text:
    No. 12,308.
    Succession of Dr. Eugene Rabasse.
    It is claimed that although an executor had filed an answer to the appeal from a judgment on bis account, his answer presents no issue to the court to be tried,, for the reason that the executor and the succession he represents are without any interest -in the result of the opposition; that the succession was fully solvent; that the heirs had made themselves parties to the proceedings in the lower court and opposed the claims, and the only persons to be affected by the judgments would be the heirs themselves, and it was for them to ask an amendment of the judgment and not the executor.

      Held: The intervention of the heirs and their joining the executor did not have-the effect of dismissing the latter from the suit. The oppositions were directed to his account, and he is necessarily a party until all the issues raised by opponents are foially disposed of contradictorily with him.
    While the Legislature of this State may have the right of prohibiting Frenchmen from possessing personal or real property by the same title and in the same manner as citizens of the United States, it has not as yet thought proper to exercise that right. On the contrary, it has permitted them up to the present time, in that respect, to stand on the same plane with our own citizens. Occupying that station, the provisions of the treaty with France declare that in no case shall they he subjected to taxes on transfer, inheritance or any other, different from those paid by our own citizens themselves, or to taxes which shall not be equally imposed. Succession of Bixner, 48 An. 558.
    An instrument by which the maker engages to pay a certain sum of money on the order of the maker, which has never received the endorsement, upon the fact of which endorsement alone a promise of payment had been made, is incomplete, and in that condition could not, on a note, be enforced against the maker. 0. 0., Arts. 1905,1906.
    Delivery by the maicbr to a particular person, even though accompanied by words indicative of a gift or donation of the same, does not stand in lieu of, is not a substitution for, nor is it equivalent of an endorsement. The situation does not correspond at ail -with that of delivery by the iioldek of a note to whose order it was made payable to a third* person, accompanied by-words of assignment. In the one ease there would be a verbal assignment of a perfected ■ thing; in the other, of a thing which would pass into the hands of the party who had received it with something requiring stiil to be done to give it existence Such an instrument can not be made available as a note. Neithe r is it enforce able as a donation or a gift.
    A party contemplating making a donation must see to it, whatever be the act or instrumentality he proposes to employ as the medium of carrying out his intention, that it fulfils, itself, all the conditions of regularity required to give efficacy to that particular act.
    An instrument such as has been described is fatally defective, viewed either as a note or a donation.
    It can not be made use of to sustain a claim made for remuneration for services rendered as a recognition of liability for remuneration, and as fixing the value of the same when the evidence establishes that the services were not of a character such as would imply or give rise toan expectation on the part of those who rendered them that they should be remunerated, nor on the part of those who received them that they would be called upon to do so, but were merely the customary and almost necessary acts of kindness incident to and resulting from close intimate relations between the parties; services leading up to friendship, affection and the rendering of reciprocal services, but not to payment in money. There are services which do not give rise to debt nor to remunerative donations, but may very naturally and legitimately give rise to and be sustained as donations proper when properly evidenced. C. C. 1773; Adams vs. Succession of Mills, 49 An. 795.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Ellis, J.

      Henry Chiapella for Testamentary Executor, Appellee.

      J. Numa Augustin and Charles F. Claiborne for Mesdames Pincant and Moisson, Intervenors, Heirs, Appellees.

      Louque & Pomes for Pierre Lavigne, Opponent, Appellant.

      Branch K. Miller for Board of Administrators of Charity Hospital, Appellant.

      DinJcelspiel & Hart for Miss Marie Maury, Opponent, Appellant.

      P. L. Fourehy. for Mrs. Alphonse Foulquier, Opponent, Appellant.

      D. B. H. Ghaffe for F. -Rivers Richardson, Subrogee of Albert Lavigne, Opponent, Appellant.
    Argued and submitted April 15, 1897.
    Opinion handed down June 19, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Dr. Eugene Rabasse, a citizen of France, but for many years a resident of the city of New Orleans, died in that city on the 26th of February, 1895, leaving a last will and testament, by which the bulk of his fortune was left to collateral relatives, living in France. Armand Bossu was appointed and qualified as dative testamentary executor of the will.

The testamentary executor having filed an account of his administration, a number of persons opposed the same. Among those were Theodorine Belly (wife of Alphonse Foulqaier), Miss Marie Alex-andrine Maury, Pierre Lavigne, the Oharity Hospital in New Orleans and Albert Lavigne.

The District Oourt rejected entirely the opposition of Mrs. Foul-quier, Pierre Lavigne and the Charity Hospital, and rejected in part that of Miss Maury and of Albert Lavigne, giving judgment in favor of Miss Maury for the sum of five hundred dollars, and in favor of Albert Lavigne (or rather of F. Rivers Richardson, who became before trial the assignee of Albert Lavigne’s claim) for the sum of three hundred dollars.

All five of the opponents appealed.

The testamentary executor and the heirs moved in the Supreme Court to have the judgment in favor of Miss Maury, and that in favor of Albert Lavigne, reversed, and these demands rejected in entirety.

It is objected that no amendments can be made, as this case was • first fixed for trial for Tuesday, March 16, 1897, and the answers of the heirs at law, claiming an amendment, were not filed until April 10, 1897. That though it be true the executor had filed an answer to the appeal previous to the first fixing, yet his answer presents no issue to the court to be tried, for the reason that he and the succession proper (in so far as he represents the same) are without any interest in the result of the opposition. That the succession was fully solvent, even admitting all the claims set up in opposition, and would leave a large surplus. That the heirs had made themselves parties to the proceedings in the lower court and opposed the claims, and the only persons to be affected by the judgments would be the heirs themselves, and it was for them to ask for an amendment, not the executor. The intervention of the heirs and their joining the executor did not have the effect of dismissing the latter from the suit. The oppositions were directed to his account, and he is necessarily a party until all the issues raised by his opponents are finally disposed of contradictorily with him. We think he was authorized to-move for the amendment he did, and it is conceded that the motion was in time if made by one authorized to make it.

Miss Maury’s opposition is based upon a claim that the succession is indebted to her in the sum of twenty-five thousand dollars, with eight per cent, per annum interest from the 1st of May, 1894. She alleged “ that she was the holder and owner of an obligation of the following tenor and obligation:

“$25,000. Nouvelle Orleans, ler Mai, 1894.
“Une année apr&s date je prométs de payer ámon propre ordre la somme de vingt-cinq mille piastres pour valeur regue, avec interets a 8 pour cent, par an, á partir de cette date jusqu’a parfait paiement. “$25,000.
(Signed) “ E. Rabasse.”

That said note was delivered in person by said Eugene Rabasse to Jean Maury for a valuable consideration, as mentioned therein,, and she acquired said note from said Jean Maury, her father, for a valuable consideration.

On the 81st of May, 1895, Miss Maury filed a supplemental and amended opposition, in which she averred that from the year 1872 to the day of his death, on the 26th of February, 1895, the late Eugene Rabasse was on the closest terms of intimacy with her father and family, consisting of Jean Maury, his wife, and their daughter, the opponent. That when in New Orleans, not pursuing his avocation and profession in the country, said Rabasse was a constant and assiduous visitor of opponent’s father’s family, where he constantly and almost daily dined at the table of the family. That her father was a master cook and served as such in establishments of consequence, and was, at the time of the filing of the opposition, retired from service. That Rabasse was a bachelor well advanced in years, greatly enjoyed to be in the company of opponent’s family and to dine with them, and greatly relished the fine and .dainty dishes prepared by opponent’s father and served for him and the family whenever he dined with them. That he always expressed to the family his great appreciation and gratification at the trouble taken to receive him. That Rabasse, who was a very wealthy man, always promised to remember the family who treated .him so well, when he would make his will, and to recognize the kind attention and treatment at their hands and the pleasant hours passed in their company. That he repeatedly made said promise in presence of the family and other witnesses, to whom he expressed his great gratification and appreciation of his treatment by the family. That on the 1st May, 1894, the maker of the note sued on (Eugene Rabasse), in opponent’s presence, and that of Pierre Lavigne, transferred and delivered to opponent’s father, Jean Maury, for the consideration related and for the family, said note, at the time above stated, at his residence at the corner of St. Peter and Royal streets. That since the repeated promises made by said Rabasse to recompense opponent’s family for their long continued kindness and attention to him and before his transfer and delivery of said note to opponent’s father, Jean Maury, opponent’s mother died. That said note having been given, transferred and delivered to said Jean Maury, opponent’s father, for the use and benefit of his family, for the consideration and reasons stated, said Jean Maury, the day after the same was so transferred and delivered to him by Eugene Rabasse, and he had received and accepted its delivery and transfer at the time and place above stated, on or about the 2d of May, 1894, at their home on Bienville street, transferred and delivered the same to opponent, who accepted said transfer and delivery. That the consideration of said transfer and delivery by opponent’s father to her was in accordance with the expressed and unequivocal statement and intention of said Rabasse; that 'said note was given, transferred and delivered for the use and benefit of the family, and entertaining great affection and esteem for opponent, her father, Jean Maury, gave, transferred and delivered to her said note herein sued on at the time and place stated.

She reiterated ' all the allegations of the original opposition and prayed for judgment as prayed for therein.

On the trial of this opposition, the court of its own motion authorized opponent to amend her pleadings over an objection made by the executor and heirs, that any additional supplemental petition to change the issue was not authorized by law. The executor and heirs reserved a bill of exception. We do not find that opponent availed herself of her privilege, but testimony was permitted* to be introduced as if an amendment had been made.

