confession be thus suggested to his mind, with a view to some advantage in the mitigation of his punishment or otherwise. But in this case, so far from tin* language used by the witness showing an assumption of the prisoner’s guilt, or a charge of guilt against Mm, it shows just the contrary, and was evidently prompted by a belief on the part of the witness, that the prisoner was not guilty, and could convey no other impression or meaning to tine prisoner himself. What other construction can be placed on this language: “ Maimée, don't ery; I would not ery if I was not guilty; youwovld, do better if you told me who the pen-ties cure." And “ JFow, remember, if you know the parties, youhad better tell me; 1 would not suffer for any one else."

This language cannot reasonably be construed as containing a threat, dr calculated to inspire terror or fear in the mind of a prisoner, how-ever great Ms timidity. -And it seems to us to be equally free from any promise, express or implied, calculated to inspire hope of an advantage, or benefit, to be derived from the confession. It cannot be construed to be more than advice or adjuration, which, as we have seen from the authorities cited, affords no sufficient cause for the exclusion of the confession. It was, therefore, properly admitted. 15 A. 563; 16 A. 377. As to the effect of that confession, whether it should be confined exclusively to the party making it, and not be used against his co-defendants, we are not called on to decide, and on this point, in fact, the record is silent.

YI.'

The deposition of Rachel Burns, a deceased witness, whose deposition had been taken contradictorily with the accused, or in their presence at the preliminary examination before the Recorder, was objected to on the following grounds:

1. That the prisoners had the constitutional right to be confronted with the witnesses.

2. The deposition was not signed.

3. That it was not shown that the deposition had been read to the witness.

4. That one of the accused had no opportunity to cross-examine the witness.

It is now well settled that, where the depositions are taken before a magistrate, at a preliminary examination, contradictorily with the accused, and in their presence, and an opportunity for cross-examination is given, and the witness dies before the trial, the deposition is admissible.

The constitutional privilege of being confronted with the witnesses, it is now held, has, in fact, been afforded at such preliminary trial, and that is sufficient to meet the requirement. And the deposition was admissible against all, although one of them may not have been represented by counsel, he being present and having an opportunity to cross-examine, had he chosen to avail himself of it. Bishop Crim. Pro. Secs. 1096,1097.

Archibald Crim. Pr. and Pl., vol. I., p. 478, and notes; State vs. Harvey, 28 A. 106; State vs. Hooker, 17 Vt. 658; Brown vs. Cane, 73 Penn. St. 321; Barnett vs. People, 54 Ill; Davis vs. State, 17 Ala. 354.

The deposition was shown to have been regularly taken, certified to, and signed by the magistrate. This was all the statute required. It need not be signed by the witness, nor shown affirmatively by the State as a prerequisite to its admission, that it was read to the witness. R. S. Sec. 1010. Bishop Crim. Pro. §1095..

It was properly admitted.

It was urged, as one of the grounds for anew trial, which was overruled, that the Judge declined to permit a juror to ask a question of the counsel during- the course of his argument. It might suffice to say on this point, that the action of the Judge was not complained of at the time, and no bill of exception taken in relation thereto. Though not coming properly before us for this reason, we have, no hesitation in saying, that the matter complained of was entirely within the discretion .of the judge, and we are of opinion that it would evince a sound exercise of such discretion to refuse such privilege to the jurors, and prevent such interruption of counsel, except under extraordinary circumstances not likely to occur. Finding, after this review of all the questions and issues presented by the record, that there are no reasons for- disturbing the judgment appealed from, it is therefore .affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8253.
    Succession of Robert Y. Charmbury.
    From a judgment recognizing tUe heirs and ordering them to he put iu possession, the testamentary executor has an appealable interest.
    The objection that the appeal hond filed is not such as required by law, must be made in this Court within the three days after the Transcript is filed.
    The objection that the surety on the appeal hond is himself one of the appellants, must he first raised in, and passed upon, l>r the lower court.
    It is no reason for the executors to refuse to pub the heirs iu possession, that the latter have not tendered tlie amount of the debts, fees and charges due hy the estate. The objection is frivolous. If the creditors make no opposition and require no security, the executors have no right to demand any. Tor the foes and charges, they must provide for them in their account.
    The consent of the legatees that the heirs he put in possession, is a waiver of the tender of the legacies.
    It is enough for the court to order the heirs to he put in possession that the constituted legatees consent to it. Whether such constituted legatees have the power or not to so consent, is not to he considered in the promises. The putting of the heirs in possession decides no issue as to the legality or validity of the legacies. All the. claims and rights that can he exercised under such legacies against the executors, can he equally exercised against the heirs, after they have been put iu possession.
    APPEAL from the Civil District for Lie Parish of Orleans. Bightor, J.

      .L IL Gh-over and Ellis & Ellis, for tlie Heirs, Plaintiffs and Appellees:
    One, whose interests are not affected, or who is not aggrieved hy a judgment, cannot appeal from it.
    In this case, the heirs accepting simply and-purely, sued the executors to he put in possession, under C. P. 1000, 1001, 1003. The legatees, all except one, who was an executor, consented in writing, that the heirs be put in possession. To creditor or claimant objected. On the contrary, the largest creditor and the largest claimant, both consented in writing, and asked that the heirs he put iu possession. The judgment granted the heirs’ petition, ordered the executors to account, and thereafter, to deliver possession to the heirs, provided the heirs first pay the legacy of the executor, legatee, who refused to consent. In such case it will be held, that the executors are without interest to appeal, and an appeal granted to them will he dismissed. R. C. C. 1012,1671; 30 A. 128 : 13 La. 3 (3d paragraph) j 9 La. 415; 19 La. 278; 11 A. 177.; 10 La. 499.
    The heirs, legatees, creditors and claimants compose the succession. R. pp. 871, 872,873, 874 When they consent that the heirs shall bo put in possession, the executors cannot object on the pretext that they must see the will executed. The law favors the termination of probate jurisdiction, and the possession of the heirs accepting, simply and purely, and it protects the rights of creditors and legatees. In such case the executors become mere stakeholders, and must account, receive thereon their commissions, and credit for payments made hy them, and surrender the estate to the heirs. They cannot ar>peal from a judgment which orders this. R. C. C. 1012,1671; C. P. 1000 to 1007; R.^C. G. 1465; 30 A. 128; 6 A. 63 ; R. C. C. 1422, et seq., 1444, et seq., 3275.
    In this case, the executors, under the circumstances above stated, were ordered to file tlioir account and deliver possession thereafter, to the heirs. They cannot champion the rights and overrule the consent of the legatees, creditors and claimants, that the heirs he put in possession, being wholly without interest or right to do so ; and hence, cannot appeal, as the judgment does not affect them (the executors) personally or officially.

