text:
    L. E. Turner, Curator, v. C. D. Smith et al.
    An acknowledgment by the father of natural children by his own slave, besides being offensive to morals, is amere nullity.
    A slave can neither sue for alimony nor inherit.
    The Act of the Legislature of the 6th March, 1857, which forbids the emancipation of slaves thereafter in this State, renders impossible the enfranchisement of slaves under a last will and testament, not carried into execution for that purpose prior to the passage of the Act of the Legislatature.
    The testator, after a disposition in favor of his slave Rachel and her children, of one-third of his estate, declared as follows: u I give OAid bequeath the remainder of my estate to my said executor, Charles Dudley Smith,Held: That as it was not the intention of the testator to give to his executor the portion of the estate xn*eviously devised to ‘others, the legacy in favor of the slaves which lapsed in consequence of the impossibility of their enfranchisement, enured to the benefit of the heirs of law of the testator as in case of intestacy.
    APPEAL from the District Court of West Eeliciana, Ratliff, J.

      TJ. B. & E. Phillips, for plaintiff.

      S. J. Potoell, Muse and Millet', for the heirs, appellants.
   Buchanan, J.

John Turnbull, a resident of the parish of West Eeliciana, made the following declaration in writing before a notary public and two witnesses of said parish, on the 19th day of December, 1855 :

“ That he does by those presents acknowledge Mary, a girl of mulatto color, aged about seven years ; Eliza, a girl of mulatto color, aged about six years ; Dudley, a boy of mulatto color, aged about four years ; Charles, a boy of mulatto color, aged about two years; and Minerva, a girl of mulatto color, aged about five months, to be his children, by him begotten of their mother Rachel, a mulattress or griffe, aged about twenty-three years ; said children and their mother being- now his slaves.”

On the same day that he made this declaration, (the 19th December, 1855,) John Turnbull made his olographic testament, containing the following (with other) clauses:

“ I give and bequeath to my natural children, Mary, a girl of mulatto color, aged seven years ; Eliza, a girl of mulatto color, aged six years ; Dudley, a boy of mulatto color, aged four years; Cha/i'ley, a boy of mulatto color, aged two years; Minerva, a girl of mulatto color, aged five months, (now my slaves,), their freedom, and direct my executor to take the steps necessary to obtain their emancipation according to the laws of this State, or to send them to some country or State, to be by them selected, where slavery is not recognized, if their emancipation with leave to'remain in the State cannot be lawfully obtained; in either case, the costs and expenses of obtaining their emancipation and removal to he borne by the mass of my estate. I also give and bequeath her freedom to mjr slave woman Rachel, of mulatto color, aged about twenty three years, and I wish my executor to cause her to be emancipated with permission to remain in the State, or if this cannot be done, to remove her to some free State or country, all at the cost of my estate. I also give and bequeath to my said natural children, duly acknowledged by me by public act passed before D. C. Jones, notary public, on the 19th December, 1855, to wit, Mary, Eliza, Dudley, Charley, Minet'va, and to their mother, Rachel, whom I have directed to be emancipated, one-third of my entire estate, to be divided equally among them, or as many of them as may be living at my death.”

John Twnbull, the testator, died on the 17th June, 1856; and his will was admitted to probate and execution on the 27th June, 1856. Lewis B. Twrn&r, the plaintiff, was appointed by the court curator of the slave Rachel and her children, mentioned in the will, and has brought this suit against the executor, who is also universal legatee, as well as against the next of kin and heirs at law of the testator. His petition prays, that the last will and testament of John Twnbull be decreed to be good and valid, and bo ordered to be carried into effect and executed in all its parts; and that the legacj^ to Rachel and her children be ordered to be set apart and paid over to petitioner in his capacity of curator. The executor answered, joining in the prayer of the petition, but praying that in case any of the legacies should lapse or be set aside, that the same might enure to his (the executor’s) benefit as residuary legatee. The heirs at law also joined issue, pleading the nullity of the clauses of the will which we have copied above, and of the notarial declaration of paternity, as being contrary to law and good morals. They further pray that they may have judgment for the property devised to Rachel and her children, and that the emancipation of the devisees be declared null.

It is unnecessary for us to inquire how far the dispositions of Twnbull's will would have been susceptible of execution, previous to the passage of the Act of the Legislature of the 6th March, 1857, entitled an Act to prohibit the emancipation of slaves.

Wo consider it proper, however, to declare our conviction that the so called act of acknowledgment of the children of Rachel as the natural children of the testator, is a mere nullity. The object of an acknowledgment of a natural child, is to confer upon such child certain rights, such as alimony, or inheritance. But a slave can neither sue for alimony nor inherit. And the same notarial act which declares the individuals named to be Turnbull's 'children, declares at the same time that they are his slaves. Such an acknowledgment, besides being offensive to morality, is without any operation or effect in law. In the case of Fletcher, 11 An. 59, we gave effect to an acknowledgment of paternity by a free man in regard to his slave, but in that case, the acknowledgment was contained in an act of enfranchisement which had recieved full and entire execution.

In the present case, Twnbull took no steps towards emancipating the children of Rachel during his lifetime, although he lived for six months after the so called act of acknowledgment. His declaration, in his will, of an intention to enfranchise them, was only intended to be operative after his death; and could not produce any effect until after his death, because it was always in his power, up to the moment of his death, to revoke his will. G. O. 1455.

No steps had been taken by the executor of Twnbull towards manumitting these slaves, up to the institution of this suit, (3d September, 1856,) nor at any time subsequently, so far as we are informed by the pleadings and evidence. In the meantime, the Act of the Legislature of the 6th March, 1857, above alluded to, has been promulgated. It is as follows; '

“Be it enacted by the Senate and House of Representatives of the State of Louisiana' in General Assembly convened, That from and after the passage of this Act, no slave shall be emancipated in this State.”

The enfranchisement of Rachel and her children having thus become legally impossible, the legacy made to them by the testator of one-third of his estate has lapsed.

The subject of enfranchisement of slaves is one over which the State has always exercised a controlling power. In the case of Delphine v. Guillet, 11 Ann. 425, we said: “The policy of the State has annexed conditions to the enfranchisement of slaves, which the court cannot permit to be disregarded.” This language holds good of a legislative prohibition to enfranchise altogether.

The only question that remains is, to whom shall the lapsed legacy enure— to the residuary legatee, or to the heirs át law ? Upon this point, the case of Compton v. Prescott, 12 Robinson, is conclusive in favor of the heirs at law.

The clause in Qompton’s will was: “I give and bequeath all the remainder of my estate, real and personal, to my four neices, (naming them,) to he equally divided among them.”

This was held to exclude an intention on the part of the testator to give, in any event, to those neices, that portion of the estate previously devised to others ; and those previous devises which were set aside, accordingly enured to the benefit of the heirs at law as in ease of intestacy. The words of the residuary devise in John Tv/rnbull's will, were similar. Immediately following the dispositions in favor of Bachel and her children, we read: “I give and bequeath the remainder of my estate to my said executor Gha/rles Dudley Smith." 12 Rob. 63 to 67.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that as to the bequest of freedom to Bachel and her five children, contained in the last will and testament of John Twrnbull, the demand of plaintiff be rejected; that the legacy by universal title of one-third of the testator’s entire estate to Mary, Eliza, Dudley, Gharley, Minerva, and to their mother Baahel, to be equally divided among them, or as many of them as may be living at the testator’s death, be annulled, avoided, and considered as not written; that Charles O. McDermott, Anne E. Smith, Scm'oh Sterling, wife of Lewis Sterling, Sen., Isabella Semple, and Daniel Turnbull, heirs at law of the deceased John Turnbull and appellants herein, recover of Charles Dudley Smith, testamentary executor of John Turnbull, one-thirdfof the entire estate of the said John Twnibull, to he computed ffrom the date of the opening of the succession; and that the plaintiff and appellee pay costs in both courts.


source: Caselaw Access Project

author: Vookhies, J.

license: Public Domain

text:
    James D. Hill v. Pascalis Labarre et al.
    The first section of the Act of the Legislature of 1855 (Session Acts, 477) merely prescribes the form, of the writ of fieri facias; the second section of that Act prescribes the period within which the writ may be returnable. Held: That when the writ was returnable on a fixed day, which was not less than thirty nor more than seventy days, it was not informal. Held, also, that the Sheriff’s • return, containing no mention of a call on the plaintiff to point out property, was clearly defective, and could not be made the legal basis of a proceeding for a surrender.
    The default of the Sheriff being established, it was incumbent on him, in order to avoid liability for the amount of the writ, to show a legal excuse, and the plaintiff was not bound to prove that he had been damaged.
    APPEAL from the District Court of Jefferson, Bm'the^ J.

      J. W. Bric7cell% for plaintiff and appellant.

      Btirms é Dugué, for defendant.
   Vookhies, J.

This is a rule on PascaUs Laba/i're, as Sheriff of the parish of Jefferson, to show cause why he should not be made liable for the full amount of an alias writ of fieri facias, directed to him from the Fourth District Court of New Orleans, in the suit of Dick & Hill v. John P. Bemiss, in consequence of his failure to return the same within the legal delay. His surety is also made a party defendant.

His answer is that there is no cause of action alleged by the plaintiff against him.

The writ was issued on the 18th of June, 1856, and made returnable on the fourth Monday of July following. The return thereon is as follows, to wit:

“Received June 18th, 1856. Made demand on defendant, who answered he had no money and no property in the parish. Returned 28th July, 1856.
Jas. C. Wilson, Deputy Sheriff.”

The certificate of the Clerk of the 4th of September, 1856,, shows that up to that time the writ had not yet been returned to his office.