In the opposition of Theodorine Belly, wife of Alphonse Foulquier, she averred that she was the holder and owner of a promissory note dated New Orleans, November 14, 1894, payable on demand, at the office of P. L. Fourchy, attorney at law, for value received, for the sum of twenty thousand dollars, with eight per cent, per annum interest from maturity until paid, which note was drawn and subscribed by E.' Rabasse to the order of Theodorine Belly, and the signature of said Rabasse to said note witnessed by P. Lavigne and L. Chambón.

In the opposition of Pierre Lavigne he averred that “he was the bona fide holder and owner of a promissory note, dated New Orleans, January 26, 1895, payable sixty days after date, to the order of opponent, for the sum of fourteen hundred dollars, with eight per cent, per annum from date, drawn by E. Rabasse.”

In the opposition of Albert Lavigne he averred that he was the holder of a promissory note, drawn by Dr. Eugene Rabasse January 4, 1895, due ninety days after date, in his favor, for the sum of eight hundred dollars, with eight per cent, per annum interest from date.

The Charity Hospital of the city of New Orleans claimed to be entitled to be placed on the tableau and paid ten per cent, on all sums, and on the value of all property to which the heirs and legatees of Dr. Rabasse, not domiciliated in the State of Louisiana, and not being citizens of any other State or territory of the United States, would be entitled, basing its demand upon the provisions of Act No. 1341 of 1894.

The claim was resisted on the ground that the heirs and legatees were protected from the tax by the stipulations of the Treaty of the United States with France.

The executor and heirs resisted the other oppositions by substantially the same defence as to all. They declared that they knew neither the handwriting nor the signature of the late Eugene Rabasse; that they believed, and therefore charged, that said pretended notes were not in the handwriting of Eugene Rabasse, and that his name affixed thereto is not his genuine signature, and that said notes were never given to opponents by Rabasse, and they claimed and required strict proof of the writing, the signature and the delivery of the same. That if said notes were really written and signed by said Rabasse and were delivered by him to said opponents, then that they were given without any legal or sufficient consideration having been received by him or paid by opponents, and the .amounts thereof could not be demanded as a debt due by him or his .succession. That they can not be demanded as a donation, as the donation of a promissory note or of an incorporeal thing to be legal and binding must be by authentic act; that in the light of a disguised donation they were inoperative, null and void, either as donations inter vivos or mortis causa, as not being clothed with the forms required by law.

In the case of Miss Maury it was specially charged that the instrument upon which she declared, was not a promissory note to be governed by and entitled to the protection of the commercial law. That if it should be considered as an acknowledgment of indebtedness the true nature and origin of such pretended indebtedness should be alleged and approved aliunde, as well as all the circum - stances connected therewith.

The objection that the instrument was not a promissory note was leveled specially at the fact that the instrument by its terms was .payable to the order of the maker, and had never been endorsed by ■him.

ON THE OPPOSITION OP THE CHARITY HOSPITAL.

In the succession of Rixner, 48 An. 558, we examined and considered the legislation and jurisprudence of the State upon the subject of the taxation of foreign heirs, legatees and donees, from the time of the passage of Act No. 95 of 1828 (the first statute bearing upon that subject) down to and inclusive of Act 180 of 1894, the act •upon which opponent bases its claims herein.

Referring to the latter act we said that “ it followed the language of the repealed articles of the Oivil Code (Arts. 1221, 1222 and 1228) very closely, and that it declared the legislative purpose to be to revive the same; that the phraseology of the law was not accidentally employed, but it was manifestly employed with the purpose of keeping our law in line with the provisions of previously existing treaties, which are the- supreme law of the land’ (Sec. 2, Art. 6, United States Constitution) ; that the Act of 1894 reviving the articles of the Code, which had been repealed fifteen years previously, could not, in any event, have the effect of breaking the force of the repeated decisions of this court giving an interpretation to the law of 1842, which had been kept uninterruptedly in force until its repeal by the Legislature in 1877.’ ”

The parties interested in the Rixner succession were Italian-subjects, but in the examination of the legal questions involved in that litigation we incidentally considered the treaty between the government of the United States and that of France, using the following language:

“The following is an extract of the treaty proclaimed on the 12th-of August, 1853, viz.:
“ Art. VII. In all of the States of the Union whose existing laws-permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall have the right of possessing personal and real property by the same title and in the same manner as the-citizens of the United States. They shall be free to dispose of it as-tbey please, either gratuitously or for value-received, by donation, testament or otherwise, just as .those citizens themselves; and in no-case shall they be subjected to taxes on transfer, inheritance, or any others different from those paid by the latter, or to taxes which shall-not be equally imposed.” Treaties and Conventions, page 352.
“ The first sentence has exclusive reference to the right of Frenchmen to enjoy-the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States,’ and the second declares that Frenchmen shall be free to-dispose of their property as they may please ’ and in no case shall they be subjected to taxes on transfer, inheritance or any others different from those paid by the latter, or to taxes which shall not not be equally imposed.’ ”
“ It is with the latter that we are alone concerned, as no question has been raised with reference to the right of Frenchmen to acquire and hold property in either of the States of the Union, and to that alone does the language of the treaty refer.”

In the Succession of Amat, 18 An. 405, where a claim similar to-the one advanced in this case was before the court as against French subjects, -the court, after quoting the seventh article of the treaty,, said:

“ The defendants claim to be exempt from paying the tax claimed under the authority of the treaty. This very identical question was decided adversely to the State (Mr. Justice Ogden dissenting) in the case of the Succession of Louis Dufour, 10 An. 391 * * * We have revised the decision of this court in the succession of Dufour, •and we are of the opinion that the court properly applied and correctly interpreted the seventh article of the treaty. Our laws have always permitted Frenchman to enjoy the right of possessing and owning property in Louisiana, and under the treaty of 1853 they can not be subjected to taxes on transfers, inheritance, or any others different from those paid by the citizens of the United States, or to taxes which are not equally imposed.”

The question of the liability of Frenchmen to the payment of an inheritance tax (levied under the act of 1855) arose in 1878, and was considered in the matter of the succession of the Marquis de Circé (Manning’s Unreported Cases, 412), decedent’s death having occurred in France in 1869. The court held that the act of 1855 was a revisory statute, which merely reiterated the provisions of the act of 1842, saying:

“ It formed a part of the general revisory legislation which has been had periodically in this State * * * It was simply a repro ■ duction of the laws of previous years, which had existed long anterior to the date of the (French) treaty. It was not a new enactment, etc., but a reproduction of the act of 1842.”

The French heirs were relieved from the payment of the tax on the authority of the Dufour and other cases cited. It is urged upon us that this last decision was by a divided court, and that we have ■before us what the former court did not have — a statute of Louisiana, enacted since the promulgation of the treaty and passed with direct reference to it, indicating unmistakably an intention and purpose on the part of the Legislature that its provisions should not thereafter have effect on successions in Louisiana.

It is contended that the Supreme Court of the United States, in Prevost vs. Grenoux, 19 Howard, p. 1, expressly recognized the power and control of the State Legislature over the operation of the treaty within the limits of the different States, when it made the following declaration:

“It is proper to say that the obligation of the treaty, and the operation in the State after it was made, depend upon the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession of real or personal property in a State; and its operation is expressly limited to the States of the Union whose laws permit it, and so long and to the same extent as those laws shall remain in force. And, as there is no act of the Legislature repealing this law and accepting the provisions of the treaty so as to secure her citizens similar rights in Prance, this court might feel some difficulty in saying that it was repealed by this treaty if the-State court had not so expounded its own laws and held that Louisiana was one of the States in which the proposed arrangements of the treaty were to be carried into effect.’-'

Our attention is called to the fact that the majority of the court in the matter of the succession of De Oircé declared that this was not an obiter, but, on the contrary, an intimation of the most direct kind that courts ever give, that the United States Supreme Court did- not think the treaty applied to successions in Louisiana, and only held that it did because the State court had so held.

It is true that that statement was made, but the court, none the less, went on to say that “-the Dufour case was decided in 1855 and that of Prevost in 1857, and in interpreting the article of the treaty and its effect on our law imposing the tax we should, in a case of doubt, more readily follow a decision of this court rendered so long as twenty-four years ago than an intimation of the national court that the decision should have been the contrary.”

Counsel in the De Circé case pressed very strongly upon the court that since the rendering of the decisions, to whose conclusions it so declared its adherence, a change in the situation had taken place, resulting from the fact the Legislature had, by positive enactment of a date later than that of the treaty ^imposed an inheritance tax on aliens; that this last statute was passed with direct reference to the treaty, and indicated an unmistakable intention on the part of the Legislature to counteract the effect of prior decisions of the court and an unmistakable purpose that the treaty provisions should no longer have effect on successions in Louisiana. That the Legislature had therein attempted to exercise and did exercise its reserved power of control (recognized by the Supreme Court of the United States) over the subject matter. In spite of this contention the court maintained and followed prior decisions. Counsel in the present case say that this was because the court was of the opinion that the statute (therein referred to as the last statute) was not a new enactment, but the old statute placed in its proper place as part of a revisory grouping of existing laws, but we think undue weight is attached to the statement that the statute was not a new one. What the court obviously meant was that it contained no new matter; that it was precisely the same legislation which our courts had on several occasions before compared with the provisions of the treaty and declared insufficient to save the tax imposed through it from falling under the inhibition of the provisions of the treaty.

In the Rixner case we made a similar comparison and found that no alteration had been made in the character of the legislation as it existed at the time of the decisions referred to; that the only thing that could be said was that there had been in 1894 a substantive, direct revival of the prior legislation which had been in 1877 repealed in express terms. We find matters, therefore, standing just as they stood before.

