author: Fenner, J. Fenner, J.

text:
    No. 10,951.
    J. K. Ober et al. vs. Excelsior Planting and Manufacturing Company.
    An appeal by a third person not a party but who appears in the capacity of receiver of the defendant corporation will be dismissed, when the order appointing him such receiver attached to his petition of appeal shows upon its face that it was made exparte and without notice to the corporation.
    Section 688 of the Revised Statutes does not authorize the forfeiture of the charter of a corporation and the appointment of a receiver by expm'te order without notice. The statute discussed and construed.
    APPEAL from the Ninth District Court, Parish of Concordia.. Yoimg, J.

      J. L. Dagg for Plaintiffs and Appellees.

      D. O. & L. L. Labatt for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The appeal is taken by H. N. Soria, who alleges that-he has been duly appointed commissioner and receiver of the defendant corporation.

He annexed to his petition of appeal an extract from the minutes of Division D, of the Civil District Court for the parish of Orleans, of proceedings in a case entitled Smith, Limited, vs. Excelsior Planting and Manufacturing Co., reciting that “On motion of D. O. & L. L. Labatt, of counsel for plaintiffs, and on suggesting to the court that, in the above entitled suit, plaintiffs have issued an execution, which has been duly returned by the civil sheriff of this parish, nulla bona, it is ordered by 'the court, under and by virtue of Sec. 688 of the Revised Statutes of Louisiana, that the charter of the Excelsior Planting and Manufacturing Co. is hereby forfeited for insolvency, and that H. N. Soria be and is hereby appointed commissioner for effecting its liquidation, and also as receiver,” etc.

This purports, on its face, to be a purely ex parte order, entered without any notice whatever to the corporation; and the appellee assigns, as ground for the dismissal of the appeal, that it is a patent and absolute nullity, conferring upon the appellant no right to intervene in these proceedings or to appeal from the judgment therein rendered.

No general principle is more firmly founded in reason and justice, or better recognized by authorities, than that announced by Mr. High, as follows:

“ Courts will not exercise their statutory power of appointing receivers over an insolvent corporation upon an ex parte application, and without giving the defendant an opportunity to be heard; but upon filing a petition duly verified, setting forth the grounds on which the application is based, an order to show cause should issue and a copy thereof should be served upon the officers of the corporation, directing them to show cause, on a future day, why the application should not be granted.” High on Receivers, See. 346.

Appellant relies upon Sec. 688 of the Revised Statutes, which, in treating of this class of corporations, provides:

“ They shall forfeit their charters for insolvency, evidenced by a return of no property found on execution; and, in such ease, it shall be the duty of the District Court, at the instance of any creditor, to decree such forfeiture and to appoint a commissioner for effecting the liquidation, whose duty it shall be to convert all the assets of the company, including any unpaid balances due by stockholders on their shares, into cash, and to distribute the same, under the direction of the court, amongst the parties entitled thereto, in the same manner, as near as may be, as is done in cases of insolvency of individuals.”

The most critical study of this statute fails to furnish to our minds the slightest reason for supposing that it was intended to authorize .any such summary proceeding, without notice, as that here presented.

The statute provides a particular ground for forfeiture of charter; it authorizes any creditor to invoke the forfeiture, on such ground; .and it invests the District Court, meaning any District Court having jurisdiction of the parties, with jurisdiction of such cases. It does not confine the relief to the particular creditor at whose instance the execution was issued, nor to the particular court from which it was issued, nor does it make the proceeding necessarily an incident of the particular suit wherein the execution was invoked. The statute evidently contemplates a judicial proceeding and does not prescribe the special form thereof. In two former cases we had under consideration an analogous statute, being Sec. 4 of Act 47 of 1873, viz.:

“That the tax collectors shall be, and they are hereby, authorized to give a title in the name of the State of Louisiana to all persons purchasing property sold in pursuance of this act; and such title shall be held in, and recognized by, the courts of this State as valid in law; upon, the presentation of a title so given, to the district or parish court, it shall be the duty of the judge to order the ¡sheriff to put such persons in possession of the property so purchased by them.” ,

Under that statute a purchaser conceived that he had an unqualified right to demand an order of possession without notice to adverse parties. But this, court said: “As the act does not declare in express terms that the order to the sheriff to put a purchaser in possession shall issue without notice, we may well construe it as adopted with reference to the general laws relating to summary proceedings in the courts of the State, and as authorizing the District Oourt, to which application is to be made, to require the necessary legal notice to be issued to the party to be ousted, and'to dispose of the contest in a summary manner.” State ex rel. Norcross vs. Judge, 27 An. 705.

In a later case we cited the above with approval,'and further emphatically held that if the statute were construed to authorize a proceeding without notice, it would be void, as not being “due process of law.” Fischel vs. Mercier, 32 An. 704.

We need not quote from the last case, but a reading of it will throw light upon the principles involved in the proper construction of the statute now before us and the proceedings authorized thereby.

We have said enough to sustain our conclusion that the ex parte order presented by appellant as the muniment of his right to intervene in this case and invoke a review of the judgment rendered is. an absolute nullity and confers on him no right to stand in judgment on this appeal.

We do not exercise our appellate jurisdiction except at the instance of those who exhibit a legal right and interest to demand it.

When the right of a third party to appeal has not been established contradictorily in the lower court, and is denied in this court, it is our practice to remand the issue for separate trial in the court below. Succession of Lauve, 6 An. 529; Grilling vs. Bowmar, 3 Rob. 112; Anselm vs. Willson, 8 Louisiana, 36; Brown vs. Williams, 12 La. 614.

But in this case, it being apparent on his own showing that he is without right, remanding would be useless.

It is therefore ordered that this appeal be dismissed at appellant’s cost.

On Application for Rehearing.

Fenner, J.

We have given grave consideration to the points and authorities urged in this application.

1. We discover therein no suggestion tending to contradict the facts on which bhe opinion was based, to-wit: that the decree (if such it can be called) forfeiting defendant’s charter and appointing a receiver was rendered upon an ex parte motion, without any notice or attempted notice, and under the supposed authority of Sec. 688, Revised Statutes.

2. The more we study the statute the more firmly are we convinced of the correctness of the construction we have placed upon it, and that it does not authorize or contemplate any such proceeding as that here presented.

The so-called decree, finding no support in the statute, stands just as it would if there were no such statute.

3. The nullity is absolute, and it is patent on the face of the decree itself. Authorities denying collateral questioning of such orders have no application to intrinsic and patent absolute nullities.

4. .The claim that a receiver represents the corporation and is not subject to the rules governing appeals by third persons involves a petitio prineipii. If appellant is not receiver, he is certainly a third person without any pretence of right to appeal. He is not a receiver becáuse he calls himself so. He presents his alleged title to the office, which, upon its face, is an absolute nullity, conferring no title whatever. He himself shows that he is not receiver. What, then, is he, if not a third person undertaking to appeal from a judgment in which he sets up no other interest whatever?

5. This case presents no analogy to that of Starke vs. Burke, 5 An. 740. There the corporation had been for years in liquidation before the court, which held all its affairs in gremio legis, under statutes regulating the liquidation. The liquidator, in charge under direction of the court, was destituted by a decision of this court declaring the law under which the Governor had appointed him unconstitutional. The court thus found itself in control of the affairs and property of the corporation without any legal representative to manage them.. Under such circumstances this court sustained the judge in appointing a receiver, saying: The court, ex proprio motu, was bound to prevent the confusion and dilapidation consequent upon the abandonment of its affairs, produced by the inefficiency of the law under which Starke had taken possession of and continued to hold the records, papers and assets of the company. The proceedings for the forfeiture of the charter and the liquidation, as far as it had progressed, being before the Fifth District Court, we think the court properly exercised its authority in making the appointment.”

In Baker vs. Portable Company, 34 An. 754, we referred to the above case, and held that, in this State, “ courts have no jurisdiction to appoint receivers for corporations in absence of express statutory authority. This court has recognized no exception to this rule, unless where the corporate property is abandoned or where there are no persons authorized to take charge of or conduct its affairs.”

Holding that, on the face of the title presented by himself, it fully .appears that appellant’s appointment rests on no statutory authority, but is based on a statute which did not authorize it, we are bound to maintain our decree.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,987.
    Mrs. C. E. P. Calhoun, Executrix, etc., vs. Mrs. E. McKnight, Administratrix, et al.
    1. Evidence of extra-judicial admission by a dead man, out of the presence of others, is the weakest of all testimony.
    2. In cases of conflicting evidence, the judgment of the judge a quo will not be disturbed except on clear showing of error. •
    3. Fraud is never presumed. While it may be inferred from circumstances, these must be of a character clearly convincing the judicial mind in order to support the charge of an offence closely akin to crime.
    APPEAL from the Twelfth District Court, Parish of Grant. Coco, J.

      Hunter & Hunter for Plaintiff and Appellant:
    When conspiracy is charged, several defendants may be made parties in the same suit, and the petition may allege separate acts of malfeasance in each. Clements vs. Wafer, 12 An. 599.
    So when fraud and conspiracy are charged against several defendants. Williams, vs. Hathorn, 14 An. 625.
    Plaintiff may join in the same petitory action all parties who pretend to own any portion of the tract sought to be recovered. Derbes vs. Romoro,-28 An. 644.
    On Estoppel. — An action for the revendication of succession property can not be grafted on an opposition to an account of an administrator. One can not be estopped by not doing what he is forbidden to do. L. W. Oarthy vs. J. D. Kerr, Administrator, 15 An. 228; Succession Amelia Sanchez, 41 An. 504; Succession Susan A. Scott, 41 An. 68.
    Allegations in previous suit, ending in non-suit, and leaving the parties in the same position, can not form estoppel. Smith vs. Harrell, 16 An. 190.
    Acquiescence in a judicial sale to prevent a party from claiming immovable property ought to be very clearly shown. Pochc vs. Theriot, Sheriff, 23 An. 138.
    Heirs are not bound by receipts given by them to executors, without knowledge of the fraud which has been perpetrated by the latter. Michard vs. Girard, 4 Howard K. S. R. 503.
    A judicial partition and subsequent acts of tlie parties, the judgment having become final, acts based on error of fact can not form estoppel. Chatenondvs. Hebert, 30 An. 405.
    A party is not estopped by his pleading when the averment was made without knowledge of the real fact underlying the controversy — especially when that real fact was within the knowledge of the adverse party. Watkins vs. Cathorn* 33 An. 1194.