James O. Wilson, the only witness examined on behalf of the defendants, testifies that “the first writ was returned nothing done, Mr. Bemiss not being in the parish at the time. Mr. Estlin, attorney for plaintiff,, said he would issue an alias, and directed a demand to be made on Bemiss. Mr. Estlin said that he merely wanted a demand made on Bemiss, in order to force him to make a surrender under the new law of 1855. After the alias was placed in the Sheriff’s hands he did not see Mr. EstUn. He had received instructions before the writ came in his hands. Mr. Bemiss resides in this parish. Saw Mr. Bemiss in the house he now occupies. Two years ago Mr. Biemenu, Deputy Sheriff, was sent to the house of Bemiss to make a demand on the first fi. fa. The alias fi. fa. was returned' into court after the rebwm day." He further testified that he had carefully examined the registers of the conveyance office, and was unable to find any property standing in the name of John B. Bemiss.

The defence rests on throe grounds: “1. That the writ itself was not in the form prescribed by the statute. 2. That the attorney for plaintiff was well apprised of the insolvency of Bemiss, and that the money could not be made, and had declared that he only wanted a demand made on Bemiss. 3. That the plaintiff had shown no damage.”

None of the grounds thus urged, under the state of facts presented, appear to us sufficient to justify the Sheriff in failing to make a formal return of the writ within the legal delay.

We think the Judge a quo erred in considering the first ground tenable. The first section of the Act of 1855 merely prescribes the form of a writ of execution or fieri facias, whereas the second section prescribes the period within which the writ may be made returnable, to wit: “in not less than thirty nor more than seventy days.” Construed with reference to each other, and to the object to which each applies, the provisions contained in both sections appear to us to be perfectly consistent. Hence the writ was formal, as it was not made returnable “in less than thirty nor more than seventy days.”

If the object of the plaintiff was as stated in the second ground, it is certain that the Sheriff’s neglect to make a formal and seasonable return of the writ had the effect of defeating instead of promoting such object. Making no mention of a call on the plaintiff to point out property, the return was clearly defective, and could not, therefore, have been made the legal basis of such a proceeding.

Neither was the plaintiff bound to allege or prove that he had been damaged. The default of the Sheriff being established, it was incumbent on him to show a legal excuse. See the case of Brand v. Wilkinson, 11 An. 273, and the authorities there quoted.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that the rule herein taken be reinstated and made absolute, and that the defendants pay the costs of both courts.


author: Cole, J. Voorhies, J.,

text:
    Bank of New Orleans v. City of New Orleans.
    Where payment has been made of a tax which might have been resisted at law„ the money cannot be recovered:
    1st. If the tax is on property, whether exempt from general taxation or not, and the assessment is rather a toll or contribution than a tax, and the party paying has derived a direct benefit from the improvements made by the imposition of the tax or assessment.
    2d. Where the property was liable to taxation, and the illegality of the tax depends upon some informality in the passage of the law establishing the tax.
    But where the tax is imposed, not for the direct benefit of the party who sues to- recover it, as having been paid in error, but for the general support of the commonwealth, and it has been imposed upon property or a profession exempt by law from taxation, the money must be refunded.
    APPEAL from the Third District Court of New Orleans, Kennedyr J.

      Elmore & King and J. B. Eustis, for plaintiff.

      J. Livingston, for defendant and appellant.
   Cole, J.

Plaintiff claims of the city of New Orleans $525 for this, to wit: that on the 19th day of January, 1855, the city of New Orleans exacted from petitioner $500 as a tax on the profession he exercised during the year 1854, and $25, amount of railroad tax; that this tax was not legally due, but was paid through mistake and error of law, without any consideration or obligation.

The answer is a general denial, and an averment that plaintiff was bound to contribute to the legal government for protection received. Judgment was rendered for plaintiff, and the city has appealed.

Plaintiff relies on the case of the City of New Orleans v. Southern Bank, 11 An. 41, to show the illegality of this tax.

In that case it was decided that its stock could be taxed at the same rate as other personal property, but not in any other manner, and therefore that the calling, business or profession of the Southern Bank could not be taxed.

The only question, then, is whether a tax paid on a profession exempt from taxation can be reclaimed as mone3r paid in error.

We will refer to a few cases in which reclamations were made for money alleged to have been paid in error, and then deduce from them and the law in general the principles which govern suits for the recovery of money paid in error for taxes.

In the case of the Catholic Society v. New Orleans, 10 An. 75, it is decided that the exemption of the society by law from payment of taxes on its property, repels the idea of anything like a natural obligation on the part of the plaintiff for their payment, and this decision is based on Articles 2280 and 2281 of the Civil Code: “He who has paid through mistake, believing himself a debtor, may reclaim what he has paid. To acquire this right, it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery.”

The court in this case also say; “If these institutions merited the protection and encouragement of the State government, it is difficult to perceive how any natural obligation could possibly exist on their part for the payment of taxes from which they were exempted. Vide Ligon v. New Orleans Navigation Co., 2 L. R. 129.

In the case of Worsley v. Second Municipality of New Orleans, 9 Rob. 325, this court refused to compel defendant to refund money alleged to have been paid in error, on the ground that if the Act of 1808 did not authorize the Municipality to exact the wharfage dues, yet the corporation had, at their own expense, conferred upon the growing commerce of the counti-y an immense advantage ; that the money was voluntarily paid, and plaintiffs derived advantage and profit from those expenditures for the wharves and levees, which the city was under no legal obligation to furnish, to the extent, at least, that they now exist.

They knew when they paid that it was in the nature of a remuneration for the use of the wharves; there was a natural obligation to pay, and equity forbids that they should recover it back.

In the case of Hills v. Kernion, 7 Rob. 523, this court refused to cause defendant to refund money as paid in error, on the ground that equity forbidding that plaintiffs should profit by the labor of the defendants without remuneration, and the consideration for which the extra compensation was paid not being immoral or unjust, there was a natural obligation on the part of the plaintiffs to pay, and that no action will lie to recover back the amount.

In the case of W. Z. Campbell v. City of New Orleans, ante, p. 34, the decision of this court, refusing to compel the city to refund a tax alleged to have been paid in error, was based on the ground that the obligation of plaintiff to pay the tax subsisted in conscience and according to natural justice, because it was neither immoral nor unjust, although informally contracted. In this case there was a mere informality in the imposition of the tax, but Campbell had derived benefit from the expenses incurred by the city for his benefit and protection, and it had the abstract prerogative to impose taxes upon the property assessed. Vide City of New Orleans v. Phillippi, 9 An. 44.

It was then just for him to pay it. There was a natural obligation on his part to assist in the support of the expenses of the city, and the latter could not then be condemned to refund the tax.

In this suit the court also say: “The case would present quite a different aspect if the tax had been paid upon property not subject to taxation at all.”

In Jamison v. City of New Orleans, ante, p. 346, the plaintiff had been assessed $400 for the opening of Benton street. In that case the city had been at expense in opening it for the benefit of the property holders contiguous to it. Jamison having paid the assessment without objection, and it being- really just and equitable that he should contribute a part of the expenses, he was then under a natural obligation to pay it, and this court decided that he could not recover.

We deduce from the preceding cases and the law in general the following principles which ought to govern suits instituted for the recovery of money paid in error for taxes, to wit: Although a corporation could not enforce the payment of a tax if resisted at law, yet if the party has paid it he cannot recover it hack under the following circumstances:

1st. Where the tax is on property, whether exempt from general taxation or not, and where the assessment may rather be considered a toll or contribution than a tax, and where the party derives a direct benefit from the improvements made by an imposition of a tax or assessment, as, for example, in the case of the opening of a street — the benefit to the property holders in its vicinity — the party cannot then recover back his money, because as he enjoys a direct advantage from' its expenditure, it is not equitable that he should have both the benefit and the money. There is a natural obligation on him to pay, therefore he cannot recover it.

We have said above that the party cannot recover in the preceding state of facts, even if his property is exempt from general taxation, and this is just, for although his property may not be subject to general and public taxes to be assessed and collected for the benefit of the town, county or State at large, yet it is liable to such assessments as are intended and directed to be made upon the owners of lots and lands, or other property which may receive benefit and advantage by the improvement; and this distinction was held by the Supreme Court of the State of New York, in the case of a religious association which was there exempt from taxation under the general law exempting churches from taxation, and it was held liable for an assessment for the opening of a street. 11 Johnson, 80; Worsley v. The Second Municipality of New Orleans, 9 Rob. 335.

1 2d. The party cannot recover back his money where the property was liable to taxation, and the illegality of the tax depends upon some informality either as to the time of the enactment of the law imposing it, the mode of promulgation or any other error relative to its passage. This is also just, because there is a natural obligation on every citizen to contribute to the support of his government.

3d. When the tax is imposed, not for the direct benefit of the party who sues to recover it back as paid in error, but for the general support of the commonwealth; and when it is levied on property or on a profession exempt by law from taxation, then the money must be refunded, because as the legislative power did not deem it requisite to tax such property or profession for its support, then the taxation thereof was unnecessary for the purpose of defraying the expenses o.f the State. It would not then be just to force a party to pay what was not needed, and in this case, if a party has paid a tax he can recover it back, because there was no natural obligation on him to pay to the State what was not necessary to its support; in other words, he was under no obligation to make it donations.

As the Bank of New Orleans has paid a tax on its profession from which it was exempt by law, defendant is bound to refund the money.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.

Spoefokd, J., recused himself, being a stockholder in the bank.

Buchanan, J., took no part in this decision.