      An appellant, condemned by the judgment, canDofebe Ms own surety on the appeal bond. 31* • he sign his own appeal bond as surety, being already liable for the judgment against him, it will he held that no surety has signed the appeal bond, and there being no other surety, the appeal will be dismissed. C. P. 575.
    The District Judge must first decide as to the solvency of the surety and the sufficiency of the bond, where a third person has signed as surety, and his ruling can thou be reviewed by the Supreme Court. But where the appellant, already condemned for the judgment, trifles with the law, and with the rights of the appellees, by signing his own hond as his own surety, and giving no'othor surety, the Supreme Court will hold that there is no appeal bond at all, and will dismiss the appeal on appellee’s motion, as an, absolute nullity, which can ho so declared at any time and in any proceeding.
    Where an appellant, already condemned by the judgment appealed from, gives no person as surety, but signs as the surety himself, the nullity of the appeal bond is so absolute that the Supreme Court will notice improprio motu, just as they would the absence of an order of appeal, and will dismiss the appeal. In such case, action on the pretended bond, by the District Court, is not requisite.
    Where there are three co-executors condemned to deliver possession to the heirs, and all three appeal, and sign a bond, with one of themselves as the sole surety, it will be held that there is no appeal bond, and the appeal will be dismissed.
    See Lafon vs. Testamentary Executors of Lafon, 2 E. S. 511; State vs. Judge, etc., 2Hob. 449.

      A. J. Murphy and Thomas J. Semmes & Payne, for the Executors, Appellants:
    1. It is the duty of a testamentary executor to see that the will of the testator is faithfully executed and each and all of the provisions of the will carried out. C. C. Art. 1612.
    The executor has the right to appeal from any judgment which nullifies any portion of the will of the testator or in any manner interferes with the distribution of the estate by the executor in conformity to the dispositions of the will. Sue. of McKenna, 23d A. p. 369.
    2. A motion to 'dismiss an appeal for an irregularity on the appeal hond or for insufficiency or incompetcncy of the surety on appeal hond, must ho filed within three judicial days from the filing of the transcript of appeal, or the same will not he noticed by this Court. 2d A. p. 133; 6th A. p. 115; 21st A. p.329; 26th A* p.311.
    Any inquiry into the sufficiency or legal qualification of. a surety upon an appeal bond, must be first made in the lower court, otherwise the objection thereto will not he considered by this Court. 10 A. 318; 10 A. 485; 14 A. 61; 29 A. 597.
    One may he a surety in his individual capacity on an appeal hond furnished on an appeal from a judgment against him in a representative capacity when said judgment imposes no personal liability upon him and does not condemn him, individually, in any manner.
    Two or more persons, against whom judgment has been rendered, jointly, may become reciprocally sureties for each other upon a bond furnished'on appealfrom such judgment. 27 A. 248.

      Francis W..Balcer, for the Residuary Legatees:
    1. When a will in due form has been probated according to law, its provisions must he followed by the executors, and sustained by Court, until annulled in a proceeding instituted for that purpose C. C* 1644 et seq.; C. B, 930, et seq.; 18 A. 444 ; 24 A. 388.
    2. A will cannot be annulled unless all parties in interest to sustain its provisions, are parties to its proceedings or properly represented.
    3. An ex parte order of Court recognizing ‘one as agent for alleged heirs, does not prove heir-ship. 8 A. 27; 4 A. 87; 9 A. 100 ; 14 A. 35*4; 7 H. S.584; 17 La. 470 ; 5 A. 3.
    4. Ho one is hound by testimony not taken contradictorily with him. 7 A. 367; C. P. 428 434; 1 H. S. 187; 10 A. 766 ; 6 H. S. 301; 4 H. 152.
    5. The validity of a will made in Louisiana, the domicile of the testator; it is to he determined and interpreted by the laws of Louisiana. C. C. 9, 10; 2 H. 258.

      (>. A bequest in such a will in favor of a foreigner will be held valid when the laws of such foreign country do not prohibit similar dispositions from being made in favor of a citizen of Louisiana. C. C. 1490; Code Napoleon II. 726, 912; 12 R. 584; 17 L. 312; 7 An. 395
    7. Foreign laws must bo proved as facts, and in the absence of such proof, will be presumed to be the same as tbe laws of Louisiana. 17 A. 73; 8 A. 124; 14 A. 391; 9 B. 151; 7 A. 395; 24 A. 387; 15 A. 491. ■
    8. In interpreting wills, the intention ot the testator must principally be endeavored to be ascertained. C. C. 1712 (1705).
    9. The intention of tbe testator in this case, as shown by tbe will, was that the u aged poor of both sexes of both Longfleet and Poole Dorset, England,’’’should be the legatees and sole beneficiaries. 12 A. 319.
    10. A bequest to the poor of a community is valid under the laws of Louisiana. C. C. 1546; Code Napoleon, 910, 937; 12 A. 301.
    11. Grounds of nullity against a will, not specifically set forth, should not be considered. 18 A.444.
    32. The objection that there was no person in being, capable of receiving at the time of the testator’s death, has no force as against a donation to the poor of a community., 12 A. 320.
    13. Such a bequest, to the poor of a community, does not create a prohibited perpetuity. Same.
    14. Such a bequest is not open to the objection of vagueness or uncertainty. 12 A. 320; 2 B. 438.
    15. Donation to pious uses, to the poor of a community, are encouraged and favored by the law. Same, and 8 A. 171.
    16. The will in this case contains no prohibited substitution or fidci commissa. < Same, and 5 N. S. 302; 17 L. 57; 2rR. 372.
    17. All impossbiie conditions, or those which are contrary to the laws or to morals, are reputed as not written. C. C. 1519, and authorities above.
    18. The Mortmain Act, 9 Geo. IL, Chap. 36, would not render null this will in England, or prevent its execution there. Shelford on Mortmain, pp. 118, 120.
    19. The principal evil desired to be remedied and prevented by the Mortmain Act, was the disposition and tying up of lands whereby they became unalienable, and were taken out of commerce. Same, Sorresby vs. Hollins, 9 Modern, 223; 1 Yesey, Sr., 223Ambler, 20; Ambler, 210.
    20. The Mortmain Act has no reference to lands out of England. 14 Yesey, Jr., 537,
    21. Where the trustees are vested with a discretionary power to lay out in lands or other* wise, the bequest will be valid. Williams on Executors, Yol. 2, p. 922.
    22. Where the trustees might, under the discretionary power of the will, hire, instead of purchase, the bequest will be held valid. Same; 3 Maddox, (Y. C. R.) 457; 5 Simon, (Y. C. B.) 661; 7 Price, 221; 2 Yesey, Sr., 185; 2 Yesey, Sr., 189; 4 Brown, C. C. 527,
    23. Even if void, so far as the proceeds of the real estate in Louisiana* it would be valid so far as the personal property. 3 Brown, G. C. 373; 14 Vesey, Jr , 537,
    24. Trustees who have once accepted the trust, cannot afterwards renounce the trust. The trust •will not fail or he prejudiced thereby. 1 Yesey, Jr,, 464, not©; 1 Yesey, Jr-, 270, note 2; 6 Yesey, Jr., 663 and note; 8 Yesey, Jr., 570 ; 1 Smith Leading Cases, 382, 4bh Ed.; 3 Wait, Actions and Defenses, 140; Smith’s Manual of Equity, 190, 191; 2 Spence Equity Juris. 51, 52, 876; 2 Fonblanque on Equity, 171; Willis on Trusts, 121, Note A. and p. 125, p. 167; Lewin, Law of Trusts, 495; 10 Yesey, Jr., 468,
    25. Charities and donations to pious uses are favored both by the laws of, England and America. Girard Will Case, 41; 28 Penn. (St.) 35; 14 Allen, (Mass.) 539,' 556; 1 Brown, O.C.12; Statute 43 Elia. Chap. 4; 8 Blackford, (Ind.)22; 3 Cushing, (Mass.) 365; 14 Allen, (Mass.) 539; 42 111. 425; 45 Me. 552; 7 Yesey, Jr., 69; 1 Merivales, 55; 9. Yesey, 405; 5 Bussell, 112, 113; 2 Beavans, (Bolls Courts,) 81; 1 Turner and Bussel, 270; 2 Mylne and Beene, 576.

