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

text:
    No. 12,033.
    In the Matter of the Pelican Saw-Mill and Manufacturing Company in Liquidation.
    ON MOTION TO DISMISS.
    An order of court approving and homologating, so far as not opposed, a tableau of distribution filed by the receiver of a corporation, is subject to be appealed from by a creditor of the corporation, even though he did not oppose the tableau in the District Court. The right of appeal is not cut off because other parties had filed oppositions covering all the items of the tableau.

      ON THE MERITS.
    A judgment approving an account rendered ten clear days after the first insertion of notice to creditors was not prematurely rendered.
    As the account of the receiver was homologated without proof the judgment can not be maintained.
    APPEAL from the Civil-District Court for the Parish of Orleans. Ellis, J.

      Rice & Montgomery and Frank' L. Richardson for Receiver, Appellee.

      Benjamin Rice Forman for F. P. Bankston and J. B. Pelloat, Creditors, Appellants.
    Submitted on motion to dismiss January 6, 1896.
    Opinion on motion to dismiss handed down January 20, 1896.
    Argued and submitted on merits March 13, 1896.
    Opinion handed down March 23, 1896.
   On Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

J. H. O’Connor, receiver, filed in the District ■¡Court a provisional account of his disbursements; prayed that the ¡same be advertised; that after due advertisement the account be Approved and homologated; and that he be authorized to distribute •,the funds in his hands in accordance therewith.

F. P. Bankstone appears on the account as a creditor of the com-vpany as holder of two of the company’s notes, one for one hundred and twenty dollars, the other for two hundred and thirty-nine «dollars and sixty-four cents, and Peter Pelloat as a creditor as ¡holder of a note for two hundred and thirty-three dollars and «seventy-four cents.

The account, under orders of court, was duly advertised.

On November 27, 1896, the District Court ordered that the provisional accountbe approved and homologated, so far as not opposed.

On December 6, F. P. Bankstone and J. P. Pelloat, alleging “that ■¡they were aggrieved, and that there was error to their prejudice in ¡the final judgment homologating the provisional account; that they Are creditors of the insolvent corporation in liquidation, that accounts are allowed on said account, which are not due,” moved for and obtained an order for a suspensive appeal from the judgment of homologation.

The receiver has moved to dismiss the appeal on the grounds:

1. The judgment is interlocutory and not final.

2. The motion and order to homologate in so far as not opposed is an ex parte order having for its effect only the exclusion of oppositions being filed after the date of the order.

3. It appears by the record that all of the items of the account ■were opposed so that no final judgment was rendered and a trial was necessary before the account could be finally homologated.

4. Because appellants delayed to file any oppositions to said account within the legal delays; they have not filed any opposition since or attempted to do so, and they are aggrieved by the order to homologate.

6. Because it is not necessary to introduce proof of the validity of the account other than the affidavit of the accountant when there is no opposition thereto, which affidavit was on file herein, and in this cause appellant filed no opposition.

6. Appellant has not filed a full and complete transcript of the record of the lower court and has omitted the four oppositions filed.

We find an admission in the transcript to the effect that in obtaining the judgment homologating the account of the receiver so far as not opposed, no note of evidence was taken and no evidence was offered except the affidavit of the deputy clerk, Rankin, that the account had been advertised in English and French for ten days and four oppositions had been filed thereto.

The transcript was made out according to instructions received by the clerk from appellants’ counsel. In respect to the last ground of dismissal, they say that they thought the oppositions filed were entirely immaterial on the appeal, and that they had in their instructions to the clerk followed Rule 1, par. 6, and omitting all immaterial matter, had brought up the appeal on an agreed statement of facts. That if the court thought a knowledge of the oppositions material, they asked for an order in the nature of a certiorari to bring up copies, or to grant appellants leave to do so and not dismiss the appeal if an error had been committed in that respect.

Appellants maintain that a judgment signed by the judge ordering the payment of fifteen thousand three hundred and thirty-three dollars of the assets of an insolvent corporation is clearly a final judgment as to all persons who have not filed oppositions thereto before its rendition. They contend that, on application for the ho-mologation of an account, proof is required in all cases as is required in confirming judgments by default. That on an appeal of this character, two questions usually arise: Was the judgment premature?' Was it sustained by sufficient evidence?

Referring to the four oppositions which had been filed, they say that those who have opposed the account have control of their oppositions and they may at any time withdraw them.

We can not accede to the proposition that an order of court ho-mologating a tableau of distribution presented by the administrator of a succession, or a receiver, as far as not opposed, is not appeal-able for the reason that it is merely an interlocutory, not a final decree. Appellee himself shows by authority that within a limited time, if the order be not appealed from, the funds would be paid out to the various creditors named in the account. This would or might lead to irreparable injury to other creditors. It is claimed that the effect of the decree is simply to close the door to further oppositions; but this very closing of the door may itself be wrongful and injurious. It might be that the account had not been duly and legally advertised, or that the account had been prematurely ho - mologated. This would be an issue we think properly to be presented on appeal. There may be other issues of similar character, which we can not now anticipate. Appellee says that in this particular case there is no propriety or necessity for an appeal, as there are now pending undisposed of, four oppositions to the same account covering all the items of the account. The oppositions are not in the transcript, but appellants do not deny that they are of the character stated, and for the purposes of this motion we can assume that they are as appellee represents them to be.

Upon this assumption we do not think the appeal should fail. The fact that appellants might be still in time to join in these oppositions does not destroy the right of appeal. The fact that an existing legal right may be injudiciously or unnecessarily exercised does not authorize a court to declare the right non-existent. Byrne vs. Hooper et als., 2 Rob. 229; Succession of Jerome, 21 An. 291; Succession of Rhea, 31 An. 323; Newman vs. Judge, 32 An. 207; Borde vs. Erskine et al., 33 An. 873.

The penalty for such an exercise of a right would finally develop itself, but in a different manner. We do not feel at liberty .to anticipate, on a motion to dismiss, the issues which the appellants propose to submit to us. On a trial of the merits we could announce certain issues as not having been properly brought up on appeal, and others as having no merit.

Should the present case! be one where either improper issues or untenable issues be presented, appellee will suffer no injury by having our conclusion announced after a full presentation of the case.

ON the Merits.

The opinion of the court was delivered by

Breaux, J.

The principal facts of this case were stated in deciding the motion presented by the appellee to dismiss the appeal.

It is in consequence Only needful to state that the two points argued at the bar were:

1. The judgment of homologation was premature.

2. There is no evidence in support of the judgment.

The facts as to the first issue presented are: That notice of the filing of the account was advertised on the 16th, 20th and 25th of November. The judgment was rendered and signed on the 27th of that month.

As to the second point at issue, no note of evidence was taken and no evidence offered, save evidence of the fact that notice of the filing of the account had been advertised.

The receiver made oath to a statement of his account, of which the following is a copy:

The receiver has on hand under process of collection the annexed list of claims, which on inquiry are reported as may possibly be collected. He has also on hand in the parish of St. Tammany, on the Tchefuncta river, a flatboat with a floating saw-mill upon it, and sunk in the river, of which there is a possibility of his realizing two thousand dollars. Also a large number of logs in the same parish; the most of them are sunk in the river, for which he is endeavoring to get one thousand dollars and is endeavoring to find a purchaser for them. An order of court has been obtained to appraise these effects; attachments have been issued at the suit of the creditors against these logs.

“ Application has been made to the city for a reduction of taxes.”

Recurring to the first point: the objection is that the required delays had not been given prior to homologating the account; that in counting the days neither the day when the citation is served nor the day when the delay expires are counted as counted here.

With reference to these delays a similar objection was urged in Font et al. vs. Gulf State Land and Improvement Company, 47 An. 272.

In that case the citation was served on the 9th of April and the default was taken on the 20th.

The court said: “We note the contention that the 20th is not to be counted, because it is claimed the delay expired on that day. If it did, it would not avail the defendant, not making the application till the 23d. The day the delay expired, in our view, was the 19th, the 20bh was no portion of the delay.” This view completely answers appellant’s contention on this point.