      ■One who opposes every item of an administrator’s account can not be said to ratify a certain adjudication of property, the proceeds of which are sought to be distributed by the account. Succession of Henry Tabary, 81 An. 409.
    “The doctrine of estoppel, however apparently emphatic, is full of exceptions, which vary according to circumstances, and was never designed to apply to a casejike the instant one, in which the declaration made has led no one astray, and occasioned damage to nobody.” Stockmeyer vs. Oertling, 38 An. 102; Succession Harris, 89 An. 448.
    The Supreme Court of the United States has said: ‘The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others had acted. The element of fraud is essential either in the intention of the party estopped, or in, the effect of the evidence which he attempts to set up.’” Brant vs. Virginia, 93 U. S. 335; quoted in 39 An. 443.
    A party is not estopped as agent by admissions made individually. DePoretvs. Gusman, 30 An. 983.
    The fact that a person was present at a sale, without objecting, does not waive in-formalities. Humphries vs. Brown, 19 An. 159.

      T. H. Thorpe and Andrew Thorpe for Defendants and Appellees:

      1. The burden of proof is upon him who alleges fraud. Parol testimony of extrajudicial admissions by a party since deceased is the weakest kind of evidence.
    2. The statutory prohibición against purchases by administrators of successions-of the property thereof is in favor of creditors and heirs; and therefore the nullity of such purchases is not so absolute that they can riot be ratified or acquiesced in by the interested parties. 33 An. 598.
    3. One who claims the proceeds of a judicial sale thereby makes a judicial admission that the sale was valid. He is therefore estopped from attacking the sale as a nullity, unless he proves that his admission was made through error of fact. 31 An. 100; Ibid. 469; 32 An. 121; Ibid. 962; Ibid. 979; 6 So. Rep. 536; 40 An. 186j 42 An. 522; R. O. 0., Art. 2291.
    4. The discontinuance of a suit does notdivest the averments of the petition of the force of judicial admissions. 31 An. 81; Ibid. 104.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff sues as the legal representative of the succession of William S. Oalhoun, deceased, and as tutrix of his only surviving child and sole heir.

The petition avers that William S. Oalhoun was the sole heir of his father, Meredith Oalhoun; that he had accepted his succession unconditionally and been put in possession by a decree of court; and that Howard McKnight was administrator of the succession of Meredith Oalhoun from May, 1882, to the date of his, acceptance of the said succession, January 29, 1887, and that W. S. Oalhoun died January 4, 1891.

Howard McKnight, as administrator, secured orders and provoked three succession sales of the lands of the succession of Meredith Calhoun, had on the 4th day of November and 2d day of December, 1882, and on the 17th day of February, 1883.

The petition charges that at these several succession sales, while he was administrator, and in violation of his duty and the prohibitory statute, Howard McKnight, having formed a conspiracy and had an understanding with his son-in-law, John H. McNeely, Ludlow McNeely, the brother of J. H. McNeely, and George S. Johnson, through these several persons interposed, purchased the property described in the petition, and which it is sought to recover from his succession and heirs.

The petition then avers the nullity of these sales by reason of said conspiracy and the prohibition of the law, and asks for the restoration of the lands, for judgment for rents and for the value of timber cut from off the pine lands. All parties in interest were made parties and cited.

The district judge gave judgment in favor of the defendants and the plaintiff prosecutes this appeal from that judgment.

The defendants pleaded various estoppels by judicial admissions and by conduct, and also the general issue.

Waiving consideration of the estoppels pleaded, except in so far as the facts on which they are based bear upon the merits, we are clearly of opinion that the case is with the defendants under the general issue.

McKnight, the administrator of Meredith Calhoun’s succession, was not a bidder or an adjudicatee at the sale made therein.

The property was adjudicated to John H. McNeely, Ludlow McNeely and George S. Johnson (who acted for himself and his father, John W. Johnson, jointly, receiving title in their joint names), persons entirely competent to buy at the sale.

The plaintiff’s case rests upon the charge that these adjudicatees were mere nominal purchasers, interposed by McKnight to evade the'prohibition of the law against such purchases by administrators and to acquire the property in their names, but for his account and benefit.

This charge rests upon the testimony of two witnesses detailing conversations had with McKnight and with John H. McNeely before and after the date of the sale. These conversations are said to have-taken place out of the presence of any third person. At the date of' testifying McKnight had been dead for several years, and the statements as to him could not be contradicted. McNeely, however, testified, squarely denying the statements attributed to him and vindicating thoroughly the reality and honesty of his purchase.

J. W. Johnson, a venerable man of eighty-four years, also testified, denying any interest or concern of McKnight in the joint purchase made by him and his son, and declaring the absolute reality and honesty of their action.

If McNeely is believed, the evidence of the two opposing witnesses falls under the principle, falsus in uno falsus in .omnibus.

Witnesses are to be weighed, not counted. 'We do not know these persons who thus contradict each other. The district judge, presumably, does know them. He evidently gave credence to the witnesses of defendants, and there is nothing in this record that would justify us in disturbing his conclusion in a matter on which he had so much greater advantages for judging than we have.

Moreover, it has passed into an axiom of the law of evidence that parol testimony as to extra judicial admissions made by a dead man,, out of the presence of others, is the weakest kind of evidence.

It further appears, from the statement of these witnesses themselves, that they communicated the substance of these reported con-, versations to William S. Calhoun, the author of these plaintiffs, and the little reliance he placed upon them is illustrated by the fact that, instead of acting on them, he, in many ways not necessary here to recite, recognized the validity of these sales, "and that, though informed of every fact now relied on to support this charge of fraud, he died without taking any steps to attack or impugn them.

Outside of the testimony of these witnesses, all other circumstances relied on by plaintiff in support of her theory, are readily explicable on grounds entirely consistent with the honesty of the transactions attacked.

Fraud is never presumed. While courts recognize the cunning-concealment, in which it shrouds its devious practices and the difficulty of tracing it by direct proof, and, therefore, give due weight to all circumstances indicating its existence, yet such circumstances-must be of a character to convince the mind clearly before they can support a conviction of such an offence almost akin to crime.

We rise from a careful study of this record without feeling any such conviction in the present case and satisfied that the judgment appealed from accords with the law and the evidence.

Judgment affirmed.


text:
    No. 11,041.
    H. & C. Newman vs. Clifton Cannon, Sheriff, et al.
    When goods, on which a vendor’s privilege is claimed, have been sold in block and for a lumping price, and when the proof sustains the privilege on a part and fails to sustain it on the rest of the goods, the impossibility of separating the price is fatal to the allowance of the privilege.
    APPEAL from the Twelfth District Court for the Parish of Avoyelles-Cooo, J.

      Thorpe & Peterman for Plaintiffs and Appellees.

      Irion & Lafargue for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

When this case was before us last year we remanded it in order to allow A. Lehman & Co. and other parties, claiming the vendor’s privilege upon certain goods, the opportunity,'by further evidence, “ to improve the certainty of their identification, and to separate the price of the goods properly identified from that of those which can not be identified.” A. Lehman & Co. undertook to do this, by further evidence, but failed to satisfy the judge a quo, who rendered judgment rejecting their privilege, from which they bring, the present appeal.

The only additional evidence offered is that of the same witness, whose evidence was their main reliance on the former trial. He amplifies and strengthens his former evidence in some respects, but he does not overcome our conviction that a considerable portion of the goods claimed were not susceptible of identification, and that some of them had not even been sold by A. Lehman & Co.

All the goods claimed and set aside by Lehman & Co. were sold in. block, and adjudicated to them at a lumping price. It is impossible to separate the price of the goods on which their privilege is established from that of those on which they have proved none. This is fatal to their claim, and sustains the judge’s ruling.

Judgment affirmed.


text:
    No. 11,045.
    Dr. C. J. Ducote vs. Henry Rachal.
    A registry o£ a homestead exemption of a farm including “ the necessary quantity of corn and fodder for the current year,” is sufficient without specifying the particular quantity of corn and'fodder. The Constitution requires no more, and the courts can not enlarge its requirements.
    APPEAL from the Third Magistrate’s Court for the Parish of Avoyelles. Durand, J.

    Plaintiff unrepresented.

      Irion & Lafargue and H. C. Edwards for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff, claiming a privilege for a. debt of fifteen dollars, caused to be sequestered a quantity of corn on defendant’s farm, which the defendant claims to be exempt as attached to his homestead under Art. 219 of the Constitution, which exempts •“ on a farm the necessary quantity of corn and fodder for the current year.”

It fully appears that defendant had duly registered his homestead exemption, including his farm and “the necessary corn and fodderfor the current year;” that all the conditions entitling him to the exemption continued to exist; and that he did not have more corn, including that sequestered, than was necessary for the year.

The magistrate, nevertheless, rejected the exemption and maintained the sequestration.

The magistrate gives no reason for his judgment, and plaintiff has made no appearance in this court.

It is suggested by appellant’s counsel that'the magistrate refused the exemption because the registered homestead claim did not specify the number of barrels of corn to be exempted. The Constitution requires no such specification, and courts can not enlarge the requirements of the Constitution.

There was a reconventional demand for damages, but the record exhibits no proof whatever in its support. The claim should not have been rejected, but only non-suited.

