author: Miller, J.

text:
    No. 12,724.
    Allen M. Brashear vs. The Alexandria Cooperage Company, Limited; Oppositions to Receiver’s Account.
    When there is no written, contract for the wages of laborers or with those who repair or furnish materials, claiming privileges on immovables for such'wages, repairs or materials, the registry of such privileges must be made within the period fixed for registry computed from the dates when the wages become due, the repairs completed, or when the materials are furnished. Constitution > Art. 176; Civil Code, Arts. 3186, 3249, 3272; R. S., Sec. 3093; 27 An. 243.
    Mortgages, in the usual course for cash advanced the debtor, are not within the scope of our law, presuming the fraudulent preference from the mortgage granted within three months preceding the debtor’s insolvency. C. C. 1981; Revised Statutes, 1808; 37 An. 595.
    The director claiming under a mortgage in his favor by the corporation, can not compete in the distribution of the proceeds of the mortgaged property with the corporate creditor to whom on the same date the mortgage note is delivered to the director the directors authorize the mortgage on which the corporate creditor advances his money to the corporation. 47 An. 1487; Taylor on Corporations, See. 759.
    If the director can not enforce to the prejudice of the corporate creditors the mortgage in his favor cy corporation, neither can the transferee.
    A PPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      Robert P. Hunter and H. H. White for Receiver, Appellee.

      John C. Blaekman for A. M. Brashear, Opponent, Appellee.

      John G. Ryan for Samuel Warshauer, Opponent, Appellant.

      Julius F. Ariail for Lone Pine Saw-mill, Opponent, Appellant.

      Andrews & Hakenyos for First National Bank of Alexandria, Opponent, Appellant.
    Argued and submitted February 9, 1898.
    Opinion handed down March 21, 1898.
    Rehearing refused May 2, 1898.
   The opinion of the court was delivered by.

Miller, J.

This appeal is by creditors of the defendant corporation, opponents, some of them to the account filed by the receiver of the corporation, and by others placed on the account complaining of the judgment of homologation.

It appears from the record that the defendant corporation made a mortgage on its property to raise money and provide for its debts. The mortgage notes were delivered to the directors, except one, transferred for cash, furnished by the transferee, and some of the notes given to the directors some were transferred by them. Subsequently, .the corporation closed its factory, due to pecuniary embarrassment, and on the 12th of April went into the hands of a receiver. Its property was sold, and in due course of administration he filed his account. On that account law charges, amounting to six hundred and nineteen dollars, are ranked first, and to these there is no contention. Next in order of payment the receiver places labor claims, i. e., of laborers working on the factory; then creditors who fur.nished materials for such repairs or who repaired portions of the machinery; and the account then ranks the holders of all the mortgage notes as entitled to share the residue of the fund in the hands of the receiver. The oppositions are to the claims of the laborers, the furnishers of materials for repairs, and to the creditors claiming amounts due for such repairs, and the privilege accorded them on the account is denied, on the ground the claims were not recorded in the period designated by law. The oppositions seek to exclude from payment all the mortgage notes, on the ground they were given to the directors, and void, whether held by them or transferred. The creditor whofurnished money for one of the mortgage notes is opposed, on-the ground of the alleged unlawful preference given him within three months of the alleged insolvency of the corporation, and he, in turn, opposes the distribution to the holders of any of the notes given to the directors; finally, there is an opposition by a creditor left off the account, for the recognition of his debt and denying the preference claimed of payment of certain judgments duly recorded paid by directors under payments by them with subrogation to the rights of the judgment creditors.

The judgment of the lower court maintained the privileges of the laborers, that for repairs and the claims of the furnishers of material men and it maintained the mortgages asserted for all the notes; it recognized the debt of the opposing creditor left oil the account, but denied him any preference, and in other respects maintained the account as filed.

The appeals are by the note holder who advanced the money to the corporation on the faith of the note and mortgage; by other note holders including the directors, and by the creditor Claiming recognition of his debt.

Our law requires all privileges on immovables to be recorded. When recorded within the prescribed period, it is declared, they rank previous mortgages. This period is seven days from the date of the contract or private writing evidencing the debt, or affidavit of the debt when there is no writing. Const., Art. 176; Civil Code, Art. 3186; Acts 1877, p. 59. In the case of laborers engaged in repairing machinery, or other employments requiring the services of that class, there is not usually any writing evidencing their claims. But it is against the letter and policy of our law that such privileges should be of indefinite duration. The courts must give that reasonable construction to the registry of privileges on immovables as will effect the purpose of the Constitution and laws without imposing unnecessary or burdensome conditions on the creditor. The date when the wages of the laborer becomes due, entitled to a privilege on the immovable, easily determinable by the mode of payment by the week, month or day; and the date when repairs are completed or materials furnished when privileges on immovables are asserted for such repair or supplies, in our view, are the dates from which the payment is to be computed for registry of such privileges. Const., Art. 176; C. C., Arts. 3274, 3186; Acts 1877, p. 59; R. S. 3093; City of New Orleans vs. Stafford, 27 An. 423.

The right of a director to acquire mortgages against the corporation has been the subject of discussion in other courts. We are not required, in this case, to deal with exceptions. The general rule is against the competition of the director as a mortgage creditor of the corporation with the creditors of the corporation. The rule has its modifications, but is based on the fiduciary relation of the director to the corporation, and on that relation he stands to creditors. We ■had occasion to apply this exclusion in 47 An. 1481, Cahill vs. Slaughterhouse Co., Ltd. We have in this record the proof that on the same date, December 21,1865, six notes are executed by the corporation, all delivered j to the directors, except one issued to D. M. Brashear for cash advanced by him to the corporation on the faith of the note and mortgage. It seems to us, on obvious justice, no director can participate in the proceeds of the mortgaged property with the creditor thus advancing his money. Taylor on Corporations, Sec. 759; Cahill vs. People’s Slaughterhouse Co., Ltd., 47 An. 1483.

The mortgage of Brashear is opposed as a fraudulent preference, and the fraud, it is urged, is to be presumed because the company .closed its factory and must be deemed to have been insolvent on the 7th of March, 189-, the mortgage having been executed within the preceding three months. We find no occasion to determine whether the alleged actual insolvency of a corporation is to be deemed the equivalent of the insolvency of an individual referred to in the Code, and understood to mean the cession of his property. R. S., Sec. 1808; Bauduc vs. His Creditors, 4 La. 246; Seixas vs. Citizens Bank, 38 An. 424; State National Bank vs. New Orleans Brewing Association, 49 An. 934. It is quite clear that the transaction between Brashear and the corporation was not a preference within the prohibition of the law. The law protects all mortgages given, as this was, in the usual course, for money advanced by the creditor. Civil Code, Art. 1986; R. S., Sec. 1808; Black vs. Richardson, 37 An. 595. In our opinion, the creditor is entitled to rank for payment in preference to any demand on the notes given to directors and next after privileged debts.

Two of the notes issued to the directors are held by transferees. It is claimed they are entitled to the mortgages whatever the defect arising from the fact the mortgages were to directors. The general rule is the mortgage vicious in its origin remains so although transferred. We find no occasion to deal with exceptions to the rule. The corporation as we read the record had no part in transferring the notes. If as we hold, the mortgage by the corporation in favor of its directors can not be enforced to the prejudice of the creditors of the corporation, in our opinion the transferee of the directors stands in no bettey position. The rule of the commercial law that protects the bona fide holder for value of commercial paper does not extend its protection to mortgages.

The record shows two judgments against the corporation recorded as mortgages and paid under subrogations by the directors. We do not appreciate that the principle restraining the dealing between the corporations and the director, by which he claims to acquire preferenees over other creditors, has the least application to deny his right of subrogation to the right of the corporate creditor whose debt is paid by the director.

The record does not give us the basis on which we can adjust the rights of the parties. For that purpose with the determination of the questions as herein announced we will remand the ease.

It is therefore ordered, adjudged and decreed that the judgment! of the lower court be avoided and reversed; that the receiver file his account, distributing the funds in his hands to the payment first to the law charges as ranked on the account before us; next to labor claims and debt for materials furnished and repair to the factory, if recorded within the period herein designated, then to A. M. Bra-shear the amount of his mortgage debt, the residue to the directors for amount of the judgments paid by them, and finally any surplus to go to ordinary creditors and that the appellees pay costs.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,734.
    City of New Orleans vs. Joseph L. Le Bourgeois et als.
    The only judgment that can be rendered against the plaintiff absent when the case is called for trial, unless there is a r.econventional demand, is one of non-suit. C. P., Arts. 536, 491; 3 An. 660; 4 An. 165; 36 An. 288.
    If the reconventional demaad is filed after the term begins, and on the day fixed for trial the plaintiff being absent, he should be notified, especially as under the rules of the court when issue is joined after the term begins the adverse party is entitled to notice; the spirit of the rule, at least, and obvious justice requires notice to an absent plaintiff of the issue made on the very day of trial in plaintiff’s absence changing the character of the action.
    No such notice being given, and the cause tried and- judgment given against the absent plaintiff on such changed issue, there is the basis to annul the judgment and reinstate the case for trial. C. P. 607; 6 R. 128; 3 An. 646.
    APPEAL from the Twenty-first Judicial District Court for the Parish of St. John the Baptist. Rost, J.