The other ground : that there was no evidence taken prior to the homologation of the account is true, as before stated, in so far as relates. to the facts. The affidavit of the receiver of record, copied above, relates to property in his possession and to acts of administration without reference, to his account. The receiver does not swear to the correctness of this account in this ex parte affidavit which forms part of the account.

The presumption is that the receiver presented to the court an account he understood as being correct and presumably it is correct, although the affidavit is silent upon that subject.

But the presumption supporting the act of a receiver who is an officer of the court, i. e. the presumption omnia rite, will not itself sustain the correctness of a judgment dependent upon evidence for its validity.

In several decisions, notably in the case of Succession of Bellocq, 28 An. 155, it was decided that evidence sustaining an account should be introduced.

In other decisions, in view of the fact that evidence to sustain many items would cost more than the amount of the items themselves, the court abated the stringency of the rule requiring the proof of each, and the administrator or executor’s account, upon limited showing, was admitted and approved. Succession of Bauman, 30 An. 1138, 1139.

We do not desire to express any dissent from this last cited decision. It is obvious, however, as an authority ic would not sup - port the conclusion that all evidence can be dispensed with in homologating an account.

If accounts can be thus homologated in so far as not opposed, they can be also homologated without further proof when no opposition is filed; this would be in direct conflict with several well considered cases.

The account should at least receive the sworn approval and support of the accountant as a basis for the judgment of approval.

We adhere to the authorities requiring some proof of the correctness of an account prior to its homologation as a whole, or in so far as not opposed.

In this case the legal maxim construatio legis non facet injuriam pertinently applies; the syndic or receiver, appellee, is not specially interested, and if interested his burdens are not greatly increased, as it requires no more ability and energy to defend against a number of oppositions or a few presenting substantially the same issue.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and annulled, and this case is remanded to the District Court for the trial of such issues as may be raised before the court.

Appellee to pay costs.


source: Caselaw Access Project

author: Wateins, J.

license: Public Domain

text:
    No. 11,997.
    Theodore Verrier vs. P. E. Loris, Sheriff.
    The administrator of the succession of a deceased wife is without right or authority to take possession, or assume control of property held in community between the deceased and the surviving .husband and usufructuary, or to sell the same for the purpose of paying debts of the community, notwithstanding they are debts which the community owes to the separate paraphernal estate of the wife.
    APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      'Beattie & Beattie for Plaintiff, Appellant,
    cite: 12 An. 467; 26 An. 232; 29 An. 524; 32 An. 792; 37 An. 867; 43 An. 236; 46 An. 35'7, 1284.

      Olay Knobloch & Son for Louis Devillard, Defendant, Appellant.
    Argued and submitted January 10, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

Wateins, J.

This is an opposition to a judicial sale of real estate coupled with an injunction predicated on the following grounds, viz.:

That the property in controversy, which consists of a fractional lot of ground with a brick building and other improvements thereon, situated in the town of Thibodaux, was purchased by plaintiff on the 13th of June, 1891, and that same has been advertised for sale at public auction for the purpose of paying debts, at the instance of one Louis Devillard, pretending to be the administrator of the estate of his (petitioner’s) deceased wife, Jeanne Claude Devillard.

That unless restrained and prohibited from so doing he will proceed to sell said property and convey a title thereto upon the adj udicatee at said sale to his great and irreparable injury.

That while petitioner believes that such sale and adjudication, when made, will be an absolute and utter nullity, in so far as it may pretend to convey a title to a purchaser, should there be one, he is unwilling to allow same to take place if he can avert or prevent it.

In addition to the foregoing, petitioner alleges that said sale proceedings were without notice to him, wrong and illegal in themselves done in bad faith, with malice and without probable cause, operate as a slander of his title, and have caused him great and irreparable damage and injury.

The prayer of the petition is that the sale be perpetually enjoined, and for judgment personally and insólido against the sheriff and administrator in the following items of damages, viz.:

Attorneys’ fees. $400

Slander of title. 500

Injury to credit. 200

$1 100

The answer of Louis Devillard is that he is the duly appointed, qualified and acting administrator of the succession of Jeanne Claude Devillard, late wife of Theodore Verrier (plaintiff in injunction), and that the property in controversy belonged to the matrimonial community theretofore existing between the deceased and the plaintiff.

That said property was advertised for sale for the purpose of paying debts of the said community and succession in pursuance of an order of court which was granted for that purpose.

That the illegal, wrongful and malicious issuance of the writ of injunction has caused said succession damages to the extent of one hundred and fifty dollars, and one hundred and fifty dollars additional in the way of court costs and advertising sale and interest which accumulated upon the debts of the succession.

Wherefore, heprays for the dissolution of the injunction and judgment against the plaintiff and the surety upon his injunction bond in the sum of three hundred dollars and costs.

On the trial there was judgment perpetuating the injunction and restraining sale of the property of the community under the order of the court to pay debts; but that decree was conditioned upon the plaintiff, as surviving husband and usufructuary, paying all the debts of the community, and particularly the debt due to the separate estate of the wife “within a period of ninety days, otherwise the administrator shall have the right to renew his application for an order for a sale to pay debts and liquidate the community.”

The judgment rejected the plaintiff’s demand for damages in toto.

From that judgment the plaintiff prosecutes this appeal, resisting the reservation as specified herein; and in this court the defendant administrator answers the appeal and avers that the judgment appealed from is erroneous and should be reversed — reiterating the charges contained in his answer in the lower court.

Having gone over the pleadings and judgment we find that there is presented for consideration and decision the solitary question of law: whether or not the administrator of the succession of the deceased wife can sell property of the legal community for the purpose of paying the debts of the community during the lifetime of the surviving husband? And in case that question is decided in the negative, whether or not the judge a quo had the legal right to make in his judgment the reservation he did.

Unquestionably the real estate in controversy belonged to the matrimonial community which existed between the plaintiff and his deceased wife, and that the community being dissolved by the death of the wife, the title vested in the surviving husband and the heirs of the wife, jointly, subject to the payment of community debts and charges.

Unquestionably, the one-half interest of the deceased ip the community passed under the usufruct of the surviving husband at her death, and the inheritance of her heirs became subject thereto, and will so remain until it shall terminate.

Unquestionably, the wife while living, incurred no personal responsibility for the debts of the community, and, consequently, neither her succession nor heirs become responsible therefor after her death; notwithstanding the heirs will be entitled to any residuum there may remain after the settlement of the debts of the community at the termination of the surviving husband’s usufruct.

The foregoing are fundamental and elementary propositions, in support of which citations of authority and the principles of the Code are deemed unnecessary.

And accepting same as correct, it is not readily perceived upon what ground the pretensions of the administrator are founded; for if the wife was not personally bound for the payment of community debts while living, no duty is cast upon the administrator of her estate in reference to their liquidation and payment in her succession.

It may be said that the wife’s heirs have an interest in seeing commnnity debts discharged, because they have an interest in ascertaining the residuum in order that the amount of the bond of the usufructuary may be fixed.

But, conceding this interest, the claim of the administrator’s counsel is a non sequiter, for the reason that the heirs have a different and adequate remedy for ascertaining the net value of their half interest in the community by making proof, contradictorily with the survivor and usufructuary, of the value thereof and the amount of the debts, and thus fix a basis for his bond.

This was the course pursued in the succession of Mrs. Julia Abes, which figures in the suit of Abes vs. Levy, 48 An. 41, recently decided.

It is also undeniable that the husband is, during the existence of the community, personally and individually liable for community debts, and is chargeable with their settlement after the death of his wife, irrespective of his usufruct.

But we find, in the reasons of the judge a quo for the decision he .rendered, the following statement, viz.:

“ On May 29, 1894, in passing on the petition of plaintiff herein, to be put in possession as usufructuary of his wife’s share in the property, I decided that the administrator (of the wife’s succession) had the legal possession of such share, and the plaintiff could not take it as usufructuary without paying the debts of the community. That judgment was never appealed from, but acquiesced in by the parties; the plaintiff herein having since paid the greater portion of the debts, excluding the debt of the community to the separate estate of the deceased.”