The statement made in the Amat succession that “ our laws have always permitted Frenchmen the right of possessing and owning property in Louisiana ” is as unquestionably, correct now as when made. There has been no attempt on the part of the General Assembly to withhold from Frenchmen “the right of possessing and owning personal and real property by the same title and in the same manner as the citizens of the United States.” Their right to inherit is as absolute, unconditional and untrammeled as it was before the statute of 1894. What that statute attempted to do was not to make the right of inheritance contingent upon the payment of a tax, but to make the payment of a tax follow and result from the vesting of the title to the property. Such was the opinion we expressed in the succession of Pablo Sala, recently decided, and we see no ground for changing our views on that point. There is a great difference between a grant dependent for its existence upon conditions or contingencies or voidable on conditions or contingencies, and a grant of absolute ownership to be followed by limitations, conditions or charges as incidents of such absolute right of property. The Legislature of this State may have the right of prohibiting Frenchmen from possessing personal and real property by the same title and in the same manner as the citizens of the United States, but if it has such right it has not as yet thought proper to exercise the same, but, on the contrary, it has permitted them, up to the present time, to stand in that respect on the same plane as do our own citizens. Occupying that status, the treaty provisions declare that in no case shall they be subjected to taxes on transfer, inheritance, or any other different from those paid by our own citizens themselves, or to taxes which shall not be equally imposed (Succession of Rixner, 48 An. 558). We are of the opinion that this opposition was properly rejected, and so decree.

ON THE OPPOSITION OF THEODORINE BELLY, WIEE OE ALPHONSE eoulquier.

At the time the instrument upon which opponent declares was dated she was the proprietor of a cigar store at the corner of Royal and St. Peter streets, and occupied a room, directly over the same as a residence. The deceased (Dr. Rabasse), an old man over 80 years of age, lived on the opposite side of Royal street. Pierre Lavigne, whose name appears on the back of the instrument as purporting to have been a witness (together with one Louis Chambon) to the signature to the note, was employed by Rabasse in the collection of the rents of several houses belonging to him, and lived in the same building with him.

Lavigne’s account of this instrument is that on the 14th of November, 1894, Rabasse called at witness’ room, saying there to him: “ Lavigne, I need you — come down stairs with me;” that at this request he accompanied him to opponent’s cigar store, where they met opponent and Chambón, and the four proceeded together to opponent’s room; that there, Rabasse having this instrument in his possession already written out and signed, handed it to Mrs. Belly, saying either: I give you this note,” or I give you that for a consideration;” that at the request of Rabasse he and Chambón placed their names on the back of the note as witnesses; that he knew Rabasse’s handwriting; that the signature to the note looked like his signature, but he could not swear to it; he did not see him sign the note; he saw Chambón when he signed his name to it; that Chambón had been drinking, but was not drunk; that the note declared upon was the identical instrument he saw Rabasse hand to the opponent.

Chambón, when placed upon the stand, denied all knowledge of the transaction, though he acknowledged the genuineness of his signature on the back of the note; he intimated that he must have been very drunk on the occasion, as everything connected with the . subject had, disappeared from his memory. He declared that he had never seen Rabasse sign his name; that he did not know his handwriting, and did not know whether the signature to the note was Rabassé’s or not.

One Mrs. Scott, who occupied a room in the same building with opponent, testified to having seen Rabasse, Lavigne, Chambón and opponent go together to the latter’s room about the date given to the note.

Paul L. Fourehy stated that the body of the note was written by him at the request of opponent. He sai°d she asked him to draw it up so as to have it in legal form; that he also wrote the words on the back of the note, “Witnesses to signatures;” that at the time he did so he knew nothing about it and had no idea who was to sign it. The note evidently must have been handed by Mr. Fourehy to opponent, but what became of it afterward until Pierre Lavigne testifies to its being in the possession of Dr. Rabasse in Miss Belly’s room does not appear.

Opponent did not take the stand to explain how or by reason of what facts or circumstances she became the holder of the instrument. We are entirely in the dark as to the relations between opponent and Rabasse prior to the date of the instrument. There is nothing to show relationship, affinity or antecedent friendship or intimacy of any kind between the parties, and nothing to support a consideration for the note, other than the words, “ value received,” contained in the instrument itself. Opponent is shown to have been engaged shortly before this note was given, as a dancer at the Eden Theatre, from which there is a fair inference that she was not a woman of means. The genuineness of the signature ofRabasse to the instrument sued on was not only expressly put at issue by the pleadings, but the evidence taken on the trial was of a character such as to create the gravest suspicions on that subject. In disposing of this opposition the District Judge said: “ I think the opposition of Mrs. Foulquier on a note for twenty thousand dollars is not supported by proof. There could have been no adequate consideration under the facts established conceding the note to be genuine.”

We are of the opinion that the claim was rightly rejected, and the court’s action in so disposing of it is affirmed.

ON THE OPPOSITION OP PIERRE LAVIGNE.

Opponent is the same person whose name appears on the back of the note declared on by Mrs. Foulquier. The signature to the note he declares on was called in question by the pleadings. Of this opposition the District Court said: “The claim of P. Lavigne on note of fourteen hundred dollars is overcome by the weight of adverse proof, and will be dismissed with costs.” We see no good to be subserved by reproducing in this opinion the testimony touching the genuineness of Rabasse’s signature to the instrument declared on, nor that relative to the possession by the opponent of a second note purporting to have been made in opponent’s favor by the deceased, whose appearance and disappearance is referred to by witnesses in the record.

We are of the opinion that the court’s action in rejecting this opposition was correct and it is affirmed.

ON THE OPPOSITION OE MISS MAURY.

Of this opposition the District Court said:

“ The writing sued on by Jeanne Maury, for twenty-five thousand dollars is not a note, nor a donation. It was executed by the deceased and given to the father of opponent, I take it, as an acknowledgment of his desire that Maury and his family should be beneficiaries of his estate in consideration of many kindnesses shown by them to him. It would not be fair to the estate to give opponent twenty-five thousand dollars, but I do not think it would be fair to give her nothing and burden her with the costs of her opposition. While there are no definite data as to the quantum I think that five hundred dollars may be equitably and legally awarded in opponent’s favor as the assignee of her father, to whom deceased delivered said document (16 An. 222, 544; 29 An. N. R.; Succession of Lacroix, Louque’s Digest, page 85, No. 22).”

The instrument on which the opposition is based is as follows:

Nouvelle Orleans, ler Mai, 1894.

Une année apres date, je promets de payer a mon propre ordre la somme de vingt cinq mille piastres pour valeur repue avee interéts a huit pour cent par an, a partir de cette date, jusqu’a parfait paiement.

$25,000. (Signed) E. Rabasse,

Or, in English:

New Orleans, 1st May, 1894.

One year after date I promise to pay to my own order the sam of twenty-ñve thousand dollars for value received, with interest at eight per cent per annum from this date until perfect (or full) payment.

§25,000. (Signed) E. Rabasse.

It is not claimed that this instrument was ever endorsed by E. Rabasse, but it is alleged that it was delivered in person by E, Rabasse to opponent’s father, Jean Maury, for a valuable consideration, as mentioned therein, and that opponent acquired the same from her father for a valuable consideration.

Opponent argues the case as being identical with what it would have been had the instrument been made payable by the maker to the order of Jean Maury, and he, without endorsing it, had transferred it verbally and by delivery to herself.

Jean Maury testified that he was chief cook at Kuntz’ and other first-class establishments in New Orleans fora great many years; that during that time he and Dr. Rabasse were on \¿ery intimate terms, he being a constant visitor at his house, taking meals there repeatedly, and going there as to his own home — that he manifested' great appreciation of the manner in which he was treated,, and often said that he would not forget him and his family;, that the last time he did so was when he handed him the note on which suit was brought. That the circumstances under which he obtained the note were these: On the Sunday prior to receiving it Rabasse dined at his house, and told him that he must go with his daughter to see him at his house; accordingly on the Tuesday following he and his daughter went as requested. Being there Rabasse, in the presence of Pierre Lavigne, handed him the note, saying “ Here is for all the good that you have done for me.” The note sued on is that which Rabasse handed him. Witness gave the note the next day to his daughter for fear some accident should happen to him, and he did not kuow what would be the result. As Rabasse gave it to witness’ family, he gave it to his daughter. Witness’ wife was dead at the date of the note. At the time and place mentioned Rabasse took the note already written from his pocket-book and handed it to witness in presence of Lavigne and witness’ daughter. They found Rabasse and Lavigne together at the former’s house— Rabasse was at work doing something when witness and his daughter entered. When he handed witness the note witness thanked him; he answered: “I give you but what you deserve for all the good you have done me from the time I have known you.’? Witness did not examine the note when it was handed him, but took it, glaneed at it, put it in his pocket. He turned it over to his daughter because he was an old man, and the note was given for the family. His daughter paid him no money for it. Rabasse went to his desk, opened it, took out his. pocket-book, opened it, and handed witness the note. This was done after some little conversation with us. He said: I asked you to come here; I want to give you this.” Mr. Rabasse was not sick at the time; he was in good health. Witness never sent any bills to Rabasse for the meals he had taken at Ms house; he looked upon him as a friend always; he never asked any permission; he came there as if it was his house. Witness frequently did deceased acts of kindness; loaned him small amounts without interest, and sold some of his property without commissions.