Voorhies, J.,

concurring. In the case of the City of New Orleans v. The Southern Bank, 11 An. 41, this court held the tax of $500, levied under the city ordinances “on every bank organized and doing business under the free banking law of this State,” to be illegal.

The tax levied on the Bank of New Orleans under that ordinance was paid by the plaintiff. In the Catholic Society v. City of New Orleans, 10 An. 73, where the property assessed was exempted from taxation, it was held that the defendant was entitled to recover back the tax as illegally exacted, inasmuch as no natural obligation existed for its payment. In a case subsequently decided, ( W. L. Campbell v. City of New Orleans, ante, p. 34,) where there was no law exempting the plaintiff’s property from taxation, the court held that the action of repetition did not lie, as a natural obligation existed to pay the tax assessed. The distinction existing between those two cases is clearly defined in the latter.

Considering that the Bank of Orleans was exempted from the payment of the tax for which it was assessed, according to the decision in the case of the Southern Bank, I concur in Mr. Justico Cole’s conclusion.


author: Merrick, C. J.

text:
    Charles Metcalfe v. J. S. Clark.
    Where an insolvent had neglected to make one of his creditors a party to the insolvent proceedings and being himself syndic, had, in violation of the Act of 188?, suffered nine years to elapse without filing a tableau of distribution, it was Keltic he was not in a condition to compel such creditor to become a party to his stale proceedings in surrender, but that the creditor might wholly disregard them.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      A. A. Frazier, for plaintiff

      Frank Ilaynes, for defendant and appellant.
   Merrick, C. J.

This suit is brought under the Act of 1853, to revive a judgment rendered in December, 1844. In September, 1845, the defendant made a voluntary surrender of his effects to his creditors, and placed the plaintiff on his hilan as a creditor for the amount of the judgment, but no citation was ever served upon the plaintiff, nor was he in any manner made a party to the proceedings.

The present suit was commenced in December, 1854. The defence to the action is, that there has as yet been no tableau of distribution filed, and under the authority of the oases of Taylor v. Hollander, 4 N. S. 535, and Conery v. Heno et al., 9 An. 587, this case ought to be cumulated with the insolvent proceedings.

The decree of the lower court revived the judgment of 1844, but condemned the plaintiff to pay the costs. The defendant appealed; the plaintiff acquiescing in the decree of the lower court.

It has been held by this court, that where a creditor was not made a party to the insolvent proceedings in a resonable time, he was not bound by the tableau of distribution and might disregard the same, and proceed upon his original demand. 3 N. S. 262; 6 L. R. 578 ; 18 L. R. 462.

Here the defendant, who was the syndic, having in the first instance neglected to cause the plaintiff to be made a party to the insolvent proceedings, and moreover having suffered nine years to elapse without filing a tableau of distribution in violation of the Act of 1837, is not in a condition to compel the plaintiff to become a party to his stale proceedings in surrender. Leges vigilantibus non dormientibw swbsermunt.

Judgment affirmed.


author: Voorhies, J.

text:
    Dennis D. Boyle et al. v. Ferry and Knapp.
    In attaching a vacant lot of ground or tract of land, it is not necessary the Sheriff should take possession of the property attached by the actual and corporeal detention of the same.
    The execution of the writ has the legal effect of vesting in the Sheriff the civil possession of the defendant.
    Where the defendant in the writ, or his tenant, held the natural possession of the property attached, it would be different.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      E. Emole, for plaintiffs and appellants.

      O. Dorsey, for defendant.
   Voorhies, J.

This is an action of partition in which the plaintiffs claim the ownership of an undivided fourth of a certain lot of ground in the parish of Jefferson, as described in their petition. Isaac Knapp, one of the defendants, also claims the ownership of the same property. Both parties assert title under Elnathan S. Hall; the former by virtue of a forced alienation, and the latter, a sale executed in the State of Ohio on the 11th of March, 1850, and recorded in the parish of Jefferson on the 1st of June, 1850.

The plaintiff, it appears, instituted a suit by attachment against Elnatham, B. Hall, whom he represented as residing permanently out of the State, for the recovery of §4183 14, besides interest. The Sheriff’s return on the writ of attachment is as follows :

“ Received, July 21st, 1849 ; on the same day, attached the following property, to wit: the undivided fourth of a lot or lots in the city of Lafayette, square No. fifty-four, on the corner of Laurel and First streets, and running-down from said corner of Laurel street one hundred and eighty-three feet and a half, thence back through the centre of the square, towards Live-Oak street, one hundred and sixty feet, thence up through the square to First street, towards the river, one hundred and sixty feet to the corner or place of beginning ; and on the same day, posted a copy of the within attachment at the door of the District Court of this parish. Returned 21st July, 1849.
“ F. St. Amand, Deputy-Sheriff parish of 'Jefferson.”

On the 9th of February, 1850, a curator ad hoc was appointed by the court to represent the absent defendant Hall. Upwards of two months after his appointment, the curator ad hoc filed an answer pleading the general issue. On the 4th of June, 1850, a final judgment was rendered in favor of the plaintiffs for the amount claimed in their petition, with privilege on the property attached. On the 10th of August, 1850, the plaintiffs became the purchasers of said property at a judicial sale under the judgment thus obtained by them. The record in this case contains an admission, that the lot attached was not enclosed or built upon, and was vacant.

It is objected, under this state of facts, that the attachment is void, on the ground that the Sheriff did not seize and take into his possession the property attached. In attaching a vacant lot of ground or tract of land, we do not apprehend it to be the duty of the Sheriff to take natural possession of such property. The execution of the writ, as in the present case, has, of itself, the legal effect of vesting in the Sheriff the civil possession of the defendant. But where the defendant in the writ or his tenant held the natural possession of the property attached, we apprehend that it would be different,, and the principle in-yoked in the case of Stockton v. Downey, 6 An. 581, would then be cleai’ly applicable. See 19 L. R. 254.

The signification of the word attach is to seize, to take 'by legal authority. The use of the word seized certainly would not have given more force and effect to the attachment than the use of the other word attached, for it appears to us both convoy or express substantially the same sense or meaning. Giving a different construction to the law, or the one contended for by the defendant Knapp, would, it seems to us, give rise to a vain and idle ceremony, which we cannot presume was ever intended by the law-maker. Hence we conclude that the Judge a quo erred in considering as essential that the Sheriff should have taken possession of the property attached by the actual and corporeal detention of the same.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that a partition of the property described in the plaintiffs’ petition, preceded by an inventory, be made between the parties, as prayed for, and according to the mode prescribed by law, the defendant and appellee Isaac Knapp to pay the costs of this appeal, those of the court below to abide the final result of the suit between the parties, and as regulated by law.


text:
    Sarah Greenwood et al. v. The City of New Orleans et al.
    The family Bible being produced as evidence to show that a party to judicial proceedings was a a minor when they took place, it appeared that a blank had been left for the date of his birth, which was filled up m pencil; it also appeared that the Bible, instead of being kept as a record of events at the time of their occurrence, contained several entries made with the same pen and ink, and apparently at the same time. JJeld: That -as the witnesses, after a lapse of fifty-one years, could not refer to any distinct positive fact occurring at the time, by which the date could be satisfactorily fixed, the testimony was not sufficient to set aside proceedings which had been acted upon and tacitly acquiesced in for nearly thirty years.
    The father and mother, while their children are under their authority, may appear for them in court in any kind of civil suit in which they may be interested.
    The interest of the parents does not conflict with that of their children, on account of the usufructuary interest the parents have in the property of their children.
    When the proper parties are before the court for the rendition of a decree, the parties to it can only take advantage of any irregularities in it by an appeal or action of nullity prosecuted in due time.
    A decree pronounced by a competent tribunal, with the proper parties before it, although rendered by consent, being followed by its immediate execution, is a judgment capable of acquiring the force of the thing adjudged, and will produce that effect if no appeal be taken from it, nor action of rescission or nullity instituted within the period allowed by law.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      L. Janin & H. Griffon, for plaintiffs.

      O. Poselius, P. B. Bonford, G. Bustis & J. B. Bustis and J. J. Michel, for defendants and appellants.
   Merrick, C. J.

Shepherd Brown, who was a partner of John McDonogh, died in January, 1818, possessed of much real estate separate and in partnership with McDonogh. He left an olographic will, dated 8th November, 1815, which was admitted to probate in New Orleans on the 6th of February, 1818. He left several collateral relations to whom he bequeathed his estate.

Among others, he bequeathed to the heirs of his sister Sm'ah, wife of William Eaty, one part or one-eighth of his whole property, to he enjoyed by her during her natural life, as will appear from the following dispositions of the will:

“ I will, that immediately after my death an inventory and estimate shall be made of all my property and effects in the State of Louisiana, by two or more persons whom my executors hereafter named shall appoint, the same to be done on oath, and such parts of my property as shall be thought by my executors necessary or beneficial to the succession to be sold, shall be disposed of; but as the interests of my friend and partner John McDonogh are generally the same, it is my desire that all sales of property in which he is concerned shall be made after taking his opinion, and that his remaining interest in such undivided joint property be not injured; further, that no sale of property be made until the debts of my aforesaid partner John McDonogh and myself, under the firm of John McDonogh & Go., and Shepherd Brown & Go., are paid, except for the purpose of paying such debts. After payment of these debts and debts due individually by myself, (which are small,) I will, that all my property and effects of every kind, except such as shall hereinafter be disposed of, shall be, and remain for ever, the property of those hereafter named, in the following proportions, either to be held by them jointly, and the profits enjoyed by them in said proportions, or sold and divided among them in said proportions, as a majority among them (counting by the amount or proportion) shall determine, viz: the whole of my property and effects remaining after the payment of all debts against it, shall be apportioned into eight undivided parts, one of which parts, or one-eighth of all my net property as above, I will and bequeath to the heirs of my brother John Brotan, who died in Jonesborough, State of Tennessee, to be equally divided between his sons and daughters, and in case of the death of any of them, leaving heirs, such heirs to enjoy, in the same manner, the deceased father or mother’s part.”..................'.............
“ I will and bequeath to the heirs of my sister Scwah, wife of William Maty, one part, or one-eighth of my whole property, in the same manner as the two foregoing, but the use or benefit of the same to be used and enjoyed by her for life.”