Though, he frankly admits, that since that decision was rendered this court has rendered ah opinion announcing an opposite view, citing Hewes vs. Baxter, 46 An. 1281, and that he deems it to be his duty to follow it.

Consequently he was of opinion that on account of this difference of opinion between this court and himself, and the fact that the plaintiff is now “ in the enjoyment of the community property as usufructuary, upon paying the debts of the community; and considering the fact that the said husband had paid many of the debts under said judgment,” he thought it would serve the ends of justice and equity to arrest the sale of the community property for the time being at least.

“ As the debts of the community have not been-all paid; and as it has been alleged that there are debts due by the separate estate of the wife, provision will be made in the decree for their payment out of the property, should the surviving husband fail to pay them. The community . owes the separate estate of the wife,-and the amount of this claim may be sufficient to pay the debts of the (wife’s) separate estate. If insufficient, then the administration will have the right to force a liquidation of the community, in order to subject the wife’s residue to the payment of the debts of her separate estate.

“To accomplish this a'delay of ninety days will be accorded to the surviving husband and usufructuary to pay the debts of the community, and particularly the debt due to the separate estate of the wife,” etc.

Then follows the reservation specified above.

It appears from the foregoing that the additional question is presented, of the right of the administrator of the wife’s separate estate to collect a debt that is due by the eomrrmnity to the separate estate of the wife by sueeession sale of the community property while the husband is still living.

The decision of this question necessarily arises in determining the legality of the judge’s reservation, which is the principal object of this appeal; but inasmuch as this controversy is being waged between the administrator of the wife’s estate, representing its creditors primarily, and the surviving husband, the two propositions may be taken together.

The most recent and most pertinent expression of this court on the-subject is to be found in Hewes vs. Baxter, 46 An. 1281, in which the Chief Justice, in speaking for the court, said:

. “Defendant’s theory that when the community of acquets and gains is dissolved by the death of the wife, and her succession has been opened and a testamentary executor appointed thereto, that the community property passes into the possession and under the control of this executor, and the community has to be settled and liquidated in the wife’s succession by and through an administration of the executor, is not correct.”

But while that decision was brought to the notice of the judge a quo and he recognized its applicability in some respects, yet he seemed to regard himself as bound by some previous decree he had rendered with regard to the husband’s usufruct, and consequently made the reservation of which appellant complains. It must be observed, however, that no point is made by either party to the present suit upon that judgment, and that neither party has sought protection under it, and, therefore, the whole question is presented for decision.

The opinion expressed in Hewes vs. Baxter, 46 An., is not only well stated and in a proper case, but it is in keeping with the uniform jurisprudence of this Court.

In succession of Hooke, 46 An. 353, it was held that a creditor of a community can not compel an administration of the wife’s succession, but his remedy is to proceed against the surviving husband and against the community property for the satisfaction of the claim— citing several recent decisions.

In Hart vs. Foley, 1 Rob. 378, it was said:

“As our laws, however, have provided no mode to compel a regular settlement of a community dissolved by tbe death of the wife, it behooves the creditors of the community to interfere for the protection of their rights.

“After the death of one of the spouses in a legal .sense of the word the community is terminated; each party is seized of one undivided half of the property, subject to the payment of debts. The creditor who wishes to hold the heirs of the wife responsible for a community debt must join them in his suit against the husband,” etc.

In Succession of Cason, 32 An. 790, it was said that community creditors are under no necessity to provoke its liquidation through the medium of the wife’s succession, because it is settled they may disregard the wife’s interest and proceed directly against the community property in the possession of the husband, contradictorily with him alone.”

In Landreaux vs. Louque, 43 An. 234, this court recognized the right of a community creditor to foreclose a mortgage by executory proceedings conducted against the surviving husband alone, without citation or notice to the heirs of the deceased wife.

To the same effect are Foutz vs. Bistes, 15 An. 636, and Killelea vs. Barrett, 37 An. 865.

In Dawson vs. Ripley, 17 La. 258, it was held that when the community is dissolved by the death of the wife, the surviving husband is usually applied to' for the satisfaction of community debts.

In Rusk vs. Warren, 25 An. 314, it was held that the death of the wife does not deprive the surviving husband of the right to make bona fide settlements for the payment of the debts of the community.

In Hawley, Administrator, vs. Crescent City Bank, 26 An. 230, the court said:

“ Upon the dissolution of the community by the death of the wife, the responsibility of the husband in regard to the community debts is not changed. He is absolutely and personally bound for their payment ; and his separate property may be seized and sold for their acquittal. This being his position he has under his control the community property which by law is expressly subjected to the payment of the community debts; and he has, so far as the final settlement and liquidation of the community after its dissolution is concerned, the same rights he had during its existence, because he is, after dissolution, under the same responsibilities for the community debts that he was before the dissolution. It is but just that he should have these powers (because) the community property continues under his control until the debts are paid.”

In Vinson, Administrator, vs. Vives, 24 An. 336, it was held that the surviving husband had the legal right to collect community debts because he was owner of one-half of the community property and usufructuary of the other, and_ the court recognized and maintained as legal and binding a compromise which he had made with a debtor of the community, subsequent to the death of his wife, of a large mortgage debt.

In Succession of Bringier, 4 An. 389, it was held that the right of the surviving husband to the usufruct of the share of the deceased wife in the community attaches at the same moment that the rights of property accrue in favor of his heirs. That the usufructuary is permitted in such case to retain the whole and receive its fruits on-making the necessary advances to discharge the debts, which are to be reimbursed without interest at the termination of the usufruct.

And in Succession of Fitzwilliams, 3 An. 489, it was said : tc Nor is the exercise of the right of the usufructuary inconsistent with that of the heirs or of the creditors to insist on a speedy adjustment of the debts of the community and on a sale of the property for that purpose if necessary.”

To the same effect is Succession of Brinkman, 5 An. 27.

In Moore vs. Moore, 20 An. 159, it was said that the surviving husband is in possession of right under the law and “ can so continue until a partition or a second marriage.”

Of the same purport is Succession of Viaud, 11 An. 297. As indicating the outgrowth of the foregoing consistent and well settled jurisprudence relative to the rights of creditors against a community which has been dissolved by the death of the wife — and we have expressly and specially eliminated all other questions from consideration it was decided in Baird vs. the Heirs of Sprowl, 23 An. 424, that a community creditor may seize and sell, under execution conducted against the surviving husband alone, property of the community in satisfaction of a judgment, and that the heirs of the deceased wife had no interest or right to enjoin the sale.

In Ricker vs. Pearson, 26 An. 391, it was held that community property having'been sold under ' execution against the surviving husband in the collection of a community debt, the heirs of the deceased wife had no standing in court to annul the sale, or to claim an interest therein.

To the same effect is Riley vs. Condran, 26 An. 294. And finally it was decided in Succession of McLean, 12 An. 223, that an administration of the deceased wife’s estate was unnecessary for the purpose divesting that of the community, and vesting a complete title in a purchaser in the property sold.

This principle was again announced in Heirs of Brown vs. Jacobs, 24 An. 526.

Haviog made a most careful and studious examination of adjudicated cases, in which this court has dealt with the rights of community creditors and of the means which the law has accorded them for the enforcement of their claims against the property of the community after it has been dissolved by the death of the wife, we feel safe in announcing our conclusion to be fully in accord with the views expressed in Hewes vs. Baxter, and Succession of Hooke, supra. And the result of this conclusion is that we hold that the administrator of the succession of Mrs. Jeanne Claude Devillard, defendant herein, is without right or authority to take or assume possession or control of the property held in community between the deceased and the plaintiff as her surviving husband and usufruct-uary, or to sell same, in the course of the administration thereof, for the purpose of paying debts of the community, albeit they are debts due by the community to the separate paraphernal estate of the deceased wife.