It is therefore adjudged and decreed that the judgment appealed from be amended by denying the privilege and dissolving the sequestration; and further that the judgment rejecting the reconventional demand be changed to one of non-suit, and, as thus amended, the same be now affirmed, appellee to pay costs of appeal.


author: Watkins, J.

text:
    No. 10,876.
    The State of Louisiana vs. S. Deffes.
    In case there is shown to have been no contestation in the recorder’s ^eourt, in 1 reference to the constitutionality or legality of the city ordinance that is drawn in Question, this court has no jurisdiction of the subject matter of the controversy.
    APPEAL from the First Recorder’s Court of New Orleans. Bringier, J.

      Henry Benshaw, Assistant City Attorney, Carleton Hunt, City Attorney, and Sambola & Dueros for Plaintiff and Appellee.

      Branch K. Miller for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from a sentence and decree of the recorder finding him gttilty of a violation of certain city ordinances prohibiting the establishment of any private market within a given distance from any public market of the city.

In the lower court the defendant’s answer appears to have been oral, inasmuch as no answer or plea in writing is amongst the original papers, which are brought up for our review; and a statement of facts, signed by the recorder, announces that “ the issue presented, in case an appeal is taken, is whether the prohibited distance is six squares as walked, of whatever length, or 2100 feet.”

Prior to the submission of the case, an order was made directing certiorari to issue requiring the recorder to produce and file certain original papers, said to contain an alleged plea of defendant denying ■the legality and constitutionality of the ordinance under which this prosecution is conducted, and which does not appear to form part of the record.

To this rule the recorder filed answer, and therein specifically ■stated that he has no recollection of any such plea having been made, •and having no such recollection, he caused testimony to be taken on the subject, in [order to comply with the order of court;, and he avers and represents that said testimony when taken failed to establish that any such plea was made.

The recorder’s return appears to be conclusive on the question and to establish the fact that no such plea was ever made in his court.

This question eliminated from the case, practically, it is left without an appealable or jurisdictional-issue.

In State vs. Clesi, 44 An. 85, we recently said that in case the record discloses that there was raised in the recorder’s court ‘no contestation as to the constitutionality or legality of the city ordinance under which the appellant is prosecuted, the appellate jurisdiction of this court does not attach — citing previous decisions. State ex rel. Lamorgue vs. Recorder, 39 An. 341; City of New Orleans vs. Hill, 32 An. 1162; State vs. Romano, 37 An. 98; State ex rel. Hank vs. Judge, 35 An. 1190.

The only thing left us to do is to affirm the judgment.


text:
    No. 11,023.
    The State of Louisiana vs. Toussaint Alfred et al.
    1. A charge made in an indictment that the accused, “ with a certain dangerous weapon, to-wit: a large piece of timber, one A B, feloniously, wilfully, and of his malice aforethought, did strike, with intent then and thereby, him, the said A B, to kill ana murder,” is responsive to Acts 13 and ii of 1890.
    '2. A verdict rendered finding the accused guilty of “striking with a dangerous weapon with intent to kill.” is responsive to the charge of such an indictment, and to the provisions of Act ii of 1890.
    3. “A large piece of timber” is a dangerous weapon, within the intendment of each one of those statutes.

      APPEAL from the Twenty-first District Gourt for the Parish of St. Martin. Mouton, J.

      W. H. Rogers, Attorney Gener. -Tor the State, Appellee.

      Edward Simon and Robert Martin for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

The charge of the indictment is, that the several defendants, “with a certain dangerous weapon, to-wit: a large piece of timber * * * one Francois Grand! * * * feloniously, wilfully and of his malice aforethought did strike with intent then and thereby him, the said Francois Grandi, to kill and murder,” etc.

In limine, the District Attorney entered a nolle prosequi as to the defendant, Adam Gandi; and upon the trial the two defendants, Jean Baptiste and Noel Alfred, were acquitted, and Toussaint and Eugene Alfred were convicted of the crime of “ striking with a dangerous weapon, with intent to kill.”

Thereupon, the two convicted parties were sentenced “to imprisonment in the parish jail, of the parish of St. Martin, for a period of six months. ”

After trial and conviction, but previous to sentence, counsel for the convicted parties presented and filed a motion in arrest of judgment, upon the grounds, first, that the charge of the indictment does not respond to any law of the State; second, that the verdict of the jury does not respond to the charge of the indictment; and third, that “ a large piece of timber ” is not a dangerous weapon within the intendment of the statute under which the indictment was framed.

This motion was overruled, and the counsel for the accused reserved a bill.

Looking into the acts of the Legislature, under which the indictment was found, and the conviction secured — Acts 43 and 44 of 1890 —it appears that the former delares that “ whoever shall shoot, stab, cut, strike, or thrust any person with a dangerous weapon, with intent to commit murder, on conviction,” etc. Sec. 1, Act 43 of 1890.

The provisions of Act 44 of 1890 are of a'similar phraseology and import, the phrase of the former, to-wit, “with intent to commit murder,” being replaced by tbe phrase in the latter, to-wit, “ with intent to kill.”

It is therefore evident that the indictment was found under the pro - visions of the former act, though the conviction was secured under the latter act — a verdict permissible in law. It is equally evident that the indictment is responsive to the Act 43 of 1890, and the verdict is responsive to the Act 44 of 1890.

That a large piece of timber” is, in the sense of those statutes, a dangerous weapon,” we are of opinion, is not open to doubt.

In State vs. Lowery, 33 An. 1224, like phraseology occurring in a similar statute was thus interpreted and applied.

The accused in that case was indicted under Revised Statutes, Sec. 790, which declares that “ if any person lying in wait * * * shall shoot, stab or thrust any person with a dangerous weapon, with the intent to commit the crime of murder, shall,” etc; and the charge was, that the accused ‘ did .thrust or strike with a dangerous weapon, namely, an iron bolt, rod or pin,” etc., and this court held that such an instrument may well be a dangerous weapon. That decision is correct, and is conclusive of the question here.

Judgment affirmed.


text:
    No. 10,988.
    Mrs. Cora E. P. Calhoun, Executrix and Tutrix, vs. Charles A. Pierson, and Same Plaintiff vs. Charles H. Teal, and Same Plaintiff vs. Andrew Thorpe.
    Consolidated.
    1. An act of sale executed by the testator to liis sister, of his undivided ínteres and share in the succession and property of his deceased mother, will operate as an estoppel against a claim made by his child to an interest in the estate and property of the grandmother, through the father and testator, as an heir.
    2. The admissibility of a private writing of any kind must be tested and determined before it is admitted and filed in evidence; and until proof of its execution is first administered, if such proof bo required by the adverse party, it can not bo introduced and filed in evidence, it matters not what may be the object that is expected to be accomplished thereby.

      3. After a son has unconditionally accepted the succession of' the father, and has accepted and used as unconditional heir certain twelve months bonds that had. been executed by adjud'catees of his succession property, such son and heir is conclusively barred and estopped from setting up an antecedent title derived from another source, as against the adjudicatees of the property and their assigns and transferees.
    Blackman, J, PPEAL from the Twelfth District Court, Parish of Grant.

      Hunter db'Hwmter for Plaintiff and Appellant:
    On Estoppel. — An action for the revendication of succession property can not bo grafted on an opposition to an account of an administrator. One can not bo estopped by not doing what he is forbidden to do. E. W. Carthy vs. J. D. Kerr, Administrator, 15 An. 228; Succession Amelia Sanchez, 41 An. 504; Succession Susan A. Scott, 41 An. 668.
    Allegations in previous suit, ending in non-suit, and leaving the parties in tho same position, can not form estoppel. Smith vs. Harrell, 16 An. 190.
    Acquiescence in a judicial sale to prevent a party from claiming immovable property ought to be very clearly shown. Poehc vs. Theriot, Sheriff, 23 An. 138.
    Heirs are not hound by receipts given by them to executors without knowledge of the fraud which has been perpetrated by the la.tter. Michard vs. Girard, 4 How* N. S. K. 503.
    A judicial partition and subsequent acts of the parties, the judgment having become final, acts based on error of fact can not form estoppel. Ohatenondvs; Hebert, 30 An. 405.
    A party is not estopped by his pleading when the averment was made -without knowledge of the real fact underlying the controversy — especially when that real fact was within the knowledge of the adverse party. Watkin vs. Cathorn, 33 An. 1194.
    One who opposes every item of an administrator’s account can not be said to ratify a certain adjudication of property, the proceeds of which are sought to be distributed by the account. Succession of Henry Tabary, 31 An. 409.
    “The doctrine of estoppel, however apparently emphatic, is full of exceptions, which vary according to circumstances, and was never designed to apply to a case like the instant one, in which the declaration made had led no one astray and occasioned damage to nobody. Stockmeyer vs. Oertling, 38 An. 102; Succession Harris, 39 An. 443.
    “The Supreme Court of the United States bas said': ‘The primary ground of the doctrine is that it would he a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others had acted. The element of fraud is essential either in the intention of the party estopped or in the effect of the evidence which he attempts to set up.’ ” Brant vs. Virginia, 93 U. S. 335, quoted in 39 An. 443.
    A party is not estopped as agent by admissions made individually. DePoret vs. Gusman, 30 An. 933.
    The fact that a person was present at a sale, without objecting, does not waive in-formalities. Humphries vs. Brown, 19 An. 159.

      T. H. Thorpe and Andrew Thorpe, for Defendants and Appellees:
    1. When the owner of an immovable is present at a public sale of the same and tacitly assents to its being sold as the property of another, he is thereby es-topped from subsequently disputing the title and possession of the bona fide purchaser. 30 An. 1251.
    2. Parties are estopped from denying admissions or declarations deliberately made by them in judicial proceedings. 30 An. 838.
    •3. A creditor or heir of a succession, who has received his share of the proceeds of succession sale of lands, can not be heard to claim the annulment of the sale and assert his title to the land. 32 An. 121; Ibid. 962; Ibid. 979; 40 An. 186.