He appointed John McDonogh, William W. Montgomery and John Hiram Brotan his executors, giving to them, or any two of them, full powers without the interference of judicial or extra judicial authority.

On the 15th and 16th days of June, 1818, the executors caused the real estate, both separate and that in partnership with McDonogh, to be sold at public auction. McDonogh himself, although one of the executors, became the purchaser of many tracts and lots of land in different places. The titles however were, at that time, to most of the tracts of land, only inchoate.

The executors filed their account in 1822, in which the price of these purchases by McDonogh were carried to the credit of the legatees, and the balance in the hands of the executors, consisting of notes payable in one, two and three years, was set down at $57,244 88.

On the 23th day of June, 1823, most of the heirs of Shepherd Brown, deceased, filed in the District Court a suit, among other things, attacking with great particularity the sales made by the executors to McDonogh, and praying that said sales be set aside and petitioners restored to their rights in said immovables, and for judgment against McDonogh and the other executors for the value of such immovables as were in a situation that a partition or return could not be awarded.

Mrs. Sarah Eaty was a party to this suit, but no mention was made that she was a married woman, neither in the petition or power of attorney.

On the 24th day of January, 1824, William Brown, acting- upon insufficient powers of attorney, entered into a compromise of this suit, and a final judgment was rendered therein. From this judgment, Sarah Eaty and all the other plaintiffs prosecuted their appeal to the Supreme Court. The judgment of the lower court was reversed and the cause remanded for a new trial. See case of Brown et al. v. Brown, 2 N. S. 441.

After the case was-.remanded, certain of the heirs in whose favor the judgment had been reversed, compromised with McDonogh a second time, this time upon sufficient powers, and a judgment was rendered to that effect in the Probate Court, in February, 1825, reserving to Mrs. Ealy and her heirs the right to make themselves parties to the judgment and to accept the same terms.

On the 26th day of May, 1825, William Ealy and wife, Sa/i'ah Eaty, and their children, Elizabeth Greenwood and husband, Srn'ah B. Matilda Eaty and Shepherd B. Eaty, as persons of full age, and William Eaty and San-ah Eaty as tutors to Susan Eaty and Abraham S. Eaty, executed a very full and formal power of attorney to W. 3. Eaty, and authorized him to compromise with the executors. Henry W. Eaty was also a child of Williami and Sarah Eaty. In the power of attorney, the usufruct of William and Sarah Eaty to the property or money to be recovered or obtained in compromise is recognized and the right of property in the children.

On the 7th day of July, 1825, Henry W. Eaty, Perigrine Greenwood and Elizabeth Eaty, his wife; Hannah Matilda Ealy and Shepherd B. Eaty, describiiig themselves as majors, and Susan Eaty and Abraham S. Eaty, minors, by William Eaty, their father and natural guardian, William Eaty, as husband of Sa/t'ah Eaty, filed their .petition in the Probate Court, reciting the former litigation and the compromise made with their co-heirs, praying that they be recognized as parties ; that their petition be served on the defendants; that the legacy be decreed to belong- to the petitioners, and the usufruct or life estate therein to said Sa/rah and William Eaty; and that said executors he decreed to pay petitioners $9,803 80 stipulated to he paid for said legacy in said compromise. MeDonogh acknowledged the capacity and accepted serviee of the petition of the plaintiffs.

The same day, a judgment was entered by consent, it being signed by John MeDonogh and John It. Grymes, for defendants, Henry W. Eaty, for himself and as attorney in fact of all the other plaintiffs; James Workman, of counsel for plaintiffs, and Watts & Lobdell, of counsel for plaintiffs.

The judgment purports to he rendered on the calling of the cause by the consent of William Eaty and Sarah Eaty, his wife, Henry Eaty, Perigrine Greenwood and Elizabeth, his wife, Hannah B. Eaty and Shepherd B. Eaty, and Basan Ealy and Abraham S. Eaty, minors represented by their father and mother, their natural guardians and tutors represented by William H. Eaty, their attorney in fact, and by James Workman and Watts & Lobdell, for plaintiffs. It decrees to each of said children of William and Sa/t'ah Eaty, in full satisfaction of their portion of the succession of Shepherd Brown, $1633 96, making in all $9803 80, charged with the usufruct of said William and San'ah Eaty, and decreed the defendants to pay the costs, and that John MeDonogh save the plaintiffs harmless as warrantors from all claims on account of the partnership of Shepherd Brown & Go. and John MeDonogh & Go., and that all the rights which the plaintiffs or any of them might or may have in the lands, tenements, debts, rights and credits belonging to said succession of Shepherd Brown, be ceded to John MeDonogh, surviving partner.

The.day the, judgment was entered and .signed by’the parties in open court, viz,- J;uly 7,'1825, W. W. Eaty, as attorney-in’fact," acknowledged the receipt of the §9803 80 awarded by the judgment. 1

The judgment was signed by the Probate Judge on the 16th of July, 1825.

On the 2d day of July, 1855, within a few days of thirty years after the compromise and decree, the present plaintiffs, Sarah Greenwood and others, as heirs of Shepherd B. Eaty and Abraham S. Eaty, filed their petition attacking the judgment of 7th July, 1825, alleging that the same was not binding on Shepherd B. Eaty, Abraham S. Eaty and Susan Eaty, because they were not parties to the same, because the agent who undertook to represent them had no authority therefor, nor to compromise their claims, and because they were minors, and because no compromise could legally be made except under the authority of a competent tribunal. They attack- the adjudications made to MeDonogh for the same causes of nullity set up in the said action instituted by Ed/ma/rd Livingston on behalf of the heirs of Shepherd Brown, in 1823. They pray to be recognized as legatees of Shepherd Brown ; that defendants be ordered to file an account; that petitioners be decreed to be the owners and put into possession of all the movables and immovables and slaves of Shepherd Brown, and that the court may order a partition thereof; that defendants be decreed to pay petitioners 11-192 parts of the fruits and revenues of said property ; that for such property as has been alienated by said McBonogh, the defendants be decreed to pay petitioners the fruits and revenues up to the time of alienation, and the price received by him and interest, and for general relief.

The defendants, by their answer, put at issue the heirship of plaintiffs, plead the judgment of 1825 as res judicata, and the prescriptions of two, four, five, ten, twenty and thirty years.

From this sketch of the proceedings, it is evident the burden of the controversy rests upon the plaintiffs to show that the judgment of July, 1825, is not obligatory upon them, and they have addressed themselves to this argument with great research and array of authorities.

Their case must rest in effect on these propositions of fact and law which we extract from the voluminous briefs of the plaintiffs, viz:

1st. Shepherd B. Eaty, deceased, although described as a major in the proceedings, was really a minor in July, 1825, and consequently not bound by the decree.

2d. Stisam, Eaty, the plaintiff, and Abraham S. Eaty, deceased, as minors, were not properly represented by their father and mother in the compromise, and they are not therefore bound by the said consent decree.

We will consider these propositions in the order we have set them down.

I. To prove that Shepherd B. Eaty was a minor, a family Bible is produced, which purports to contain a record of the births and deaths of the children of William and Sarah Eaty. In the entry for Shepherd Brown Eaty, a blank appears to have been left for the date of his birth, and it is filled up in pencil as of the 25th of February, 1805. This would have made him 20 years of age at the time of the decree. The plaintiffs also produce sundry witnesses who swear they were acquainted with the parties; that the Bible was the family Bible, known by one witness for forty years, and that the entries therein correspond with their recollections. One witness swears to the ages of the children as corresponding to the entries in the Bible, but evidently testifies with reference to it.

In our opinion, the testimony is entirely insufficient to set aside proceedings which have been acted upon and tacitly acquiesced in for nearly thirty years. Shepherd B. Baby died in 1835, he therefore survived this judgment ten years. He does not appear to have complained of it.

The Bible produced, instead of being kept as a record of events at the time of their occurrence, appears to contain several entries made with the same pen and ink, and apparently at the same time; hence the blank left for the date of the birth of Shephard B. Baby.

The witnesses speak, after a lapse of fifty-one years, of general recollections, and not one of them refers to any distinct, positive fact occuring at the time, by which the date could be satisfactorily fixed.

On the other hand, we have the power of attorney made at a time when the fact of Shepherd B. Baby's majority, whether it had arrived or was about to arrive, was, on account of its proximity, prominently in the mind of all the parties to that instrument, and when there was no interest to misrepresent the fact, and in which Shepherd B. Baby takes upon himself, with the concurrence of his father and mother and major brothers and sisters, who all knew his age, the capacity of major. We think the plaintiffs have failed in their proof on this branch of their case. Shephm'd B. Baby must be held to have been a major, and bound by the decree of July, 1825.

II. Susan Baby and Abraham S. Baby appear as minors in the proceedings of 1825, and as represented by their father and mother.