      J. F. Pierson for Plaintiff, Appellant.

      W, 8. Benedict and Robert G. Dugué for Le Bourgeois, Defendant, Appellee.

      Argued and submitted February 24, 1898.
    Opinion handed down March 21, 1898.
    Rehearing refused May 2, 1898.
   The opinion of the court was delivered by

Miller, J.

The city appeals from the judgment dismissing its suit to annul the judgment obtained by defendants in the suit entitled Dufossat et als. vs. Fontenot et als., and in favor of defendants on their reconventional demand.

In 1841 John McDonogh and another sued for slander of title to property of which they averred ownership. In the changes of title in the lapse of years since the suit was brought, in 1895, the ownership appears to have become vested in the city of New Orleans succeeding to the one-third interest of the original plaintiff, McDonogh, and Joseph LeBourgeoi's, the defendant herein. In 1892, the city, by appropriate pleadings, had introduced itself as sole plaintiff and the defendant as sole defendant. Thus the suit stood for a partition and on answers, in our appreciation, tendering the general issue', but with no demand in reconvention. There had been attempts on both sides to bring to trial this long pending litigation, and finally it was fixed for che 20th January, 1895. On that day the counsel for the Oity haying another case fixed, sent an affidavit for continuance, and relying on the affidavit, did not attend the trial. The opposite counsel, conceiving there was no obligation on defendants to continue, insisted on the trial. On the day of ■trial thus urged by the defendant, his counsel filed a reconventional demand, claiming to be decreed the owner of half the property, and on the same day or. a day or two after, judgment was rendered accordingly, and in the absence of plaintiff’s counsel. This suit to annul the judgment followed.

The extended discussion in this court of the plaintiff’s right to have the judgment annulled, has had our full attention. But our decision is controlled by the view we take on one phase of the case.

It will be conceded that the Oode of Practice giving the remedy to annul judgments, is not restrictive. The jurisprudence on this subject is not intended to sanction negligence or the laches of the liti- ' gant or his counsel, or to afford a remedy for that indifference or want of diligence that sacrifices the suitor’s rights. But our courts have not hesitated to afford relief against judgments irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be uneonscientious and inequitable. C. P., Art. 607; Norris vs. Bristoe, 3 An. 646; Chinn vs. First Municipality, 1 Rob. 523; Swain vs. Sampson and Keen, 6 An. 799.

Until the day of trial and of judgment, the suit, if we are correct in our appreciation of the record, stood on the general issue, at least on no reconventional demand. In that position there could be no judgment against the absent plaintiff, except one of non-suit. To that protection we think plaintiff was entitled by the very text of the Code. Article 536. The defendant on the day of trial changed the issue tendered by the petition, and made the reconventional demand, practically converting the suit into a petitory aetion with a reconventional demand. Of that issue the plaintiff had no notice. If there were no rule of court on the subject, we should feel the strain of maintaining the judgment. But the rule, as we understand it, is that of all causes put at issue after the term begins, notice must be given to the adverse party. Now, while this suit was at issue when the term begun, the issue on which it was determined was not made until the term opened; then was made and decided in plaintiff’s absence. We think obvious justice and the spirit of the rule, if not its letter, entitled plaintiff to notice, - and this method of proceedings entitles the plaintiff to the relief sought. C. P., Arts. 491, 536; Coiron vs. Millaudon, 3 An. 667; Adams vs. Harrison, 4 An. 165; Phillips vs. Cassidy & Powell, 36 An. 288.

The suit seems to involve a large interest. In reference to that interest, at least to the extent of the adverse judgment, the City has had no hearing or opportunity of defence. Our decree simply secures that opportunity, and the delay can work no injury comparable to that which the litigant sustains whose rights are adjudged without that notice and means of defence, on general principles, the law secures to all.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, the judgment in City vs. Le Bourgeois referred to in the petition be and is hereby annulled and the said suit be reinstated for trial, and that defendants pay costs.

Nicholls, C. J., recused.


text:
    No. 12,736.
    State of Louisiana vs. Udeon Bellard.
    The exclamation o£ by-stamlers at the time of the commission of an offence claimed in the bill of exceptions “ to characterize the act” under investigation are not, at least as a general rule, admissible as “ res gestee,” and in this ease were properly excluded. Roscoe on Criminal Evidence, p. 22; 39 An. 470; 48 An. 1407.
    The verdict of “striking with intent to kill” will not support the sentence for strikingwith a dangerous weapon with intent to kill. R. S., Secs. 790, 791, etc.; Act No. 44 of 1890.
    Under the charge for striking with a dangerous weapon with intent to kill and murder, the jury can not convict of assault. Acts Nos. 43 and 44 of 1890; R. S., 790, 791 ital.; 48 An. 1061.
    In an Indictment for striking with a dangerous weapon with intent to kill, it suffices that the intent is qualified by the words “ wilfully, maliciously and of his malice aforethought.” 33 An. 921; 36 An. 336.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District- Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      B. P. Ppazie and B: S. Pugh for Defendant, Appellant.
    Argued and submitted February 26, 1898.
    Opinion handed down April 18, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused sentenced for “ striking with intent to kill,” under an indictment for striking with a dangerous weapon with intent to kill and.murder, takes this appeal.

One of the bills of exception reserved on behalf of the accused presents the question whether the verdict ‘‘ of striking with intent to kill ” supports the sentence prescribed by the statute the lower court deemed applicable, defining the offence of striking, thrusting, stabbing or cutting with a dangerous weapon with intent to kill. Acts 1890, No. 44. This act as well as Act No. 43 of 1890 and Secs. 790, 791, 793, 794 of the Revised Statutes, deal with the different phases of shooting, stabbing, etc., with intent to kill or murder, but “ with a dangerous weapon ” is part of every definition of the offence. The verdict in this case entirely omits “ with a dangerous weapon,” and is a specific finding “ guilty of striking with intent to kill.” The serious question is, can we sustain this verdict as conforming to the statute under which the lower court pronounced sentence; in other words, can we supply “ with a dangerous weapon?” In a recent case of an indictment under Act No. 43 of 1890, where the verdict was “ guilty with intent to kill,” we held “ guilty ” was qualified only in respect to the intent; that is, there was a verdict of guilty of the charge, but a special finding as to the intent. Thus construed, the verdict conformed to Act No. 44 of 1890, which substitutes “ intent to kill ” for the more serious “intent to murder,” used in Sec. 791 of the Revised Statutes and Act No. 44 of 1890. In this case we can not, in any reasonable interpretation of language, refer “ guilty ” to the crime charged of striking with a dangerous weapon with intent to kill or murder, for the finding is “ guilty of striking with intent to kill.” We are forbidden in construing the verdict to go beyond the words used by the jury, giving to the words their natural significance; that is, in this case, we can not read the verdict as guilty of striking with a dangerous veapon, when the verdict is simply “guilty of striking.” 1 Archbold Criminal Law, p. 608; State vs. Patza, 3 An. 512; State vs. Davis, 20 An. 354; State vs. Burden, 38 An. 357. In our opinion the verdict does not support the sentence.