      26. Cbarmlrory having no forced heirs, had a right to dispose of all of his property as he saw fit, not contrary to law or morals. C 0 1470, 1496.
    27. It was the duty of the executors to endeavor to carry out the wishes of the deceased. ('♦ C. 1672 j 7 IT. S, 615.
   On Motion to Dismiss.

The opinion of the Court ivas delivered by

Fenner, J.

The deceased, E. Y. Charinhury, left a will, containing numerous legacies, and naming the Mayor and Council of Dorset, England, together with the ministers of the Established Church of both Long-fleet and Poole, forming a committee, to manage this charity in trust,” as residuary legatees for certain charitable purposes therein designate,d, and appointing certain persons as testamentary executors.

The succession was opened, the executors qualified and entered upon their trust.

Subsequently, the sisters of deceased filed their petition, alleging that they were the solo legal heirs of deceased, that the residuary legacy was null and void, and had also lapsed liy the express renunciation and refusal of the residuary legatees to accept the same; alleging that all the particular legatees, except one, had consented to their being put into possession; expressing their willingness to accept the succession, purely and simply, and to comply with all the obligations imposed on them by law; and praying that the executors he cited, and for judgment recognizing and putting them in possession as heirs, and ordering the executors to render an account of their administration to them within reasonable delay, etc. To this petition, the executors filed answer, pleading the general denial and sundry special defenses. After trial, judgment was rendered in favor of the petitioners, substantially in accordance with the prayer of their petition, from which the executors took their appeal.

The present motion to dismiss is based substantially on two grounds, viz:

1st. That the executors have no appealable interest.

The petition of the alleged heirs is based on, and framed in accordance with, the Articles 1000, et set/., of the Code of Practice, which expressly require citation of flic executors and permits the latter to answer and contest the application of the heirs. Aside from their special defenses, the general denial, contained in the answer of the executors, puts at issue all the facts set up in the petition, including the actual heirship of the petitioners. The Code of Practice contemplates a eontestatio litis, in which the petitioners were hound to prove, and the executors had the right to contest, the claim set up. From this fact alone, it results that, the case being appealable in amount, both parties have an interest in the correctness of the judgment and have the right to test the same by appeal. The argument of the counsel for the heirs is based entirely on the merits of the case. These we have no right to inquire into. Hon constat that it may not appear from the evidence in the case that the petitioners are not heirs, that the legatees have not consented, that the residuary legatees have not renounced, or that the renunciation is incomplete and invalid. These questions can only arise on the trial of the merits. The executors’ right and duty to execute the will and to prevent the property from being diverted in any way which may prevent or jeopardize its execution, give them an appealable interest, whether the parties interested complain or not, because the executors represent the deceased and are bound to see that his wishes are carried out. Rev. C. C. 1672; Succession of McKenna, 23 A. 369.

2d. The other ground of the motion is that the bond of appeal, filed by appellants, is not such as is required by law.

There are two fatal objections to this ground of the motion :

1. The motion was not filed within three days, after which such an objection cannot be considered. 2 A. 138 ; 3 A. 326 ; 11 A. 613 ; 21 A. 329; 26 A. 311.

2. The objection to the bond is, that W. S. Benedict, who signs as surety, was, himself, one of the executors and appellants.

Such objection cannot be considered by this Court, without having-first been raised and passed on by the lower court. 10 A. 318, 485; 14 A. 61; 26 A. 311.

The motion to dismiss is, therefore, overruled.

Rehearing refused.

The Chief Justice recuses himself, having- been of counsel.

On the Merits.

Robert Y. Charmbury died in 1879, leaving a will, by which, after bequeathing sundry particular legacies, he bequeathed the balance of his estate “ to the Mayor and Council of Poole, Dorset, England, together with the Ministers of the Established Church, of both Long-fleet and Poole, forming- a committee to manage this charity in trust, as the monies are realized, to invest the same in British Consols, the interest only to be applied for a suitable building for the aged poor of both sexes, and for their support, and to be known as the Oliarmbury Institute,” etc.

He nominated three executors, who qualified in the proper Court in this city, and entered upon the administration of the estate.

This administration had continued from July,.1879, until November, 1880, without any account haying been filed or distribution made, when tlie three sisters of the deceased, alleging themselves to be Ms sole legal heirs, and announcing their willingness to accept the succession, purely and simply, cited the executors, and prayed to be put in possession, and for an order directing the executors to file their final account and to deliver the succession to them.

Their proceeding is taken in accordance with Articles 1000 to 1007 of the Code of Practice.

They present complete proof of their sole heirship, and file, also, the formal consent of every legatee (except one) named in the will, including the Mayor and Council of Poole, and the Ministers of the Established Church of Long-fleet and Poole, named as the residuary legatees for the charitable trusts recited. The excepted legatee-is one of the executors, who is a particular legatee only. They present, also, the consent of the only important creditors or claimants against the estate; and no other creditor or claimant makes any opposition to their demand.

The executors answered, pleading the general denial, and setting up' the following special objections to the demand of the heirs, viz:

1. That no tender has been made by petitioners of the debts, fees, charges and expenses of the succession. This objection is frivolous. As to fees, charges and expenses, the executors may provide for them in their account. As to debts, creditors may require the heirs to give security, under Article 1012 of the Civil Code. If they do not ask it, the executors have no right to require it. The remedy of the creditors is perfect agaiust the heirs. C. C. 1013,1423, ct seq., 1444, etseq. See 30 A. 128; 13 La. 3; 7 La. 389.