It is provided by Art. 55, p. 54, of the Oode of 1808, and by Art. 251 of the Oode of 1825, that “Fathers and mothers owe protection to their children, and of course, as long as their children are under their authority, appear for'them in court in every kind of civil suit in which they may be interested, and they may likewise accept any donation made to them.” But it is said in this instance, the interest of the father and mother was in conflict with that of the minor. It is difficult to perceive in what respect; for the law gives to the father and mother of the minor the enjoyment of his estate as usufructuaries, without security, until his majority, and still authorizes them to appear for the minors in courts of justice. And in this instance, the will conferred the same right of usufruct for life upon the mother, and both father and mother, as well as the minors, were interested in acquiring as much as possible on which the usufruct could take-effect. O. O. 553, 239; Old Oode, p. 114, Art. 23.

But it is said the consent judgment is nothing but a contract of compromise, and the father and mother having only the power of tutors, could not enter into the same without the advice of a family meeting. We do not find that the power of the father and mother over the property of the minor entrusted to their administration is to be exercised under the advice of a family meeting; but if it were so, it would bo one of those irregularities of which the parties could only avail themselves on appeal, or possibly by an action of nullity or rescission within the delay allowed by law, because the proper parties were before the court for the rendition of the decree. 2 Marcadé, cinquiéme ed. p. 181, No. 10.

Again it is said, that the judgment is a consent decree, and inasmuch as the forms of the law have not been observed, it is not obligatory upon the minors, and at most, it cannot be considered as anything more than a provisional partition which may be disregarded at any time within thirty years, and a suit for a definitive partition instituted.

The cases of The Union Bank v. Marin, 3 An. 35, and Lecarpentier v. Lecarpentier, 5 An. 499, are cited to show that consent judgments decide nothing; that they merely authenticate private agreements between the parties and render them executory, and as to third parties, have the effect of transactions made in authentic form, and that under a consent decree a partition has not the effect of a judicial partition.

We have already had occasion to limit the application of the principles so broadly announced in the case of Hewitt, Heran & Co. v. Nolan Stewart's Executors, 11 An. 100, where we held that a judicial mortgage results from a bona fide judgment, though rendered upon the confession of the defendant.

So too in the case before us, we think they are not applicable and that the Probate Court had before it the proper parties, and that the decree pronounced by that tribunal, although rendered by consent being followed by its immediate execution, was a judgment capable of acquiring the force of the thing adjudged, and inasmuch as no appeal was taken from it within the delay allowed by law, and no action of rescission or nullity having been brought within the period allowed by Article 615 of the Code of Practice, or even Article 8507 of the Civil Code, must be held as final and conclusive between the parties to the same, and consequently have the like effect upon their heirs. Vaughan v. Christine, 3 An. 328; Porche v. Ledoux, 12 An. 350.

This view being decisive of the controversy, it is unnecessary to consider the numerous questions presented by both the plaintiffs and defendants’ counsel in their briefs and oral arguments.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court bo avoided and reversed, and that there be judgment in favor of the defendants and against the demand of the plaintiffs, and that the plaintiffs pay the costs of both courts.


author: Mebkick, C. J. Spoeford, J.,

text:
    The State v. Cecelia Clay, f. w. c.
    The repealing clause of the Act of the Legislature of 1855, relative to crimes and offences, repealed the second section of the Act of February 21st, 1828, which made it a crime, punishable with imprisonment at hard labor, “ to prepare combustible materials, and to put them in any place, with an intention to set fire to a mansion house or other building.”
    APPEAL from the Eirst District Court of New Orleans, Eobartson, J.

      M. A. Foute, for the State, appellant.

      Tappan & Holt, for defendant.
   Mebkick, C. J.

The appeal in this case has been taken by the State from a judgment of the lower court quashing the indictment. The prosecution is based upon the second section of the Act of February 21st, 1828, which makes it a crime to prepare combustible materials, and to put them in any place with an intention to set fire to a mansion house or other building. The punishment imposed by the statute was not less than ten nor more than fifteen year's’ imprisonment at hard labor.

The defendant contends that this section of the statute was repealed by the Act of 1855, relative to crimes and offences. (See p. 130.)

The statute of 1855 treats ex professo .of “offences against habitations,” &c.

On this subject it has radically changed the previous law. By the first section of the Act of 1828, setting fire to other buildings besides mansion houses was punished with death. By the Act of 1855, the penalty is less than was the penalty for preparing combustibles to set fire to such buildings under the Act of 1828.

An examination of the Act of 1855, on this subject, and a comparison of it with the former laws, will show that it was the intention of the Legislature to arrange under the head “offences to habitations ” all the laws which it intended to continue in force, on the subject of setting fire to buildings, vessels, &c. The repealing clause of the Act of 1855, therefore, repealed the second section of the Act of 1828. See Acts of 1855, p. 137, sec. 46, 47, 48, 49 and 50.

Judgment affirmed.

Spoeford, J.,

concurring. In addition to the reasons given by the Chief Justice, I observe that the specific “subject matter” of the second section of the Act of 21st February, 1828, would seem to come within the purview of section forty-eight of the crimes Act of 1855, which prescribes the punishment for all malicious attempts to set fire to buildings and vessels. The old law was, therefore, superseded by the new, and the indictment should have been framed under the new law.


author: Merrick, C. J. Merrick, O. J.

text:
    J. A. Guillotte v. City of New Orleans.
    Such portions of the Act No. T1 of 1852, entitled “ An Act to consolidate the city of New Orleans and provide for the government and administration of its affairs,” as are not contrary to the Act No. 164 of 1856, entitled M An Act to amend an Act entitled * An Act to consolidate the city of New Orleans and to provide for the government of the city of New Orleans and the administration of the affairs thereof,’ ” are not repealed by the latter Act.
    The former city authorities having had the power “ to regulate every thing which relates to bakers,” the present city authorities have not been deprived of it by the Act of 1856.
    There is nothing unconstitutional in those parts of the city ordinance which regulate the weight and inspection ofbread.
    The authority given by the ordinance to seize bread unstamped or deficient in weight, and to conduct the offender before the Recorder to be by him dealt with, is not a violation of Article 6 of the amendments to the Constitution of the United States.
    Violations of the city ordinances may be prosecuted before the Recorders of New Orleans, where it is so directed by law or the ordinance.
    The forfeiture, for the use of the city workhouse, of bread illegally baked is not a violation of Art. 105 of the Constitution.
    The contract spoken of by Article 105 of the Constitution, the obligation of which the Legislature is prohibited from impairing, is a contract in existence at the time of the passage of the law.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      G. Dvfour, for plaintiff and appellant.

      J. J. Miehel, for defendant.
   Merrick, C. J.

This suit, commenced by injunction, is brought to cause the ordinance of the city “Establishing the assize and regulating the weight and inspection ofbread,” to be decreed illegal.

The question to be decided is thus stated by the plaintiff’s and appellant’s counsel, viz:

“The issue submitted to this court is whether there is any such law as would authorize the defendant to pass and enforce the ordinance referred to above,— marking out the bakers of New Orleans as a peculiar set of traders, and holding that thebread manufactured by their skill and labor is notproperty, and its worth depends not on the market price. If no such law exists, the ordinance is an oppressive municipal assumption of power. If a provision is designated, as a warrant for the action of the city, it must, like all legislation in derogation of common right, he strictly construed. And the duty would then arise for this court to see how far such an exceptional law could stand the test of the Constitution.”

The powers of the city of New Orleans are in part conferred by the Constitution of the State, and in part by legislative enactments. It can have no other powers, from those sole sources of power, than those conferred either expressly or by necessary implication.

Assuming the title of the ordinance to express clearly it objects, has the Constitution or the Legislature conferred upon the city of New Orleans the right to pass the ordinance?

We find by the Act of 1816, the Legislature conferred upon the city, among other things, the right “ To establish one or more market places, and to determine the mode of inspection for all comestibles sold publicly, either in said markets or in other places; to regulate everything which relates to bakers, butchers, tavern keepers, or to grog shops, and other persons keeping public houses, draymen, horse drivers, water carriers, and slaves employed as day laborers ; to fix the salaries of the said draymen, horse drivers, water carriers and day laborers, and to make any other regulation which may contribute to the better administration of the affairs of the said corporation, as well as for the maintenance of the police, tranquility and safety of said city.” This power however was accompanied by a proviso, that the Mayor and council should not have the power of fixing the price of any article sold in market or other places. But in regard to butchers moat, and to the bakers of bread, the statutes of 1807 and 1814 seem to have expressly conferred the power to regulate the price, and by the 7th section of the Act of 1816 it was provided that no powers before granted were withdrawn from the Mayor and council by that Act.

When the city was divided into municipalities, in 1836, allythe powers of the city government were conferred upon the respective municipalities, and these again were, by the twenty-second section of the Act of 1832, consolidating the city, conferred upon the new corporation. Acts, 1852, p. 48.

But the Act of 1856, which is entitled “An Act to amend An Act entitled ‘ An Act to consolidate the city of New Orleans, and to provide for the government of the city of New Orleans and the administration of the affairs thereof,’ ” has, while making, in many respects, the most minute provisions for the administration of the government of the city, only vested the Common Council with “ all the powers, rights, privileges and immunities incident to municipal corporations and necessary to the proper government of the same,” thus adopting the precise language of the commencement of the 22d section of the Act of 1852, but entirely omitting the most important portion of that section which conferred upon the city “ all the powers, rights, privileges and immunities possessed and enjoyed,” as already observed, by the First, Second and Third Municipalities of New Orleans, and which provided further, that the ordinances in force in said municipalities should remain in full rigor, until modified or repealed by the Common Council. Moreover, the 133d section of the Act of 1856 repeals all laws and parts of laws contrary to the provisions of the Act. The ordinance in question having been passed in October, 1856, two questions fairly arise, viz : Is the pow'er to establish the assize and regulate the weight and inspection of bread, a power, right, privilege or immunity incident to a municipal corporation, and necessary for the proper government of the same ? If not, were the powers conferred upon the city or rather continued in the city by the Act of 1852 repealed by the Act of 1856 ?