Miss Maury’s testimony conformed substantially to that of her father. She said that Rabasse always said he wanted to do something for them, and that upon the Sunday in question he told her father and herself to go to his house on Tuesday, and they did so, as stated by her father. That after they entered Rabasse went to his desk, opened a porte-monnaie, took out of it a note and handed it to her father, saying: “ I give you this note in consideration of all the good; you have been kind to me — for you and your family.” Her father and she herself thanked him. She had known Rabasse from her childhood. He was very intimate with her father’s family ever since she was a child; dined there repeatedly during that whole time, sometimes twice a day. Her father gave her the note, as it was given for the family, because he was an old man and some accident might happen to him. Dr. Rabasse was a good, kind friend, and her father had been a good, kind friend to him. She admitted that Dr. Rabasse gave the note to them for kindness to him. Her father had loaned Dr. Rabasse seventy-five or a hundred dollars that he never returned to him.

Charles Heyob testified to the. long intimacy between Rabasse and Maury and his family. He said that Rabasse was a pretty “ close” man.

Michel Variol said he had seen the note sued on iu Rabasse’s possession; that about the end of April, 1894, he met Rabasse on Royal street. The latter had often told witness that he was going to make something for Mr. Maury. On that occasion he stopped Mm, saying: Oh, let me show you what I prepared for my friend, Mr. Maury.” He then took the note from his pocket, where he had it among other papers, and showed it to witness; witness read and returned it; it was written in English. He, a few days afterward, saw the same note in the possession of Miss Maury. The note was for twenty-five thousand dollars. ' The Maurys had boarded at his house for several years. The relations between them and Rabasse were intimate. Witness did not know in whose handwriting the note was. The note was payable, he thought, one year after date, to the order of the drawer. He did not know whether it was endorsed or not. The conversation between Rabasse and witness about the note was a short one; only they two were present. On the day after this witness had testified he appeared in court and asked to eorreet that portion of his testimony wherein he had stated, in errort that the note was written in English; that the fact was that the note was written in French. One of Miss Maury’s attorneys had said to him as he was leaving the court house that he had testified that the note was written in English, and he had replied that could not be as it was written in French.

Juste Fontaine testified to the intimacy between Maury and his family and Rabasse. He said that Rabasse was quite a wealthy man, but he never had any money, and it was almost impossible to do business with him; that he was stingy; he promised plenty, but gave nothing.

Pierre Lavigne testified that he was present at the interview of the 1st of May, 1894, between Maury and his daughter and Rabasse. He saw the latter take the note from his bureau or desk to give it to Mr. Maury. In giving it he said in French “ he gave that note for consideration to support his family; they were good friends a long time, and he gave that to his family to support.” I give you that note as a consideration for your family.” The note sued on is the one handed by Rabasse to Mrs. Maury. Maury thanked Rabasse and nothing more was said. The relations between the parties were intimate. On cross-examination, he said he had never se.enthe note before it was taken out of the desk and handed to Maury, nor had he seen it since. That he looked at it when given to Mr. Maury. That the note was read aloud by Dr. Rabasse to Mr. Maury and witness beard it read. That he did not know in whose handwriting the note was. It was already prepared.

The District Court dealt with the instrument sued on as one signed by the deceased, though several witnesses testified that the signature thereto of Dr. Rabasse was not genuine. In reaching the judgment it did, the District Court evidently threw aside the note as having been the basis on which the demand was made, and utilized it solely as evidence in aid of the rightfulness of an equitable claim by Maury and his daughter for a moneyed recognition at the hands of the succession and heirs of Dr. Rabasse for services rendered, acting, we presume, under the authority of the doctrine announced in the Succession of Fowler, 7 An. 207. Danenhauer vs. The Succession of Brown, 47 An. 342; The Succession of McNamara, 48 An. 45; Succession of Kreckeler, 44 An. 728; Gurley vs. The City of New Orleans, 41 An. 79.

The syllabus in the Succession of McNamara, 46 An. 45, reads as follows: “ Where services are rendered of a valuable nature in the expectation of being remunerated in the will of the person to whom they are rendered, and an implied promise to that effect has been held out to the- party performing the same, and he is not mentioned in the will, he will be entitled to reasonable compensation out of the estate of the deceased.”

Counsel of Miss Maury contends that the moment the District Court conceded that the instrument sued on was executed by Rabasse, and that it recognized an obligation on his part to pay the amount therein mentioned as being for value received,” it furnished a conclusive estimate by the party himself who received the services for which the note was given of their value, inasmuch as the deceased left no forced heirs and there is no charge of fraud or error inducing the promise. That the court could not substitute its own standard of value for that of Rabasse. They say “all that was necessary for them to establish was that there was some consideration, and no matter how greatly disproportionate to the amount of the note the consideration might be, the note for that reason could not be disallowed, but must be allowed in full.” They cite in support of this position Earl vs. Peck, 64 N. Y. 596, in which the court said: “ Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defence to a note. It is not necessary that the consideration of a note shall be equal in pecuniary value to the obligation incurred. If no part of the consideration was wanting at the time and no part of it subsequently failed, although inadequate in amount, the note is a valid obligation, while a want or failure of consideration, in whole or in part, is a good defence to the whole note or to the extent of such failure.” Johnson vs. Titus, 2 Hill, 606; 21 Wend. 568. “ This case in its principal features is quite analogous to the case of Worth vs. Case, 42 N. Y. 362. There, as here, the note expressed the consideration to be for services rendered, and although the amount was more largely in excess of the pecuniary value of the services than in this case, the action was sustained by the court and the reasoning in the opinions is applicable to the facts of this ease. If the intestate chose to pay for the services rendered a much larger sum than they were worth, he had the right to do so. The note was not a gratuity or gift. There is no standard whereby courts can limit the measure of value in such case, and an obligation is not wanting even partially in consideration because the value is less than the obligation. A note for a thousand dollars given for a horse confessedly worth but one hundred can not be successfully defended on the ground of a want of failure of consideration.” Counsel refer us also to Nye vs. King’s Estate, 54 N. W. 178; Boggs vs. Wann, 54 F. 681; Root vs. Strong, 28 N. Y. Supp. 273; Diffendafer vs. Scott, 32 N. E. Rep. 87, and to our own decision in Barthe vs. Succession of Lacroix, 29 An. 326. The plaintiff in the latter case, who had been a trusted employee of the deceased, sued the succession of his late employer on a note for five hundred dollars, and was met by the defence that the note was without consideration and that it was at best a disguised'donation void for want of form. The evidence established that several years before his death, La-croix being in ill health, sent for two of his friends, told them he felt under obligations to plaintiff and directed to be drawn up and attested by them a note in plaintiff’s favor for five hundred dollars, payable at Lacroix’ death. This note so signed was delivered to plaintiff. The court in its opinion said: We have read all the evidence carefully and the conclusion we have reached is, that the deceased Lacroix-being without family and believing that plaintiff had served him long and faithfully at very small wages, felt that he was under a moral obligation to remunerate him beyond his wages and executed this five hundred dollars for that purpose. In one sense it was a gratuity — i. e., he was under no legal obligation to do so. In another sense it was the fulfilment of a natural obligation. We think there was a good and valid consideration for the note. Under this view, it becomes unnecessary to pass upon questions raised as to the validity of disguised donations under the form of onerous “contracts.”

We agree with the District Court that the instrument declared can be sustained neither as a contract to do nor a contract to give— neither as a note nor as a donation. The instrument by its very terms shows that it was contemplated that an additional act would have to be performed in order to make it, as such, a perfected instrument (C. C. 1905, 1906). An instrument by which the maker engages to paly a certain sum of money on the order of the maker, which has never received the endorsement upon the fact of which endorsement alone a promise of payment had been made, is incomplete, and in that condition could not, as a note, be enforced against the maker. Delivery by the maker to a particular person, even though accompanied by words indicative of a gift or donation of the same, does not stand in lieu of, is not a substitute for, nor is it the equivalent of an endorsement. The situation does not correspond at all with that of the delivery of a note by the person to whose order it was payable, to a third person, accompanied by words of assignment but without endorsement. In the one case there would be a verbal assignment of a perfected thing; in the other, of a thing which would pass into the hands of the party who had received it with something requiring still to be done to give it existence. While the instrument can not be made available as a note, still less can it be claimed to be enforceable as a donation or gift. At best it can be considered as evidencing a mere promise to give at a future time upon the condition of a subsequent endorsement by the promisor. There was no particular object or specific thing of which the maker of the instrument by means thereof divested himself irrevocably, and at once, in favor of the party receiving it. ’ The instrument never took such shape as to be classified as a thing,” and to be susceptible of being donated or given as such. It represented at the utmost a mere promise, a conditional promise when made, and now an unfulfilled conditional promise not capable of enforcement. If the maker had executed a note payable to his own order, had endorsed it in blank and had handed it to Maury, it might possibly have resisted an attack upon it as to form ; but that is not the case before the court. As matters stand the instrument declared on is fatally defective, viewed either as a note, a donation proper or as a remunerative donation. A party contemplating making a donation must see to it, whatever be the act or instrumentality which he proposes to employ as the medium for carrying out his intentions, that it fulfils, in itself, all the conditions of regularity required to give efficacy to that particular act.

“ Il faut,” says Dalloz and Vergé (Code Civil Annoté, under Art. 931 C. N., No. 105), “ que le contrat sous lequel la donation a été deguisée remplisse lui meme considéré abstractivement toutes les conditions de régularité prescrite par la loi particuliere quilerégit” (Req. 1er, Fevrier, 1842; J. G. Disp. Entre Vifs, 1673 et 1670).

“ Par exemple si le donateur a émprunté la forme d’un acte de vente ou de transport il faut, a peine de nullité, qu’on n’ait omis les caractéres constitutifs de ces sortes de convertions. Sile donateura préferé la voie de l’endossement il faut d’une part que l’objet, objet de la donation, soit negociable de sa nature et se préte á ce mode de transmission; d’autre part que l’endossement soit régulier ” (J. G. Disp., entre vifs 1673).