2. That no tender of the legacies under the will has been made. The necessity of such tender is, of course, waived by the consent of the legatees. As to the legacy to Davis, who has not consented, he being an executor, with seizin, has full authority to retain his legacy out of the funds in Ms hands, which, it is not disputed, are ample to pay:.

3. That the Mayor and Council of Poole and the ministers named as the “committee” in the will, have no right to reject the legacy made to them for charitable purposes. It appears that the said committee, acting Under the advice of Mr. J. P. Benjamin, an eminent Queen’s Counsel, of Great Britain, to the effect that the legacy was void, and could not be executed, under the Mortmain Act of that country-, determined to refuse and reject it.

We are presented with a most learned argument to show that the opinion of Mr. Benjamin, given to the committee, was unsound and not sustained by- the law of either Great Britain, or of Louisiana, that the legacy- is valid under the law of both countries ; that the trustees have no right to renounce the legacy; and that, notwithstanding their renunciation, tlie Court may enforce the execution of the trust through other appointments for the purpose.

With all these questions, we have, as we conceive, no concern in the present case. It is sufficient for us that the legatees constituted under the will have, through an agent vested with the fullest power to represent them, filed a written consent that the seizin of the succession should be delivered to the heirs, accepting purely and simply. Such delivery concludes no rights whatever of the residuary legatees. It involves no adjudication whatever upon the validity of the bequests. It simply transfers the seizin from the executors to the heirs, and against the latter, all parties interested may urge every claim which they could urge against the executors.

We have certainly no jurisdiction over either the Mayor and Council, and Ministers, nor over the aged poor of both sexes,” of Long-fleet and Poole, England. We can neither compel them to accept this legacy or to execute this trust, nor have we power to appoint others to execute it in their stead, the place in which alone it can be executed lying out of our jurisdiction.

If they will not accept it, it does not follow that this estate must remain forever in the hands of executors without bond, and -who have no title whatever to it.

It is the duty of executors to execute the provisions of the will, but that duty does not extend to the point of compelling legatees to accept, or of controlling them in their conduct, with reference to property bequeathed to them. The consent of the residuary legatees to transfer the seizin of this estate from the executors to the heirs, is conclusive upon the executors, who have no right to oppose it.

The appellees have prayed for amendment of the judgment in two respects:

1. By casting the costs upon the executors, individually, instead of on the succession. We have no reason to doubt that the executors, in resisting this demand, have acted in the discharge of what they believed to be their duty, and they should not be mulcted in costs.

2. In the judgment appealed from, the heirs were required, before receiving- possession, to give security for the payment of the legacy to Davis, or, if required by the executors, to advance a sum sufficient to pay said legacy.

These conditions would be unreasonable if Davis, being- liimself an executor, had in his hands sufficient ready money of the estate to discharge his legacy. We are asked to amend by authorizing him to retain the amount of his legacy out of the funds of the estate on making-delivery — and we consider such amendment proper.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from bo amended, so as to authorize Wm. T. Davis, one of the executors, to retain the amount of the legacy to himself, under the will, out of any ready money which may rest in the hands of the executors after accounting ■, and by providing that the heirs shall only be required to give security for, or advance the amount of, his said legacy, in case of deficiency of ready money in the executors’ hands to pay the same; and that, in all other respects, the judgment be affirmed — costs of this appeal to be paid by the executors.

Rehearing refused.

Chief Justice recuses himself,, having been of counsel.


author: Bermudez, C. J. Lew, J.

text:
    No. 1026.
    B. S. Skipwith and Husband Et Al. vs. John W. Glathary.
    A minor heir, .on reaching his majority, bringing suit against his tutor for an account, and against third persons by the hypothecary action, to subject the property of the latter to his legal mortgage, needs not make his minor co-heirs parties to his proceedings.
    Nor is it necessary, as a condition precedent to such hypothecary action, that the tutor's account ho first advertised and homologated, contradictorily with creditors and other parties concerned.
    Tho legal mortgage of the minor on the property of his natural tutor, affects all the immovable property of the latter, from the day of his appointment, even the property which he sold before the rights of the minor against him had arisen into existence.
    APPEAL from the Fifth Judicial District Court, Parish of Ouachita. Bay, Special Judge.
    This case was originally decided at Monroe, and was transferred, by consent, to Itfew Orleans, where the Decision on rehearing was rendered.

      JBoatner & Liddel, for Plaintiffs and Appellants.

      OoVb <& Qwniby, for- Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs seek to subject certain real property, belonging to tlie defendant, to a general mortgage in their favor, securing a claim against their father and tutor, and encumbering the property at the time of the purchase.

They allege that, at their majority, they sued him for an account, which was rendered and homologated, by which their respective rights • were liquidated at $3010. They further set forth the allegations usual in hypothecary actions.

The defenses set up are numerous. Exceptions were filed on several grounds :

1. Plaintiffs’ co-heirs, who are minors, are not. parties, and should be made such.

2. The demand and notice, required to be given to a third possessor, sire wanting.

3. No account of the condition of the succession of the deceased has ever been filed and approved. It is not until then, that the plaintiffs can have any right of action against their tutor, or against him as a third possessor.

4. Plaintiffs must first exercise recourse against the surety on the bond furnished by their tutor, before suing the third possessor, which was not done.

Answering, under reserve of those exceptions, defendant charges in the following manner: that the judgment homologating the account of tutorship is the result of collusion and fraud, based on the consent and statement of their tutor; that the account does not embrace all the property inventoried and still on hand, does not include interest on advances made by the tutor, does not set forth all the debts and liabilities of the deceased; that, on a fair settlement, the tutor would owe the plaintiffs nothing; that the deceased was not separated but was common in property -with her husband; that the note of Burnett & McMain, mentioned in the account, belonged to the community and was not collected; that there was no cash on hand at the opening of the succession or since; that if there was, it was community property and, in any event, not having been placed in the inventory, is not secured by mortgage; that two life insurance polices on the life of Mrs. Richardson, the deceased, were in favor of her husband and her six children and accrue: half to the former and half to the latter, as a unit; that the amounts of the same were not collected in full, but are subject to reduction by charges and commissions; that $4000 thereof were employed in paying tlie purchase price of valuable property, belonging to the deceased; that $2300 were applied to pay Mrs. Calderwood, one of her «creditors; that the tutor paid over $3000 to certain creditors, and besides, taxes, law charges, and repairs; that the personal expenses of plaintiffs amounted to at least $500 per annum, for each, from the death of their mother to their respective majority.