As it is the duty of municipal corporations, for the government of cities, to have regard to the health of the same, it is possible that the Act of 1856, considered as an original Act and only charter of the city, might be held to confer the power upon the city to prevent the sale of bread made out of unwholesome flour and materials, and, as a consequence, cause the same to be inspected; but we do not think it could be held, under any of the ordinary rules of construction, to have conferred the right to regulate the assize, that is the weight and price of bread, for this is a power not absolutely necessary for the proper government of the city, although it is a power we presume expressly conferred upon most cities by their charters.

It becomes important, therefore, to consider the second question, viz: whether the Act of 1856 has repealed so much of the former law as conferred the power upon the city to regulate the assize of bread ?

It will bo observed that the title of the Act of 1856, as recited, is to emend the Act of 1852. Under Article 115 of the Constitution it cannot, therefore, be hold a total repeal of that statute, nor does it under Article \16 pwrport to reenact and publish at length any portion of the twenty-second section of the Act of 1852, although it has adopted a phrase from this section. We conclude that such portions of the Act of 1852 as are not contrary to the Act of 1856, are not repealed by it. The powers, therefore, conferred by the former Legislatures upon the city, and embraced in the 22d section of the Act of 1852, and not contrary to nor inconsistent with it, have not been repealed.

The city, and formerly the municipalities, having had the right “ to regulate everything which relates to bakers,” (provided they allowed them the proper profit upon a barrel of flour,) the Act of 1856 has not deprived the present city authorities of that power.

Coming now to examine the particular portions of the ordinance complained of, we see nothing unconstitutional or illegal in those parts of the ordinance requiring every baker to cause the bread to be marked with his initials or some other mark, nor in regulating the size of the loaves of bread to he sold. The fifth section which authorizes, between the rising and setting of the sun, certain police officers to enter any bake-house, shop, store-house, &c., where bread is kept, and stop and detain all bakers carrying bread for sale, to examine whether the same is marked, and ascertain the weight thereof, and in case it is unstamped, or wanting in weight, or not baked according to the ordinance, to conduct the offender before the Recorder, there to be dealt with, is no violation of Article 6 of the amendments to the Constitution of the United States.

That Article applies to process issued and searches made by officers of the of the United States Government, and has no application, as a shield, to persons who, by their employment, bind themselves to comply with certain police regulations of the individual States, or of particular cities deriving their powers from one of the States.

The Recorders of New Orleans, under the Constitution and laws of the State, have certain judicial powers. Offences for the violation of the city ordinances may be prosecuted before them where it is so directed by law or the ordinance, and we see nothing illegal in enforcing the penalties of the ordinance before the Recorder. The forfeiture of the bread illegally baked for the use of the city workhouse is no more a violation of Article 105 of the Constitution, which provides that vested rights shall not he divested unless for purposes of public utility and for adequate compensation previously made, than is the fine of a thousand dollars, or other sum, inflicted at the discretion of the coui’t in the case of a conviction for an assault and battery, or other offence.

The illegal bread, if it can be considered as having any value, andthe penalty in money denounced for crime, are forfeited to the State or city by reason of the crime, and the State or city in exacting the penalty is not taking that which is strictly the property of another in the sense of Article 105 of the Constitution.

Judgment affirmed.

SAME CASE ON A RE-HEARING.

Merrick, O. J.

An application for a re-hearing has been made by the plaintiffs in this case, on the ground, that the argument of plaintiff’s counsel on the constitutional question has been entirely overlooked.

We think we misapprehended the force of the plaintiff’s argument on one branch of the case. As we understand it now, it is thus: that the Act of the Legislature allowing the city authorities to fix the price of bread as well as the size of the loaves to be sold, violates Articles one hundred and five and one hundred and twenty-three of the Constitution, because it enables the city to fix the price of bread below its market value, and thus take from the plaintiff, for the public use, the difference between the actual value and the price fixed without compensation, and also imposes upon him a tax or burden which is unequal, and not in proportion to the value of the property he sells with referance to other property.

The contract spoken of by Article 105 of the Constitution, the obligation of which the Legislature is prohibited from impairing, is a contract in existence at the time of the passage of the law. The Article 105 has never been supposed to infringe upon the power of the Legislature to regulate future contracts; a power exercised by every people and inherent to sovereignty. Thus, our Legislature has prescribed the forms and conditions of contracts, and, in the contract of sale has declared that unless certain forms be observed the sale shall be null as to third persons; that if the thing sold is affected by vices and defects the purchaser may rescind it, that if the owner of an immovable should sell the same for less than one-half of its true value, he may annul the same although in his contract he had expressly abandoned the right of claiming such rescission, and had declared that he gave to the purchaser the surplus of the value of the thing sold. In these and the like cases there is no pretence that the obligation of a contract had been impaired, because the law in force at the time enters into and forms a part of the contract. If the supposed contract is made in violation of the law, it has no valid existence as a contract.

Now, when the lawgiver says to the baker, “ you shall not make and sell bread within certain boundaries unless you limit your profits to a certain sum for each barrel of flour which you make into bread, and unless you conform to certain regulations as to the size of the loaves, the places and times of sale,” the obligation of no contract has been impaired, for none has been entered into ; no vested right has been taken away, for no man has a vested right (unless the same be expressly granted by a special Act of the Legislature) to furnish a certain portion of the population with bread, and no tax has been levied upon the baker, for no part of the price of the bread goes into the public trcasury, and it is entirely optional with him whether he will sell his flour or make it into bread, or pursue some other vocation.

Re-hearing refused.


author: Oole, J. Oole, J.

text:
    Wm. Reed et al. v. H. H. Crocker et al.
    Conventions by which it is agreed that rights to a future succession shall be sold for a particulaa* consideration are prohibited by law, and consequently null.
    The renunciation of a succession must be made by a public act before a notary,, in presence of two witnesses.
    A special transfer and assignment of rights to an estate, in favor of one?person, cannot be vieweá as a renunciation, and is not a ratification of a promise to renounce.
    To determine the nature and effects of acts, the motives of the parties must be considered.
    Collation is not obligatory on collaterals who inherit in default of forced heirs. It is only due by those who have received in advance of their legitimate portion as forced heirs. Special legacies to collaterals, when there are no forced heirs, belong exclusively to the legatees, and are not subject to collation.
    A testator who has natural children complies with the law if he bequeaths three-fourths of his estate to one or mo-re- of his legitimate collateral relatives. They cannot be regarded as forced: heirs.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Ogden & Leovy and P. E. Bonford, for plaintiffs.

      Purvis &-Eugue, E. Hunt and L. Piercet for defendants and appellants.
   Oole, J.

Elis7ia Oroelcer died, leaving a large estate and no forced heirs.

By his will he appointed H. 3. CroekerT one of his natural children, his executor, and distributed his property between his housekeeper, who> is a colored woman and was once his slave, and his children whom he had by her, and who were legally acknowledged by him previous to his death.

The deceased left no father nor mother, and only one brother and one sister, (since dead,) and the descendants of brothers and sisters, who could only claim his succession as legal heirs.

To a number of these collaterals he gave, during, his lifetime, considerable sums of money and other property.

Eeed, claiming to be a legitimate nephew, brings this suit to annul the will, so far as it disposes of more than one-fourth of the property, asks to be recognized as an heir, and demands a partition of the estate. In this he is joined by others of the same relationship.

As all the parties are anxious to have this litigation terminated, we shall, therefore, express no opinion on the various preliminary questions raised by the learned and distinguished counsel on both sides, and proceed at once to the merits of the case.

The heirship of the plaintiffs to the deceased is satisfactorily established. The will is partially invalid. Art. 1473 C. C. provides that when the natural father has not left legitimate children or descendants, the natural child or children, acknowledged by him, may receive from him, by donation inter vivos or mortis causa, to the amount of the following proportions, to wit: one-fourth of his property, if he leaves legitimate ascendants or legitimate brothers or sisters, or descendants from such brothers and sisters, and one-third if he leaves more remote collateral relations.

Art. 1474 declares that: “In all cases in which the father disposes in favor of his natural children of the portion permitted him by law to dispose of, he is bound to dispose of the rest of his property in favor of his legitimate relations ; every other disposition shall be null, except those which he may make in favor of some public institution.”

This will is then null, so far as it relates to three-fourths of the property.

The natural children are entitled to one-fourth of the property, and the legal heirs or their assignees take three-fourths thereof.

The most important question in this case is whether certain assignments are valid which were made by some of the heirs to said JET. EE. Crocker. Before determining this, it is proper to decide as to the validity of certain contracts made by said assignors with the deceased.

They are all of a similar form, and commence first -with a receipt of a bond of the city of New Orleans, its description and amount, and interest that it bears. Then follows the important part thereof for this controversy, to wit: “Which bond I promise to keep carefully and faithfully, and not alienate or incumber to the prejudice of the said Elisha Crocker, who is the owner thereof, but it is the express understanding and agreement between the depositor and holder, that the said holder will collect the semi-annual interest as it becomes due according to the tenure of the bond, and apply the same to her own use and benefit, as she may think proper, without being obliged to refund the same to the said owner of the bond, for the interest thus made. And should the depositor hereafter think proper to donate the said bond to the holder, as a bequest, she, the said holder, agrees to accept the same in full satisfaction of all claims she might set up or urge against the property or effects which might be left at the decease of the donor.”

These contracts arc clearly invalid, and can have no binding force in law. They are conventions by which it was agreed that rights to a future succession should be sold for a particular consideration.

