text:
    No. 8728.

    Succession of Louis Müh. For Probate of Will.
    The revocation of a will "by the act of tlio testator may be express or tacit. It is express when the testator lias declared in writing that he revokes the will, or a particular disposition in it. It is taoit when ho has made another disposition repugnant to and inconsistent with the previous one, although nothing is said about revoking it, or when he has done any act which indicates a change of intention, whatever that act may be, provided always the intention to revoke is fairly and legally deducible from it.
    Erasures not approved by the testator are considered as not made, and this applies to those erasures which are made of parts or clauses of a paper admittedly existing as a will, and not to that part, the erasure of which would destroy it as a will, such as the signature.
    If the erasures do not so obliterate the words that it is impossible to distinguish them, and the Judge considers the erasures important, that is to say, of material words, he shall pronounce the nullity of tlie will. Aliter, he cannot decree its nullity.
    The effacement and obliteration of the signature to a will by tho testator, if done with tho intent to revoke, which intent may be deduced from that and other circumstances, will have the effect of revocation. Any act defacing an existing will, done by the testator, derives its character solely from the intent with which it is done.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Tissot, J.

      A. J. <& O. Villeré and JP. JE. & O. J. Théard for Félix Duoaj-et, Testamentary Executor, Appellant:
    1. Erasures not approved by the testator are considered as not made. C. 0.1589.
    2. Testaments can bo revoked only in one of tho forms prescribed by law for testaments. 0. 0.1691,1692.
    3. The word erasures in Article 1589 applies to the whole will. The signature is not excepted, because it is one of the constitutive parts of the will.
    4. The intention of a testator, however clearly expressed, will not he considered, if not clothed with the formalities required by law. 21 An. 450.
    5. Parol evidence is not admissible to prove the act of a testator, when that act must be made iu a certain manner prescribed by law. The admittance of such evidence is virtually testifying to the intention of a testator. Laurent, vol. 13. p. 198; 9 An. 148.

      6. The fact that the will is found in tho papers of the deceased raises no legal presumption. Laurent, vol. 13, p. 198.
    7. "Wherever a will is found, the erasures are presumed to be the act of a third party, because every one being presumed to know the law, Miih would have approved any erasures made by him. 2 La 290. *

      Albert Voorhies for the heirs of Wit. Epps, Sr., on the same side :
    1. The right to transmit property by testament is derived from municipal law: it is not an inherent or primordeal right. C. 0.870, (866) 1570, (1563).
    The mode or method of transmission is determined and regulated by law; and, in case of noncompliance, it is the municipal law that makes the transmission of the succession. 0. C. 1467, (1453).
    Such transmission by the individual can be made only by last will and testament. C. C. 1570, (1563).
    2. A last will or testament, valid as to form and substance, although an act to take effect after death, is nevertheless, from the date of its execution, binding upon the testator and upon the world, subject only to be revoked by suitable act of the testator, or by effect of law. C. O. 1469, (1455).