In view of the new trial that must occur, we deem it proper to express our views on the questions raised by the other bills. It is insisted the court erred in excluding questions to show exclamations contemporaneous with the shooting and coming from the group around the participants in the difficulty. The exclamations, the bill informs us, “characterized the act, showing it was not done by the accused, but by others.” The questions were excluded on the ground the exclamations of third persons were not admissible as “res gestee.” While there are expressions in some of the text writers that seem to favor the admissibility of the statements of third persons as constituting res gestee when accompanying the crime under investigation, it must be conceded the general rule is against the admissibility of such statements. Certainly, in this ease we find no basis to recognize an exception to the general rule. The case o£ Lord George Gordon put by. Professor Greenleaf, cited in argument, was his indictment for treason, and to illustrate the treason, it was essential to show the character of the mob he headed. On that view the cries of the mob were permitted to be shown. That case does not at all support the general proposition that the statements of mere bystanders when a difficulty occurs, resulting in shooting, killing or other alleged offence, are to be admitted as tes - timony. The exclamation of a participant contemporaneous with the event to which it refers carries its appropriate weight; what comes from a looker-on, “ characterizing the act,” as the bill in this case puts it, is apt to express merely his belief, or his sympathies or prejudices. His testimony, if he has any actual knowledge, is attainable, and reason prompts he should be put on the witness stand. Greenleaf, in stating the case of Lord George Gordon with other instances, affirm, the general rule “ that rejects all hearsay reports by persons not produced as witnesses.” Greenleaf, Vol. I, Secs. 108, 124; Roscoe Criminal Evidence, p. 22 et seq. Our own jurisprudence is on the line excluding such statements. In one case on the charge similar to that here, the exclamation at the time of the shooting, identifying the accused, and made in his presence, was admitted. In another case the statements of the third person manifestly conveying his opinions and narrative, were excluded, but the decision carries no implication the statements would have been admissible, if not opinions and statements of a past occurrence. State vs. Ramsey, 48 An. 1407; State vs. Desroches, 48 An. 430. We think the current of our jurisprudence, notwithstanding expressions in some cases exhibiting peculiar features, indicating a contrary tendency, is against the admissibility of the testimony sought to be introduced in this case and the ruling of the lower court on this point we hold to be correct. State vs. Moore, 38 An. 66; State vs. Oliver, 39 An. 470; State vs. Riley, 42 An. 996.

Other exceptions relate to the refusal of instructions asked that under the charge in the indictment the jury might return a verdict of assault, or of other offences supposed by the. argument to be included in the greater offence charged. R. S., Sees. 793, 796, 797. We considered this question, or rather a question of similar character, quite recently. We reached the conclusion against the position assumed on behalf of the accused in this respect. We adhere to that decision. State vs. Robertson, 48 An. 1067.

Another contention presented by the bills is that the indictment is defective in not qualifying the striking, as well as the intent, by the words “wilfully, feloniously and of his malice aforethought.” The line of authorities citied in this connection refer, we think, to the entire omission of such words, or to the question of equivalent import where one only of these words is used. State vs. Williams, 37 An. 776; State vs. Breen, 42 An. 644. Here the pleader has used the word feloniously in qualifying the act and the appropriate words to mark the intent, thus: did feloniously strike with a dangerous weapon A B, with intent feloniously and of his malice aforethought to kill and murder him, the said 0 D. In our view it is unnecessary to introduce twice the words supposed to be necessary — first, to qualify the striking and then to qqalify the intent. The rule that the common law elements of the crime must be used when the common law designation of the offence is used in the statute is observed in this case. The common law designation of the offence occurs in connection with the intent, and there the pleader has employed the words Wilfully, feloniously and of his malice aforethought. Our own decisions have sustained the indictment in this form. State vs. Bradford, 33 An. 921; State vs. Frances, 36 An. 336.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be avoided and reversed, and that the accused be held for another trial and to abide the result thereof.


text:
    No. 12,696.
    State of Louisiana vs. James Kelly, alias Wilson, alias Raymond.
    With testimony before the jury tending to show the accused, charged with larceny, was found in possession of the property recently stolen and failed to account for that possession, it would be erroneous to charge the general rule that to convict on circumstantial evidence alone, the' evidence must consist with guilt, and exclude any reasonable theory of innocence, without eh irging also that the law presumes guilt from one circumstance, /. e., the possession of property recently stolen and no account by the accused for that possession. Roscoe, Criminal Evidence, p. 18; 1 Greenleaf on Evidence, See. 31.
    The court again affirms that requested instructions not a full exposition of the law applicable to the case, but requiring explanation and qualification, are properly refused. 85 An. 769, 775; 36 An. 81; Thompson on Juries, Sec. 28.

      The charge will not be deemed to trench on the facts which announcing to the jury a legal presumption on which they can act, is qualified by the caution, If the fact is proved, giving rise to the presumption. Const., Art. 168; Revised Statutes, Sec. 991.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, R. H. Marr, District Attorney, and John J. Finney, Assistant District Attorney (Paul W. Roussell and P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Chandler C. Luzenberg for Defendant, Appellant.
    Submitted on briefs January 29, 1898.
    Opinion handed down April 4, 1898.
    Rehearing refused May 2, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused, sentenced for larceny, takes this appeal.

Exceptions were reserved on behalf of the accused to the exclusion of testimony that the accused was charged before the recorder with the theft of the property from a party other than the person alleged in the indictment to be the owner. The testimony was merely hearsay to the effect that the property was claimed before the recorder by an alleged owner, not the owner specified, in the indictment, but the person making the claim before the recorder was not produced as a witness, nor was there any testimony to support his claim of ownership. The ruling, then, was merely the exclusion of hearsay, and was manifestly correct.

Another bill was reserved to the charge of the court, that though no inference unfavorable to the accused was to be drawn from the fact the accused did not testify on his own behalf, u but this did not relieve a person from accounting for stolen property found on him.” In signing the bill the judge states that his charge was oral; that in the short extract in the bill the court is made to assume that stolen property was found on the accused, but the judge states he charged substantially, after excluding any unfavorable inference from the fact the accused did not go on the stand, “ that on the other hand, the rule forbidding such inference does not relieve him from accounting satisfactorily for the possession of stolen property, if that fact had been established either by his own or other testimony. The accused relies on the provision of our law that the judge shall not comment on the facts, and the line of authorities forbidding any statement, direct or indirect, trenching on the facts. Revised Statutes, Sec. 991; Constitution, Art. 168; State vs. Swayze, 30 An. 1328; State vs. Asberry, 37 An. 124; State vs. Brown, 41 An. 410;. State vs. Collins, 47 An. 578. But the important feature which distinguishes this charge from instructions deemed violative of the law restricting the trial judge is the hypothetical clause ‘‘if the fact,” i. e., the possession, *• has been proved.” In this view, the charge announced a legal presumption, with the caution to the jury against the application of the presumption unless the fact on which it rested had been proved. 1 Greenleaf, Sec. 34.

The other exception reserved is to the refusal of the instruction requested on behalf of the accused, that in eases depending on circumstantial evidence to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation on any other reasonable theory than that of his guilt. The charge it will be perceived tends to restrict the view of the jury to the general force of circumstantial evidence, but omits any reference to that presumption the law attaches to one circumstance when proved. If possession of property recently stolen is satisfactorily proved, that circumstance, i. e. of possession, gives rise to the presumption of guilt. As we read the bill there was testimony to show that possession. The State claims it was proved by direct evidence that when the arrest was made the accused threw away a package which was recovered, and identified by the owner as that stolen from him. Whether this was established, it was the function of the jury to determine, but with testimony of that tendency administered, the charge would have been misleading. Possession of stolen property is but a circumstance, but that circumstance, when the property is recently stolen and not accounted for, leads to a presumption of guilt. In the posture of the testimony when the instruction was asked and refused, it would have been erroneous to charge in effect that all the circumstances must be incompatible with innocence, and consist only with guilt; for on the single circumstance alone of possession with the other qualifications, the law founds the presumption of guilt on which the jury can act. At least, the requested charge required such explanation and qualification as authorized its refusal. 1 Greenleaf on Evidence, Sec. 34; Roscoe Crim. Evidence, p. 18; State vs. Riculfi and McClung, 35 An. 775; State vs. Jackson, 35 An. 769; State vs. Chevallier, 36 An. 84; 2 Thompson on Juries, Sec. 2349.

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


text:
    No. 12,748.
    State of Louisiana vs. Billy Hickey.
    The court again aflirms that testimony of threats of violence by the deceased against the accused, without proof of overt acts to carry the threats into execution, is inadmissible. Wharton’s Criminal Evidence, Sec. 757, notes; 35 An. 71; 37 An. 443, 489.
    A PPEAL from the Second District Oourt for the Parish of Bossier. Watkins, J.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney (P. A, Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      J. A. W. Lowry for Defendant, Appellant.
    Submitted on briefs March 12, 1898.
    Opinion handed down April 18, 1898.
   The opinion of the court was delivered by

Miller, J.

This appeal is from the death sentence for murder.

We have no brief on behalf of the accused, but have, notwithstanding, examined the record to determine whether it supports the sentence.

We find a bill to the admission in evidence of an outcry of a person present when the fatal shot was fired. There was no dispute whatever as to the killing of the deceased by the accused, and this outcry, merely an exclamation, naturally evoked by the shot and! implying only the undisputed fact of the shot, can have no influence-on the jury; besides, the testimony of the exclamation was brought out by the line of examination on behalf of the accused.