They arc plainly prohibited by Art. 1881 O. 0.: “Euture things may be the object of an obligation. One cannot, however, renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question.”

The authority of Troplong, quoted by counsel of plaintiffs, goes only so far as to declare that a testator may impose on his heir the condition to renounce a succession; but this renunciation must be made after the death of the testator, and it is left to the discretion of the heir to determine if he will take his hereditary share or the substitute therefor contained in the will.

“Le testateur peut aussi imposer á son héritier la condition de renoncer á une succession.

“Cette proposition ne souffre pas de contradiction quand il s’agit d’une succession échue. Je n’y vois pas plus de dificulté quand il s’agit d’une succession non échue et que la renonciation ne doit avoir lieu que lorsque cette succession s’ouvrira. Par exemple, un pére donne á sa filie dix mille francs si elle renonce á la succession paternelle quand elle s’ouvrira. Cette disposition est tout á fait valable, la filie aura k voir s’il est de son intérét de préférer les dix mille francs á sa part héréditaire, ou sa part héréditaire, aux dix mille francs, et cette option ne se fera que lorsque la succession sera ounerte.

“O’est le eas precis de l’Art. 843 du Code Napoleon, qui permet á l’héritier l’avantage de renoncer á la succession pour s’en teñir á son don; nul principe n’est blessé dans de telles circonstances.

“ II n’y a pas lieu á cet égard de distinguer si la succession á laquelle l’héritier est obligé de renoncer, est ou non la succession du testateur ou du donateur; dans tous les cas la cause n’a rien que de trés licite et il suffira que le donataire ou légataire fasse sa renonciation á l’époque de l’ouverture de la succession.” Troplong, Donations et Testaments, No. 269.

The whole doctrine contained in the preceding passages is that a testator may bequeath in his will a fixed sum of money, or other determined property, to an heir, on condition that he will, after the succession is opened, renounce his hereditary share; and the heir may or not, as he thinks his interest dictates, take the fixed sum and renounce.

Supposing this doctrine to be correct, still it has no direct bearing on the case at bar.

Elisha Croaker inserted no condition in his will by which these parties were to have the bonds as a consideration for renouncing his succession.

The whole part of his testament that refers to these bonds and other money donated to the heirs is the following:

“I have also several relatives, descendants of my deceased sisters. To all of these relatives I have heretofore given a considerable portion of the property I have acquired during my long residence in this city. Very recently I have distributed amongst them sums equal to one-third of what I possess, reserving the right to recall the whole or any part thereof.
“I now release all of them from the obligation to return any part thereof, and confirm them in the full possession and use thereof. I shall therefore make no further bequest to them, but shall proceed to divide the remainder of my property and effects as follows.” He then divides his property between his concubine and his natural children.

Now if Crocker had put in his will that he left these bonds to these heirs on condition that they would renounce their hereditary shares in his estate, then if after his death they accepted the bonds they would be compelled to renounce. But he annexes no condition to his gift.

It is true that by the contracts, if he donated them the bonds, they were to be considered in full satisfaction of all claims they might urge against his estate. But these contracts cannot control his last will, for between the time that elapsed from the making of these contracts until the writing of his will he may have changed his intention, and therefore inserted no condition in his will, but left it free for his heirs to take the bonds and also to claim their hereditary shares.

It is clear that by Art. 1881 O. O. the heirs are not bound by the stipulations in the contracts as to a future succession; if, however, they thought proper to renounce their rights to the estate on account of having received those bonds, they could do it, as they have the right to renounce, even if they had never received any consideration therefor from the testator.

And this is what the counsel of plaintiffs maintain. They say that they have renounced, and we now will consider this point.

This renunciation of these heirs is based on certain acts, and as they are all the same, except as to names and places where they were passed, we will give one of them:

“Know all man by these presents, that we, Demid Orocker, Henrietta Orocker, Harriet Orocker and Warren Orocker, of the county of Tompkins, and Cha/rles Orocker, of the county of Cayuga, State of New York, do hereby bind and obligate ourselves in manner following, viz: That whereas the late Elisha Orocker, of the city of New Orleans, State of Louisiana, did, by last will and testament, dated the 15th February, 1854, and duly admitted to probate on the 12th July, 1854, nominate, constitute and appoint his acknowledged natural son, Henry Hicks Orocker, his sole executor and detainer of his estate; and whereas the right and capacity of the natural children of the said deceased and of their mother ‘Sofa,’ legatees named in said will, to take and accept the whole amount of the legacies therein bequeathed, have been questioned by parties claiming an interest in said succession, although the said executor maintains that said will is good and valid in law and equity; and whereas the counsel for absent heirs, Robert H. Ogden, Esq., has joined with one William Reed in a suit before the said honorable Second District Court of New Orleans, to attack said will and to set aside in part the dispositions contained therein in favor of the said natural children and of their mother ‘Sofa,’ therein named; and whereas, any legal proceedings to defeat the benevolent intentions of the said testator, and to prevent the property by him left at his decease from being distributed or disposed of as the testator has desired and expressed in his said last will, is entirely contrary to our wishes, and can receive no countenance from us, we therefore protest against the further prosecution of the said suit, No. 8012, on the docket of the said Second District Court of New Orleans, wherein said R. N. Ogden, as counsel for absent heirs, assumes to join the said William Reed in opposing the execution of the provisions of the will aforesaid, and prays an order of sequestration of the moneys, movables, rights, &c., appertaining to the succession of the said Elisha Orocker, deceased; and whereas, in his lifetime, as is truly stated in the body of said will, the said Elisha Orocker, now deceased, in the distribution of his estate among his collateral relations, did advance to the undersigned property of considerable value and also moneys, for all which full acquittance and discharge is given to the undersigned in and by said will.
“Now in consideration of the premises, and from love and affection for the deceased, and from regard to the children of said deceased and of their mother ‘Sofa.’ the legatees named in the said will, and in further consideration of the sum of five dollars, each to us in hand paid this day, at the sealing and delivery of these presents, by the said Henry Hicks Orocker, executor and legatee of the deceased Elisha Orocker, we do hereby relinquish and quit-claim in favor of Henry Hicks Orocker, executor and legatee of the deceased Elisha Orocker, to all and singular any rights, claims or demands whatsoever to which we may be entitled, under the laws of the State of Louisiana, as a legitimate relation of the said deceased Elisha Orocker, to any of his estate by him left at his decease, and do hereby expressly waive, in favor of the said Henry Hicks Orocker, theJ nullity, if any there be, pronounced by the Article No. 1474 of the Civil Code of Louisiana, in all cases in which the father disposes in favor of his natural children of the portion permitted him by law to dispose of, and which Article further prescribed that in such event he is bound to dispose of the rest of his property in favor of his legitimate relations; and we do further declare, that so far as we have any interest in the matter of said will, or are thereby affected in interest by the provisions thereof, we wish the same to be carried into effect in all its parts and clauses, and that the share in the succession of the said deceased Elisha Groeker, to which we might be entitled under the laws of Louisiana, shall enure to the benefit of said Henry Hides Orodcer, executor and legatee of the deceased. And the said Henry Hides Oroe7cer, being here personally present, accepts the said quit-claim and assignment, the same being considered by all parties as a compromise made with a view of avoiding litigation, and as a settlement by mutual consent of any and all differences or contradictory interests between the parties as heir or legatee of the deceased Elisha Grodcer.
“ In faith whereof, the parties to this act have signed the same in duplicate, at Lansingville, in the county of Tompkins, State of New York, on this 28th day of September, one thousand eight hundred and fifty-five.” Then follows the signatures of the parties and authentication of the act.

The form of this act is a serious objection to it as an act of renunciation, for Art. 1010 C. C. declares: “The renunciation of a succession is not presumed, it must be made expressly by public act before a notary, in presence of two witnesses.”

It is also evident that it was not the intention of the parties to these acts to make what is legally contemplated a renunciation of a succession; their manifest object was to transfer their hereditary rights in the property left by the will to Henry Hicks Orodcer.

Their intention was not to make a general renunciation, which would have redounded in favor of their co-heirs who contested the will; on the contrary, they protest against any attempt to defeat it.

They knew that suit was commenced to annul a part of the provisions of the testament, on the ground that a part of this property must go to the collateral relations. They were also aware that the intention of the deceased in getting them to promise to consider the bonds as a substitute for their hereditary rights, was to give him a privilege of bequeathing the balance of his property principally, not to his collateral relations, but to his natural children, and that his object was not that they should renounce so as to benefit the former, but the latter.

It is also argued, that these assignments may bo viewed as a ratification after the death of Elisha Orodcer of the alleged promise of the assignors to renounce, made anterior to his decease; and that although a promise to renounce, made before the death of the testator, is illegal, yet that this promise may be ratified after his death.

These assignments cannot be regarded as a ratification, for the promises in the receipts by which some of the heirs agreed to consider the bonds, if they were bequeathed to them, as an equivalent for their rights in his estate, must be interpreted, that they would renounce all their rights to the estate, and neither claim nor exercise control over any part of it.

But those assignments do not contain a general renunciation; on the contrary, the assignors specially transfer their rights to one person, and thus pretend to control their portion of the estate, which establishes that they had no intention of executing a general renunciation, but, on the contrary, of claiming their shares and of assigning them to Henry H. Orodcer.

A special transfer and assignment of rights to an estate in favor of one person cannot be viewed as a renunciation, and consequently is not a ratification of a promise to renounce.

In order ;'o determine the nature and effects of acts, the motives of the parties must be considered. A careful examination of these acts establishes that the assignors had no intention of renouncing the succession, but that their object was to transfer their portions to EE Grocker, who, being present, accepted the quit-claims and assignments.