Such administrator has the right, of course, to administer the separate estate and property of the deceased wife, in so far and to the extent that same does not trench upon the community, in which she had only a residuary interest, and for the debts of which she was not personally bound.

This administration involves the right of the wife’s succession representative to take any and all necessary proceedings against the surviving husband for the collection of any indebtedness of the community to her separate estate; but it does not confer upon him the power to make sale of property of the community for that purpose in her succession.

We are of opinion that the appellant has made manifest his right to have the judgment appealed from amended, and the reservation made by the judge a quo annulled.

It is therefore ordered and decreed that the judgment appealed from be so amended as to reject and disallow the reservation contained therein; and it is further ordered and decreed that the plaintiff’s demand be recognized and enforced, and that his injunction be sustained and perpetuated without other damages than counsel fees, which are fixed at two hundred and fifty dollars, and that as thus amended the same be affirmed at the cost of the defendant and appellee in both courts.


author: McEnery, J.

text:
    No. 12,040.
    John Lillie vs. Mrs. Elizabeth E. Lillie et al.
    wiiere a demand is made upon an agent to account for the rents and revenues of property under liis administration, the judgment prayed for being only for the amount as shown by the account, the proper course to pursue when the answer of the defendant denies that he owes an accounting to plaintiff is to ascertain the fact whether an account is due, and if so to order the defendant to file an account within a fixed time, to which the plaintiff may, if he chooses to do so, file an opposition.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Guy M. Hornor for Plaintiff, Appellee.

      Frank MeGloin for Defendants, Appellants.
    Argued and submitted March 25, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused April 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff instituted this suit against the defendants, who are his mother and sister, to compel them to account for the rents and revenues of certain immovable property, in which he claimed to have an undivided third interest. The prayer is for them to account, arid a judgment in solido for whatever sum may be found to be due him by said accounts, as they shall be finally settled by the court. To this demand the defendants answered, denying that the plaintiff was the owner of the property, and that they were under no legal obligations to account to him for the rents and revenues. On this issue the case went to trial, and the plaintiff offered evidence of ownership of the property and the value of the rents and revenues. The defendants filed no account and offered no evidence. Judgment in solido was rendered against the defendants for the sum of one thousand one hundred dollars ($1100).

The defendants have appealed.

The judgment against the defendants for the amount of rents and revenues was premature. The plaintiff asked for no specific amount due him. The judgment prayed for was the amount to be ascertained as due him after the filing of the account. Having found that the defendants owed an accounting to plaintiff for the administration of his property, an order should have followed this directing the defendants to file an account within a fixed time, to which the plaintiff, if he had objections to the same, could file an opposition. The plaintiff can expect no more than he has demanded in his prayer, which was simply to file an account of the administration of his property by the defendants. The evidence, we think, amply justifies an order for the filing of an account for rent and revenues of the property claimed by plaintiff from the mother, but it does not appear that the sister was the agent of the plaintiff for the administration of his property. Nor does it appear that she received any part of the rent of the property. We learn from the testimony of John T. Whittaker, the attorney at one time of Mrs. Lillie, that she was the agent of the plaintiff and his sister.

The judgment appealed from is avoided and reversed, and it is now ordered that this case be remanded to be proceeded with in due course of law, and in accordance with the '"lews herein expressed.


author: Breaux, J.

text:
    No. 12,084.
    State of Louisiana vs. John Davis.
    An order of tlie trial court granting- a new trial not reversed on appeal by the State.
    PPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      Milton J. Ounningham, Attorney General, and A. J. Murff for Plaintiff, Appellant.

      Joannes Smith for Defendant, Appellee.
    Submitted on briefs March 14, 1896.
    Opinion handed down March 28, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant was tried by jury and found guilty of embezzlement.

Upon his motion a new trial was granted by the trial judge.

From the order granting a new trial the State prosecutes this appeal.

The following are the reasons, in substance, of the court for granting the new trial, made part of the bill of exceptions taken by the District Attorney:

The evidence showed, the court certifies, “ that John Davis had not embezzled the property he was charged with having embezzled.”

To reverse an order granting a new trial (if at all reversible) it must, at least, be manifest that an error of law was committed in granting a new trial. We do not think that in this case there was an abuse of discretion. No appeal lies, at the instance of the State, from an order granting a new trial.

The appeal is therefore dismissed.

The Chief Justice and Justice Watkins concur only in this decree.


author: Watkins, J.

text:
    No. 12,039.
    The State of Louisiana vs. Louis P. Mattle.
    An ordinance of the city of New Orleans which provides that no one shall open or establish a drinking house or establishment for the retail of spirituous liquors without first obtaining a license or permit from the City Council is not illegal nor unconstitutional, as it comes within the police power of the city.
    APPEAL fromthe First Recorder’s Court for the Parish of Orleans. Whittaker, J.

      E. A. O’Sullivan, Olty Attorney, for City of New Orleans, Plaintiff, Appellee.

      Joseph Maille for Defendant, Appellant.
    Argued and submitted on briefs March 24, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was ■ delivered by

Watkins, J.

The defendant appeals from a judgment rendered !by the judge of the First Recorder’s Oourt of the parish of Orleans, sentencing him to pay a fine of five dollars, or suffer imprisonment •of ten days, in the parish prison, having been found guilty of violating Ordinance No. 7012, O. S., relative to opening a barroom without previously obtaining permission from the City Council.

In the lower court, the defendant filed the following demurrer to the complaint preferred against him, viz.:

“That while he admits having opened his barroom without a permit from the City Council, he denies that he sold any liquors in violation of the prohibition of said ordinance.

“ That said Ordinance No. 7012, C. S., by virtue of which he was ■arrested, is null and void and unconstitutional in that it violates Section one of the Fourteenth Amendment of the Constitution of the United States, and Article one of the Bill of Rights of the Constitution of this State, in depriving him of the liberty of carrying' on a legitimate business sanctioned by law; and further, that said ordinance is illegal, null and void, because it is arbitrary, not general or uniform in its operation, discriminates against persons and otherwise ■divests the City Council of its discretionary and legitimate authority.”

The judge overruled the demurrer on the ground that the courts have already decided that this city has a right to regulate its own police affairs, and this (case) comes under its police regulations.”

On the trial of the case the testimony disclosed that the defendant had opened his barroom without having obtained a permit from the ■City Council, as he was desirous of making a test case of it. That when the officer visited the premises he found his door closed, and upon it being opened, “ there was a crowd of men found drinking -beer and whiskey, inside.”

That as the defendant had no license, he arrested him and locked him up.

■The provisions of Ordinance No. 7012 are as follows, viz.:

“ That it shall not be lawful for any one to set up or establish any drinking house, coffee house, beer house, or place where liquors of any kind are sold at retail by the glass, to be there consumed, without having first petitioned to the Mayor and Oity Council,” etc.'

“That any violation of the foregoing ordinance will be punished by a fine,” etc.

The remainder of the ordinance specifies the manner of making petition and that of making protest, and it has no bearing upon the part quoted above, which deals with the penalty when no application is made at all.

There can be no question of the legality and constitutionality of the ordinance. It comes clearly within the police power of the city.

Judgment affirmed.


text:
    No. 11,905.
    Elizabeth O. Emke vs. Susan McDonald et al.
    There is no legal presumption of indebtedness of a certain sum raised against a tutor in favor of his ward, on the clerk’s certified abstract of inventory of the . latter’s property being duly registered in the mortgage office, which is sufficiently cogent to justify a court of justice to base a judgment upon in a partition suit amongst the heirs.
    At most it is the commencement of proof.
    A PPEAL from the Civil District Court for the Parish of Orleans, /i Monroe, J.

      J. Timony for Plaintiff, Appellant.

      Buck, Walsh & Buck for Miss Annie Pringle, Defendant, Appel-lee.
    Argued and submitted March 13, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was delivered by

Wateins, J.

The proceeds marshaled for distribution among the parties to this suit were realized from the partition sale of real estate belonging to their deceased mother, and the judgment appealed from relates thereto.