The other bill reserved is the exclusion of testimony to prove threats by the deceased against the accused. The statement of the court in signing the bill, is that not- only was there no overt act of hostility of the deceased to authorize the testimony of the threats, bat that the shooting was without any provocation or ground of apprehension of any hostile act by the deceased. Under our jurisprudence the court was entirely correct in excluding the testimony.

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


author: Breaux, J. Watkins, J. Miller, J. Miller, J.

text:
    No. 12,674.
    Succession of William L. Shaffer; Oppositions of Thomas J. Shaffer, Thomas J. Shaffer, Tutor, Miss Susie Shaffer, and Mrs. Abbie Cross, Individually and as Tutrix of her Daughter, Carrie Cross.
    A judgment or order probating a will can be attacked on the final homologation of an account, all parties in interest and the issues involved being before the court.
    The writings on two sides of a broken envelope did not form a continuous connected will. On one side is a written list of claims, which list is not signed or dated; on the other, the words: These notes go to my wife,” without designating the notes intended. Not sufficiently certain to give it effect.
    The legacy of notes does not lapse when the only purpose, in accepting new notes-instead of the old, was to make them more secure as to their payment, and they were substantially the same as the canceled notes.
    A legacy from a designated fund is not extinguished if the fund is replenished and. is a continuous existing fund.
    Particular legacies may speak with reference to the future, if it be evident that the-testator expected amounts given to be deducted from sums to be realized, in. the future.
    A legacy in one will is not revoked by a subseqent will in which the testator substantially disclaims any intention to revoke.
    A clause in a will giving the usufruct to one person and the ownership to another,, at the death of the usufructuary, is not a prohibited substitution. There wa-s. no trust created and no property taken out of commerce.
    Words of recommendation to a legatee is not a bequest, and is not an illegal condition.

      Oh Reheabihg.
    When the testamentary disposition in favor of two or more legatees to be paid from the fund specified deemed by the testator to pay all legatees, but which, -when he dies, proves insufficient, the rule of proportional distribution between the legatees will not apply when the terms of the disposition plainly manifest the testator’s intention that his wife, named first, shall be paid by preference from the fund. Civil Code, Arts. 1712,1635.
    A PPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Gaillouet, J.

      L. F. Suthon for Executors and Mrs. Shaffer, individually, Appellants.

      I>. Gaffery & Son for T. J. Shaffer, Opponent, Appellant.

      Howell & Martin for Mrs. Carrie Gross, individually and as Tutrix of her minor child, Carrie, Opponent.
    Argued and submitted January 25, 1898.
    Opinion handed down February 21, 1898.
    Rehearing granted April 4, 1898.
    Submitted on rehearing on briefs, April 25, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Breaux, J.

This litigation grew out of the application of the executors of the last will and testament of the late William L. Shaffer for the approval of their account showing the assets of the estate; the debts and the dispositions of the various legacies as proposed to be paid by the petitioners.

The deceased left no forced heirs, and there existed no community between him and his wife.

He left three wills, olographic in form. They are dated respectively, February 10, 1894; March 7, 1894, and May 4, 1895.

In the first will he disposed of the greater portion of his estate, and therein makes known that he has a remainder in cash and notes, which he bequeathed to his wife and other legatees.

In the second will he bequeathed to his wife the cash in bank and disposed of certain mortgage notes, and declared that he did not intend to revoke the first will. The paper probated as a will subsequent to the two first was written on an envelope, sealed, which was torn at the end.

On the one side, the sealed side, the following was written:

“ These notes all goes to Mrs. William L. Shaffer in case of my death,” followed by the words “ May, the 4-95,” and the signature of the late Mr. Shaffer.

On the other side of the envelope are written the names of several makers of notes due, or the name of the plantations on which the

notes bore mortgage; opposite each name the amount of the indebtedness was placed.

All these documents were probated.

The opponents agree in contending that the document of May 4, 1895, which was probated as a will was an absolute nullity for the reason that the words written on the envelope do not form a will-; that it lacked the-essentials of a will. That they do not designate the notes the testator had in view to give by will; that the words as above stated referred to notes formerly in the envelope and not to the list of notes written on the reverse side of the envelope; that they are not identified 'with the asserted testamentary disposition. While the opponents are in accord in asserting that this paper was a mere memoranda, and not a will, they plead other grounds.

Thomas S. Shaffer, who was a brother of the deceased and one of his legal heirs, specially opposed the proposed distribution of four notes, which he alleged had not been bequeathed to Mrs. W. L. Shaffer and should not be given to her as proposed in the account; that the notes origmally bequeathed had been paid before the death of the testator and those it was proposed to deliver were not the notes bequeathed. He opposed the delivery of a note designated as the note of Belle Brooks, and opposed the claim made by the widow to one-half of the proceeds Of the crop of 1895. He also opposed a legacy to.her of eight thousand dollars, for the reason that the funds from which he had directed it to be taken had been expended, and that the fund from which it was proposed to pay the amount could not be drawn upon for the payment of that amount. He also opposed 'the claim made by Mrs. W. L. Shaffer as a legatee of a half interest in the crop of 1895, and others named as legatees of one-sixth interest of that crop, for the reason that the crop for the year 1895 could not have been bequeathed in a will written in 1894.

Mrs. Abbie Cross, individually and as tutrix, was also an opponent, alleging that the estate is solvent, and she, in consequence, is entitled to the whole amount bequeathed to her.

Miss Susie Shaffer is another opponent. She sets forth that the clause of the will in which she is interested has been ignored and she claims its interpretation.

There were other oppositions and supplemental opposition filed to which we will refer later.

The executors moved to strike out from the oppositions all issues arising from the alleged invalidity of the wills on the ground that these wills, after they had been probated, could not be collaterally attacked.

The court overruled the motion, and ordered the legatees to be made parties. When the oppositions were heard all parties in interest were before the court.

The court a qua rendered judgment, .reformed the tableau of distribution in conformity with the views expressed in its opinion, and, as amended, ordered the distribution to be made.

From the judgment opponents appealed and here complain of the interpretation placed upon the valid wills.

The executors, also, have appealed; they complain of the judgment annulling the last will probated — i. e., the will of May 4, 1895.

The first question for our determination arose on the motion of counsel for the executors to strike out issues indicated by him. The grounds were: the wills having been regularly probated, they can not be attacked as null by way of opposition to an account presented for homologation; that the opponents had a direct action to annul, if the will was null.

Of what use: was the question which suggested itself when the point was stated in argument.

A subsequent examination of the authorities has not led us to conclude that our first'impression was erroneous. The issues had been regularly formed by the appearance of all the opposers. All the parties were plaintiff or defendant in so far as they had an interest in the questions involved. The succession will be closed by the final account and the issues on the oppositions as effectively disposed of' as if they had been tried and decided in a direct action.

The aeiion here, in a certain sense, is a direct action. Moreover, the proceedings probating the last will probated were ex parte and not such as required a direct action for their annulment, and in addition the will is attacked on the ground that it is an absolute nullity. If it be void, as alleged, the nullity may be here urged, contradictorily with all the parties, not one of whom asserts that a single question could be raised in a direct action that is not at issue in these proceedings. This court said in Rachel, Tutor, vs. Rachel, 1 R. R. 117, that the probate of a will did not have the effect claimed; “ that it can not be considered as a judgment binding on the plaintiffs ” who were not parties.

The rules relating to the proving of wills were considered in Fuentes vs. Guines, 25 An. 92, as a preliminary proceeding necessary to the settlement of estates which are not conclusive, citing numerous decisions.

The learned counsel representing the executors asserts that our whole law may be searched in vain to find a case where the validity of a will duly probated was ever attacked by way of opposition to an account; that the uniform practice has been a direct action of nullity with all the parties in interest before the court.

Here we find all the parties in interest before the court, and the action is in nullity. The direct action practically is a matter of mere name of the action.

In our judgment this is a stronger case for hearing the causes of nullity than any of those cited. Succession of Von Hoven, 46 An. 920.

THE) WILL OP MAY 4, 1895.

This paper has the appearance of having been made piecemeal, without connection to indicate with aDy degree of certainty what was the intention of the testator. Neither writing, that en - dorsed on the upper part or that written on the sealing side of the envelope, is, in our judgment, a will. The writing on one side of the envelope is not dated, and the writing on the other side does not identify the notes the testator intended to will and bequeath. It is not possible to determine whether the testator intended to bequeath the notes imperfectly listed on the back of the envelope, or the notes placed within the envalope and sealed, if there were, at one time, notes enclosed in the envelope. The theory of the counsel for the executors is that the notes described on the envelope never were in it, and there could not possibly have been anything in the envelope when the writing was made thereon, because the writing could not have been as smooth and clearly written as it was. We were at first inclined to accept that theory; a further examination revealed that the lines drawn lengthwise on the 'back of the envelope — columns drawn to make the figures — extend the length of the envelope. There are traces left indicating that the lines extended to and over the end torn when the envelope was broken. This being the case the inference is unavoidable that there were notes ehelosed in the envelope that were withdrawn from it after it had been sealed and at the time when its end was torn.