The defendant concludes that, if the plaintiffs’ claim, whatever it may be, is secured by mortgage, it should be credited with the value of the real estate and effects on hand; with the individual interest of the husband in the community assets; with the amount of debts paid and due; with the costs of administration; -with the expenses of maintenance and education of the plaintiffs ; that, if anything else is due the plaintiffs, they can recover and enforce their mortgage only after a final partition of their mother’s succession shall have taken place, and that the property sought to "be subjected is not encumbered with the mortgage claimed, as it was acquired at a foreclosure to satisfy a debt secured by vendoFs privilege.

The exceptions were overruled, and after a trial on the merits, the lower court, for reasons assigned, reformed the account of tutorship, as affecting the defendant, and rendered judgment in favor of each of the plaintiffs, for $315.63, from which they have appealed.

In this Court, the plaintiffs submit that they should recover: Mrs. Skipwith, $1721.18, and Miss Richardson, $1807.25.

On the other hand, without waiving any of his defenses, but insisting upon the same, the defendant submits a statement, from which, if correct, it would result that the tutor is a creditor for at least $2005.

We will now proceed to consider the preliminary defenses,

1. It was unnecessary to make the minor co-heirs of the plaintiffs parties to the action for the account, and to the j>resent suit. The law expressly secures to each heir, at the time of emancipation, or majority, the right to claim such account for himself. It is not until it has been rendered and homologated, that payment of what may he decreed due him, may he enforced, either against the tutor, or third possessors.

The plaintiffs are not claiming a partition of the estate held in common ; they do not ask the Court to adjudicate in any manner which, would affect the rights of their co-heirs. Even if they did, the Court would he powerless, and would not do so. If it did, it would he doing a vain thing having no binding effect.

They sue for what is alleged tobe due them by their tutor. We are at a loss to see what interest the minors have in the result of this suit, or how they can he affected thereby. C. P. 998; R. C. C. 357; 2 R. 415; 6 R. 51; 19 A. 363; 29 A. 530 ; 33 A. 49; 24 A. 133; 12 A. 361.

2. The testimony and evidence show, that the demand and notice required in hypothecary actions were given, and also establish the inability of the tutor debtor to pay. C. P. 70.

3. It was not necessary that an account should be filed, advertised and homologated contradictorily with the creditors of the deceased and all others concerned, as a condition precedent to the institution of this suit. To so hold, would be to require that every solvent succession, in which minors are concerned, he saddled with the onerous and useless costs of liquidation by the agency of an administrator, when the creditors do not'desire the appointment of any. It does not appear, in the present instance, that they have ever required the tutor to give security, as they might have done.

If viewed as one administering the succession of his deceased wife, ex officio, as tutor, Mr. Richardson might have rendered the account claimed, hut it was not necessary that he should first do so, in order that Ms minor children, on attaining' the age of majority, should have the right of demanding of him. an account of his administration of their property, which never went through tlie process of a succession liquidation. The authorities in 20 A, 513; 4 L. 489 ; 1 R, 113, have no application to a case like the present one.

An account rendered and homologated contradictorily with the minor alone, would not be conclusive upon those not parties to it. Although a succession representative, or a tutor, rendering an account, may bo bound, on proper and reasonable opposition to the same, to prove the reality of items objected to, it cannot be pretended that, after the account has been homologated, upon mere denial of its correctness and charge of fraud and collusion against it, the burden of proof is shifted on parties interested in maintaining the account, to establish its correctness. The rule is, that ho who alleges fraud must prove it.

Such accounts, presented by a sworn officer of the court, homologated upon showing satisfactory to the Court, are prima facie evidence in favor of those claiming under them: 1 L. 379; but remain open to all the attacks which the law authorizes litigants to make against judgments: 8 L. 197. It is only after the party assailing has destroyed that prima facie presiimption of correctness, that the interested ones ■can be required to prove the validity of the judgment and of the items embodied in the account, which may be specially opposed, or denied.

Accounts like that presented in this case by the tutor to the minors becoming of age, are required to be rendered and homologated, liquidating the right of the heir, before any hypothecary action can be instituted to enforce payment of what may be due Mm. 6 R. 51; 19 A. 363 ; 29 A. 530; 6 R, 51; 24 A. 133; 2 R. 415 ; 12 A. 361.

4. Where the third possessor, against whom the action is brought, is not personally bound for the payment of the debt, he may oppose the sale of the hypothecated property, if there be other hypothecated property in the possession of the original debtor, and require its previous discussion, pending which the proceedings will be stayed; but, in such a case, lie must designate the property and advance the costs to carry out the discussion. C. P. 71, 72, 715 ; R. C. C. 3403.

This right does not embrace that of insisting upon a suit against a surety on a bond furnished by a natural tutor at the instance of parties who are no creditors, in the absence of any law authorizing its execution, and which can be viewed only as a voluntary stipulation for autrui, of which it would be optional with the minors to avail themselves or not.

The bond referred to was furnished to obtain payment from the insurance companies and was not required by law. Such bond cannot be assimilated to a special mortgage, of which it has not the least characteristic. 21 A. 689.

Upon satisfaction of tlie claim of a creditor, resorting to the hypothecary action, the hypothecary debtor would be legally subrogated to all the rights of the paid creditor against the original debtor. K. C. C. 2161, § 2.

The preliminary defenses having been correctly overruled, we will now proceed to consider the case.

On the Merits.

The facts disclosed by the record are:

Mrs. Richardson was separated in property from her husband. She departed this life, possessed of property, leaving six minor children. Their father qualified as their tutor by nature. An extract of the inventory containing an evaluation of the property included therein, $18,255,72, was duly recorded in the proper mortgage office. Subsequent to that registry, Mr. Richardson mortgaged a piece of real estate belonging to him, which on non-payment of the debt thus seemed, was sold and adjudicated to the seizing creditor, from whom it passed to-the defendant, subject to the mortgages inscribed against it. At their majority, the plaintiffs, two of the children, demanded an account of their father and tutor, which was furnished separately to each. In the' absence of any opposition thereto, a judgment was rendered, homologating it, whereby the right of each was fixed and liquidated at $3010.11.

Relying upon the general mortgage resulting from the inscription of the inventory extract and upon the judgment of liquidation on the account of tutorship, the two heirs now seek, as already stated, to subject the real estate owned by defendant, to the payment of their averred judgment mortgage claim against their tutor, defendant’s previous author.

On the trial, the defendant offered to introduce in evidence an alleged copy of a policy of insurance, to prove that the father and six children were the beneficiaries thereunder, share alilce, the latter as a- unit. The objection made to its admission was correctly sustained. The paper said to be a copy was not properly authenticated, and was not connected with any oral testimony, proving it to be a true and faithful reproduction or copy of the original. The only evidence of the proportion, in which the beneficiaries wore to participate, in case of loss, is the statement found in the inventory and in the tutor’s account. We are therefore dispensed from passing upon the question of proportion.

It results from the testimony, that there was on hand at the time of the death of Mrs. Richardson, a sum of three thousand dollars, which was not included in the inventory, and for which the tutor is surely accountable.