They must then be considered not renunciations of the succession, but transfers and abandonments of these heirs to S. JI. Qroeker of their rights in the estate of the deceased. Vide O. 0., Arts. 996, 997.

It is urged that if these assignments are decreed valid, the law will be evaded and the testator will be allowed to dispose of his property indirectly in a way he could not do directly.

This objection is invalid The design of the Legislature in the prohibitory laws relative to the disposition of property to natural children, is to assure to the relatives of the testator a fixed portion of his estate, and to stamp its disapprobation on illicit intercourse, by depriving the natural parent, even in the absence of forced heirs, of the liberty of bequeathing his estate according to his volition.

When the rights of the heirs are secured, the law does not then pretend any more to regulate the disposition of the property, and the heirs have the prerogative of donating, selling or disposing of it as they wish.

The object of the law is accomplished. The heirs have received their legal share, and the parent has been punished, for he has been deprived in his death of the consolation of knowing that his fortune will be enjoyed by those who are still precious in his sight, notwithstanding they are the fruits of an unlawful connection.

The next question for our solution is, whether the amounts already received by the heirs must be considered in settling the estate and making a partition.

As the testator released in his will those who had received deposits or loans of property from the obligation to return them, they must be considered as donations mortis causa, and those heirs have the right to receive them share in the estate of the deceased, without any regard to what they have previously received as donations.

Collation is not obligatory on collaterals who inherit because there are no forced heirs. It is only due by those who have received in advance of their legitimate portion as forced heirs, but where an heir has no right to any particular part of the estate, unless the deceased died intestate, then he can only claim his portion out of the estate that remains at the decease, and cannot interfere with any action or donations made anterior to the opening of the succession.

Art. 1305 declares that “the collation of goods is the supposed or real return to the mass of the succession which an heir makes of property which he received in advance of-Ms share or otherwise, in order that such property may be divided together with the other effects of the succession.”

Art. 1313 declares that “the obligation of collating is confined to children or descendants succeeding to their father’s and mother’s or other ascendants, whether ab intestato, or by virtue of a testament.”

“ Therefore, this collation cannot be demanded by any other heir, nor even by the legatees or creditors of the succession to which the collation is due.”

Art. 1489 declares that “any disposal of property, whether inter vvios or mortis ca/usa, exceeding .the quantum of which a person may legally dispose to the prejudice of the forced heirs is not null, hut only reducible to that quantum." Vide O. 0., Art. 1814.

It is clear from these Articles, that collation is only obligatory on forced heirs, who are those that the donor cannot deprive of the portion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them. O. O. 1482.

"We would observe that the dispositions of the testament in favor of “Soja," the concubine of the testator, are null and void; (0. O. Art. 1414) and that the dispositions of the the will in favor of H. H. Oroclcer, of Ma/ry Bosworth and of Susan, Groclcer, the natural children of the testator, must be reduced to the one-fourth of the amount of the testator’s estate.

The validity of the said assignments is also recognized, and the portions of the assignors in said estate must be given to said Henry Hieles Oroclcer.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, so far as it deprives the said Henry Hieles Oroclcer of the benefit of said assignments, and gives the portions of the assignors to the co-heirs of the same degree.

It is further ordered, adjudged and decreed, that the judgment of the lower court be amended, so as to recognise the following persons as the heirs of the testator, Elisha Oroclcer, to wit:

1st. Bueius Oroclcer.

2d. Olíanles, Daniel, Wanner, Henrietta, Harriet, Abby, wife of E. J. Erench, and the children of Wathaniel, viz: Jay, Frank and Charles, the children of David, brother to the deceased.

3d. Lmey M. Soutlmorth, wife of Aug. O. French, the child of Sophia, a sister.

4th. William Reed, Laura Reed, wife of William Fitch, Elector Reed, wife of William Smith, and a minor child of Ellcin Reed, and also a minor child of Lucius B. Reed, both deceased, children of Laura, sister to deceased.

5th. The minor child of Myra Griffith, deceased, daughter of Elector Oroc-Iceo', sister to Elisha.

6th. Launa, wife of Whitcomb Francis Hw'd, and Elizabeth, wife of J. E. Bruce, children of Lucy Oroclcer, sister to ETAsha.

That three-fourths of the estate shall be divided among the said heirs and the assignee of any of them, according to their respective rights.

And that the judgment be amended so as to recognize the validity of the assignments of a portion of the heirs of Elisha Groclcer, to wit, of Henrietta M. Oroclcer, Frances F. Hurd, Gharries Groclcer, Lucius Groclcer, Elizabeth Bruce, Da/oid Groclcer, Warren Oroclcer and Ha/rriet Crocker, of their shares in the estate of Elisha Groaker, to Heivry Hicks Oroclcer.

And that three-fourths of the said estate be divided among those of the said heirs who have not transferred their rights, or their assignees; and Hemp Hicks Oroclcer, as the assignee of the said portion of the heirs, who have transferred their shares to him, according to the respective rights of the parties.

That the judgment be amended, so as to declare the dispositions of the will in favor of “Sofa," the concubine of the deceased, null and void; and that the dispositions of the will in favor of the natural children of the deceased, to wit, of H. H. Oroclcer, Ma/ry Bosworth and of Susan Oroclcer, be reduced to one-fourth of the testator’s estate, and that the said estate is to he distributed without any regard to collation ; and the said heirs, assignees and legatees are to take their shares in the estate without being obliged to account for anything they may have received before the death of the said testator.

It is further ordered and decreed, that the judgment of the lower court, so far as not reversed and as thus amended, be affirmed; and that it be remanded to the lower court for the purpose of making a partition according to law among those entitled to the said estate, as aforesaid; and that the costs of appeal he paid by the appellees, and those of the lower court by the succession.

Vide Creswellv. Seay et al. 19 L. R. 521; 3 Marcadé, pp. 118, 168, No. 241; 1 Marcadé, 52; C. C. 912, 913; Cole v. Executor, 7 N. S. 422; 4 Marcadé, p. 375, No. 452; 5 Marcadé, 90.

SAME CASE ON A RE-HEARING.

Oole, J.

Appellees in their motion for a re-hearing, allege that “ Henry Hicks Grocker being the testamentary executor at the time the several transfers were made to him, could not, under the provisions of the Code, acquire any portion of the property then under his administration.”

“ That the Act allowing executor’s and others, who are legatees, &c., to purchase, applies only to purchases made at the public sale which takes place of the effects of the succession in due course of law.”

The provisions of law forbidding executors, except in certain cases, to purchase any part of estates under their care, do not apply to assignments of heirs to them of their rights m the estate.

Appellants have also asked for a re-hearing on the following point:

“ There is error, we respectfully suggest, in the decree of this honorable court, ordering the partition of the estate of the testator without regard to the amount bequeathed, to the collaterals, and excluding the natural children from participating in this important portion of the succession.”

As appellants appear to have misconstrued a part of our judgment, we will add a few remarks in explanation, for the direction of those who shall make the partition.

Our judgment did not order the partition of the estate without regard to the amount bequeathed to the collaterals and exclude the natural children from participating in this part of the succession.

In our judgment we declared: “That the said estate is to be distributed without any regard to collation; and the said heirs, assignees and legatees, are to take their shares in the estate without being obliged to account for anything they may have received before the death of the said testator.”

We did not explain the mode of partition, as the cause was remanded to the lower court for the purpose of making a partition.

We had been requested to decide if the collaterals were obliged to collate, and we decreed, they were not; but we did not detail what was to compose the estate to be divided, nor in what manner the quarter due to the natural children or the three-quarters of the collaterals, was to be determined, as this would be settled in the lower court.

We think that the following principles, which, in our opinion, are not antagonistical to our judgment, ought to govern in the partition.

In order to fix the one-fourth of the estate, the succession should be considered as consisting not only of the effects in the testator’s possession at the time of his decease and legal claims of the estate, but also of that which was donated in the will. Donations made by the testator during his life, are not to be included in the mass of the estate.

When the wrhole mass of the succession is thus formed, the estate is to be divided between the natural children and collaterals, according to their respective proportions, to wit, one-fourth to the former and three-fourths to the latter, and the collateral relations are to take their share in the three-fourths without any regard to donations to them in the will, or to gifts to them by the testator during his life.

Por special legacies to collaterals, when there are no forced heirs, belong exclusively to the legatees, and are not subject to collation.

A testator who has natural children complies with the law, if he bequeaths three-fourths of his estate to one or more of his legitimate collateral relations, for they are not regarded as forced heirs.

Let us suppose the testator has bequeathed in his will $20,000 to his collateral relations, and the entire estate, including these legacies, is $100,000, the natural children would then have one-fourth of this amount, i. e. $25,000, and the remaining three-fourths, i. e., $75,000, less the $20,000, bequeathed to col-laterals, that is to say $55,000 would be divided among 'all the collateral relations without regard to collation. Ii; then, there were five collateral relations, heirs of the testator, each of them would receive $11,000, and also retain the amount bequeathed to him in the testament and the donations to him by the testator during his life.

Before concluding, it should be observed, that the semi-annual interest on the bonds of the city of New Orleans, deposited with some of the heirs, is not to be included as a part of the estate, as it was given to them by the testator during his lifetime..

When the partition is made, the estate must be considered as consisting of:

1st. The amounts donated or bequeathed in the will.

2d. The property in the testator’s possession at the opening of the succession, and all legal claims of the estate.

The partition must be made according to law, in accordance with the judgment in this case as thus explained.

It is, therefore, ordered, that the re-hearing prayed for by plaintiffs and defendants be refused.