      3. The legal revocation is independent of the- intention of the testator himself, and takes place in the cases predetermined by law. C. C. 1697, (1690), 1711, (1704).
    4. The right of revocation by the testator is derived from, and its exercise is likewise controlled and regulated by municipal law. C. C.1690, (1683), 1711, (1704), 1589, (156*2).
    5. The law pi'ovides specially how a will may be revoked; there can he no other mode of revocation than such as is recognized by law.
    The whole hnv on this subject matter is contained in C. C. Articles 1690, (1683), 1711, (1704), and 1589, (lo82) ; they provide for all modes of legal revocation, express and tacit.
    There is no law iu Louisiana providing for the revocation by actual destruction of a testament, partial or complete: but the symbolical destruction by erasure of the will, or of a legacy, is specially recognized. C. C. 1589, (1562).
    The Roman, Spanish and French laws in force before the Cession of Louisiana have been repealed, and with it the complicated jurisprudence upon the subject matter of erasure, laceration, suppression and destruction of testaments. La. C. C. of 1825, Art. 3521; C. C. 1690, (1683), 1711, (1704), 1569, (1582).
    6. Erasui e is the symbolical destruction of a portion, or of the whole of a testament; it must not be confounded with its actual destruction, whether by laceration, burning, or otlier-
    The La. C. C. 1589, (1582) provides specially for the revocation by erasure; and that of itself would have disposed of the French, Roman and Spanish jurisprudence on this branch of revocation, without the aid of old C. C. 3521, absolutely repealing the whole jurisprudence itself.
    7. There is a wide divergence on the subject of the revocation of testaments between the La. Civil Code and FTapoleon Code.
    The nine following are original Articles of tbe La. C. C., to-wit: 1589, [1582J, 1690, T16S3], 1691, [1684], 1702, [1695], 1704, [1697], 1705, jl698], 1706, [1699], 1709, [1702], and 3521.
    Tbe four following Articles of the La. C. O. contain material alterations to the corresponding Articles of the FT. C.: C. C. 1694, [1687]—C. FT. 1037; C. C. 1695, [1688]—C. FT. 1038; C. C. 1696, [1689]—C. FT. 1038; C. C. 1710, [1703]-C. FT. 1046.
    These original and amended Articles of the La. C. C. have inaugurated a policy totally at variance with the French jurisprudence.
    8. But even under the French Code a writing is necessary to prove a revocation: parol presumptions and conjectures being inadmissible. Cass. 2 May, 1824, Seguy c. Chevalier.
    9. The Louisiana departure from the French jurisprudence on revocation of wills, has elicited the approbation of the British Parliament. It passed the Act of 1838—of Victoria. Under the adjudications of the English Courts upon questions of actual and symbolical • destruction of legacies and wills arising under that Act, the last will and testament of Louis Miih with all its erasures, would, without difficulty, be admitted by them to probate, precisely discarding the erasures.

      Breaux & Hall for P. S. Wiltz, Public Administrator, and Kennard Howe & Prentiss for one of tiie heirs of Louis Miih, contra:

    1. The presumption of law is that cancellation of a will was made by the testator when that .will is found in bis possession. 11 N. -X. Eq. (3 Stock.) p. 156; Redlield on Wills, 307, 308; 1 Coll, p.638; 2 Penn. St. 110; lLeeEccl.R. 444; 3 Hogg. 566 ; 25 An.103; Redfield, 350 ; 10 Verger, 84; 11 Ala. 596 ; 6 Wend. 174; 11 Wend. 227 ; 2 Pick. 67.
    2. Parol is admissible to prove that a mutilated will was destroyed by tbe testator. Laurent, XIV, pp. 268,271; 32 Ga. 156.
    3. Tbe burden of proof that tbo testator did not make the cancellation is on him who seeks to probate tbe will. Laurent, XIV, p. 265 ; 6 N. S. 264; 25 An. 103; 1 Redfield on Wills, 350; 10 Verger, 84; 11 Ala. 596; 6 Wend. 174; 11 Wend. 227; 3 Pielt. 67.
    4. A testator may destroy bis olographic will in any manner bo pleases. 45 Barbour, |N. V. ] 438; 2 Conn. 67; 5 Mon. [Ky. ] 58; 7 Har. and J. [Ind.] 388; 4 Mass. 460; 15 Pick. [Mass.] 388; 2 Murphy, [N. C.] 235; 5 Bush. [Ky.] 337 ; 65 Mo. 432; Roquion, Art. 970; Boileux, vol. 2, p. 335; Mateado, vol. 4, p. 7 ; Laurent, vol. XIV, 262.

      5. But there must he an intention, combined 'with some act. 3 A. K. Marsh, (Ky.) 71, Ho, 190- 9 Cowden, (H. Y.) 208; 3 Yoates, (Pa.) 170, Ho. 511; 3 MoCord, (S.C.) 282; 7 Johns. (H, Y.) 394; 2 Head. (Tenn.) 104, 303.
    (5. Every not of cancellation iraparfcsprima fanio, that it is done with the intoutlon to revolco. 63111a. 368; 25H. J.301; TX Duranton, 471; Gilbert, 485; Laurent XIY, p. 263,
    7, Art. O. C. 1589, [1582J does not apply to erasures of the signature.