Article 1905, C. C., declares that the term “ to give ” is applied only to corporeal objects that may be actually delivered from one to another, and includes the payment of money as well as the delivery of any other article. A covenant respecting an incorporeal right comes under the definition of contracts to do or not to do, because some act besides that of delivery is necessary for the transfer of such rights,” and Art. 1906, that a contract for the delivery of a promissory note payable to bearer, or payable to order, and already endorsed, or any other negotiable paper of the same nature also endorsed or transferable by delivery only, comes under the description of a contract to give, but a contract to transfer a note to order not endorsed, or any other debt that requires an act of transfer, is an obligation to do.”

We are of the opinion that the demand, in so far as it seeks a judgment in this case as being based upon the instrument referred to as the cause of action, can not be sustained.

We are next to inquire whether the judgment can be affirmed by considering the demand as one for services rendered to the deceased, sustained, as to evidence, through the instrument referred to as an acknowledgement by the deceased. The services rendered are of a kind entirely different from those considered in the matter of the Succession of McNamara, 48 An. 45; the succession of Powler, and others cited. They are not such as from their character would imply or give rise to an expectation on the part of those who rendered them that they would be remunerated, nor on the part of those who received them that they would be called upon to do so. They were merely the customary, almost necessary, incidents which result from a close intimate relation between parties — services leading up to affection and friendship, and the performance of reciprocal services, but not to payment in money. They are services which do not give rise to debt or to remunerative donations, but might very legitimately and naturally give rise to donations proper. Maury and his daughter very irankly state what their character was. Had the instrument declared on been endorsed by Rabasse and then delivered to Maury it would not, in our opinion, have evidenced either a debt or a remunerative donation, but a donation proper in the form of a note, and if it could have been sustained in that form (as to which we express no opinion) it would have been so, not because it was a remunerative donation, but because a donation proper could have been made in that form, and under these conditions and circumstances. We do not think the services here give rise to a cause of action, nor that the situation is aided through the acknowledgment supposed to be contained in the instrument declared on (C. C. 1773; Adams vs. Succession of Mills, 49 An. 795). The moment that instrument failed to carry out its purpose by force of its own terms, it failed to have any legal efficacy. We are powerless to take it as a standard of value. It is a well-known fact that services of the most trivial character sometimes by reason of the special circumstances under which they are rendered so impress the imagination and the heart as to carry with them permanent friendship, under the influence of which immense fortunes are bequeathed to those who were fortunate enough to have raised such feelings on account of them. It would be utterly wrong to refer bequests of that character to remuneration for services rendered, or to test the value of the services by the amount of the legacy. In the case at bar there is no standard by which, and no evidence through which, could be gauged a right to remuneration even if that right existed.

We think the court erred in rendering judgment in favor of this opponent for five hundred dollars. The opposition should have been entirely rejected. It is therefore ordered that the judgment of the District Court, in the matter of the opposition of Miss Marie Alexandrine Maury, be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that her opposition be rejected, with costs in both courts.

ON THE OPPOSITION OP ALBERT LAVIGNE.

This opposition was sustained to the extent of three hundred dollars. After judgment to that effect had been signed, counsel of Albert Lavigne served a rule on the executor to show cause why the judgment should not be amended so as to increase the amount to eight hundred dollars, it being suggested that the court had intended it to be for that sum, but had inadvertently fixed it at three hundred dollars. The executor objected to any change at that time and in that manner, though the court declared that the recitals of the rule to amend the judgment were correct. In consequence of this objection the court refused to amend and Albert Lavigne appealed.

There is some doubt in our mind as to whether stronger evidence should not have been furnished on this claim than opponent presented, but the doubt is not sufficient to cause us to reverse the judgment or remand the cause. The District Judge who saw the witnesses was of the opinion that the opposition was well grounded and we are not prepared to say that it erred in reaching that conclusion. On that theory the judgment should have been for eight hundred dollars instead of three hundred dollars.

For the reasons herein assigned it is ordered, adjudged and ■decreed that the judgment of the District Court on the opposition of Albert Lavigne be amended by increasing the amount adjudged to him to the sum of eight hundred dollars, with eight per cent, per annum interest thereon from January 1, 1895, until paid, and costs in both courts. It is further ordered, adjudged and decreed that the judgment of the District Court on the opposition of Miss Marie Alex-andrine Maury be and the same is hereby annulled, avoided and ■reversed, and it is now ordered, adjudged and decreed that said ■opposition be rejected, with costs in both courts. It is further ordered, adjudged and decreed that the judgment appealed from, except in so far as amended and reversed above, be and the same is hereby affirmed, at appellants’ costs.


source: Caselaw Access Project

author: Nicholls, . J.

license: Public Domain

text:
    No. 12,384.
    Widow and Heirs of Flore Nicolas Brigot vs. A. E. I. Brigot, Widow of C. E. L. Dandonneau.
    The mother of minors domiciled in France, appointed and confirmed as their natural tutrix by the court of that country, is authorized as such tutrix to appear and stand in judgment on their behalf on resisting a petitory action brought to recover real estate in Louisiana in possession of tenants of said minors. Succession of MeCan, 49 An. 600.
    Merely because there might be a conflict of interest between a widow and her minor children, if they should succeed against one claiming against both, does not deprive her of the right as their natural tutrix to appear as such on their behalf in defence of a suit attacking the rights of both, nor require the appointment of a curator ad hoc to represent them therein.
    If defendant in a petitory action files byway of answer a general denial, or its equivalent, asserts the rightfulness of his possession, and prays that plaintiff’s prayer, wherein he asks that he be decreed to be the owner of the property described in the petition and be placed in possession thereof, be rejected, the court is properly called on under the pleadings to determine the question of title. Defendant is at liberty to abstain from making a special attack upon plaintiff’s title and from setting up ownership in himself, but if he does so it is at his peril, as a judgment under such pleadings, if favorable to the plaintiff, would close the door to his subsequently setting up any title which he then had.
    An attack on a judgment for want of evidence necessary to sustain it must fail in an action of nullity.
    A foreign judgment in plaintiff’s favor can not be urged as ground of nullity of a later judgment in defendant’s favor, the former not having been set up in bar of the action in which the latter was rendered.
    When the judge of one District Court, under a legal system of interchange, acts in another or upon matters properly lodged in that court, the acta done by him must, in their legal effect, be held as if performed by the actual judge of the latter district acting within his jurisdiction and by that court. Act of 1855, No. 255, See. 13, is not repealed by Act No. 86 of 1870.
    APPEAL from the Civil District Court for the Parish of Orleans. Righior, J.

      E. H. McCaleb, S. M* Berault and G. V. Soniat for Plaintiffs, Appellants.

      Henry Denis for Defendant, Appellee.

      Charles F. Claiborne for Lamarque & Co., Intervenors, Appellees.
    Argued and submitted March 4, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Nicholls, . J.

The action referred to in plaintiffs’ petition, in which this court dismissed their demand as of now-suit, will be found (with the facts of the case stated) reported in the 47th An. 1805, entitled Heirs of Brigot vs. Brigot. The proceedings in France which are referred to were instituted by the widow of Fiore Nicolas Brigot against defendant and her deceased sister and Anne Meul-lanotte, in a suit in which she claimed for herself and her children the nullity of a transaction or compromise between AnneMeullanotte and Flore Nicolas Brigot, the husband and father of the present plaintiffs. Under the terms of that compromise Flore Nicolas Brigot had become the usufructuary during life of the properties involved in this litigation and the present defendant and her sister (of whom she is the legatee) were given the naked ownership of the same by Anne Meullanotte.

The proceedings in France resulted in a judgment which, while decreeing said act null and void in so far as the same conferred upon defendant and her sister any right in the properties in New Orleans therein mentioned, and while decreeing them to belong in their entirety to the succession' of Flore Nicolas Brigot, none the less recognized the rights of the defendant and her sister which the law of France vested in them in said properties (as natural children of Flore Nicolas Brigot) as joint owners with his widow and legitimate children (the plaintiffs in this case), and ordering a partition of the same to be made between the said owners.

Basing themselves upon this French judgment, the present plaintiffs asked in the former suits that the rights of parties be held fixed by that judgment, and that the properties be partitioned according to its terms among the owners. The present defendant (under her original rights and as legatee of her deceased sister) was made defendant in the ease. The latter pleaded as res judicata a judgment which she declared had been rendered in the Fourth District Court in 1876, and in which she and her sister were plaintiffs and the present plaintiffs were defendants, and in which it was decreed that she and her sister were the sole owners of the said properties. The court sustained this exception and dismissed plaintiffs’ suit, and they appealed. It was upon this appeal that this court rendered the judgment reported in the 47 An. 1305. Our decision altered the judgment of the District Court from a final judgment to one of non-suit. The court held that the plaintiff could not ignore the State judgment which had been rendered in 1876; that that judgment could not be impeached collaterally, but that it would have to be attacked by direct action. The present action is the result of that decree.

The first attack made by the plaintiffs upon the judgment of the-Fourth District Court is based upon the claim that Fergus Fuselier, who signed the pleading in that case on their behalf, was without authority to represent them. We find in the record a letter from Mrs. Brigot (the widow of Flore Nicolas Brigot), dated Bordeaux, 28th November, 1874, to the French Consul, New Orleans, in which she used the following language:

“ Permettez-nous de recourir á votre haute bienveillance et protection pour un service á rendre á une famille infortunée ayant en Louisiane de grand intéréts. .11 s’agit de renseigments précis et exacts áfournir sur l’état de Paffaire Brigot en litis pendance a New Orleans, affaire dont la conduite avait été remise aux soins généreux de MM. Oavaroc & Son, et la défence confiée á M. Fuselier, de New York, leur avocat ordinaire, et en cette circonstance, le nfitre.”