The facts appearing in the transcript necessary to be considered are the following, viz.:

Mary Ellen Hall was first married to Warren McDonald, who died in New Orleans in November, 1871, leaving, as the issue of that marriage, two minor children, viz.: Elizabeth, the' plaintiff, and Susan, one of the defendants in this suit.

His succession was never administered, and the only property of which he died possessed appears to have been a small store, which was kept by his widow subsequent to his death.

Mary Ellen Hall (Widow McDonald) was married again to William Pringle, in New Orleans, in 1872, who died in August, 1874, leaving as the issue of that marriage one minor child, viz.: Annie Pringle, another of the defendants in this suit.

The surviving widow of the two marriages caused an inventory to be taken of property, which consisted chiefly of the contents of a store, notes and accounts, furniture, etc., which were appraised at five thousand two hundred and eighty dollars and fifty- seven cents; and she caused an abstract of same to be inscribed in the mortgage office and qualified as natural tutrix.

There was no formal administration of the succession of William Pringle, and the proof shows that the widow and tutrix took charge of the store immediately after his death and thereafter operated and managed it.

On January 20, 1875, the Widow Pringle bought a piece of real estate'on Gasquet street, which she sold in June follo\ ing to Susanna Price; but same was retroceded io her in January, 1877. This property was occupied by the widow and children afterward and she added certain improvements; and that is the property the proceeds of which are now proposed for distribution.

Mrs. Widow Pringle died on the 25th of May, 1881, leaving as her survivors her three children, aged, respectively, eight, eleven and fifteen years; but there appears to have been no administration of her estate or inventory taken of her property. There is no evidence as to what became of any personal effects she may have owned at the time of her death, and no trace is left of the store or of its contents — all the proof seeming to have been directed to the charges for taxes, repairs and insurance on the real estate alone.

In September,' 1894 Elizabeth McDonald, now the wife of Otto Emke, filed a suit for a partition of the real estate by licitation, and, alleging her two sisters to be co-owners, she made them defendants.

There was judgment recognizing the three sisters to be the heirs of their deceased mother, and as the joint and equal owners of the property in indivisión, and ordering a sale for the purposes of partition and settlement between them; and the sale having been made, the sum of two thousand three hundred and fifty dollars in cash was realized.

Less charges and costs, this sum is proposed for distribution, and the respective contention of the parties may be summed up as follows, viz.:

1. That of the McDonald children is, that Annie Pringle should collate about two thousand dollars which she has received and used; and that said sum should be added to the activa mass for division.

2. That of Annie Pringle is a denial of any legal responsibility for the rents and uses of the property; and that the property was charged with a legal mortgage against the deceased mother, resulting from the registry of the abstract of the inventory of the Pringle community, which secured her interest therein of one-half, amounting to the sum of two thousand six hundred and forty dollars and twenty cents — an amount in excess of the total proceeds, and that she is entitled to have the same applied thereto by preference.

There is in the record no evidence of any indebtedness on the part of the deceased to Annie Pringle on the score of her hereditary claim, as the heir of her father, than what appears in the foregoing resumé, and the judge aquo seems to have rested his conclusions and decree sustaining same upon the presumptions of law that he drew therefrom.

Consequently, it is to this point that our attention will be first directed.

The law requires that an abstract of the inventory of a minor’s property must be inscribed in the mortgage book of the parish where the tutor resides; (R. C. C. 331), and it is declared that the recording thereof “ shall operate as a legal mortgage in favor of the minor for the amount therein stated,” etc. R. 0. C. 323.

But the amount thus left in the hands of" the tutor is subject to the use and enjoyment of the minor, under the restrictions imposed by the law, and settlements made from time to time as required by law. R. O. O. 356.

Consequently, while the registry of an abstract of inventory operates as a mortgage security for the tutor’s indebtedness to the minor (R. 0. 0. 3280), for the amount therein stated (R. 0. 0. 323), yet it may be extinguished “by the extinction of the debt for which the mortgage was given.” R. 0. 0. 3411.

It was held in Ritter vs. Succession of Faessel, 34 An. 416, that, as nothing in the record discloses the amount of the indebtedness of the tutor to his ward, an order of seizure and sale to enforce a substi-stuted special mortgage in favor of the minor must be set aside; because a special mortgage given by the tutor “ does not import a confession of judgment for any specific amount.”

In Succession of Theurer, 38 An. 510, this court said that “ it would do violence to the spirit as well as the letter of the enactments providing for the recording of abstracts of inventories in the interest of minors to hold that they were conclusive of the sum due. * * * The Legislature, therefore, has, ex industria, declared that the recording of any instrument of this kind shall in no manner be evidence of the validity of the debt or claim.” R. S., Sec. 2365.

Reference to that section confirms that statement.

It is evident that we should violate the positive mandate of the Legislature if we were to accept the recitals of the inventory as affording evidence of the validity of the tutor’s indebtedness to his ward, and rest our judgment upon it.

It fully appears from the statement of the facts above related that there was adduced in evidence in the court a qua no other proof of the indebtedness of Mary Ellen Wall, deceased, to Annie Pringle on account of her hereditary claims in the succession of her father, William Pringle, deceased.

His succession was opened by his death in August, 1874, when Annie Pringle was only an infant, and Mrs. Pringle died in May, 1881, some years having intervened, during which she had exclusively the care and expense of the minor. During her lifetime she filed no account of her receipts or disbursements; and no receipts or vouchers have been produced disclosing her expenditures.

But there are, to our minds, some facts which are disclosed by the statement furnished which have a bearing and should be taken into consideration in deciding the issues before us.

They are the following, viz.:

1. When Warren McDonald died in 1871, there was no administration of his succession, and no inventory taken of his property; though it is stated that, at the time of his death, he owned a small store, the value of which is not given.

2. That subsequent to his death, Mary Ellen Wall, his surviving widow, took charge of this store and managed and operated it.

8. That when she was married to William Pringle in the following year, he brought nothing into the marriage of which the testimony furnishes any account; but when he died in 1874, an inventory was taken which showed property which ivas appraised at five thousand two hundred and eighty dollars and fifty-seven cents, consisting chiefly of a store and its avails.

4. That of this property Mrs. Pringle took charge, after her husband’s death; and on the 20fch of January, 1875,within less than one year after her husband’s death, she acquired the piece of real estate that constitutes the basis of this controversy, and which realized the sum of twenty-three hundred and fifty dollars in cash at the partition sale.

5. Subsequent to this investment there is no trace left of the little store, or of the notes, accounts, or other avails thereof.

Are we to assume, under this state of facts, that there was community property accumulated by William Pringle and wife, aggregating in value five thousand two hundred and eighty dollars and fifty-seven cents, in the short interval of time which elapsed between the date of their marriage in 1872 and that of his death in 1874?

Are we not rather to assume that the property of the first com - munity between McDonald and his wife was employed by Mrs. Pringle to make the acquisition of the realty after the death of her second husband; and that, being thus invested, the hereditary claims of Annie Pringle become thereby absorbed?

We are inclined to that opinion.

A thorough consideration of this case, in all of its bearings, has satisfied our minds that the demand of Annie Pringle is not substantiated by the proof and should be rejected and disallowed as of non-suit.

We do not find in the record sufficient proof on the question of rents and revenues to justify a judgment commanding Annie Pringle to make a collation, or render an accounting of same necessary in .order to effect a partition between the heirs.

At most, the registry of the abstract of inventory can amount to the commencement of proof of indebtedness of the tutrix to her ward; consequently, our conclusion on the whole is to remand the case ex proprio motu so that all parties may have additional opportunity of substantiating their respective claims to the funds proposed for partition.