It is a matter of uncertainty whether the testator in the signed memorandum referred to the list on the back of the envelope or to the notes enclosed. When the envelope was found it had nothing in it. We give no importance to the fact that the will was written on an envelope. If the writing were in its entirety dated, written and signed by the testator, the envelope upon which written would not, in our view, of itself, give rise to a valid objection. The want of identification of the thing is the objection fatal, as we think, to the validity of the writing as a will.

NOTES SECURED BY MORTGAGE ON ELLBNDALB.

We are brought to the objection urged by opponents against the legacy of notes to Mrs. W. L. Shaffer designated as above. They were secured as to their payment by a mortgage on a plantation known as Ellendale.

The notes were signed by Miss Nellie McOollam, Alex. McCollam, William McCollam and Ed. McCollam, as makers. The first named maker died and her property was inherited by her co-makers of the notes, who were her brothers. Another of the makers died after his sister, Miss Nellie, leaving as his heirs minor children. The holder of the notes: Wm. L. Shaffer, the testator in the wills before us, desired a new arrangement, and for that reason the property was offered for sale by public auction — i. e., the mortgage was foreclosed. The purchaser subsequently, in accordance with an agreement entered into prior to the sale, sold it to Messrs. Alexander and Ed. McCollam for twenty-three thousand dollars, represented by four notes of five thousand seven hundred and fifty dollars each, which were turned over to W. L. Shaffer. They are the notes claimed by his widow as legatee.

In order to safeguard the interest of the minor heirs of Willie McCollam, deceased, these purchasers, A. and E. McOollam, executed a counter letter. The witnesses who have testified upon the subject said that the amount of the debt remained the same and the debtors practically the same.

But the opponents contend that the debtors were different; that the first McOollam notes foreclosed had nothing whatever in common with the second (those executed after the foreclosure), save that they were secured on the same plantation. Unquestionably, if the plantation after the foreclosure had been sold to third persons, entire strangers to the transaction, upon notes, their legal status would have been different. Here they were in effect the same debtors. The readiness manifested by the creditor, Wm. F. Shaffer, to accept the signatures of two of the makers on notes secured by mortgage, indicates plainly enough that he looked particularly to the mortgage. In our judgment his object was to remove the paper he held from a signature representing minor’s interest, and at the same time, against the remaining makers of the notes, secure after foreclosure other notes with mortgage and vendor’s privilege.

In enumerating the values given to Mrs. Shaffer he names “the MeCollam paper March 1, 1894.” It is before us as the MeOollam paper, less two signatures, before mentioned. There was no change, ■save as we have stated. In that which may be considered a change we did not discover that it arose from a wish and- intention not to include this claim in the legacies, nor in our view, was such the effect of the new arrangement, even if considered without regard to the intention of the testator as made evident by the facts.

The thing had not perished. There is a destruction of the substance of the thing bequeathed when it has undergone a complete and radical transformation. Thus, the commentators have illustrated the subject by reference to lumber bequeathed which before his (testator’s) death was changed into a sailing craft; the substance had perished and the legacy had lapsed; the legatee had no right to the craft. The change of the accessory or collateral form, which modifies the thing without altering its nature — for example, the change of ploughable land into a vineyard, would not cause the legacy to lapse; despite the change the thing retains the same juridical nature. For greater reason it would be the same of changes which would leave to a thing its form and its name. The legacy of a boat would not lapse from the mere fact that it had been repaired so many different times that there would not remain one plank of the original construction; despite the change it is always the same boat. Baudry-Lacantinerie, Yol. 2, p. 447.

The claim still exists against the debtors.

“The legacy falls if the thing bequeathed has totally perished.” O. 0. 1700.

“The reservation arises from some act which supposes a change of will.” 0. O. 1691. We would not feel justifiable in assuming that the testator intended to change his will, from the fact that he sought, as we are led to conclude, new arrangement with the view to greater security for payment of his notes. In the case of Succession of Batchelor, 48 An. 278, we said that the legacy perishes when it is extinguished by one of the causes which puts an end to the obligation. If a claim be paid it no longer exists, and there is an end to the particular legacy.”

Here, in our view, the testator did not put an end to the obligation. Beyond all this, it is made evident by the terms of the will that the testator did not desire to collect this claim at maturity; that he wished it to remain as an investment for his wife, to whom he, in his will, gave direction to collect the interest and renew the notes.

THE NOTE REFERRED TO AS THE BELL FARM NOTE.

One of the opponents, Mrs. Cross, individually and as tutrix, assails the bequests made to Miss Bocage on the ground that the legacy is a prohibited substitution and fidei eommissum.

The will as relates to the legacy in question reads: Now, I hold a note of Miss Bell Brooks for three thousand dollars, first mortgage on Bell Farm. The owners of Bell Farm, so long as it is for Mrs. Brooks and family, will pay you the interest yearly during your lifetime; and at your death the said note will go to my god-child, Miss Bocage.” The “ you ” addressed was his wife.

The proposition is not disputed, that the testator may give the usufruct to one and the naked ownership of the same property to another legatee. From our point of view this was precisely the intention of the testator. He did not leave the note to his wife. He gave her the interest yearly. At her death the ownership will be with Miss Bocage. Such a legacy is allowed by law. A similar question was decided in Succession of Barker, 10 An. 28. In Succession of Law, 81 An. 456, 461, as in the case before us for decision, the testator had bequeathed the usufruct to one legatee, and at his (the legatee’s) death the property to vest in another legatee; the court sustained the legacy. From the standpoint of that decision we have not here discovered any trust or prohibited substitution by this legacy to Miss Bocage.

BIGHT THOUSAND DOLLARS CASH IN GENERAL FUND.

The will bequeathing this amount was dated in 1894. It was the fifth of a fund designated as a general fund reserved from the proceeds of a crop made for account of joint owners, to carry on the plantation jointly owned by them, the year succeeding.

The following is the clause of the will assailed: “Now I have 18000 (eight thousand dollars) in cash, in the general fund, for running my one-fifth. To this amount I will in full to my wife, to be paid at the end of the year, with one-half of my portion of the net proceeds of the crop,” on the ground that the testator confined his bequest to the general fund for 1894. That by “ at the end of the year” written in the will a particular year was intended — that is, the year in which the will was written, and that the general fund referred to was spent during the year of the writing of the will; and that the general fund of the succeeding year, which is carried upon the account as a legacy, was new and different, which had also been exhausted and expended at the date of the testator’s death.

It is true that this, fund was expended each year to make the crop and that the proceeds of the crop would be drawn from in order to replace this amount in the common fund for the next crop. In 1895, in accordance with an agreement of the common owners, the amount was reduced to thirty-two thousand dollars, and the portion of the late Mr. Shaffer in this fund was the amount carried to the credit of his widow in the account, to-wit, six thousand four hundred dollars. This fund during a number of years never went out of existence. It was well known to all those who were familiar with the transactions of the joint owners of the plantation in which the testator had an interest. The illustration of the water-craft, quoted supra, we think applies here. It was not the identical cash, but the “fond” known as such. It had not been changed to another substance or to anything else. The corpus remained and is susceptible of complete identification by reference to an interest in a well-known “common fund.” In the Batchelor succession case, 48 An. 278, the note bequeathed had been collected and canceled and there remained nothing save the cash realized, which was in the possession of Mr. Batchelor, under circumstances, as we thought, denoting his intention not to bequeath amount realized by him in the note.

With reference to this legacy the opponent also contends that the testator confined his bequest to the fund for 1894; that in directing that the fund should be paid “ at the end of the year,” the particular year, 1894, was intended.

The interpretation usual in the matter of wills preclude our reading Jn the will, a particular year, in the absence of words denoting that a particular year was intended.

But it is urged in argument that the testator expected death before the first of the month following; that in apprehension of death he gave instruction to his legatee to extend a note to which he specially refers; which fell due the month .following.

This alone is not such an indication of apprehended death as would justify us in concluding that he desired to limit the payment of this legacy out of the fund of 1894. We take it that direction was given by him in case of his death, to extend payment of certain notes. The clause of the will before us does not give rise to the inference that he necessarily meant payment should be made from the fund of a particular year. We do not think we are authorized to add, by construction, the year “ 1894” to the bequest out of the general fund. Had he been so inclined he could easily have added the particular year. The clause is separate and contains a complete disposition. It can not, in our view, be limited or enlarged in its meaning by reference to another clause directing the extension of payment of certain notes.