The writer then entered into an explanation of the proceedings in New Orleans and complained that her letters, written from France to Cavaroc & Son, and (evidently) to her attorney, had not yet been answered, and that it was all important that she should be advised of the situation in Louisiana. In view of that fact she thus wrote to the consul:

“ Ne pourriez-nous pas, en conséquence, Monsieur le Consul, nous assurer: (1) Si aucun jugement. n’a été rendu pour ou contre nous á la Nouvelle Orleans; (2) si M. Fuselier, de New York (croyons nous), a re<ju et porté á la connaissance de la cour de la Nouvelle Orléans la lettre de l’avoué Chassaing, de Bordeaux, notifiant & la dite cour la résolution prise par lui et les raisons qui ont fait appeler la méme cause en France; (3) si le tribunal Américain, prenant en considération la dite piece et les raisons invoquées, a prononcé, comme il devait, le suspension de tout jugement, vu l’intervention légitime et motivée du tribunal Franpais,” etc.

We find in the record a second letter to the consul, dated the 20th of May, 1875, in which was enclosed a letter to Mr. Fuselier, for in it she said:

“ Je vous prie, Monsieur le Consul, de vouloir faire passer a M. Fuselier, avocat de votre ville, ce billet, et lui demander s’il reste toujours mon défenseur, ou s’il se décharge de la conduite de mes intérets. JDans ce dernier cas je compte sur votre sympathie pour me faire représenter par une personne digne de. votre conñance.”

¥e presume the letter to Mr. Fuselier referred to was that which is copied in the record, and was as follows:

“Bordeaux, 20 Mai, 1875.
Monsieur Fuselier, Avoeat a la Nouvelle Orléans, Etats XJnis d’Amérique:
“ Monsieur — Je ne sais que penser de votre long silence, car on n’a pas seulement répondu a l’assignation que M. Ohassaing, mon avoué, vous a envoyée. J’ai écrit moi-méme a différentes reprises, et toujours le méme silence; j’aime a croire que mes lettres ne vous sent pas parvenúes, et je repousse l’idée que vous ne vous oecupez plus de moi.
“ Quoiqu’il en soit, monsieur, s’il en était ainsi je vous prierais de donner a Monsieur le Consul une prompte réponse.
Je vous annonce que mon procés, plaidé devant le tribunal de Bordeaux, a eu un jugement en notre faveur, etdés qu’on m’en auru délivré une expédition je vous le ferai parvenir.”

What occurred subsequent to the date of these letters we do not know, but they certainly show that Mr. Fuselier had, prior to that time, represented the parties in New Orleans.

The second ground of nullity assigned was “ that Widow Flore Nicolas Brigot, as French administratrix of her husband’s succession and natural tutrix of her minor children, never qualified as such in Louisiana and could not have acted extra-territorially, hence was without power or authority to have appointed any agent or attorney to defend the interests of said minors in said suit, which purported to involve the status of heirship and rights in and to said aforesaid described properties.”

The defendants raised no objections of that kind in the suit, on the contrary they voluntariiy answered through their attorney — putting at issue plaintiff’s title and defending their own. They were directly interested in defeating the demand of the plaintiff in that suit, and they can not now object that they were without power or authority to stand in judgment to that effect. We think, however, they were authorized to do so (Succession of McCan, ante, p. 600). The third ground of nullity is that Mrs. Brigot had no right or authority as natural tutrix to authorize the prosecution of said suit on their behalf, for the reason that there was then a conflict of interest in said suit and in the subject matter thereof between herself, as donee under her marriage contract with Flore Nicolas Brigot, on the one part and the said minor heirs on the other, the former claiming under a contract and the latter by descent and succession from Flore Nicolas Brigot, and that a curator ad hoc should have been appointed to represent them. The same parties who were brought as defendants into the Fourth District Court jointly (and who appeared therein) appear in the present suit, asserting their claim now as they did before. If there should be eventually any conflict of interest between the parties inter se (as matters have shaped themselves), their interests are and were identical, in so far as they united in defeating: the claims and pretensions of the present defendant and her sister.

The fourth ground is Chat the judgment attempted to pass upon the title of said properties in a sequestration suit whose purpose was to affect the rents and revenues of the properties; that before and at the time the judgment was rendered the so-called defendants in said suit were, by the joint action of the counsel for the then plaintiffs and of Fuselier, the self-constituted attoimey at law of the defendants therein, put out of court and thereby ceased to be defendants in said suit, and had no legal standing therein to warrant said judgment against them; that after the reconventional demand and suit was discontinued, a default should have been taken and confirmed,which was not done; that after the discontinuance of the said reconven-tional demand and answer on the part of their so-called attorney, a judgment against E. C. Guillett on the possessory action could have been rendered therein, but none on the petitory action against defendants could have been validly rendered thereon, as no issue had been joined thereon or had been discontinued; that no real petitory action was ever instituted against the present plaintiffs herein, nor was it instituted against the party in actual possession as the law directs, but only a suit against Guillett was instituted, who was not at the time in actual possession, and who had then already been dismissed by his mandatories as collecting'agent, and who was not at that time the farmer or lessee of said property.

In November, 18Í2, the defendant and her sister filed in one of the District Courts of New Orleans, a petition in which they averred that they were the sole owners of certain property in that city, which they described (the same property involved herein) ; that they acquired the naked ownership of the same by donation inter vivos, valid in law, from Mrs. Anne Meullanotte, by authentic act before Delaloge and De la Ohaune, notaries in Paris, on the 2d of December, 1848, the usufruct in said property having been conceded by said Meullanotte by said same act to petitioners’ father, Flore Nicolas Brigot; that said usufructuary, their father, had died in July, 1870, and by his death his rights to the usufruct of said property had determined and ceased. That petitioners’ right to the ownership of said property had been recognized by said act of December 2, 1848, which their father signed; that they also hadan indisputable title to said property for having acquired and held the same through the said usufructuary, possessing in their name in good faith, with a just ■and translative title duly recorded by a continuous, uninterrupted public and unequivocal possession as owners during more than twice ten years, during which time they have never been disturbed or molested in any manner whatever. That, however, since the death of their father (the usufructuary) they had ill vain several times endeavored to obtain amicably the entry and enjoyment of said property, but that their rights and pretensions, as the sole and unconditional owners thereof, with the privilege of absolute enjoyment of the same, had not been recognized by the party found in possession thereof at the death of petitioners’ father, the usufruct-uary aforesaid. That of late, determined to obtain redress, they had formally applied to the person now occupying the same, Edward O. •Guillett, of this city, and who is a mere trespasser without any valid title for such entry and enjoyment, and that he had peremptorily refused to acknowledge their rights and allow such entry and possession, and had even instructed the tenants of said premises not to pay the rent to any one but himself. That petitioners were not aware of .the nature of the pretensions which Guillett set up adversely to ■theirs to said premises, whether he claimed to be the owner himself or to represent the party whom he deemed to be the owner thereof, •or whether he individually or otherwise claims any right or title to said property; that petitioners considered and averred that said Guillett was a mere trespasser, without any title, whatever be the position which he takes in the matter. That ever since their father •died petitioners understood and believed that said Guillett had (or could have for his individual account or otherwise) collected the rental of said property, amounting in the aggregate at that time to four thousand dollars, which he should be held to reimburse to petitioners, and that they had good ground to apprehend that he might make use of his possession of said property to convert the fruits and revenues of said property to his own use, or that of his constituent or constituents, if any he had, to petitioners’ injury. That he was well acquainted with the facts of the death of E. N. Brigot at the time of its occurrence, and instead of discontinuing any further administration of said property or continuing the same for account of whom it might concern as negotiorum gestor had kept control of the same, declined to surrender the same to petitioners, who are the sole owners thereof; that by such acts, whether he had retained the amounts collected for his own account or had turned them over to the parties he claimed to represent, he was personally responsible for the amount so received. That petitioners were entitled to be recognized as sole owners of said property and to be put as such in possession of the same, but that, in the meantime, the same should be sequestered until further orders of the court. They prayed for a sequestration and followed this with the prayer that Guillett be cited to surrender possession of said property to the sheriff and to be cited in his individual name in case he set up any pretensions to said property, and also as agent of any person he might claim to represent in case he did not set up any pretensions, individually, to the same; that after due proceedings there be judgment in favor of petitioners, recognizing them as the sole owners of said pieces of property, and ordering them to (be) put at once as owners in the peaceful possession and enjoyment thereof, and that Guillett be condemned individually (and in solido with him any person or persons whom he might claim to represent) to pay to petitioners the sum of four thousand dollars, or any other sum found to have been received by him, with legal interest.

The property was sequestered by the sheriff under an order of court to that effect.