It now becomes, therefore, necessary to determine whether the general mortgage resulting from the registry of the inventory extract, secures all rights of the minors, as well those in existence at the date of the inventory and therein specified, as those accruing thereafter.

The tacit mortgage existing in favor of minors, previous to the adoption of the Constitution of 1868, was maintained in force until the 1st of January, 1870, and was not to continue beyond that date, unless previously put of record. After the adoption of that Constitution, no tacit mortgage has sprung into existence.

The object which the Convention had in view in suppressing tacit mortgages, was, that after the 1st of January, 1870, third parties should bo bound by or subjected to a mortgage claim, in the solitary instance of its having been duly recorded in the mortgage office.

In furtherance of the constitutional requirement in Article 123, the Legislature passed a law requiring, in eases of minors, that an inventory extract, showing the amount of the inventory, be recorded, declaring that such registry shall operate as a legal mortgage in favor of the minor, for the amount therein stated, from the date of recording, in each Parish, a mortgage on all the mortgagable property then, or subsequently owned by the tutor in each Parish. R. S. 2360; R. C. C. 319, 322, 323, 324, 351.

The law does not require that the entry on the mortgage book should contain a description of the effects inventoried. The entry must speak for itself, to the extent of the law, no less, no more. It cannot be said that parties are referred to the inventory, to ascertain the nature and amount of the rights of the minor.

The rule may be different in the case of a mortgage claimed by a married woman, resulting from the registry of a statement thereof^ made in the form prescribed by law, requiring that • the facts and circumstances on which the claim is based, be detailed accurately. Act 1869, 114. R. S. 2381.

The Convention did not propose to destroy existing laws and jurisprudence on the subject matter, but merely to render express a mortgage which was previously tacit or occult, the registry being' intended solely to notify third parties of the existence of the tutorship and of the eventual liabilities of the tutor, at the end of the tutorship, in order that when contracting or dealing with the tutor, they might be on their guard. The requirement of registry was intended for the protection, not only of third parties, but also of minors; but not beyond the amount so recorded, in any event, except by a new or additional inscription. The law has always been and is, that minors have a legal mortgage upon the property of their tutors from the day of their appointment until the liquidation and settlement of their final account. C. C. 3314.

That mortgage, in order noto to exist, must be recorded, and takes effect against third persons, only from the time of inscription. The registry does not liquidate the amount appearing in it, hut warns such parties, that, on a settlement with their tutors, the minors’ claim may rise to the amount stated in the registry. The mortgage formerly existing without registry in favor of minors has been held to cover, not only amounts due and the liabilities of the tutor at the time of his appointment, but also the rights of the minors accruing subsequently, the mortgage being allowed as a security for the tutors’ administration from the time of qualification and continuing until the liquidation and settlement of their account, when it is ascertained what amount is due to the minor. The mortgage, which springs into existence at the date of the tutorship and of the registry of the certificate or bond, has this remarkable feature, that it is assimilated to, and operates like the conventional mortgage given to secure obligations which have not yet risen into existence, R. C. C. 3292; and affects third persons wdio have had knowledge of it, so as to subject property encumbered by it, when it is necessary to do so for the satisfaction of the rights of the minors, as liquidated and found to be at the end of the tutorship. The creditor, who has commenced a siiit to enforce a legal mortgage on the property of his debtor, as against a third possessor, may be required, however, as stated, to discuss the other property, if any, which the debtor may have in his possession, and even that which he has alienated since the purchase, because the creditor who has the general mortgage, can only act against the property of which his debtor has disposed, in the order in which the alienations have been made, beginning with the most recent and ascending to the most ancient. C. P. 715; R. C. C. 322, 3292, 3314, 3357, 3403; Act 95 of 1869; Latham vs. West, 5 M. 574; Baman vs. Erwin, 407; McHugh vs. Stewart, 12 A. 363 ; Guillet vs. Juri, 15 A. 417.

Under that view of the case, it follows that the share of the plaintiffs in the cash on hand, is secured by the legal mortgage resulting from the registry of the inventory extract, of which the defendant cannot say that he had no notice, and that the Judge a quo erred in not making allowance for it.

It seems to us that while interest is allowed to the minors on the active side, it should be charged on the passive side of the account of tutorship, in like manner. Had this been done, the interest would probably have balanced, and the amount figuring on the active side would have been, as it is, eliminated.

W e cannot assume to make an exact statement or exhibit of what all the debts and liabilities of Mrs. Richardson and her succession and of her children, the plaintiffs, were, are, and should be, under the. mixed, confused and imsatisfactory evidence before us, wliich, to all appearances, is tlie best of which the nature of the case admits : after some tedious computations, approaching correctness, we incline to the belief that they would clearly outbalance the active side.

We do not propose, in the condition of the record, to enter into any discussion of the voluminous evidence, oral and documentary, adduced on the trial of the case, which is not such as can stand a methodical and critical analysis, susceptible of affording any gratification to the mind or relief to the litigante. We have considered that evidence, taken much pains to compare it with the accounts rendered by the tutor to his wards, with the statement of the District Judge, made with reason’s assigned, with the exaggerated exhibits submitted in argument here by counsel for the partios, and we have come to the conclusion that the judgment of the lower court has done substantial justice to the parties, except in relation to the cash on hand, touching which it should be altered.

We are not to be understood as saying that, in case of sale of the property to satisfy plaintiffs’ claim, it will take precedence over that securing the rights of their minor co-heirs, which are entitled to equal protection under the law.

It is, therefore, ordered and decreed, that the judgment appealed from be amended, by allowing to each of the plaintiffs, in capital, eight hundred and fifteen dollars and sixty-three cents, $815.63, and that in other respects it be affirmed at the cost of appellees.

On the Rehearing.

The opinion of the Court was delivered by

Lew, J.

A careful review of our previous opinion in this case lias failed to convince us that there is any error in the legal principles enunciated as to the effect of the legal mortgage on the property of the tutor in favor of his minor children.

Both appellant and appellee insist that we have erred in our' ascertainment of the amount due on the tutor’s account, and suggest the several items which should be on the one or the other hand, allowed or rejected.'

We liave taken much pains in an investigation of all the matters involved in the settlement of the account, and diligently considered the evidence in the record, supporting and opposing the items contained in the account. The result of our investigations causes us to revise the account as rendered by the tutor, and also that restated by the Judge of the lower court, and to state the account in accordance’ with our views based on the evidence before us.

Tlie evidence on which it is sought to charge the tutor with the stun of $3,000, alleged to be on hand and held by him at the date of his wife’s death, is wholly insufficient to sustain the charge. The item is far in excess of $500, and the tutor’s testimony, without corroborating circumstances, does not afford such proof as the law requires. The record contains nothing in corroboration of his testimony, which is, in itself, vague and indefinite, failing to denote or even to indicate whence this sum in cash was derived, when or how it was received, or anything throwing light upon the transaction, or giving any clue to its source. We must, therefore, reject it.