In our judgment this legacy is a specified legacy which had not lapsed, and being a particular legacy of an existing fund, it does not conflict with other legacies which disposes of all the cash.

“ The legacy of the property I possess in such a place is a particular one.” 5 Toullier, 487, 524. The nature of the legacy is not varied because a sum of money is bequeathed. A legacy of one hundred reals which I have in such a box is good for so much as the testator has there.” Church vs. Miller, 5 N. S. 102.

Upon this process of reasoning, in our view, it follows a legacy to be charged to a designated fund, which was made up from year to year from the proceeds of a common crop, is effective to the amount remaining of the fund at the date of the testator’s death.

THE CROP.

The account is opposed on the ground that the crop of 1894, the year of the testator’s death, was the crop bequeathed and not the •crop of 1895, which the executors proposed to distribute. That the testator having willed the proceeds of the crop of a particular year, the proceeds of the crop of the year in which the will was written was intended. The necessity presents itself at this point of interpreting two clauses of the will, that would" be conflicting if opponent’s theory be correct; both clauses containing dispositions of crops would relate to the one crop of the year in which the testator made his will. We do not gather from the whole body of the will that the testator could have fallen into the error and absurdity of bequeathing the same property to two different persons in clauses of the will one immediately following other — i. e., grant crop in one clause and revoke it in the next.

In our view the article cited by the opponents in support of their position, part of which reads: “A disposition, the terms of which express no time neither past nor future, refers to the time of making the will” (1722 O. 0.), does not apply for the reason that unless the testator was grossly inattentive and guilty of an absurdity, he must have referred to the crop of 1894; by the use of the words “including my portion of the present crop” in one paragraph and to the crop of subsequent year, in the paragraph referring as we take it to the proceeds of a subsequent crop.

Though he may have been indifferent in the written use of words he evinces anxiety to dispose of all of his property and nothing in his will creates the impression that he was wanting in the care and concern that the prudent owner usually bestows upon his own. Moreover the- expressions of the will manifest a strong desire to amply provide for his widow, to whom he gave the bulk of his fortune. It is not at all probable that he intended, particularly as to her, to give her property in one breath and take it away in the next. A clause of a will should be, we think, interpreted if possible so as it will have effect. C. C. 1713.

Terms used by the testator “must be taken in the sense in which it is believed he understood them.” 6 Toullier, No. 312.

LEGACY TO A NIECE, MISS SHAEEEB.

The conditions following this legacy are somewhat confusing and unintelligible. The name of the testator’s wife is first mentioned as the intended legatee, but immediately after the testator directs that, if living at the date of his death, Miss Ratty Shaffer shall, instead of the wife, receive the legacy. The language of the will is as follows: “Now I have one note of T. S. Shaffer for two thousand dollars, first mortgage on one-fifth interest in Orescent Farm. I also will this note to my wife, with the understanding that if Katy Shaffer is living that she will get both the principal and interest.” If it was the intention of the testator to establish, in regard to this legacy, an order of succession, as presumably it was, Mrs. Shaffer is not the first in the order of succession, but Miss Kate Shaffer. The latter was the one designated to receive the principal and interest from the succession, which carried with it the note bequeathed. The words used carry with it the meaning that Miss Shaffer, if living, was to receive the note, and not Mrs. Shaffer.

DISTRIBUTION OF A FUND STATED IN THE FIRST WILL.

The clause opposed reads:

“Now, I have, in cash and other notes, which will amount to fully (including my portion of the present crop) fully $20 to $25,000 twenty-five thousand dollars.
“ Now, I will to my wife out of this, fifteen thousand dollars in cash, or its equal. I will then will to Mrs. Abbie Cross and her daughter the sum of five thousand dollars.
“Now the balance I want my wife to take and have it so divided among T. S. Shaffer’s children.” (Italics ours.)

The grounds of opposition are that the amount of a cash legacy under a second will should be deducted from the legacy as above written covered by the first will. In taking up this question for discussion and determination, we in the first place, find:

In the will of March 7, which’is the second or last valid will, the testator gave it as his intention not to “ invalidate ” the first will. We did not discover that the intention by the use of the word just quoted was only to guard against any possibility of canceling or destroying the anterior will as a whole, but that it was expressive of the intention to give specially an amount of cash which he had in bank without abrogating or making null any of the legacies in the will of an anterior date. He expressly directed that this cash should be paid to his wife, and added that his will did not “ invalidate ” his previous will, but gave her possession of the cash on hand. We believe it was his intention to add this legacy of cash in bank to the legacies previously made. This item of cash he evidently intended should go to her, and it was, we think, properly placed to her credit. But it appears that the amount remaining is not large enough to pay the two legacies (under another clause of fifteen thousand dollars to Mrs. Shaffer and five thousand dollars to Mrs. Cross and her daughter) . The question (because of the insufficiency of the designated fund) before us at this point is whether this legacy to the wife should be paid in full, or whether the amount should be divided pro rata between these two legacies; the wife and Mrs. Cross, under Art. 1685 directing that a proportionate division be made of particular legacies among the legatees of “ sums of money unless the testator has expressly declared that such a legacy shall be paid in preference. ” (Italics ours.)

The meaning of the word “ then,” as used by the testator, must determine his intention.

No one having some appreciation of the value of property will deliberately use a word in disposing of it different from its meaning in a literal sense as he understands it.

Because of the predisposition in serious matters to employ the proper words we traced “then” to its original, and, as we judge, proper meaning. The word has more meanings than one. We sought to make the different meanings clear by the following:

Tunc expresses the meaning “ time,” at the time, ibi; eodem tempore. Says Ainsworth in his dictionary: It may also express time subsequent: after that; unde; postea; deinde.

It has also another meaning without application here. The corresponding French word is alors and ensuite, observing about the same difference in meaning as in Latin. We here made use of the foregoing definition for the reason it is concise and is the basis of the modern definition of the word “then.” In the Century Dictionary the definition is the same as just stated. If the word be taken in its ordinary or popular signification the same difference in meaning arises. To illustrate: To A is given fifteen thousand dollars; then to B five thousand dollars, out of one fund. The fund not being enough for both, should be pro rated. In any point of view there is obscurity as to whether it was intended to make the legacy separate and independent or joint in case the particular amount was not large enough to pay both. The article of the Code offers a solution ; the testator must make his intention known in this respect, or the fund constituting the particular legacy will be proportionately divided.

We have italicised the words “ now the balance.” in the third clause, clearly indicating, indeed substantially declaring, that the legacies just preceding in the clause of the will should be first paid.

NOTES DATED AFTER THE WILL.

The argument of the opponents as to these notes is grounded upon Art. 1722, C. C., and brings up a question upon which we have already passed when considering other legacies which gave rise to a similar objection.

The testator’s intent to bequeath with reference to the future, and not with reference to the date of the will, is made evident, as we think, by the amount donated in the clause of the will we are now considering.

It required the notes and the cash on hand at his death to make up the amount donated. The testator wills with reference to all notes as we think, needful to make up the total donated. It is true that several of these notes bear a date subsequent to the date of the will, but they are covered in our judgment by words general in term: that the notes, together with the cash, will make up the total bequeathed. The object of the rule of interpretation is to discover the intention of the testator. It was not, in our view, the intent to leave undisposed of the notes for amounts comparatively small. It was his purpose to give all his property. A clause, unless it can not be otherwise interpreted, will not be interpreted so as to change the will of the testator.

ADVISORY CLAUSE OF THE WILL.

As we appreciate the utterances of the testator contained in his will he recommends to his wife to give to C. B. Morrison ten thousand dollars. It is a matter left to the will of the legatee. It is not a substitution or an illegal condition whereby property is taken out of commerce.

A recommendation, said this court, in Succession of Trouard, 5 An. 390, “ to give from time to time some little assistance to a certain person is not a legacy.” In our judgment the interest vested exclusively in the legatee and the request made was addressed exclusively to her conscience. The young man was reared by the testator and his wife, who are childless. He was, presumably, in favor with both, and the former trusted to the latter to carry out his request.

This brings the task of reviewing and construing the different clauses of Mr. Shaffer’s will to a close and we have found no ground upon which to reverse the judgment.

We have throughout sought the intent of the testator. It alone, all realize, should govern and have effect. The questions, at times, were, owing to ambiguous expressions of the testator, involved and obscure. If, in any respect, the meaning by us has not been seized as intended by the testator, an opportunity remains to press the different view to our attention.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellants’ costs.

Separate Opinion.

Watkins, J.