We do not find what action was taken under this petition as to Guillett. We presume he must have been cited, disclaimed personal interest in the matters involved and announced the present plaintiffs to be. the real parties in interest, for we find that the following answer was filed in the case as of April 21, 1873:

“And now comes into court, by her counsel, undersigned Patronelle Daudin, widow of Flore Nicolas Brigot, in her own name, as surviving partner in the community of acquets and gains between her' and said deceased, and as such usufructuary by law, of his share in said community, and also for, and in the name, and as natural tutrix of Eugenie Marguerite Godeberte and Maurice Albert, children, issue of her marriage with said deceased and his sole heirs, and also in her capacity as administratrix of the succession of said deceased, who, the said Patronelle Daudin, being cited to answer the petition herein filed by the said plaintiffs, Eugenie Adelaide Marie Brigot and Augustine Eulalie Isabelle Brigot, says that she was (until the sequestration herein taken) in possession of the property described in said petition, and held the same as owner in her aforesaid capacity, and is now still entitled to such ownership and possession as aforesaid. That the said plaintiffs have no right or title to the ownership or possession thereof, for this, to-wit:
“1. That the alleged title under and by virtue of which plaintiffs claim to be the owners of said property, although purporting to be a donation to them made by Anne Muellanotte, widow of Nicolas. Brigot, was really and in truth a donation to them made by said Flore Nicolas Brigot, and attempted to be disguised under the form of a transaction and compromise between said F. N. Brigot and said Anne Muellanotte, and a donation by the latter to the plaintiffs.
“That the said plaintiffs are the adulterous bastard children of said Flore Nicolas Brigot, born of his adulterous connection with Jeannette Amante Adele Chastaing, who was at the time of their conception and birth the legitimate wife of Louis Eleonor Leroux, and while the said Flore Nicolas Brigot and said J. A. A. Chastaing could not lawfully have married. That under the laws of France, where said act was passed, as well as by the laws of Louisiana, said plaintiffs could not receive any donation from their said adulterous father, and that the said interposition and disguise were adopted in order to evade those laws, and ths contract attempted to be established by their means is radically null and void.
“ 2. That the said alleged title under which said plaintiffs claim to be the owners of the said property, being in reality a donation made to them by Flore Nicolas Brigot, is further null and void, because in the act making the same he has reserved to himself the usufruct or enjoyment of the property donated.
“3. That even if the said donation made by the said P. N. Brigot through the said Anne Meullanotte was valid (which is not admitted tout expressly denied) it was by the laws of France, where it was made, revoked by the birth of legitimate children of the said F. N. Brigot, subsequent to its execution, and can now have no effect.
“ 4. That the said donation, even if valid at the time it was made (which is denied), could not exceed the amount of one-half of the property of said P. N. Brigot, he having left at his death two legitimate children.
" 5. That the property claimed by the said petitioners is the exclusive property of the succession of the said Nicolas Brigot, respondent’s deceased husband, who inherited the same from Nicolas Brigot, his father — that the said Brigot having died in Bordeaux on the 12th of July, 1870, leaving as sole legitimate children and heirs the two minors above named, of whom respondent is the tutrix, the same has descended to the said minors, who alone are entitled to the possession and enjoyment thereof,
“ Wherefore respondent prays that plaintiffs’ demand be rejected at their costs, that respondent in her capacities of tutrix of her above named wards and administratrix of the succession of her said deceased husband be maintained in her possession of the property described in plaintiffs’ petition, and that said plaintiffs be decreed to have no right or title in or to the said property, but that the same be held to belong exclusively ‘to the succession of respondent’s deceased husband, and lastly, that the sequestration herein ordered be dissolved and the sheriff ordered to restore the same to respondent’s agent. And respondent, reserving her right to claim in a subsequent action damages from plaintiffs for disturbing her possession of and slandering her title to said property, prays for general relief in the premises.
(Signed) “ Fergus Fuselier,
Attorney for Respondents.”

On the 26th of April, 1873, the attorney of the plaintiffs in that suit moved (without prejudice to exceptions to reconventional demand), on suggesting that the answer of Mrs. Widow F. N. Brigot in her several capacities assailed the title of plaintiff on grounds which were on their face not valid and sufficient in law, and which provoke issues improperly presented, and the examination of which should be excluded, and under which evidence was inadmissible, that said grounds should be stricken from said answer, and said answer treated as a general denial at best with averment of possession.

Simultaneously plaintiffs’ attorney filed what would appear to have been intended as an exception covering the same grounds as the motion, with the added objection that Widow Brigot could not stand in judgment until she had produced proof of her representative capacities. The prayer of the exception was that she be ordered to produce evidence of the same; that oyer be granted plaintiff of such evidence; that in default of production of same, defendant’s recon-ventional demand be dismissed; that eventually (in all contingencies) the reconventional demand be dismissed with costs for the Reasons stated as setting forth no cause of action; that contingently they pleaded the general issue and prayed for judgment in their favor, as well on the main as on the reconventional demand, and for general relief.

On the 1st of May, 1873, the court dismissed the rule taken to strike out from the answer.

The case went to trial on the 16th of December, 1874. We find “ in the note of evidence ” the statement that “ the exception to the capacities of the widow Brigot as tutrix and administratrix is withdrawn;” also the further statement: “Mr. Fuselier discontinues the reconventional demand of the widow F. Nicholas Brigot herein made in all capacities.” Subsequent to this the plaintiffs offered in evidence the compromise made before Delaloge and De la Chaume, in Paris, on the 2d December, 1846, and the certificate of the recording thereof in New Orleans. Mr. Fuselier objected to the compromise being offered in evidence. “The court sustained the objection and allowed the same to be withdrawn from the court for the purpose of having it sent to Paris and be properly authenticated.” Judge Lynch was then presiding. No judgment was rendered in the case until the 1st of December, 1876. On that day judgment was rendered as follows.:

This case having been submitted to the court for adjudication on the written evidence on file and the court considering the law and the said evidence in favor of plaintiff herein, it is ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Eugenie Adelaide Marie Brigot and of Augustine Eulalie Isabelle Brigot, recognizing them as the sole owners of two certain lots of ground (describing them), dissolving the sequestration herein issued and placing said plaintiffs in possession of said property, reserving to the said plaintiffs the right to recover of the defendants, Widow F. N. Brigot, individually, and as tutrix of the minor children of said F. N. -Brigot and as administratrix of his succession, the sum received by her directly or through agents, and that there be judgment .in favor of E. 0. Guillett, relieving him from any liabilities to plaintiffs.” We find nothing in the record to show that the act of compromise was, subsequently to being objected to, properly authenticated and submitted to the court as evidence, and if so, that it was under any agreement of parties. This judgment was signed “ B. L. Lynch, Judge of the Superior District Court, sitting during the absence of Hugh J. Campbell, Judge of this court;.” No appeal was taken frorja it and no proceedings seem to have been taken in this State in reference to the property or the judgment up to the institution of the former suit heve, which resulted in the judgment of this court reported in the Forty-seventh Annual. No explanation of this long delay has been made. During the intervening period the property seems to have remained in the possession of the present defendant and her sister, under their original title, and the judgment of 1876 in their favor. The plaintiffs contend that they disappeared from that suit by a discontinuance by Fuselier of their connection with it, but we think the objection urged by him to the introduction of the act of compromise, raised subsequently to the entry of the discontinuance, shows that, for some purpose at least, they were still in court. Fuselier simply discontinued what is designated as the “reconventionai demand ” of the widow and her two children. Precisely what that discontinuance was intended to extend to or cover does not clearly appear. The parties were in court as defendants in a proceeding which unquestionably raised on behalf of the plaintiff an issue as to their right not simply to the possession, butto the ownership of the property. The action lacked, perhaps, absolute compliance with the letter of the law in respect to petitory actions, inasmuch as the physical, actual possession of the same appears to have been in tenants holding under or recognizing Guillett as the agent of the parties in France who claimed ownership and possession of the same, and the proceedings were primarily directed at Guillett instead of at these actual occupants, and forcing them to disclose either Guillett or the lessors in France as the real parties in interest. These latter parties finally got before the court and joined issue with the plaintiffs under their pleadings. While any- reeonventional demand filed by them was under their control, through discontinuance they were powerless to disconnect themselves from the suit as the “ defendants ” therein after appearance and answer. Once in court they were forcedly there until its termination, unless through some exception which they had taken and which the court had sustained. Had the case been tried contradictorily with Guillett alone, a question might have arisen as to whether he was authorized to stand in judgment upon any other issue than one of possession. Young vs. Chamberlain, 15 An. 454; Prescott vs. Payne, 44 An. 658; In re Genella, 45 An. 1381. But when the parties claiming in their own right, ownership as well as possession, made themselves parties to a litigation where those issues were tendered, a very different condition existed if the ownership of the plaintiffs which is set up was contested. If we withdraw from that ease all claim on the part of the defendants to ownership in themselves to the property, they, none the less, in their pleadings denied that the claims which the plaintiffs had set up were well founded. Defendants prayed that plaintiffs’ demand be rejected. Those claims were not simply to a right of possession, but to a right of ownership. The withdrawal of any claim by the defendants of ownership in themselves left the action none the less a petitory one, on which the plaintiffs had upon themselves the burden of making good their title. It frequently happens that a defendant in such an action stands upon possession without advancing title in himself. The judgment in such an action under pleadings of that character, if favorable to the plaintiff, would close the door to the subsequent setting up by the defendant of any title which he actually then had. As a matter of course, a defendant in a peti-tory action has the right to discontinue a claim of ownership in himself which he had set up in his answer, but he does so at his peril should plaintiff succeed with a plea of the general issue, or its equivalent, still left standing by the defendant.

It is quite possible that the attorney for the defendants may have believed that in discontinuing a claim of ownership by the defendants the sole issue before the court for determination was that of the “ right of possession,” but in this we are of the opinion, in view of plaintiffs’ pleadings and defendants’ answer (even with the defendants’ claim of ownership as being in themselves stricken out) he was in error.