      4. A husband who signs an act of sale of property to his wife, containing recitals as to title, consideration, etc., is estopped from contesting the admissions imported by such recitals. 40 An. 580.
    .5. One who claims the proceeds of a judicial sale thereby makes a judicial admission that the sale was valid. He is, therefore, estopped from attacking the sale ■as a nullity, unless he proves that his admission was made through error of fact. 31 An. 100; Ibid. 469; 6 So. Rep. 536; 42 An. 522; R. C. 0., Art, 2291.
   The opinion of the court was delivered by

Watkins, J.

The three consolidated cases are petitory actions; instituted by the widow of William S. Calhoun, suing in the double capacity of executrix of his last will, and of tutrix of his minor child, against the several defendants, claiming ownership, severally, by mesne conveyances from the succession of said William S. Calhoun’s father, Meredith Calhoun, deceased.

The claim of title is further supported by the averment that the ■lands in controversy were illegally inventoried as property of the ■succession of Meredith Calhoun, and, therefore, illegally sold to the various adjudicatees thereof at probate sales made by Howard McKnight, administrator, in 1882 and 1883, and prayer is made for the nullity of said sales to be judicially decreed, and a cloud on the title removed.

The lands claimed aggregate in quantity eleven hundred and sixty (1160) acres — of which it is alleged that William S. Calhoun entered from the government, as will be shown by patent certificates, 720 acres; and that Mrs. Mary S. Calhoun entered the remaining 440 acres, likewise evidenced by patent certificates.

Properly refined, plaintiff’s claim and pretension are (1) that the minor of William S. Calhoun, whom she Ipersonates as tutrix, inherited the entire property from her father at his death, and (2) that her father acquired 720 acres of the land by purchases made in his own right from the government, and the remaining 440 acres by inheritance from her mother, Mary S. Calhoun, deceased.

Contra, the claim made by the defendants is that at the aforesaid succession sales made in 1882 and 1883, as the property of Meredith •Oalhoun, deceased, the property was adjudicated in subdivisions to various persons upon terms of credit, who executed their several and respective twelve months bonds for the purchase prices thereof, with security of mortgage recognized upon same.

That subsequently William S. Oalhoun unconditionally accepted the succession of his father, Meredith Oalhoun, and received said bonds as part of the assets thereof, and gave them in payment to his wife, ■the present plaintiff.

That, being a judgment creditor of the father, Meredith Oalhoun, the defendant Pierson proceeded by attachment and garnishment-against William S. Oalhoun, the son and unconditional heir, as his personal debtor, and subjected said bonds to the payment of his judgment, and on the execution thereof he became the purchaser of the ■said lands in part, and Teal, another defendant, became a purchaser ■of part; and, subsequently, he (Pierson) conveyed a portion of those he acquired to the defendant Thorpe, and he, in turn, conveyed same to Teal.

Independently of mere averment, the mooted and principal question is, whether the property really belonged to the succession of Meredith Calhoun at dates of sales made in 1882 and 1883 — for on that the title of defendants depends. Therefore, they averred in their answer, various matters of estoppel in pais, and by deed, as well ¡as by conduct, the effect of which are to preclude William S. Oalhoun, as well as persons claiming under him, from ever disputing the title of Meredith Calhoun as their author.

Without enumerating them, we will dispose of them seriatim, as stated in plaintiff’s brief.

I.

1. The first estoppel is averred to exist in an act of sale executed by William S. Calhoun to his sister, Miss M. M. Ada Oalhoun, on the 27th of May, 1873, conveying to her all his interest in and to the property of the succession of their mother, Mary Smith Calhoun.

If, in point of fact, such a sale was made, the interest of the plaintiff in that portion of the land which William S. Oalhoun is alleged to have acquired from the succession of his mother, Mary Smith Calhoun, passed thereby to his sister, and therefore could not have .been inherited by his child.

The record discloses the existence of an act of sale, notarial in form, that was executed, as stated in defendant’s plea, by William Smith Calhoun in favor of his sister, Miss Marie Marguerite Ada Calhoun, whereby he sold, conveyed and delivered to her “ all and singular his undivided one-half interest, and all his right, title, interest, claim and demand of every nature and kind whatsoever, in and to the succession and estate of his deceased mother, the late Mary Smith Taylor, deceased widow of Meridith Calhoun, late of the parish of Rapides, deceased, without exception or reservation * * * and, also in and to all the real estate, property, fights, credits and effects belonging to the estate or succession of his deceased mother, the said Mrs. Mary S. Calhoun, or in which it may appear that said succession or estate is or may be entitled or interested.”

The consideration for this sale is stated to be the sum of "$35,000 in cash, and the act of sale appears to have been duly recorded in the book of conveyance in the parish of Grant, wherein the property is situated, on the 3d day of June, 1873.

To this deed the plaintiff offered', in explanation and contradiction, what her counsel terms a.counter letter, in rebuttal. The only signature which it purports to have, is that of the sister, Miss M. M. Ada Calhoun, who is named as vendee in the deed under consideration. It does not bear the signature of the vendor, W. S. Calhoun.

Amongst other things it contains the following recital, viz.:

“ Whereas, on the 27th of May, 1873, by notarial act, William Smith Calhoun did sell, transfer and assign all and singular his rights, title and interest in and to the succession of his mother, Mrs. Mary Smith Calhoun, * * * Now, I, M. M. A. Calhoun, for and in consideration of the above, do by these presents promise and bind, and obligate myself to pay and deliver over one-half the entire net proceeds of the succession of our mother, Mary Smith Calhoun, deceased, upon the final settlement thereof,” etc. It then concludes with this pertinent and significant phrase, viz.: “Said William Smith Calhoun is to have and receive one hundred dollars during each and every month, on account, and in advance of his share in 'said succession."

This document bears date July 5, 1873, only a few weeks subsequent to the execution and registry of the act of sale in question. On'the trial no proof was offered of its execution, even by Miss Ada Calhoun, or of its authenticity. And it was only offered and filed in evidence in this case on October 3,1891, after the party tobe affected thereby, beneficially, had been evidently dead for many years, and' long since the rights of the defendant had been acquired in the premises. And this document was admitted in evidence by the judge a quo without any evidence of its execution, and over the objection of defendant’s counsel.

On this subject plaintiff’s counsel makes this statement, viz.:

“ That plaintiff offered in rebuttal the counter letter of Mrs. Lane. To this offer counsel for the defendants interposed the objection that it was a document under private signature and no proof of the signature had been made; the court admitted the document and a bill was reserved on the record.

“ If the suit had been one to enforce the agreement contained in the counter letter the objection would be good, but when the document was offered merely to show that there was a counter letter, and that the sale was not real, but fictitious, we do not deem that the proof was required. Or if the objection had come in the shape of an exception to plaintiff’s right to sue, because W. S. Calhoun had parted with his interest in his mother’s succession, it might have required proof of •the signature. *.

“ The answer pleads the sale as an estoppel, and a defence which might have been good, if pleaded otherwise, does not necessarily ■operate as an estoppel.” Brief, p. 7.

We are clearly of opinion that counsel’s argument is not sound, •and that the judge’s ruling was erroneous. .

The question raised was one of the admissibility of the document to be filed in evidence. Until proof of the execution of a private writing is first administered, if such proof be insisted upon by the adverse party, it can not be introduced in evidence — it matters not what may be the object intended to be accomplished by its introduction. This is elementary. C. P. 483'; R. C. C. 2245.

We must decline to consider that paper, thus denuded of all proof ■of its verity or authenticity, as having any effect upon the act in question.

Disregarding that paper, the estoppel of the act is full and complete.

II.

The second and third estoppels which are urged may be considered as one.

They are to the effect that, subsequent to the unconditional acceptance of the succession of Meredith Calhoun by his son and heir,. William S. Calhoun, in 1887, he received the twelve months bonds that the various adjudica! ees had executed for lands purchased at the succession sales made in the estate of Meredith Oalhoun in 1882 and 1883, and gave them to his wife, the present plaintiff, in part satisfaction of her claims against him, in the month of February, 1888.

The estoppel predicated upon the aforesaid acts is, that because W. S. Calhoun had, as heir of his father, received and used the proceeds and avails of the property which had been sold as that of the father’s succession he, and those claiming through him, are precluded from setting up an antecedent title, as against the adjudicatees and their transferees and assignees, of the property.

Admitting the facts to have been substantially as stated, counsel-makes the subjoined explanatory statement on pages 9 and 10 of his brief, viz.:

C. A. Pierson had a judgment for $1000 against the succession of M. Calhoun. W. S. Calhoun did take the bonds from Mrs. McKnight. Pierson garnisheed the parties who had given those bonds and obtained judgments against him, and seized and sold out the lands for which they had given the bonds; some of them being the lands now sued for in those cases •, the proceeds were credited on his judgment. This 1160 acres, and a lot more of the lands not included in this suit,, were sold under his judgment, and, after payingjenormous costs, there-was still a balance due on his judgment.

“W. 8. Calhoun had meanwhile made a dation in payment of the-bonds to his wife, and that had been recorded, and is offered in evidence here by him, and forms the basis of his next plea of estoppel. Neither he nor the sheriff ever had possession of the bonds, and how he could have found any sanction in law for his extraordinary legal proceedings or any court to give him judgments, under the circumstances, is a mystery we can not fathom.

Neither W. S. Calhoun nor Mrs. Calhoun ever derived any benefit from the bonds, except so far as they may have been benefited by the ruinous credits on his judgment.

He is sued here for the return of 520 acres of land, which is admitted to be worth $10 an acre, or $5200, which he bought at one of those sales under his judgment, and in his answer he asks that if hes is evicted, plaintiff be required to return him the purchase price,, which he fixes at $540, a little more than $1 per acre. And yet he-comes into court and has the hardihood to urge that because W. SOalhoun took the bare pieces of paper ealled,_twelve months bonds, and transferred them to his wife, they are equitably estopped from recovering the lands of which he has despoiled them under the bare forms of law, and he himself offers in this record the evidence upon which the foregoing statements are made!”

Giving the plaintiff the full benefit of her counsel’s statement, and it is quite impossible to give her any relief on this action against strangers, and to all appearances innocent third persons.