It is therefore ordered and decreed that the judgment appealed from be annulled and set aside; and it is now ordered and decreed that the cause be remanded and reinstated in the court a qua to await further proceedings according to law, appellee to pay costs of appeal, and those of the lower court to await final action therein.


author: WATKINS, J.

text:
    No. 12,082.
    State of Louisiana vs. Miles Bell.
    Act 50 oí 1894, amending Revised Statutes, See. 968, declares that prescription shall not apply to any conviction of .a lesser crime or offence under an indictment for wilful murder, arson, robbery, forgery or counterfeiting; but, on the contrary, said prescription or exception shall not be pleadable against such an offence.
    It was the evident intention of the Legislature that this statute should go into (operation and have effect at once, and that thereafter such exception should not be pleadable at all.
    A PPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      M. J. Ounningham, Attorney General, and A. J. Murff for Plaintiff, Appellee.

      R. D. Webb and J. A. W. Lowry for Defendant, Appellant.
    Submitted on briefs March 14, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

WATKINS, J.

On the 20th of July, 1892, the defendant was indicted for the murder of John Heffner, on the 24th of August, 1887.

On the 30th of January, 1896, he appeared, assisted by counsel, and was duly arraigned, and plead not guilty; and thereupon the cause was fixed for trial on the 3d of February, 1896.

On the day fixed for trial the defendant again appeared, assisted by counsel, and formally entered the plea of guilty of manslaughter, and he was thereupon sentenced to pay a fine of one dollar and costs, and to be incarcerated in the State penitentiary at hard labor for a period of ten years.

On the 6th of February, 1896, counsel for defendant filed a motion in arrest of judgment, on the ground that the bill of indictment shows on its face that Che crime of manslaughter was prescribed when same was found, and he also, and as part of his motion, avers and pleads this “prescription in bar of the execution of judgment.”

Two days later counsel for defendant filed a plea of prescription of one year as to the crime of manslaughter, and on the same date both pleas were tried, overruled, and judgment signed.

From the foregoing proceedings and judgment the present appeal was taken, and is prosecuted.

There was no bill of exception taken, and consequently no reasons of the trial judge for his ruling and refusal to sustain the defendant’s pleas at bar appear in the record.

We have, therefore, a simple question of law for decision.

Counsel cite and rely upon the decisions of this courc in State vs. Cobb, 7 An. 107, and State vs. Joseph, 40 An. 5, as sustaining, while the State relies upon Act No. 50 of 1894, as defeating defendant’s plea.

The two decisions cited, and others of same import, are to the effect “that the accused not having been indicted within twelve months after the offence was committed, he could not be legally convicted of manslaughter; ” but the Legislature in amending Revised Statutes, Sec. 986, declared that “ prescription should not apply to any conviction of a lesser crime or offence, under anjindictment for wilful murder, arson, robbery, forgery or counterfeiting; but on the contrary said prescription, or exemption, shall not be pleadable against such an offence.” Act 50 of 1894.

It is not only a familiar canon of construction in the civil practice, that prescription acts upon the remedy inter medias res, and takes effect at any stage of proceedings wherein the local statute is changed; but the special charge and direction of the foregoing amendment is, that prescription in the cases enumerated “ shall not be pleadable against such an offence.”

Our duty is, to give effect to the statute.

Judgment affirmed.


author: Wateins J. Breaux, J.

text:
    No. 12,057.
    Succession of Louis Octave Hymel. Opposition of Mrs. F. E. Tassin.
    Recognizing liis indebtedness to his children on account of their residuary claims as heirs of their deceased mother for a share in the community, the father directed a sum of money largely in excess thereof to be,'by his commission merchant, transferred to their account, -without designating the purpose for so doing: Held, that the first presumption of law is, that a payment of said indebtedness was intended, and thereby accomplished.
    On Rehearing.
    The case is remanded only as relates to the effect of a renunciation and to determine whether, under the circumstances, it can be invoked against the one renouncing.
    APPEAL from the Twenty-first Judicial District Court for the Parish of St. Charles. Rost, J.

      James Legendre and Robert G. Dugue for Executor, Appellee.

      Fenner, Henderson & Fenner and Joseph F. Poehé for Opponent, Appellant.
    Argued and submitted February 24, 1896.
    Opinion handed down March 23, 1896.
    Rehearing refused, reasons assigned, April 20, 1896.
   The opinion of the court was delivered by

Wateins J.

This controversey grows out of an opposition to an executor’s provisional account, in which Mrs. Tassin claims, as an heir of her mother, Adeline Troselair, predeceased wife of Louis Oteave Hymel, the sum of six thousand eight hundred and eighty-one dollars and thirty-ñve cents, as her distributive share of the sum of forty-one thousand two hundred and eighty-eight dollars and eleven cents, which represented her mother’s interest in the community between her and her surviving husband, and which he retained in his possession as usufructuary; and for which his estate is responsible.

Per contra, the contention of counsel for the executor is, that, while admitting the correctness of the foregoing statement, nothing is due to opponent, because the deceased gave to each one of his children, on the 5th of January, 1887, the sum of thirty-four thousand seven hundred and thirty-seven dollars and forty-one cents in cash — to the opponent among the number — prior to his death on the 8th of October, 1892; and that same, being in legal effect an advance to his children on their inheritance in his succession, operates the extinguishment of her claim, asa donation; or, if not, then as apayment and discharge thereof.

On the trial there was judgment dismissing the opposition and amending and homologating the account in some minor particulars; and from that decree the opponent prosecutes this appeal.

Preliminarily, opponent’s counsel press upon our attention an alleged error of the judge a quo in sustaining the theory of counsel for the executor that the opponent’s hereditary rights and claims had been settled, in the absence of any plea of payment having been formally tendered; though they frankly admit that this court has repeatedly recognized an exception to the general rule as existing in probate proceedings, on the theory that an opposition is but an answer to an account stated, which inaugurates the litigation.

Considered as res nova, their argument would be impressive, no doubt, but it is better that this court should continue to decide questions of practice as it has frequently decided them before.

The judge a quo has justly observed this rule.

It appears from the evidence that on the 28th of December, 1886, the deceased made a donation inter vivos in favor of his three children, as an advance on their inheritance in his succession, certain real and personal properties in presentí, which were valued in the act at thirty-six thousand six hundred dollars.

That, on the 5th of January, 1887, his commission merchant, at his instance and direction, transferred from his own account to that of his children the sum of one hundred and four thousand two hundred and twelve dollars and twenty-three cents, that is to say thirty-four thousand seven hundred and thirty-seven dollars and forty-one cents to each.

That of this amount the opponent received her proportionate share.

The question raised on this state of facts is, whether or not this last transaction operated as a settlement of the opponent’s hereditary claim against her father.

Outside of this single transaction, the evidence with regard to the father’s intention in making the advance of so large a sum to his children shortly before his death involves it in doubt — the testimony of Mrs. Tassin being to the effect that her father had admitted his indebtedness and promised to liquidate the same; and that on the part of the executor favoring the theory of payment.

Counsel for the executor place strong reliance on the circumstance of the deceased having made to the heirs a large donation immediately previous to this transfer of funds, as giving to such transfer the character of an extra judicial settlement of their hereditary rights and claims against him.

And it seems to us that there is some force in the suggestion; for it seems unlikely that the father, being aware of his indebtedness to his children of thirty-five thousand dollars, could have contemplated that it should remain unpaid, notwithstanding his donation to them of over-thirty-six thousand dollars, and his assignment of one hundred thousand dollars in cash in addition.

It seems likely that if it had been his intention it would have found some expression in the act. But what seems to us as most striking is, that the two transactions absorbed from his assets about one hundred and forty thousand dollars, and increased their fortunes to that extent, notwithstanding his usufruct during life; and the consequence is, that the net value of his estate is placed at the small sum of twenty-five thousand'dollars — an amount insufficient to reimburse to the heirs their hereditary claims, after succession debts aod changes have been paid.

The judge a quo entertained the opinion that the executor’s resistance to the opponent’s demand was well-founded, andhis defence complete; and he cited and relied upon the case of Rohrbacker vs. Schillinger, 12 An. 17, and Greenleaf on Evidence, Vol. 1, Sec. 38.