On the first hearing- of this case, the argument was directed entirely to the question as to whether this item, which was not in general disputed, and which did not appear on the inventory, was covered by the mortgage in favor of the minors, and therefore we did not give it .the attentive consideration which we have now done.

We think the account, as stated by the Judge a quo, should be further amended by crediting the tutor with one-sixth of the Calderwood debt of $2,100, and one-sixth of the Chaffe debt of $703.

The account allowed a credit to the tutor of $612, his share of the Piedmont Insurance Policy. As he was not charged with the amount of this Policy the credit is erroneous. Therefore, the account should stand as follows:

Debit of tutor as per account.............. $3,034.97

Credit. As per account.......................... $2,719.34

Less this amount erroneously allowed..... 612.00

$2,107.34

Add one-sixth of $2,100, Calderwood debt.. $ 350.00

“ “ $703, Chaffe debt....... 117.161-

--- 467.16|-

Balance......................... $636.17-J

The'evidence shows that there was received on the Carolina Policy only the sum of $4,000, so that there was only due to each child $4000-6 = $666.66§, instead of $833.331, with which last amount the tutor is charged, making a difference of $166.66$, with which the tutor should be credited, thus making the balance $636.17-J — glOO.GJÍ, = $469.50f, due by him to each of the plaintiffs.

Our former decree herein is therefore amended, by allowing to each of the plaintiffs, in capital, the sum of four hundred and sixty-nine dollars and fiftj' and two-thirds cents, $469.50f-, and that in other respects the judgment appealed from be affirmed at the costs of appellees.


author: Bermudez, C. J.

text:
    No. 8358.
    The State of Louisiana vs. Thomas Griffin.
    Tlie verdict of “guilty of involuntary manslaughter,” in this case, is legal and responsive, though the indictment charged the accused with voluntary manslaughter.
    APPEAL from tlie Criminal District Court for tlie Parish of Orleans. Imsenberg, J.
    J". G, Wanner, for the Appellant:
    X. A verdict “ guilty of involuntary manslaughter," is not responsive to an indictment for voluntary manslaughter in this State.
    2. An indictment that the accused “did feloniously kill and slay ” defines the crime of voluntary manslaughter, and does not inform the accused of the nature and cause of an accusation against him for involuntary manslaughter. Const. Art. 8.
    3. Sec. 786 of the Eevised Statutes prescribes a penalty only in case of voluntary manslaughter.

      J. O. JSgan, Attorney General, and Whitaker & Adams, for the State, Appellee:
    The law of Louisiana, in imposing penalties for'crime, recognizes no distinction between voluntary and involuntary manslaughter. It denounces the crime of manslaughter, which includes voluntary and involuntary. (Sec. 786, Eev. Stat.; "Wliar. on Horn., Secs. 5, 6, 7.)
    A verdict of “guilty of involuntary manslaughter,” is certain, and responsive to an indictment setting forth the crime of manslaughter. It cannot mislead, and the use of the word “involuntary” is surplusage. (Proff. on Jury Trials, §§413, 432.)
   The opinion of the Court was delivered by

Bermudez, C. J.

The motion in arrest of judgment is based on two grounds:

1. That the accused was indicted under Section 786 of the R. S., which provides a penalty only after conviction of voluntary manslaughter;

2. That tlie acciised was convicted of involuntary manslaughter, for which no punishment is provided by law.

The indictment does not, in terms, charge that the accused committed manslaughter, but that he “with force and arms,- * * * feloniously did kill and slay one Simon Kelly, contrary to the form,” etc.

This was legitimate under Section 1048, R. S., which provides : That it shall he sufficient, in any indictment formanslaughter, to charge that tlie defendant did feloniously' kill and slay the deceased.

Tlie indictment, for all legal purposes, fully charges manslaughter without qualification against the accused.

Manslaughter is an offense, against which Sec. 976, R. S., provides; “ Whoever shall be convicted of manslaughter shall be fined in a stuil not exceeding two thousand dollars, and imprisonment at hard labor, not exceeding twenty' years.”

It is not defined by the Statutes of Louisiana, but is a common law felony, the definition of which prevails here.

It is defined to be: The unlawful killing-of another, without motive, either express or implied, which may be either voluntarily, upon sudden heat, or involuntarily, but on the commission of some unlawful act.” Blackstone, 191.

It is not correct to say that the accused, having- been indicted fo r voluntary manslaughter, and convicted for involuntary manslaughter, the verdict is not responsive to the charge in the indictment.

That charge sufficiently informed the accused to enable him to prepare his defense. Under it, he could have heen convicted of manslaughter simply, or of voluntary manslaughter expressly, which would have amounted to the same, or of involuntary manslaughter specially.

By returning a verdict in the latter form, the jury no doubt intended to affect the term of the sentence, which a finding in either of the two other forms, would have required to he of greater severity. This view is fortified by the language further used by the jury to recommend the accused strongly to the mercy of the court.

The latitude of punishment left by the statute to the Judge is indicative of the right of the jury to find as they have done in this case.

Whether the District Judge has inflicted exactly the punishment which the offense deserved, is a matter over which we have no control.

He had the legal right under the statute to sentence the accused to twenty years, and he sentenced him to five years at hard labor.

Judgment affirmed.


author: Levy, J.

text:
    No. 8205.
    Succession of N. A. DeLerno. On Oppositions to Final Account.
    When tli© natural tutrix administer© tlie ©state of lior deceased husband as administratrix, without opposition from the creditors, she can legally mortgage the property of the estate by order of the Probate Court, on the advice of the family meeting, and the thud person holding such mortgage shall be protected.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. JB. Koonfg for the Tutrix, Appellee:
    When the widow administers a succession as tutrix, she administers the same as an effect, a thing belonging to her wards, and is governed by the rules appertaining to the administration of tutors. 16 An. 420.
    The tutrix, in such case, may legally borrow money and grant mortgages when so authorized by the court, and upon the advice of a family meeting. 13 An. 304; 7 Pol) 63.
    The rights of third persons, acquired by third persons, under a decree homologating the proceedings of the family meeting, must he protected. 16 An. 596.

      JL. Tissot and Jme, Meunier, for tlie Mortgage Creditors, Appellees, made the same points.