That W. S. Calhoun did receive the bonds is a fact confessed. That he had previously unconditionally accepted the succession of Meredith Oalhoun as heir is also a fact admitted. And it is also admitted that he subsequently transferred said bonds to his wife. The hardship and injury might be appropriately considered if the plaintiff were claiming any right under the succession of Meredith Oalhoun; but, claiming as she does under the succession of Mary Smith Oalhoun, to which she avers the property belonged, and from which the deceased testator, William S. Oalhoun, inherited it at her death, these questions are res inter alios aeta and impertinent to the issue of estoppel pleaded as destructive of William S. Calhoun’s claim of title.

The judge a quo decided the consolidated causes in favor of the defendants, and signed these several judgments. Being of the opinion that he decided the causes correctly, they are respectively affirmed.


text:
    No. 10,934.
    Succession of Ann E. Auld, Wife of George Glidden.
    A substitution prohibited by our law is the disposition of a donation inter vivos or mortis cansa, which vests the property of the testator in a person named, during the lifetime of such person, who has not the power of alienation, and, at his death, the same property is to vest in another person named, but who takes title directly from the testator, but by a title which only springs into existence on the death of the first donee.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Rice & Armstrong and F. S. Drolla for Appellants:
    1. In all dispositions, inter vivos or Mortis causa, impossible conditions and those contrary to law, or morals, are reputed not written. C.C., Art. 1519; McDonough Will Case, 8 An. 249, 259; Young & Kgan, 10 An. 415; Beaulieu vs. Ternoir, 5 An. 480; Duplcssis vs. Kennedy, 6 La. 246, 247; Fink vs. Fink, 12 An. 320.
    2.' The essence of the prohibited substitution is that the donee, heir or legatee is charged to preserve for and return thefthing donated to a third person. C. C., Art. 1520; Marshall vs. Pearce, 84 An. 558; Anderson vs. Pike, 29 An. 120; Succession of Theurer, 89 An. 510; Barrow vs. Barrow, 88 An. 648; Succession of Ducloslange, 4 Rob, 409; Succession of Yancey, 20 An. 164; Duperris vs. Kennedy, 6 La. 246.
    3. The existence of the prohibited condition — i. e., the substitution of fidei commission — is never presumed. Unless the will can not be understood otherwise, it will be maintained. McCluskey vs. Webb, 4 Rob. 204; Hasley vs. Ilasley, 25 An. 603; Succession of Cochrane, 29 An. 234.
    4. The penalty of nullity leveled against all dispositions “ conditioned ” on substitutions differs from the penalty leveled against dispositions “ conditioned” -on fidei commissa, in this: that as to the former, the disposition is null with regard to the donee, the heir and the legatee; and that, as to the latter, the fidei commissum, unless of the essence of the dispositions, is reputed not written. O. »C., Arts. 1520, 1519; Beaulieu vs. Ternoir, 5 An. 480, 461; Succession of Foucher, 30 An. 1017; Clague vs. Clague, 13An.l; Succession of Stevens, 36 An. 754; Succession of Yancey, 20 An. 164,
    5. The usufructuary possesses, “ holds,” and<c holds in trust,” under the law, the thing subject to the usufruct. Such a “ holding ” is not the fidei commissum prohibited by law. C. O., Arts. 554, .556, 557, 567, 625; Succession of Law, 31 An. 456; Fisk vs. Fisk, 8 An. 494; Hallen vs. Faure, 15 An. 622.
    6. A will is none the less a valid will because it disposes of the usufruct, and not the body of the property.
    7. In determining whether and how thebody of the property is disposed of by the will, the court will consider all the circumstances lending to show the intention of the testatrix, C. C., Art. 1715.
    S. In interpreting a will, the construction in case of doubt will be adopted which will save, rather than that which will kill. C. 0 , Art. 1713; Succession of Vance, 39 An. 372; Cecile vs. Lacoste, 8 An. 144.

      Thos. J. Semmes for Appellees:
    L A penal condition to protect a prohibited disposition in a will is of no effect. 3 Larombiere Oblig., No. 3, p. 3; 23 Merlin Rep., Verb. Peine Test., No. 5, pp. 117-18; 18 Demolombe, Nos. 187 and 285.
    2. Where a joint usufruct is established in favor of two or more persons during their lives, and after their death to a third person, such third person can not take until after the death of all the[joint usufructuaries. O. O. 1707; 6 N. S. 247; 10 An. 165; 10 La. 248.
    •3. The second beneficiary can not take at all unless in being or conceived at the time of the death of the testator. 3 Marcado, p. 474; 1 Baudy Laeanciniere, No. 130 7, p. 784.
    4. The legacy of revenues is a sort of usufruct. Baltimore vs. New Orleans, 13 An. 162.
    .5. When it is clear the testator intended to provide for a class of persons not in beingrat his death, and to create a trust for that purpose, the disposition is illegal. Partington’s Tru9t, 3 Giffard, 378; Rachal vs. Radial, 1 Rob. 115; Succession of Cochrane, 29 An. 235; Succession of Stevens, 36 An. 755.

      6. A trust to sell personal property in tliis State to invest in real estate in a State where such trust is valid is void. Wood vs. Wood, 5 Paige, G02; 1 Redfield on Wills, 409.
   The opinion of the court'was delivered by

Watkins, J.

Alleging themselves to be the brothers and sole heirs-at-law of the deceased testatrix, who died without ascendants or descendants, Benjamin F. Auld and Hugh Wilson Auld institute this suit for the revocation and anulment of the last will of Ann E. Auld, who died in the city of New Orleans, State of Louisiana, on the 27th of January, 1891, possessed of property of the aggregate value of $50,267.52, which consisted almost exclusively of United States bonds and currency, State and city bonds, stocks of corporations and rights and credits, generally.

Of this, George Glidden, surviving husband of the testatrix, laid claim to some $13,000 or $14,000, as his individual property.

The last will of the testatrix is in olographic form, bearing.date “New Orleans, July 1, 1884.” It was duly proved and admitted to probate, and the surviving husband, alone, of three persons named in the will as executors, qualified and undertook.the administration of the decedent’s estate.

The principal averment on which the charge of nullity is grounded is that, “except the appointment of an ‘executor’ the provisions of the will are null and void, and substitutions prohibited by law.”

The following is the full text of the will, viz.:

“ New Orleans, July 1, 1884.

“ I declare this to be my last will and testament. I wish my money to be invested in ground rents and real estate in the city of Baltimore, State of Maryland. Should I die possessed of and good stocks or securities, that shall remain until called in (that is if they should be found to be United States securities) ; other stocks, if doubtful, should be sold and the proceeds invested as above mentioned.

“ After my means are invested as above directed, I give to my dear husband, George Glidden, of New Orleans, State of Louisiana, one thousand dollars annually out of the income of my estate. The income to be used and divided equally between my nieces of the city of Baltimore, and daughters of my brother, Benjamin F. Aúld, to be used for their benefit. At my husband’s death the property shall be held in trust by my nieces, and all the income, including that left by my husband, shall enure to their benefit during their lifetime, and at their death to be divided equally between their daughters.

“ Should there be any opposition on the part of heirs to this instrument, my husband shall have the whole of the interest during his. lifetime, and they to receive the interest only after his death, without the power of disposing of any part thereof. • I appoint George Glidden, William A. Gault and Peter M. Peterson my executors.

“Ann Glidden.”

Por the purposes of precision and careful analysis, we will reproduce the article of the code which prohibits substitutions, viz.:

“Substitutions and fidei commissa are and remain prohibited.

“Every disposition by which the donee, the heir or legatee is. charged to preserve for, or to return to, a third person, is null, even with regard to the donee, the instituted heir or the legatee,” etc. R. O. O. 1520.

In order that the nullity of the will, on the ground that its provisions are prohibited substitutions, be made plainly and clearly to appear, it is essential that language be pointed out which charges an heir or legatee to preserve an inheritance for, or to return an inheritance to, some third person named in the will. There must plainly and clearly appear to be named and designated in the testament two absolute takers of one and the same inheritance, to constitute any provision of the will a prohibited substitution within the intent and meaning of the law. Williams vs. Lodge, 38 An. 620.

This view is fully substantiated by the succeeding article of the code, which declares that a disposition by which two persons are designated as takers of the same thing, alternatively, is not a prohibited substitution.

• Por, says the article:

“ The disposition by which a third person is called to take the gift, the inheritance or the legacy, in case the donee, the heir, or the legatee does not take it, shall not be considered a substitution and shall be valid." (Our italics.) R. O. O. 1521.

It is equally true that the reprobated disposition must be of property of the testator, and not of income or revenue to subsequently accrue from the use of property after the testator’s death, and the consequent devolution of property in esse upon thé beneficiaries under the will. This appears from the succeeding article of the code,, which declares that:

“ The'same,” — i. e., the observation made in the preceding article in reference to the validity of alternative dispositions — “ shall be observed as to the disposition inter vivos or mortis causa by which the usufruct is given to one and the naked ownership to another.’’ R. O. O. 1522.

From those three articles, taken and construed together, we have the three following propositions distinctly announced, viz.:

First. There must be named in the will two absolute takers of one and the same inheritance.

Second. A third person may legally be called to take an inheritance in case an heir or legatee does not.

Third. It is permissible for the testator to donate or bequeath the usufruct of the property to one, and the naked ownership to another.

Keeping these three propositions in view, we must determine whether the will of the decedent violates the first, or is compatible with the remaining two; because it can not be compatible with all three of them. '

In order to ascertain the compatibility vel non of the will with the first of the foregoing propositions, it may be paraphrased and restated as follows, viz.:

In the first paragraph she declares that her wish is that her money shall be invested in ground rents and real estate in Baltimore, Maryland ; and that any good securities of which she may die possessed shall remain until called in, and that all doubtful securities shall be sold and the proceeds thereof likewise invested.