I concur in the opinion of the majority of the court except with regard to the following provision of the testament of February 10, 1894, viz.:

“ Now, I have in cash and other Notes which will amount to fulleye (including my portion of the present crop) fullye $20,000 to $25,000 twenty-five thousand dollars. Now I will to my wife oute of this fifteen Thousand dollars cash, or its Equal.
I will then will to Mrs. Abbi Cross and her daughter, the sum of Five Thousand Dollars. Now, the batíanse I want my wife to take and have it so divided among T. J. Shaffer’s children in Such a waye that it will be of some use to them (I means the Female Parte of the Family). Now I want my wife to give to C. B. Morrison, oute of that portion which She received the Sum of $10,000 — Tenn Thousand Dollar’s, Said Sum to be given to him as She thinke’s Best, all at One time or so much a year, during his life time. I think so much a year is best, unless he goes into some payin business.”

In my opinion it was the evident purpose of the testator, that his wife should be preferred as a legatee to the extent of fifteen thousand dollars, to be paid her from the fund specified; and hence his disposition is expressed in the present tense, thus: “Now I will to my wife,” etc. And that the one in favor of Mrs. Abbi Cross, was to be subsequently paid from, the residue thereof, if any, is evidenced by the words employed in the future tense, viz.: “I will then wilt Mrs. Abbi Cross,” etc.

I scarcely think those two dispositions fairly susceptible of a diferent construction without departing from the text of the will.

On Application for Rehearing.

Miller, J.

In this case the court grants the rehearing on the question whether the twenty thousand dollars, the subject of one of the dispositions of the will, shall to the extent the fund remained at the testator’s death, go to his wife, or be distributed between her and Mrs. Abbie Cross, as we directed in our first decree. On this point the court will receive briefs from the parties and decide without oral argument, the briefs to be filed within twenty days. In all other respects the rehearing is refused.

On Application for Rehearing.

Miller, J.

The rehearing in this case was granted on the question arising on that part of the will of the deceased relating to his supposed fund of twenty thousand or twenty-five thousand dollars, and introducing his wife and Mrs. Cross as legatees.

The disposition, so far as it is material to the controversy, is:

“ Now I have in cash and other notes, which will amount to fully (including my portion of the present crop) fully $20 to $25,000 twenty-five thousand dollars. Now, I will to my wife out of this, fifteen thousand dollars in cash or its equal. I will then will to Mrs. Abbie Gross and her daughter the sum of five thousand dollars. Now, the balance I want my wife to take and have it so divided among T. S. Shaffer’s children.”

In our original opinion we reached the conclusion that the fund the testator supposed he would leave to discharge the legacies proving insufficient, the legatees should share the fund in the proportions ■of the amounts of their respective legacies. This is the rule of distribution when legacies exceed the funds for their payment and the testator has directed no priority or preference of payment. Civil Code, Art. 1685.

The re-examination of the question has impressed us that the testator did in this disposition intend the priority of payment, which excludes the proportionate distribution when the particular legacies are made with no such priority or preference and the prop - erty left is not enough to pay all the legacies. “ But if, the Code says, there is preference of payment expressed, there is no proportionate distribution.” The priority in this case in favor of the testator’s wife, we think is the necessary implication from his language. He expresses himself: “ I will to my wife out of this, fifteen thousand dollars in cash or its equal.” Supplying the punctuation “ this” refers to the fund he then supposed amounted to twenty thousand or twenty-five thousand dollars. The disposition, we think, in legal effect stands by itself; that is, not modified or dependent upon the dispositions that follow. His wife stood first in his contemplation in the distribution of this fund. “Then” following the disposition in her favor, we think must be deemed to refer to the residue of the fund when the fifteen thousand dollars is paid to his wife. The words “ then I will to Mrs. Abbie Cross and her daughter the sum of five thousand dollars” conveys, in our opinion, the plain significance that the Cross legacy was to have no effect until the wife’s legacy was paid. The phraseology of the testator with no aids, usually calls for the application of the cardinal rule for the interpretation of legacies; that is, the intention of the testator fulfilled, we think, by supposing the wife is to receive her fifteeu thousand dollars first, and defeated, in our view, by giving Mr. Cross a proportionate share to the diminution of the fund and to the prejudice of the wife.

It is therefore ordered, adjudged and decreed that our former judgment, in respect only to these legacies herein referred to, be avoided and set aside, and that the fund for payment of the said legacies be first applied to pay that of fifteen thousand dollars to the wife of the testator, and the residue, if any, to the legacies in favor of Mr. Cross and daughter, and that appellees pay costs.

Mr. Justice Breaux dissents.


text:
    No. 12,842.
    Lake Bisteneau Lumber Co. vs. Mims, Sheriff, et al.
    The asserted error o£ an act of mortgage in describing the property may be inquired into and corrected on the intervention of the mortgage creditor in. the suit of an alleged owner enjoining the execution of the mortgage creditor, the petition of intervention containing the requisite allegations to show and admit proof of the error.
    AN APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Leonard & Randolph for Plaintiff, Appellee.

      Wise & Herndon for Lane & Bodley Co., Intervenors and Third Opponents, Appellants.
    Argued and submitted June 3, 1898.
    Opinion handed down June 13, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the Lane Bodley Company, the intervenors from the judgment dismissing their intervention in the suit of the Lake Bisteneau Lumber Company vs. The Sheriff.

The Lane Bodley Company sold certain machinery to Matthews, their debt being secured, it is alleged, by special mortgage on the land on which the machinery was erected, as well as by privilege on the machinery. On their debt they obtained judgment, with recognition of their mortgage and privilege, and the sheriff was proceeding with the execution of the judgment. Matthews sold the land subsequently to the plaintiff, the Lake Bisteneau Lumber Company, and they enjoined the execution, on the ground that the land seized, and about to be sold under the execution, was not covered by the mortgage of the seizing creditor, but belonged to the plaintiff in injunction under the sale by Matthews to the company. The Lane Company, not made defendants in the injunction suit, intervened, alleging their mortgage on the property seized, that there was a clerical error in the act of mortgage of description or omission of the lands mortgaged and setting forth in detail the error, with the averment substantially, that the error was manifest from the deed under which plaintiffs acquired; that they were estopped from disputing the mortgage on the lands, and that they had recognized the mortgage. In this condition an attempt was made by the Receivers of the Lake Bisteneau Company to transfer the injunction suit to the Federal Court which had appointed the Receivers, and if that had been accomplished, the Lane Company, arrested by the injunction from executing their judgment rendered by the State Court, would have been forced into the' Federal Court to try the issue raised by the injunction suit. The controversy was before us on a previous occasion on the appeal from the judgment dismissing the injunction suit. Our decision reversed the judgment and remanded the ease for trial on the issues raised- by the intervention. Lake Bisteneau Lumber Company vs. Mims, Sheriff, 49 An. 1288. On the return of the case to the State Court there was judgment sustaining the exception of the plaintiff in injunction to the intervention of the Lane Company, and from that judgment that company appeals.

The exception is substantially, that an error in the act of mortgage of the Lane Company can not be inquired into and corrected by an intervention in the injunction suit of the Lake Bisteneau Company against the sheriff, but the Lane Bodley Company must resort to a direct action and make their mortgagors and the vendors of the Lake Bisteneau Company parties. In the Federal Courts it is the exclusive jurisdiction of equity to reform written instruments so as to cdnform to the intention of the contracting parties, and in these courts the exceptions to the intervenors would have its force. But under our system where the mortgagee is seeking to enforce a mortgage containing an error of description corrected, it is claimed, by intrinsic evidence of the acts on which the parties claim, and other circumstances plainly denoting the alleged error, in our view, their is no necessity to compel the mortgagee to seek relief in a direct action, instead of an intervention with adequate allegations directed against the party in interest, who disputes the mortgage and claims the property. There is, in our view, the proper allegations and the necessary parties to adjust the issue tendered by the intervention, and the lower court erred in maintaining the exception to the intervention.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed and that the suit be and is hereby remanded for trial on the merits and that appellee pay costs.


text:
    No. 12,864.
    State of Louisiana ex rel. Simmons & Cohn vs. Hon. George H. Theard, Judge Division E, Civil District Court.
    The cession by the debtor to his creditors, operating on all his property, that subject to privileges and mortgages as on that not encumbered, vests in the creditors the right of possession of. all such property, to be held, sold, and proceeds applied by the syndic oí the creditors to the payment of the debts of the ceding debtor, all rights of the mortgage and privileged creditors' being preserved in the proceeds. Revised Statutes, Secs. 1790, 1791, 1816; Civil Code, Arts. 2170, 2176 et seq.; 1 Hennen’s Digest, p. 68y, Nos. 11,13,15.
    Hence, the possession by the sheriff of the debtor’s property, under writs in suits pending, is divested by the cession, the property transferred to the syndic, the suit is arrested in its further progress, and the right to release on bond in sequestration suits given to plaintiff ceases, when, prior to his application to bond, the defendant makes a cession to his creditors. Ibid.; 1 Martin, 207; i Martin, 26f; 12 Martin, 666; 11 An. 618; 12 Martin, 32; S Rob. 172.
    QN APPLICATION for a Writ of Mandamus.