The case cited presents the question as to whether the administrator of a succession had a just claim, against the defendant for one thousand dollars of loaned money — the defence being that the deceased had given him that sum “partly in payment of an antecedent indebtedness, and partly as a remunerative donation for services rendered.”

The proof administered at the trial was meagre and unsatisfactory, except as to the solitary fact that one witness saw deceased deliver to the defendant a one thousand dollar bank note — the conversation being conducted in the German language, which the witness did not comprehend.

The court thereupon said:

“ Upon this evidence we are compelled to decide whether proof of the bare fact that A handed a certain sum of money to B, unexplained, will authorize A to recover it back on the allegation that it' was a loan.

“The highest authorities have decided this question in the negative.”

In confirmation of this statement the opinion cites the following paragraph from Greenleaf, viz.:

“ The mere delivery of money by one to another, or of a bank check, or the transfer of stock, unexplained, is presumptive evidence of the payment of an antecedent debt, and not of a loan.” 1 Greenleaf on Evidence, See. 38.

The court then observes further:

If the deceased'handed defendant “ this money knowing that he did not owe it, and if there is no proof of his intention, the presumption of law is that it was a gift, and he could not succeed in a suit for its repetition without disproving the presumption.”

And after the citation of some authority, the court sums up its conclusions thus:

“We are called upon to presume a loan, when the presumption of the law is that it was either a payment or. a gift.”

It is rarely the case that authorities so pei'fectly appropriate are cited. In our conception, the parallel is complete. The deceased either intended a donation, or a payment of a debt to his children.. As the indebtedness confessedly existed, and the law first raises the presumption of payment, we think it our duty to do as did our learned brother of the District Court, and give it effect as such; and the debt having been thus satisfied the further presumption of a gift having been intended can be appropriately applied to the residue.

This legal presumption supplies the place of the proof of payment that is required by R. O. O. 2232; because Art. 2287 declares that a legal presumption dispenses with all other proof, in favor of him for whom it exists.”

Counsel for opponent suggests the inapplicability of the decision quoted, in that this is not a suit for recovery of a sum of money the deceased is alleged to have loaned to his children; but its applicability appears to our minds clear, in that the opponent is seeking to have placed upon the executor’s account a claim which was presumably paid and extinguished by the transfer of funds to her account with her father’s commission merchant at his request. And we simply hold, as did the court in Rohrbacker’s case, that, in the absence of proof of |her father’s intention, the lopponent’s demand can not be sustained “without disproving the presumptions” of law that it raised against her.

Opponent’s further contention is that the particular legacies specified in her father’s will exceed the disposable portion of his fortune and trench upon the legitime of his forced heirs.

If regard is had to the value of decedent’s estate at time of his death this contention would be correct; but if we apply the rule prescribed in the "Code it is not.

That rule prescribes that in order to determine whether “any disposal of property, whethe.r inter vivos or mortis causa, exceeds the quantum of which a person may legally dispose to the prejudice of his forced heirs” (R. C. O. 1602) “an aggregate is formed of all the property belonging to the debtor or testator at the time of his decease; to that is fictitiously added the property disposed of by donation inter vivos,” etc. R. O. C. 1606.

Following that rule the judge a quo found the result of the evidence to be about as follows:

Inventoried value of estate . $24,212 76

Amount of donation collated. 36,600 00

Amount of transferred fund collated... 104,213 23

Aggregate. $166,055 99

Debt due heirs of hereditary claim 20,644 05

Balance.$144,411 94

Deduct debts of succession. 2,732 40

Balance $141,679 64

Upon this result the legitime of the heirs is to be calculated and determined, one-third of same being forty-seventhousand two hundred and twenty-six dollars and nineteen cents; same represents the reserve. R. 0. 0. 1493, 1237.

Each one of the heirs having received, under the act of donation inter vivos, the sum of twelve thousand two hundred dollars, and by the assignment of cash thirty-four thousand four hundred and thirty-seven dollars and forty-one cents, the total amount of forty-six thousand six hundred and thirty-seven dollars and forty-one cents appears to have been consumed, less five hundred and eighty-eight dollars and seventy-nine cents.

As the reserve is divisible between the three heirs of the deceased, it is manifest that nothing favorable to the opponent could be accomplished by reinstating the heirs in their original situation, as the result would be substantially the same in any future settlement between them.

We thus find that opponent’s complaint is not well founded, in that there is a small amount ascertained to be to the credit of the executor for the account of the heirs, after making an allowance sufficient to cover the entire amount of the hereditary claims of the three heirs of the deceased, including both of the other sums which are mentioned under the title of donations.

But, on the executor’s hypothesis, that these hereditary claims were paid and discharged, we have this statement, "viz.:

Amount put to credit of hereditary claims of the heirs in error.$20,64-1 05

Balance on foregoing statement. 588 79

Net amount imputable to legacies...$21,232 84

Particular legacies deducted. 12,000 00

There is a balance approximately of. $9,232 34

after deducting special legacies and donations, and this balance greatly exceeds the claim of the opponent.

The foregoing figures are not given as furnishing an accurate mathematical résumé oí the succession; but merely as indicating the course of reasoning we have pursued in arriving at the conclusion stated.

Mrs. Tassin having judicially confessed that she had renounced all of her rights as residuary legatee under her father’s will, the judge a quo properly amended the executor’s account conformably thereto.

On Application for Rehearing.

Breaux, J.

Mrs. Tassin, opponent and appellant, in her application for a rehearing, complains of the judgment appealed from in so far as it amends the executor’s account, and she represents that, in this particular, it was rendered ultra petitum and is error.

The conclusion of the lower court on this point was logical, but it was not supported by special and express pleadings. The executor and the heirs were, as relates to Mrs. Tassin’s renunciation of benefit under her late father’s will, silent, in so far as the pleadings in the lower court shows; they suggested no amendment of the pleadings after the renunciation had been made.

In view of this fact, and also in view of the fact that it is suggested that the brothers of Mrs. Tassin have not claimed the benefit of the renunciation, and in view of the further fact that it is inti-. mated or that, perhaps, it may be inferred, they never will make the claim.

We have concluded to amend the judgment appealed from to some extent; in accordance with the prayer of the petition, also, to amend our decree.

It is ordered and decreed that to Mrs. Tassin is reserved all claims she may have under the will, to this extent only: we do not pass upon her rights, after having renounced as before stated; nor do we pass upon the rights of her brothers, as to whether they can avail themselves of the benefit of the renunciation, after the homologation of the executor’s account-in so far as not opposed and in view of the circumstances of the case. We do not pass upon the question at all; we reserve the rights of all parties as relates to the renunciation; whether or not it shall be enforced as originally made, and to that end, and to try and decide that issue only, the case is remanded. The costs to abide the final result of this case.

With this amendment pur decree remains.

Rehearing refused.


author: Brbaux, J.

text:
    No. 12,056.
    St. Charles Street Railroad Company vs. O. A. Fairex.
    The interest of an heir in the immovables of a succession, as soon as he accepts it, is subject to the right of a creditor whose claim is secured by judicial mortgage, subject to the right of priority of the creditors of the succession. 21 An. 255; 3 An. 34, 36.

      The heir having in a compromise fixed the value of the residuum, and rendered it Impossible to settle the succession on the basis of the inventory and other proceedings subsequent, that value is adopted and payment according ordered.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Harry H. Hall for Plaintiff, Appellee.

      Albert Voorhies and W. S. Benedict for Defendant, Appellant.
    Argued and submitted March 28, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused, reasons assigned, April 20, 1896.
   The opinion of the court was delivered by

Brbaux, J.

This case was remanded.

On the second trial an amended petition was filed. The amended petition was considered as traversed in the District Court under the terms of the agreement between plaintiff and defendant. The plaintiff offered the evidence he had offered on the first trial.

The defendant offered the same evidence and copies of invento - ries. Copies of sales and of accounts are of record on appeal, that were not in the transcript of appeal when the case was remanded.

There is a total absence of any oral testimony.

Evidently the judge of the District Court has given close attention to the issues.