The second paragraph declares that, after her means are invested, her husband is to receive $1000 annually out of the income of her estate; and the remainder of the income is to be equally divided between her nieces of the city of Baltimore and the daughters of her brother, Benjamin F. Auld, to be used for their benefit.

The third paragraph declares that, at her husband’s death, the property shall be held in trust by her nieces, to whose benefit all the income shall enure during their lifetime, and at their death, the property shall be divided equally between their daughters.

The fourth paragraph declares that if there shall be any opposition on the part of the heirs to the testament, her husband shall have the whole of the interest during his- lifetime, they to receive the interest only after his death without the power of' disposing of any part thereof.

It is conspicuously observable that no disposition whatever is made by the testatrix of her property, save and except what is contained in the third preceding paragraph, and if that be differently construed, it is quite certain that the testatrix made no disposition of her property at all.

Reiterating the foregoing, it is quite clear' that the testatrix merely expressed a wish that her money, in possession at her death, should be invested in Baltimore, and that doubtful securities should be sold and likewise invested. She then directs in what manner the income of investments thus made shall be distributed between her husband and nieces. Having thus disposed of the income during her husband’s lifetime, she declares it to be her desire that, after his death, her li property shall be held in trust by (her) nieces,” and that “all the income shall enure to their benefit during their lifetime.” And just here the solitary doubt arises, and that one is in reference to the phrase “and at their death to be divided equally between their daughters. ’ ’

Argument is presented to the effect that the words “ to be divided equally” refers to the income and not to the property. If this be a ■correct interpretation, then the question arises as to the disposition of the property.

The will declares emphatically that “ the property shall be held in trust by her nieces. ” Por whom were they directed to hold the property in trust if not for “their daughters?” No one else is mentioned. When was this trust to expire? At the death of the trustees, the testatrix’ nieces.

If such be the true' construction to be placed upon this paragraph of the will, then the conclusion ■ is irresistible that the words “to be divided equally” referred to the property, and not to the income.

They could not have reasonably referred to the income for the plain reason that the immediately preceding declaration of the will is that ■“ all the income, including that left by my husband, shall enure to their benefit” — i. e. the nieces’ benefit — “during their lifetime;” and, ■conceding it to have been the intention of the testatrix that,“ at their death ” the property should “ be divided equally between their ■daughters,” it would have been supererogatory and vain for the testatrix to have made any different distribution of the income of the property, after it had become irrevocably vested in the donees.

Plaintiff’s suit necessarily admits that the will of the testatrix disposed of the property, and that the disposition of the will was necessarily'in favor of the daughters of the testatrix’ nieces. Otherwise there could be no prohibited substitution in the will against which-plaintiffs could inveigh.

Conceding this to be true — and it necessarily is — then it seems to be perfectly clear that there are no two| absolute takers of the property as an inheritance, made mention of in the will; because the nieces by whom the property was to be held in trust were only and exclusively entitled to its income “during their lifetime.” Death only was to terminate their trust and their right to the income as well. Upon the happening of that event the property, in fee simple, is to devolve upon the daughters of the testatrix’ nieces in equal and determined portions.

It is equally clear to our minds that this will presents'* a case wherein the testatrix unmistakably bequeathed the usufruct of her property to her husband and his nieces, in determined proportions, and during their respective lifetimes, and, at their death, the naked ownership to the daughters of those nieces.

In confirmation of what we regard as a necessary implication to be drawn from the character of this action,' we refer to the brief of plaintiff’s counsel, pages 8 and 4, viz.:

“In no part of the will does she pretend to dispose of the corpus of the property; it is always the income which is in her mind, and it is only the income which she bestows on any one.

“ So prominent is this feature of the will, the court will notice she gives nothing until her money is invested.

“The language is, ‘ After my moneys are invested, as above directed, I give to my husband, George Glidden, $1000 annually out of the income of my estate. The balance of the income to be used and equally divided between my nieces of the city of Baltimore and daughters of my brother, Benj. P. Auld, to be used for their benefit.’

“ No one was to get a cent until the investments were made. Her mind was bent on tying up her money by its investment in lands and ground rents in Baltimore, to be held in trust, so that the income, and the income alone, could be expended.

“ Will this court compel the executor of this estate to invest the moneys of the deceased in ground rents and real estate in Baltimore in his own name as trustee, and to hold it as trustee, so that it may devolve at his death on the nieces of the deceased, as trustees under-her will ?”

It must be observed that counsel starts cut with the statement that “in no part of the will does she (the testatrix) pretend to dispose of the corpus of the property;” but that statement is answered and refuted by the concluding' sentence, in which it is declared that the evident intention of the testatrix was that her means should be invested in real estate in Baltimore by the executor ‘ ‘ in his own name as trustee, and to hold it as trustee, so that it may devolve, at his death, on the nieces of the deceased, as trustees under the will.”

Evidently the trust estate is the property. That the trust was created, necessarily implies that there is some beneficiary. The will distinctly and exclusively deals with and disposes of the income of her property up to and inclusive of the date of her nieces’ death. It is only after their death that their daughters are to participate in the estate, at all; and upon the happening of that event, the daughters of those nieces, and no one else, is entitled to any participation in the estate.

Antecedent to the death of the husband of the testatrix, no trust is created or apparently contemplated. While it is true the will announces the wish of the testatrix to be that her money shall be invested in Baltimore ground rents and real estate, the duty of making that investment is imposed upon no one. The duty was not imposed upon either of the executors named in the will.

At present we are dealing with the testament alcne, and must determine its validity by an examination and comparison of all its parts; and our decision must depend upon its ascertained susceptibility of execution in futuro. If, then, the moneys of the testatrix shall be invested in Baltimore real estate, according to the terms of the testament, would there be any legal impediment to its further execution? Such investments being made, as contemplated, could the income and property be disposed of in pursuance of the provisions of the will, without violating the prohibition of the statute in regard to prohibited substitutions?

Our investigation has led us to the conclusion that the income and property of the testatrix could be so disposed of validly and legally.

Counsel’s argument proceeds upon the hypothesis that the testatrix gave nothing until after her money was invested, and that no one was to get a cent until the^investments were made.

Hence, it was necessary that the court compel the executor to make the contemplated investments, and by this means oreate a trust estate, of which the executor should be trustee, until the date of Ms —the executor’s — death, in order that the property might devolve on the nieces of the testatrix.

This argument is entirely without any foundation in point of fact, because (1) there is no provision in the will that the executor shall make the investments; (2) it contains no provision to the effect that any one shall continue to be executor so long as he shall live; (8) and no provision that the trust of the nieces shall begin upon the death or expiration of an executor’s term of service.

On the contrary, the commencement of the trust of the nieces is fixed at the date of the death of the husband of the testatrix, who, as it turned out, was the only one of them who qualified.

The only trust mentioned in the will is that of the nieces. That is not a prohibited substitution, but a naked trust, which does not convey any present or eventual interest in the property to the trustees.

It is fully shown that there were in esse at the date of the death of .the testatrix both nieces and the daughters of the said nieces, who are beneficiaries under said testament, and who aver and claim that all of the provisions thereof are valid and legal.

On this discussion and statement of facts, the questions of law raised are few and simple.

We think it quite sufficient for us to cité Marshall vs. Pierce, 34 An. 557, as the whole scope of prohibited substitution was gone into therein, and the fullest discussion of the authorities bearing on the question had.

While it is true that the court was not unanimous in its opinion on the particular application of the law of prohibited substitution to the will there under consideration, yet we find thejopinions of the judges pro et con in perfect agreement as to what is the vital and essential element of a prohibited substitution.

For in the opinion of the court it is said: “The simplest test of the substitution prohibited by our law is that it vests the property in one person * * and at the death of such person vests the same property in another person, who takes the same directly from the testator; but by a title which only springs into existence on the death of the first donee.

Such a disposition destroys the power of alienation of the property by the first donee, because he is bound to hold it until his death, in order that the person then called to take the title may take it. At the same time, no power of alienation exists in ,the second donee during the life of the first, because his title only comes into being at the death of the taker.”

Differing from the majority, only, with reference to what was a proper construction of the will of Joshua Pierce, but not with regard to what was the proper legal definition of a prohibited substitution, the Chief Justice, dissenting, said :

“ To my mind it is apparent that when he bequeathed to his wife his plantation and movable effects, ‘to have and to hold during her natural life’ he merely intended to give her the usufruct of that property,” etc.

Both opinions proceed, necessarily, upon the idea that the corpus of the property was disposed of, and that, in order that such a disposition should come under the nullifying ban of the prohibited substitution of the code, there must be, at least, two absolute takers of the title of the property of the testator — that is to say, that a title vests in one person who is to keep the property during his life, without possessing the power of alienation, and at his death the same property is to vest in another person named.

We are of opinion that the will under consideration, in terms, gave to the nieces of the testatrix named as trustees the income of the property, or the usufruct, but not the title. This is a mere naked trust, uncoupled with, any interest in the trustee, save that of an usufructuary, which is permitted under our law. Under this view, the will contains no prohibited substitution and is valid.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the demands of the plaintiffs be rejected at their cost in both courts.


text:
    No. 10,971.
    H. B. Whelage vs. Widow Christine Lotz.
    It is only parol evidence that is inadmissible, under the provisions of the code, to prove agency to sell real estate. It permits a power of attorney bo be conceived in any kind of private writing, even by letter.
    Notwithstanding the admissibility of such documents they must make clear and sufficient proof of the authorization to sell, without resort to any parol evidence to supply an ellipsis.

      APPEAL from the Civil District Oourt for the Parish of Orleans. King, J.

      Frank Zengel and Henry P. Dart for Plaintiff and Appellant..