      JSmnbola & JDworos, for Opponent and Appellant:
    I. "When a widow in community and natural tutrix of her husband’s minor children administers, as such, an estate in debt -devolving on them, in part or in whole, the rules governing the settlement of successions, accepted with benefit of inventory, apply to such ■a case, until such administration has legally terminated by the payment of the debts of the estate, or the legal taking possession tkercof by the heir as such. 31 A. 495; C C. 3363; C. P. 976, 992, 994 and 995; 2 A. 464; 4 A. 560; 5 A. 197; 7 A. 6; 10 A. 535; 3 Marcadé, 180; 4 Zacharise, 353, 354, §619: C. C. 1069, 1200,1683; 8 L. 412.
    II. No creditor can acquire, pending the administration of a succession accepted with benefit of inventory, any privilege or mortgage on the property of the estate. 2 A. 873; 11 R, 248; 12 252; 27 A. 190 ; 31 A. 495; C. G. 977 and 1054; 3 Marcadé, 283; 4 Toullier, No. 392; 3 Paul Pont Mortg., 878, No. 913; C. C. 3363
    HI. Acts of voluntary jurisdiction have not the force of res ¡judicata in general, and especially with regard to those who were not parties thereto, and a fortiori, when in performing the same, the judge has transcended his jurisdictional powers. 5 Zacharice, 763, §703 ; 5 Larombiere, 206, No. 12; 13 Merlin, Vo. Homologation; 19 A. 159; C. P. 924, 925 and 965; 4 Troplong on Marriage, Nos. 3496 and 7; 20 Laurent, p. 14, No. 6, and p. 16; 30 A. 1132; Dig. B. 50, T. 17, 1. 130.
    3V. Even a judgment rendered against a succession contradictorily with its representative, and recognizing a mortgage or privilege in favor of one, is not binding on the other creditors of the estate. 8 B. 122; 2 A. 896; 3 A. 532; 4 A. 475; 11 A. 675 ; 15 A. 433 ; 28 A. 588; 5 Zacharim, 769, §769.
    V. ' The administrator’s acknowledgment does not bind the creditors of the succession; and the debt, when denied vn concursu, must be proved with reasonable certainty by the administrator or the creditor so acknowledged. 29 A. 16; 24 Howard, 571; 29 A. 521, 712; 30 A. 270.
   The opinion of the Court was delivered hy

Levy, J.

This appeal is taken by J. B> Cier, from a judgment homologating the final account of the administration of the Succession of N. A. DeLerno, hy his widow, R. U. DeLerno, as natural tutrix of her minor children, issue of her marriage with her deceased husband, said N. A. DeLerno, which account was opposed hy said Cier and others, on grounds which will be hereafter stated.

N. A. DeLerno died in October, 1876, leaving a widow and three minor children. Shortly thereafter, his surviving widow was confirmed as natural tutrix of said minor children. The property and effects of the succession of the deceased husband were appraised at the sum of $9,615, of which $9,SCO was the value of the real estate. The natural tutrix, in that capacity, administered the estate. There was no opposition made, either l>y the creditors or on behalf of the heirs, to her administering without furnishing security, or was any -application made for the appointment of an administrator. There being no money on hand with which to pay debts due by the succession, some of which had been contracted by the deceased, and others being charges, expenses, † axes, etc., accruing after his death, the tutrix, for the purpose of payiug the mortgage debts of her lmsbaud, which encumbered the property, obtained an order for the sale of property, but no sale was thereunder effected. The real estate was situated in the City of New Orleans, and owing to the existing depreciation of property, was unsaleable at an adequate price or without sacrifice, and the tutrix, in that capacity, applied to the proper court for an order for the convocation of a family meeting to deliberate upon and advise as to the question of authorizing; the tutrix to borrow the sum of $2,500 to pay pressing- claims against the estate, and to secure its payment by mortgage upon certain succession property; and afterwards, applications for other family meetings were made to authorize her to borrow other and further sums of $600 and $800’. These family meetings advised that these-mortgages should be given; their proceedings were duly homologated, the funds borrowed, and the mortgages executed.

The evidence shows that these sums were applied by the tutrix towards the payment of debts of the estate.

The opposition of the City of New Orleans (seeking- the- recognition of an amount due for taxes) was dismissed, these taxes having- been paid and receipts therefor filed on the trial; that of Waggaman, late sheriff, was maintained, and his claim for $31 recognized as an ordimny debt. These, together with the oppositions of the sheriff, Duffy, the clerk of 5th District Court, and of the experts, were, in our opinion, properly disposed of by the Court a qua, and do not require further discussion at our hands.

J. B. Cier, the appellant, opposes the account on several grounds. He contends that the estate was administered by Mrs. DeLerno, and her acts were those of an administratrix; that, as such, she had no right to mortgage the property; that the decree granting- her the authority to do so is inoperative and cannot affect the rights of the other creditors; that the mortgages were given for the purpose of securing debts contracted after the death of the husband, and that the proceeds of the sale of the property thus mortgaged, constitute a fund to be distributed among all the creditors of the succession, and such mortgagees have no privilege on said proceeds.

He further contends that the tutrix should be charged with the. rents of the real estate from the date of her husband’s death until that of the sale; that her charge for commissions, claimed by her, should be disallowed, and that the items in favor of Mrs. Armitage, for services as a nurse during the last illness of deceased, be also disallowed. Also, he asks that Mrs. DeLerno be charged with the value, of certain jewelry not inventoried.

We find nothing in the record which goes to show that Mrs. DeLerno is chargeable with those rents. About $20 or $25 was paid her by the agent having charge of the property, and the other rents appear to have been expended in repairs, necessary subsistence, etc. The evidence does not enable us to arrive at any conclusion as to what amount, if any, was received by her from rents. Nor do we feel justified in disallowing the. commissions for administration allowed to her by the lower court. There, is no evidence showing maladministration, had faith, or injury resulting from her acts of administration. The proof by the tutrix is, that Mrs. Armitage rendered services as nurse, and there is no counter evidence disproving this.

Tlie principal question for decision is that first above mentioned in our statement of the grounds of the opposition.

The Judge a quo, in his reasons for judgment, in giving validity and effect to the mortgages, holds: There can he no doubt that tutors can administer successions. When they do it, in their sole capacity of tutors, without opposition on the part of creditors, they administer the same as Cur effect, a thing belonging to their wards, for' the ultimate advantage of their wards,’ and, then, they are entirely governed in their administration by the rules contained in the CM Code under'the head of tutors.” Succession of Weber, 16 A. 420. “ They may, therefore, legally borrow money, grant mortgages, when so authorized by tiro Court, upon the advice of a family meeting. In such case, the decree of the Court, having jurisdiction, homologating tlie proceedings of this family meeting, and authorizing tlie tutor of the minors to borrow, is a sufficient iwotection to the lender. He is not bound to see to the judicious application of the money. The tutor' alone is accountable to the creditors.” 13 A. 364 ; 7 R. 63; Cane Tutrix vs. Cawthon, sheriff, 32 A. 953; C. C. 339, 340 ; 31 A. 35; 26 A. 598. We think the reasons and conclusions of the District Judge are correct.

The judgment appealed from is affirmed at costs of appellant.