      Lazarus, Moore & Luce for Relators.
    Respondent Judge pro se.

    Submitted on briefs June 13, 1898.
    Opinion handed down June 21, 1898.
   The opinion of the court was delivered by

Miller, J.

The relators apply for the writ of mandamus directing the judge of the Civil District Court, Division “E” to grant them the order to bond certain merchandise seized under the writ of sequestration in their suit against the purchaser for the price and asserting the vendor’s privilege.

It appears that a few days after the relators brought their suit against their debtor, he made a cession of his property and the judge of the lower court appointed a provisional syndic, the merchandise on which the relators claim the vendor’s privilege then being in the sheriff’s hands under the writ of sequestration issued by relators. Subsequently, the ten days allowed the defendant to bond the property having elapsed, the relators made the application to give bond and thereby obtain possession of the property, the relators claiming that the cession of their debtor did not divest them of the right to bond conferred by law on the plaintiff when the -defendant on the writ fails to bond within ten days from the time the property is taken into possession by the sheriff. Code of Practice, Art. 279. The application of plaintiff was refused by the court, on the ground that the cession of property arrested all suits against the debtor, and necessarily precluded the application to bond made by his creditor in the suit against the debtor pending, when the cession was made, the cession dissolving the writ of sequestration and transferring the merchandise sequestered to the possession of the syndic to be sold by him with all other property of the debtor in due course of the syndic’s administration.

The well defined effect of the cession of property is to transfer all the property of the ceding debtor to his creditors and to the possession of the syndic when appointed, holding for them; the cession operates on all property, that subject to liens and mortgages as well as on that not encumbered; transfers all suits pending against the debtor to the court accepting the cession; forbids any further suits or proceedings against the debtor, and substituting the syndic’s possession for that of the sheriff, dissolves all writs by which prior to the cession the sheriff may have held the property. Revised Statutes, Secs. 1790, 1791, 1816; Civil Code, Arts. 2170, 2176; 1 Hennen’s Digest, p. 687, Nos. 1, 11, 12; p. 689, No. 15 et seq. The policy of the insolvent laws is that the entire property of the debtor shall pass under the administration of the syndic to be sold by him, and the proceeds distributed subject to the privileges or mortgages of the creditors preserved on the proceeds. It is manifest this purpose of the law would be defeated if after the cession, the privilege creditor could, by furnishing a release bond, withdraw from the syndic that part of the debtor’s property on which the creditor asserts the vendor’s privilege. It is contended the statute originally of 1842 now weaved into Art. 279 of the Code of Practice, giving to the plaintiff the right to bond property sequestered, constitutes an exception to the rule that all property passes to the syndic. In ourview the statutory right given to plaintiff in sequestration suits must be construed as subordinated to the provisions of our insolvent system prohibiting any interference with the syndic’s custody of all the debtor’s property, so essential to his complete administration, and conferred so explicitly by the law when the act of 1842 was passed. On settled rules of construction we think no such repeal or modification of existing legislation can be attributed to the general act of 1842, as is claimed in the argument for relator. The act gives to plaintiff the right to bond except when prior to the application to bond the debtor has made a cession. When that occurs in our view the cession acts on all property of the debtor, embracing as well that under seizure as his other property. This result, too, is affirmed by the general course of our jurisprudence applied to the varied phrases in which our courts have been called on to deal with the effect of the cession. Elmes vs. Estevan, 1 Martin, 193; Flower vs. Millaudon, 19 La. 191; Jacobs vs. Bogart, 7 Rob. 162; Keyes vs. Shannon, 8 Rob. 172; Marr vs. Lartigue, 2 M. 98; Beck vs. Brady, 6 An. 444. It is urged that notwithstanding the cession, the relator in. this case should be allowed to prosecute his suit against the syndic and recover his judgment. If the relator is allowed to bond, the bond represents the property. If the relator prosecutes his suit it is with the view of maintaining his privilege. If as we hold the property passed to the creditor by the cession to be held and administered by the syndics, the asserted right to continue the suit, if conceded, could not, whatever its result, defeat the possession of the syndic. If no suit after the cession can interfere with the syndic’s possession, neither can that possession be disturbed by permitting the creditor to give a release bond, the incident of his suit. Again, a suit against the syndic, to establish a privilege on the property of the ceding debtor can have no effect against other creditors, the real parties in interest in any] litigation in which privileges are asserted against the debtor’s property. Hence, the privilege which the relator’s suit proposes to establish on the debtor’s property must be asserted contradictorily with the creditors, and not in a suit against the syndic. R. S., Secs. 1790, 1791, 1816; Cox vs. Zeringue, 4 Martin 264; Mayhew vs. McGee, 12 Martin, 666; Fabre vs. McRae & Provosty, 14 An. 648; Tenny vs. Provosty, 14 An. 221. Our conclusion is that after the cession the right to bond the property of the ceding debtor sequestered before the cession ceases, because, by that event, the property passes to the syndics, whose possession can not be disturbed; and nó suit by a creditor to establish a privilege on the property embraced in the cession can be prosecuted against the syndic.

It is therefore ordered, adjudged and decreed that our previous order herein be set aside and that relator’s application be denied at his costs.


author: Watkins, J. Watkins, J.

text:
    No. 12,390.
    Succession of Marco Givanovich; John A. Barlow, Executor to District Court.
    An act of the Legislature which imposes a succession tas upon the amount going to foreign heirs, legatees or donees, is abill for the purpose of raising revenue, within the contemplation of Art. 180 of the Constitution, which should originate in the House of Representatives.
    APPEAL from the Tenth Judicial District Court for the Parish of Natchitoches. Hunter, J.

      Scarborough & Carver for Executor, Appellee.

      John M. Tucker for Absent Heirs.

      Phanor Breazeale and Branch K. Miller for Opponent, Appellant.
    Argued and submitted February 17, 1897.
    Opinion handed down March 15, 1897.
    Rehearing granted June 19, 1897.
    Argued and submitted on rehearing February 25, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

The Charity Hospital of the city of New Orleans through the State of Louisiana opposed the homologation of the account stated by the executor claiming from the succession ten per centum on all sums of money going to foreign legatees, under and in pursuance of Act 130 of 1894, the residuary legatee being a citizen of the Empire of Austria-Hungary, and the particular legatees having the same citizenship.

The executor proposing the distribution of funds, takes the position that the succession of the deceased testator is not liable for the tax, on the ground that citizens of the Empire of Austria are exempt from same by virtue of the terms and stipulations of the existing treaty between the government of the United States and the aforesaid Empire. ■

And upon the further ground that Act No. 130 of 1894 imposes a succession tax of ten per cent, for the use and benefit of the Charity Hospital upon such amount as may go to foreign heirs, legatees and donees; that is to say, such persons as may be beneficiaries of the deceased and not domiciliated in the State of Louisiana, and not being citizens of any State or territory of the United States of America; and that same is unconstitutional and void because it conflicts with and is in opposition to the requirements of Art. 130 of the Constitution of the State, which requires all bills for raising revenue and appropriating money to originate in the House of Representatives — said act having originated in the Senate.

In Succession of Sala, 49 An. —, this day decided, a similar question was presented and determined by this court, and it reached the conclusion that the charge of uneonstitutionality of the law was well taken, and so decided.

In the lower court there was judgment in favor of the executor, approving and homologating his account, and rejecting the demands of the opponent — not disposing of the objection of uneonstitutionality of the law — and the opponent prosecutes this appeal.

Without passing upon the treaty rights and exceptions of the foreign legatee, we will follow our ruling in succession of Sala, and place our decree upon the ground that the legislative act is unconstitutional.

Judgment affirmed.

McEnery, J., concurred in a separate opinion.

On Application for Rehearing.

The opinion of the court was delivered by

Watkins, J.

In the succession of Pablo Sala, this day decided on rehearing, we held, upon a rehearing of the question of the unconstitutionality of Act 30 of 1894, that our former opinion was correct, and the act unconstitutional and therefore void.

On the rehearing of this cause the question was thoroughly examined, and reargued with great learning and ability on both sides, but neither that argument nor the authorities cited has, in the least degree, shaken our conclusions; on the contrary, they have confirmed us in the correctness of our original conclusions.

It is therefore ordered and decreed that our original judgment and decree remain undisturbed.