      James G. Walker for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This suit has for object to compel the defendant to execute title to real estate, and it is, therefore, petitory in character— the demand of the petition being that the defendant be condemned to a specific compliance with her agreement and to execute conveyance to the plaintiff of two lots of ground, with the buildings and improvements thereon, situated in the first district of the city of New Orleans, in the square bounded by Hunter, Tchoupitoulas, New Levee and Benjamin streets, “designated by the letters A and B, and measuring as follows, to-wit': Lot A, 69 feet front on Hunter street, by 48 feet in depth and front on Tchoupitoulas street; lot B, 26 feet front on Hunter street, by 48 feet in depth, between parallel lines; lot A forming the corner of Tchoupitoulas and Hunter streets, as will appear from the agreement to buy, hereto annexed as part of this petition.”

The following is plaintiff’s proposition, viz.:

.“New Orleans, October'23, 1890.

Baumgarden & Friedrichs:

“Gentlemen — I have a client who will give $3400 cash for the property corner of Tchoupitoulas and Hunter streets. See' title for dimensions. Please submit this proposition to your clients and let. me have an early offer. Yours truly, Frank Zengel,

Attorney. ’ ’

Messrs. Baumgarden & Friedrichs presented this'communication to their client, the defendant, who wrote thereupon this indorsement, viz.:

“ I accept the above proposition.

“ Mrs. J. O. Lotz.”

This proposition and its acceptance are the foundation of this suit.

The position of the defendant’s counsel is, that the offer was only. to sell the “property corner of Tchoupitoulas and Hunter streets,” and that it is described in plaintiff’s petition as lot A; and the averment of her answer is, that her acceptance of plaintiff’s offer did not include lot B, which she never contemplated selling, but which she expected always to reserve as her homestead, and which is subject to a special mortgage in favor of her minor children, to secure their interest in the succession of their father, and of which she has no power to divest them.

The main controversy in the lower court was in relation to the admissibility of testimony, the greater part of which was admitted over defendant’s objection — the judge a quo ruling that the objections urged went to the effect of the evidence after it had been received .

Some of the testimony consisted of (1) a letter written by Baum-garden & Friedrichs to Frank Zengel, bearing date October 24, 1890, in reference to his proposition of the day previous, and connecting it with “the measurements and conditions of sale, as advertised in the New Orleans Picayune," ata certain time; (2) a printed form filled up authorizing Baumgarden & Friedrichs, to sell property corner of Tchoupitoulas and Market streets; (3) a receipt of Baum-garden & Friedrichs for §340, it being an advance of 10 per cent, ■on the price of contemplated purchase; and (4) the plan of the property as it was exhibited for sale by Baumgarden & Friedrichs. The principal ground of objection that was urged to this character of proof was that it was insufficient and inadmissible for the purpose •of disclosing in Baumgarden & Friedrichs authority to sell real estate for the defendant; and insufficient for, and inadmissible to prove either a promise to sell, or a sale of real estate.

We agree with our learned brother of the lower court, both as to his opinion in reference to the admissibility of the testimony and his appreciation of it. It is only parol evidence that is inadmissible under the provision of the code to prove agency to sell real estate. R. C. C. 2992. Hockenburg vs. Gartskamp, 30 An. 898. Perault vs. Perault, 32 An. 635. That article especially sanctions the right of .a party to conceive a power of attorney in any kind of a private writing, “even by letter,” hence the admissibility oí the writings that were offered in evidence. But they do not, of themselves, prove defendant’s authorization to Baumgarden & Friedrichs. It may well be that they were authorized to sell for the defendant “the property (at the) corner of Tchoüpitoulas and Hunter streets.” It may well be that those gentlemen, acting in perfect good faith un-' der such an authorization, advertised in the Picayune the property as one single property. It may well be that the plaintiff, in making the offer he did, acted upon the information contained in that newspaper advertisement.

But, if all that be taken for granted, there remains an ellipsis to be supplied by parol proof, and that is the defendant’s authorization to them to make sale of two lots. Not only is this the case, but such evidence tends to enlarge plaintiff’s proposition, as well as to alter his averments.

On the whole we are of the opinion that the proof fails to disclose that consentio mentium necessary to constitute a contract binding between the parties, in respect to the object of sale.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,021.
    The State of Louisiana vs. Lewis Chambers, Louis Michel and Paul Cornier.
    Continuances are largely within the discretion of the trial judge and his rulings in matters of this kind will not be disturbed unless manifestly erroneous.
    It is error for a district judge to grant an order in chambers, out of the presence of the accused, for the sheriff to take him to another parish, to be present at •the taking of the deposition to be used in the trial against him of a witness who is physically unable to attend the session of the court. Such an order violates Article S of the Constitution, which contemplates a public trial, in the course oí which the accused has the right to be confronted with witnesses against him.
    APPEAL from the Twenty-ñrst District Court, Parish of St. Martin. Mouton, J.

      W. 3. Rogers, Attorney General, for the State, Appellee.

      Edward Simon for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The accused were indicted for and convicted of murder, without capital punishment. A new trial was granted to Lewis Chambers. The defendant, Michel, was sentenced in accord.ance with the verdict, and has appealed.

There are two bills ot exception in the record.

1. The first is to the refusal of the trial judge to grant a continuance

As repeatedly stated by this court, the matters of continuance are largely within the discretion of the trial judge, and the discretion vested in him will not be disturbed unless it is manifestly erroneous and arbitrary. The record does not show- that this discretion has been abused by the trial judge in refusing a continuance to the defendant.

2. The second bill is to an order granted by the district judge to take the testimony of a witness who was sick in the parish of Iberia, and unable to be present at the trial and testify in the case.

The district attorney presented a petition to the district judge, alleging that the witness was sick, at the point of death, and would be unable to attend court and give her evidence.”

It is stated by him in the- petition that he visited the sick witness; found her in such a condition that she “ would be unable to attend and obey the summons of this court,” which had been duly served on her; and the materiality of her evidence is stated at length.

He “ moved and prayed that your honor grant an order, directed to the sheriff of St. Martin, commanding him to take charge of and convey to the residence of Marie Abrams the accused, so that the district attorney may, in their presence, take the depositions and answers of the said Marie Abrams, under oath, to be used in evidence on the trial of this case, fixed for Tuesday the 16th February, 1892.” '

The district judge granted the prayer of the district attorney in the following order:

The foregoing petition considered, it is ordered that the sheriff of this parish forthwith take and convey to the residence of Marie Abrams, in Iberia parish, the accused, Chambers and Michel; that the State attorney and the attorney for the defendant be notified of this, and requested to attend the examination of said Marie Abrams as a State witness in this case, before some justice of the peace; the deposition and testimony of said witness to be used on the trial of said cause now fixed for the 16th inst.”

The order was granted in chambers, out of the presence of the accused. There is no provision made by thq laws of this State for the taking of the deposition of a witness for the State in a criminal proceeding.

The order rendered by the trial judge, the taking of the deposition of the witness, and its use in the trial of the accused, violate Art. 8 of the Oonstitution of the State, which contemplates a public trial or preliminary examination, in the course of which the accused has the right to be confronted with the witnesses against him.

The evidence against the accused must be delivered personally and orally before the jury who are to pronounce him guilty or not guilty. 1 Bishop Orim. Pro., par. 1194.

It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be set aside, annulled and reversed, and the case be remanded to be proceeded with according to law, and the views herein expressed.


author: Breaux, J.

text:
    No. 10,982.
    A. J. Sevier et al. vs. Mrs. Mary B. Douglas.
    The testator bequeathed a life estate to his wife, and directed that in case she, at the time of her death, left a child or children, his estate was to descend in fee simple to such child or children.
    The testator having died the wife contracted a second marriage, of which the plaintiffs are the issue.
    The child not conceived at the death of the testator is as incapable of receiving a conditional legacy as he is incapable of receiving a'legacy pure and simple.
    Under the French system, Art. 906 applies to conditional as well as to legacies pure and simple, and the legatee must exist at the testator’s death.
    Under the corresponding article of the Louisiana O. O. (1473), a legacy was limited to the number of children born at the testator’s death, although left to all the children of a person named.
    The suspensive condition of the legacy.enured only to the benefit of the children in esse at the death of the testator. 3 An. 494.
    As the right of usufruct expires at the death of the usufructuary, the heir does not receive by descent if themother was a usufructuary.
    If she became the owner, the legacy was null as a prohibited substitution.
    And if it was not a prohibited substitution, having sold the land, her heirs can no recover it from the defendants, who held under the purchase from thei mother.
    APPEAL from the Ninth District Court, Parish of Tensas. Young, J,

      Wade R. Young and Don Gaffery for Plaintiffs and Appellants:
    The disposition by which the life estate, or usufruct, is given to one, and the fee or naked ownership to another, is not a substitution. A double disposition of heirs, depending upon a suspensive condition, does not present the features of a prohibited substitution. Succession Strauss, 38 An. 59.

      When the donation depends on the fulfilment of a condition, it is sufficient if the donee is capable of receiving at the moment the condition is accomplished. O. 0., Art. 1474.
    The word descend, in the English system, is always used to distinguish an estate of inheritance, by operation of law, from an estate by devise, or will, or other species of gift or grant.
    There is no substitution in the clause of a testament providing that if such a person, to whom one gives the usufruct of his property, shall at the time of her death leave a child or children, the property shall become her property and form part of her succession, and descend by operation of law to such child or children.
    There is no prohibited substitution m the disposition by which a testator leaves the property of his succession, to be received by the legatee, after the death of another legatee of the usufruct, in case the latter shall die without leaving any issue. Rut when even the.donee or legatee shall have received the property' but upon the condition not to alienate it, neither by act inter vivos, nor by act of last will, there is yet no substitution. Far from such a condition having for end and effect to change the legal order of successions, it assures to the contrary the transmission of the property to the heirs called by the law.