He summarizes as follows the decision remanding the case:

1. The plaintiff’s recorded judgment against Mrs. J. B. Schiller, the forced heir of her daughter Mary E. Schiller, deceased wife of O. A. Fair ex, attached to her portion of her daughter’s succession, subject to her debts; that it affected the mortgageable property to the extent of the residuum.

2. That the amount of the indebtedness of Mrs. J. B. Schiller to the succession of her daughter Mary E. Schiller at the date of her compromise between O. A. Fairex and Mrs. Schiller, August 7, 1888, if any, be ascertained and fixed by this court, and the residuum, if any, be legally established.

8. That it did not appear on the face of the papers that the judgment by default rendered November 8, 1881, in favor of Mary E. Schiller against Mrs. J. B. Schiller was a consent judgment and was without consideration. That the right of both plaintiff and defendant were reserved, the former to attack and the latter to present all legal pleas in defence of this judgment. 46 An. 1022; R. R. Co. vs. Fairex, 46 An. 1040.

In the amended petition filed as before stated, plaintiff attacked the judgment by default dated November 8, 1881, obtained by Mrs. Fairex against her mother for the sum of, thirty thousand dollars.

The judgment of the District Court, on the second trial, was for the plaintiff. The defendant appeals.

At his death in 1869, the. late J. B. Schiller left a valuable succession.

No accounts were filed; the estate seems to have been settled in an extra judicial manner; each heir and the widow in community receiving cash and other property.

In January, 1881, his heirs obtained a judgment against their mother; (the widow of J. B. Schiller) for an account and for a liquidation and partition of the succession.

In April of that year, without fixing the amount of her indebtedness to her children, she transferred to them property in partial settlement of an unstated amount due.

From the facts appearing of record in the succession of J. B. Schiller, it is reasonable to infer that Mrs. Schiller was indebted in some amount to her daughter at the time that the latter obtained a judgment against her mother for thirty thousand dollars. It may be that this was un exaggerated amount.

The property inherited by the mother, Mrs. Schiller, and the other heirs of her late daughter, Mrs. Fairex, was community property as long as the property remained undivided (C. C. 936, 1214; Succession of Tureaud vs. Gex, 21 An. 255), and in that situation plaintiff’s mortgage attached on the undivided share of the immovables of the succession, when accepted, subject to a liquidation and settlement. Succession of Widow Tureaud vs. Gex, 21 An. 253, 255.

A similar principle is announced in Union Bank vs. Marin, 3 An. 34-36; also in Succession of Dejean, 5 An. 593; Neal vs. Lapleine, 48 An. —, and recently in Newman vs. Cooper, 46 An. 1494. In fixing the amount of the residuum it is urged by the plaintiff that the judgment of thirty thousand dollars obtained in 1881 is res inter alios acta, and that in addition it is a nullity, as it does not show upon the face of the papers that any evidence was introduced. This must be granted; at the same time the defendant is entitled to prove aliunde the amount of the indebtedness of the tutrix to her ward. .

To this end the inventory of the succession of J. B. Schiller was introduced in evidence, sales made by Mrs. Schiller as executrix and accounts filed by her and approved by the court.

They are, at least, prima facie evidence of an amount due.

The inventory was duly taken and approved; it was, at least, the commencement of proof; the subsequent proceedings support its correctness as prima facie evidence, although a third person is not bound by proceedings to which he was not a party; the case is different when a creditor seeks to prove that a residuum is due to his debtor, as here.

The rule res inter alios acta does not apply for the reason that at the date of these proceedings the plaintiff was not a creditor.

In the second place, property has been disposed of and title given defendant for their validity upon these proceedings. Ex necessitate his relations to the proceedings were similar to those of the heir.

In a moment we will see that in a compromise the defendant has chosen to fix the value of his mother-in-law’s interest in the succession of the property, which must, under the circumstances of this case, serve as a basis for settlement.

The facts on this point may make this ease sui generis.

After the death of defendant’s wife, in 1887, an inventory was taken of the property of her succession, showing assets to the amount of fifteen thousand two hundred and sixty-nine dollars. The surviving mother, as forced heir, was entitled to one-third of this amount.

In a suit brought by Mrs. J. B. Schiller and her two daughters, sisters of defendant’s late wife, to annul the will of Mrs. Fairex made by her in favor of her husband, the defendants allege grounds, if true, that would have been sufficient to annul the will of Mrs. Fairex in favor of her husband.

In act of compromise of August, 1888; it is declared:

‘ ‘The said Octavia A. Fairex shall pay to the said Mrs. Oaroline M. Schiller, wife of Robert T. Henley; Mrs. Ophelia M. Schiller, wife of William H. Rolling, and Mrs. Margaret Emma St. Pierre, widow of the late John B. Schiller, the sum of thirty-five hundred dollars cash” for their interest in the assets of the “succession of the late Mrs. Mary Emma Schiller, wife of Octave A. Fair ex, whether as legal or an instituted heir, and more especially the real property inventoried described as follows:”

It being a common sale on the part of the vendors, and the interest of the mother being one-third, presumably one-third of the amount was paid to her for her interest.

The vendors joined in one contract to sell an equal interest. In the absence oi evidence to the contrary, it is fair to infer that each received an equal amount of the price.

' “When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obligors.” O. O. 2080. We do not presume that she received more than one-third, the amount of her inheritance. If there is doubt upon the subject, the maxim would apply: In dubiis semper quod minimum est sequi-mur — i. e., in case of doubt the conclusion should be, in favorem solutione in the sense the least onerous to the obligor.

This was the value fixed by the defendant himself. It was not the sale of particular succession property, but the transfer of an interest in the succession at a stipulated price. The purchaser, as to the value, is bound by the price in the absence of any testimony offered, with the view of proving that other consideration than that expressed entered into the contract. Nemo contra factum suum ve-nire potest.

As to the remainder claimed by the plaintiff, after having allowed the price paid to Mrs. Schiller, the judgment for thirty thousand dollars was obtained many years (prior to the judgment of the plaintiff), fixing at the time the amount of the indebtedness of Mrs. Schiller. The documents in evidence prove that a large amount was due. The interested parties, at a time not suspicious, fixed the value of that interest, and, to the end of compromising, settled for a less amount than the judgment.

Presumably the mother was entitled to the amount — i. e., one-third of the price paid for the residue.

Having taken the declarations contained in the deed in fixing the responsibility of the defendant, it is but fair that the estimate placed upon the property should be accepted as correct). The declaration must be taken in its entirety; it can not in justice be divided.-

Moreover, we would nob be justified in these proceedings, were we to declare the compromise null and void in decreeing that the property be sold.

May it not be suggested that the well-known maxim applies, Interest reipublicie ut sit finis litium?

Another decree again remanding the case for a partition would not, it seems to us, serve the interest of any one.

In view of the fact that a compromise has fixed an amount and effected a partition, we think it should remain as fixed and the partition as effected.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount of the judgment as against the defendant only, from the amount of the judgment of thirty-five hundred dollars to the sum of eleven hundred and sixty-six dollars and sixty-six cents, with five per cent, interest thereon from 2d day of August, 1888. As amended the judgment appealed from is affirmed, at appellee’s costs.

ON Application foe Rehearing.

It is a well settled rule that the burden of proof lies on the person who wishes to support his case by particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant.

No attempt was made by oral testimony to explain the character of the compromise or to show that the least error was committed in writing down the declarations of the parties. If there is ambiguity or any declaration in the deed at all, misleading, it devolved upon the defendant to become a witness and at least endeavor to explain.

We would not be justified in assuming that it was not the sale of the residuum of the daughter’s succession to the son-in-law, but that it was a donation, under the guise of a sale. The court is not assuming an unknown fact in stating that sons-in-law are not prone to make donations to their mothers-in-law, when compromising with them, conflicting claims and putting an end to lawsuits. The amount was nob referred to in the deed of compromise as a donation, but as the price paid for the remaining assets of the succession.

Rehearing refused.