The theory advanced by the plaintiffs in the present suit is evidently that the plaintiffs in the suit brought in 1873 (which for convenience may be designated as the Guillett suit) went into it as plaintiffs under circumstances such as to preclude the defendant therein from contesting adversely to plaintiffs in that particular proceeding their alleged ownership of the property; that Flore Nicolas Brigot, the husband and father of the defendants, having taken possession of the property as usufructuary under the act before Delaloge and De la Chaume, was not in position to question himself the right of the plaintiffs to the naked ownership of the property as fixed in that act; that before doing so and as a condition precedent for doing so he would have to first surrender possession and then bring a direct action to annul the act of compromise; that the defendants claiming under Flore Nicolas Brigot as his heirs occupied no better position, and could not, as defendants, collaterally attack the plaintiffs’ title; that they (in same manner as their father) would have had to first yield possession and then attack just as a lessor in possession (in order to contest his lessor’s title), is required first to vacate the premises. That this was what the attorney of the plaintiffs meant when he charged that defendants were presenting-inadmissible issues in the case, and that this was what defendants’ counsel in the case recognized as being correct when he discontinued his “reconventional demand.” That the effect of the voluntary discontinuance was to place matters as if plaintiffs’ motion to strike out had been sustained and defendants had abandoned for the time being the defence, leaving them in position to renew the attack on the title later on. The present plaintiffs, as we have said, were defendants in that suit and not intervenors. Had they been inter-venors a discontinuance on their part might have taken them entirely out of court, but having gone into the case by way of answer, they could not escape the legal consequences of their having done so. They did not admit plaintiffs’ claims even as to the right of possession. Had they done so, praying that should judgment be rendered for plaintiffs it be limited to judgment for possession with reservation of defendants’ right to subsequently attack the title, and had judgment been rendered accordingly they would occupy a much stronger position before us than they do now. They remained in the case to the^end, contesting plaintiffs’ right to a judgment of any kind. Plaintiffs in their rule or motion did not pray that defendants 'be dismissed from the case; what they asked was that certain portions of their pleadings be stricken out, and this application was •denied by the court.

We do not think that the effect of the qualified discontinuance ■made by defendants’ counsel, as made; was to restrict the issues in the case to a question of the right of possession. The action as ’brought by plaintiffs was intended by them to be and was framed to be a petitory action. Defendants could not force it into being a pos-sessory action purely, under pleadings such as they presented. The District Court, in deciding the case, considered it as one involving •title, and rendered judgment accordingly. Even if the judgment was erroneous it was not null. The attack made upon the jndgment for want of the evidence necessary to sustain it might have been good on appeal, but must fail when advanced in an action of nullity. We do not think the existence of the French judgment in plaintiffs’ favor on which they rely can be urged as a ground of nullity to the Louisiana judgment. The latter is last in date. Its existence was ■not pleaded in bar either at the trial or through application for a new trial, and is brought forward by way of attack on the judgment ■nearly twenty years after it was rendered.

The last ground of attack on the judgment is that B. L. Lynch, who rendered it, had no right or authority to act in lieu and place •of Hugh J. Campbell, the judge of said court, and to render a definitive judgment thereon in view of the fact that minors were interested therein.

The objection urged is not that the cause was improperly in the Fourth District Court, that it was illegally disposed of by'reason of being lodged therein, but that the judge of the Superior District •Court went into the Fourth District Court and presided over it in lieu of the judge of that court, then absent.

This action was evidently based upon the thirteenth section of Act No. 255 of 1855, entitled “ An act relative to District Courts for the parish and city of New Orleans,” which declared that it should “ be the duty of each of the judges of the District Courts of New Orleans, commencing with the judge of the First District Court, to hold alternately during one week the court which any one of the judges may be incapacitated from holding by reason of illness or by leave of absence.’ ’

If the cause fell properly under the jurisdiction of the Fourth District Court, we do not think that court’s jurisdiction was ousted' by the fact that the judge of another district presided over the same on a certain occasion or occasions and rendered judgments therein. If the validity of such judgments were called in question by reason of that fact, it would be grounded on the want of legal authority and power of the judge to preside, rather than on a want of jurisdiction in the court itself. Plaintiffs claim that the act of 1855 was repealed by Act No. 86 of 1870, entitled “ An act to prevent conflict of jurisdiction between the several courts of this State, and to punish the same.”

Defendants, in their brief, say: “This same objection was raised and passed upon by this court in the case of De St. Romes vs. Levee Cotton Press, 31 An. 224, and besides, an examination of the two acts shows that there is no conflict between them. The former allows and directs an interchange of judges in case of inability to act, and the latter prohibits one court from taking jurisdiction of a subject matter already assigned to another court.

“The error into which plaintiff has fallen is in measuring the power and authority of the judge by the jurisdiction of his own court. The two are materially different.”

When the judge of one District Court, under a legal system of interchange, acts in another or upon matters lodged in that other, the acts done by him must, in their legal effect, be held as if performed by the actual judge of the latter district acting within his jurisdiction and by that court.

We think the St. Romes decision controls the present case as to^ the legality and continued operation of the act of 1855, at the time the judgment attacked was assigned.

Plaintiffs attack the act of compromise made between Floi'e Nicolas Brigot and Anne Muelanotte on a number of grounds, the whole attack being made in aid of their claim that the property in controversy herein belongs to them and not to the defendant.

The question of the ownership of this property having been raised and adjudicated upon inthe judgment attacked herein, and the judgment itself having resisted the attacks made upon it, we do not think the issue any longer an open one. (See Heirs of Brigot vs. Brigot, 47 An. 1306.)

The judgment appealed from is affirmed.


author: Miller, J.

text:
    No. 12,515.
    Succession of William Heffner-On Rule to Show Cause.
    1. The court -which issued the letters of executorship has the jurisdiction when the will is annulled, to order the delivery of the succession property in the hands of the displaced executor to'the legal heirs.
    2, Nor is the competency of the court to give such order at all affected by the fact of its previous judgment recognizing the legal heirs fixing the amount to he accounted for by the executor, and decreeing its payment to the legal heirs.
    8. It is no answer to the rule of the legal heirs to compel such delivery of the succession property, for the executor to avow that he has violated his trust by disposing of the property.
    PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Harrison & Aston, A. H. Leonard and D. T. Land for Plaintiffs in Rule, Appellants.

      Wise & Herndon for James Heffner, Defendant in Rule, Appellee.
    Argued and submitted May 31, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the legal heirs- of William Heffner from the judgment dismissing their rule to compel the production by the executor under a will annulled by judgment, of all the succession assets which came into his hands while acting as executor.

After the will was annulled the displaced executor filed his account, which, on the opposition of the legal heirs, the present appellants, was the subject of the judgment of the lower court brought up by appeal to this court in 1896. Our judgment made some changes in the account but the result of the litigation.was the judgment of the lower court now final, decreeing the legal heirs be put in possession of three-fourths of the succession property, and that they recover from the executor that proportion of the succession funds in his hands. Pending the appeal, which was devolutive, to this court, the heirs took the rule to compel the delivery of the succession assets, and it is that rule the dismissal, of which is the subject of this appeal. The rule directed against the executor, as well in his official capacity as personally, was met by the exceptions of no cause of action and res judicata based on the judgment of the District Court. The exception of res judicata was sustained, the lower court being of the opinion that the heirs were confined for relief to an execution on their judgment, and that the ultimate relief proposed by the rule was imprisonment for debt, prohibited by our law.

This is the case of an executor who, under the judicial authority conferred by his letters, has obtained a large amount of property, which, by the judgment annulling the will, should have been turned over to the legal heirs. He now meets their demand with exceptions accompanied by the avowal that he has disposed of the funds in his hands, and their only remedy is an execution against him, not apt, we are advised by the record, or, at least, it seems to be conceded, to prove barren of any relief. We do not think, however, there is room in this case for the discussion, whether or not the execution can reach any property. Nor do we think it any answer to the rule that he has thought proper to dispose of the property in his hands in violation of his trust. We think such an answer strengthens, if any support was needed, the demand of the heirs for the full measure of relief the court is competent to give.

The judgment fixing the amount in his hands belonging to the heirs and decreeing its payment contemplated performance by him and was not intended, nor under the law does it afford him that protection his exception supposes. The power of the courts to order the delivery of the property to those entitled to it, coming into the hands of an executor whose office is afterward vacated by the decree annulling the will, is undoubted. Sterlin’s Executor vs. Gros, 5 La. 100. The rule calls for the exercise of that power. This power, so necessary to the efficient administration of justice, we do not think is parted with, or its exercise precluded by the judgment ascertaining the amount for which the executor is liable, accompanied by the decree for that amount in favor of the heirs. It is claimed the Code of Practice points out the execution for debt as the remedy in cases of this character. The articles in part refer to creditors whose judgments the administrator or executor fails to pay; the Code also deals with the procedure of the heirs to obtain possession of the succession property. The appellants do not claim as creditors. On any view of the articles of the Code an order that the executor deliver to the heirs the property in his hands must be deemed within the competency of the court. C. P., Arts. 1009, 1012, 1013, 1054, 1056, 1057. The power to give that order is the only issue the case presents, and, in our opinion, precludes the discussion of other issues raised in the defendant’s brief and in the opinion of the lower court. We think the order should be made, and that question is all we feel called on to determine.

It is therefore ordered, adjudged and decreed that the judgment of the lower court on the rule be avoided and annulled, the case be' and is hereby remanded, with the direction that the lower court make the rule absolute, so as to order the defendant to deliver to the heirs the amount of the succession funds in his hands accruing to them dxed by the judgment of the lower court, to-wit: nine thousand eight hundred and ninety-seven dollars and twenty-nine cents, with five per cent, interest from 21st November, 1896, and costs.