      Lemuel P. Conner, Jr., for Defendant and Appellee:
    Substitutions and fidei commissa are prohibited by the laws of Lpuisiana. O. 0 1520; 3M. 485; 4 N. S. 45; 4 La. 502; 1 R. 118; 2 An. 377; 3 An. 432; Ibid. 494; IB An. 574; 14 An. 585; 29 An. 120; 34 An. 557.
    Where an instrument, executed in another State, is to have effect upon immovables in Louisiana, it must he interpreted and enforced according to the laws of the latter State. O. O. 10, 491; 2 R. 258; 2 An. 377; 10 An. 169; SO An. 1017; 32 An. 388.
    To he capable of receiving by donation or by last will, the donee, heir or legatee must he in existence, or at least conceived, at the time of the donation or the opening of the succession. So, where by last will, property is derised to one person for life or a term of years, with the direction that at the expiration of such estate the title is to vest in another not then in existence, and who is not in existence nor conceived at the death of the testator, such a disposition comes within the prohibition of our law, and;is absolutely void. Authorities ubi supra.

   The opinion of the court was delivered by

Breaux, J.

Plaintiffs brought this suit to recover a tract of land described in their petition.

They allege that they are the children of Sarah H. Sevier, who died in 1891; that by a former marriage she was the wife of Arra Wilson, who died in 1833; at the time of his death he was the owner of the land claimed.

By his last will and testament he gave to his wife, who was their mother, by second marriage, a life estate in all his property. The will contains directions and conditions which have given rise to this litigation.

The testator bequeathed to his wife all his estate, to have and to hold the same during her natural life, and, in order to enable her to live with convenience and comfort, he made it part of his will that she should enjoy as her own, subject to her control and disposal, all the interests, rents or profits to arise from the estate, and he provided that, should such income be insufficient to support her in the style suited to her condition in life, that an additional sum of five hundred dollars was to be annually allowed her by the judge of the orphans’ court of Claiborne county.

The estate was to be under her own control and management, during her natural life, but in no case chargeable with any incumbrance or debt, except as above provided.”

The testator directed that should his wife., at the time of her death, leave a child or children, his estate was to descend to them in fee simple, and in the event of their dying without issue or before attaining the age of twenty-one years, his estate was to revert to trustees, after deducting particular legacies, small in amount, to two nieces, and he directed that in case none “of the contingencies before mentioned prevent, that the whole of my estate * * which I may leave at the time of my death, shall, after the death of my wife, be secured in trust for the education of the poor children of Claiborne county.”

The propositions are on the part of plaintiffs:

1. That the testator bequeathed to his wife the life estate or usufruct of all his property for the term of her natural life.

2. That if at her death she left a child or children, the property should descend in fee simple, or full ownership to such child or children.

8. That if at her death she left no child or children, the property should go to the persons designated as trustees, to be disposed of, and the proceeds devoted to charitable uses.

4. That if such child or children died without issue, or before attaining the age of twenty-one years, the property should revert to the trustees for charitable uses, and that the condition contemplated by the testator has happened, and the wife died leaving children.

The defendant contends that the testament is void.

1. Because the legacy of the life estate in favor of the wife and the ownership in favor of the children is a prohibited substitution-

2. That the legacy has failed, because the children were not in existence at the death of the testator.

The exception of no cause of action was maintained.

From this judgment plaintiffs appeal. >

It being alleged in plaintiffs’ petition that the will is valid in substance and form by the laws of Mississippi, in which State .it was made, the allegation is taken as true, it being admitted by the exception, for the purpose of its trial.

The will being valid as to form, in the place where it was made, ■questions of form are not at issue.

Forms and the solemnities of instruments are governed by the lex loei.

But that rule does not hold in determining as to the capacity of an heir to receive immovable property by last will.

He must receive under the lex rei slice, it being a right of inheritance to be governed by the laws where the land lies.

It is not argued that one not in existence at the death of the testator is capable of receiving an unconditional legacy.

But that when the donation depends on the fulfilment of a condition, it is sufficient if the donee is capable of receiving, at the moment the condition is accomplished.

The child unborn at the testator’s death is incapable of receiving a legacy.

The birth of the child or children was made the condition of the will and is pleaded as suspending the effect of the legacy until their birth, some time after the death of the testator.

In the succession of Strauss, 38 An. 59, referred to by plaintiffs’ counsel, the amount given to the testator’s grandchildren was on the condition of their attaining the age of majority.

In case either died his portion was to be received by the survivor on his attaining the age of majority.

In case the children died before reaching the age of majority certain charitable institutions were instituted universal legatees.

The question for determination was not as to the incapacity of the children to receive, because of their non-existence at the time of the testator’s death, for all the legatees were alive, but as to whether the suspensive condition was a prohibited substitution.

The court held that it was not. The institution of the heirs depended upon a suspensive condition among legatees capable of receiving at the time of the disposition.

The suspensive condition was not accomplished after the death of the testator.

The questions involved and discussed in the succession of Law, 31 An. 456, do not apply to conditional legaeies^such as the one under consideration. It was decided in that case that the disposition of the property “ to be used, enjoyed and occupied ” during the life of the legatee was the legacy of the usufruct.

That the legacy of this property and the suspensive condition caused by the usufruct was not a prohibited substitution.

In the ease under consideration it is contended that the legacy is conditional, and that it is sufficient if the heir is capable of receiving at the time the condition is fulfilled.

The question would not present great difficulty were it an application of the principles of Art. 1474, to a conditional legacy, to one in esse; at the death of the testator, such as, for instance, a legacy to a femme sole dependent upon her marriage, or to an infant en ventre sa mere, for in that event, by the marriage or the birth, the condition is accomplished for the benefit of a person existing at the time the testator died.

It does not conclusively appear that it was the will of the testator to bequeath his estate to children born of another marriage by his widow, subsequent to his death.

He bequeathed to the children of his wife. In the second place, the future event, as it resulted, is a condition violative of the article of the Civil Code which provides that the capacity to receive must exist at the opening of the succession. The French system is invoked. We have not found that it sustains plaintiffs’ contention.

The proposition is broadly announced by Fuzier Hermann and a number of authorities are quoted in its support; “ that jurisprudence “ the most recent maintains the general rule that the child not con- “ ceived at the death of the testator is incapable of receiving a con- “ ditional legacy, as he is incapable of receiving a legacy pure and simple.” Vol. 2, of Codes Annotes, Article 906, note p. 455.

“If it is sufficient in matters of conditional legacies that the “ legatee exist at the moment of the fulfilment of the condition, it would not be difficult to elude Article 906 of the Code (to which “ Article 1473 of our Code corresponds) by a condition postponing “ indefinitely the date of the existence of the legatee.” Ib.

It is true, says che commentator, that we recognize generally under Article 1040 of the Code (1698 of our Code) that in conditional legacies it suffices that the legatee be]capable of receiving at the moment that the condition is accomplished. “The induction which that article furnishes, although i-n the main correct, does not justify a derogation from the special rule of Article 906 (1473 of O. C.) as to the necessity of the existence of the legatee]at the death of the testator.” Aubry andRau., Vol. 7, p. 24.

“It is sufficient, underjArticle 906, if the capacity to receive exists at the death of the testator. Whatjshouid be the decision if the legacy is conditional? The question is not free from doubt.” Says Laurent, Vol. 2, p. 207, Sec. 159: “The law requires that the legatee shall exist at the death of the testator for the reason that the right of the former dates from that epoch. When the legacy is conditional the right dates from the time it is accomplished; must we not conclude that it suffices to be conceived at that mo - ment?

“The opposite decisions are generally followed.”

“Article 906 generalized the disposition of the ordinance of 1735, “ which prohibits the institution of heirs not conceived. D’Aguesseau “ explains the motive which prevailed in departing from a doctrine “ which had received the sanction of jurisprudence.”

The first capacity required is the existence jof the legatee. “It was objected that in conditional legacies the fulfilment of the condition had a retroactive effect, from which it followed that the instituted heir was to be considered capable of receiving from the date of the death of the testator.” Ib.

“ D’Aguesseau replies to the objection, that this fiction can not “ have any effect; is it not possible to maintain that a child not con - “ ceived is conceived?”

“ The ordinance applied only to instituted heirs, and, thus limited, “ the disposition explains itself; at the death of the testator the “ heredity must rest on some one.” Ib.

Article 906 applies to conditional as well as to legacies pure and simple. Court of Cassation, 4thFebruary, 1884. (Journal du Palais, p. 1059.)

Fisk vs. Fisk, 3 An. 494, is an analogous case. The testator bequeathed an amount to be divided, at the death of the legatee, equally among the children of a younger brother. At the decease of the testator only two of the plaintiffs were born.

The court holds that under the terms of the will, and in accordance with the provisions of the O. 0., Arts. 145V, 1458, 1459 and 1469, the children living at the decease of the testator can alone take under the title. Those born after the death of the testator but within the condition of the legacy were excluded from the benefit of the legacy.

We prefer to adhere to these principles. They are sustained by the weight of French jurisprudence. We have not found a case, before this court, extending the effect of a condition to an uncertain future after the death of the testator and thus suspending the fee simple or ownership of property.

An alternative plea is presented by plaintiffs. It is urged that if plaintiffs not being born or conceived at the death of the testator can not take by devise from him, by disposition of the will; the property has descended to them, as an estate of inheritance from their mother.

They allege that their mother entered into possession of the land as usufructuary.

Should it be held that the mother had the usufruct of the property, under the will, it did not on her death pass to the heirs. It does not confer any rights upon them.

The right of the usufruct expires at the death of the usufructuary. O. C. 606.

Should we, on the contrary, decide that the bequest constituted an ownership and vested the property in the mother, the ease would fall within the prohibition, and the question would be. within the grasp of the article of the Oode which prohibits the vesting of property in one person to vest in another at the death of said person.

The principles laid down in Marshall vs. Pearce, 34 An. 555, would then apply. “This implies necessarily the charge to preserve and return, and under the imperative mandate of C. C. 1520 the disposition must be declared null.”

Either the usufruct was bequeathed to the mother or the ownership with the charge to preserve and return. It must necessarily be one or the other. The plaintiffs are without right in either contingency.

Lastly, if not a prohibited substitution, their ancestor having sold the land, her heirs can not recover it from the defendants who hold under the purchase.

Judgment affirmed at plaintiffs’ costs.