      J. L. Tissot, Attorney for absent heirs, on the same side.
   The opinion of the Court was delivered by

Manning, J.

Ou May 4,1875, Louis Miih made bis olographic will in due form, and died November 13, 1882. A notary placed seals upon his effects on the day of his death, and put a guardian over them. A few days after, this officer in the presence of witnesses removed the seals, and made search for a will, A bureau, secretary, and some trunks were searched without success. A table stood in the bedchamber of the deceased, the drawer of which was looked. This drawer bad also been sealed by the notary. The key broke in the effort to unlock it, and it was opened by a locksmith. In the drawor was found an envelope, superscribed—“ Ceci est mon Testament Olograph Pour étre ouvert aprés mon Décés,” underneath which was his signature with a paraph. This envelope had once been sealed with three wax seals. They had been broken.

The paper within was presented for probate as the will of the deceased. The proofs verbal of the notary recites all the particulars with lengthy detail; and among them that in the drawer were “ memorandums which indicate the making of a later will by said deceased.”

The will is written on a sheet of legal cap, the writing covering three pages and nearly half of the fourth. It commences thus :

“ Ceci est mon Testament Olograph. Jesonssignó Louis Miih sain de Corps ot D’Esprit,” etc,, etc. Then follows over twenty legacies, and a final distribution of the residuum of his estate among these legatees.

All of these legacies, except four, had been erased by drawing a line of ink through them, but the words can be read. The clause in which his executors are named is erased in like manner, and their names arc more obliterated than the other parts of that clause, the pen evidently beiug pressed harder and witli a more copious How of ink. The paper had been signed, and the signature is covered with ink, the erasing pen having been moved in several ways, aud witli various and different strokes, which extend over the paraph. A minute inspection reveals the name to those who know what it was already. Experts state on the trial they can see both the signature and the paraph through the superimposed ink. It would be difficult to blotch it more, but portions of the capital letters of the name appear when the eye has rested some time upon them. The ink of the erasures is blacker than the writing.

The first legacy is to his former slave, William Epps, and is not erased. The other three unerased legacies are to his sister Elizabeth* and his niece Melanie, widow of Henri René, and another niece Eugenie Cocheteux. On the margin, outside the colored line on legal cap, and abreast each legacy to the nieces, is written with a paler ink, “filie de ma sceur Elisabeth,” manifestly written at a different time from the will, and as additionally descriptive of the person intended. A like marginal description is abreast the partially erased legacy to Eugenie Ducayet, the name “Jenny” being there written, and the unerased part of her legacy is his book case, “ ma Bibliothéque sans le con ten u.” These indicate unmistakably that when he was reading the will over with a view to make another, he revised it, and added these descriptive words to be put in the new will.

There is other and stronger internal evidence that his own hand made these erasures and blottings.

The only parts of the will, except these legacies, that are not erasod are the exordium as first above given, and the conclusion where he revokes all previous wills, disinherits any heir who shall attack his will, prays God to receive his soul, etc., etc., all of which remained because he wished to insert them in his new will, and the form of words was left intact to be copied. And finally the most significant marginal correction or addition occurs here. After Je prie Dieu d’agreer mon ame follows immediately au nom du pére, du fils, et du St. Esprit. He felt there was something lacking, and he wrote in the margin et du, scratched it, and then, ainsi soit-il .amen, making a X mark between the above two sentences to shew the place of insertion.

That his intention, was to annul the will, make if void and of no effect, cannot reasonably be. doubted. The painstaking and elaborate defacing and blotting out the signature was the act which, to his apprehension, destroyed it as a will. The obliteration of the names of the executors was almost as complete, but the legacies that were not intended to be repeated had simply an ink line drawn through them, and th'e sentences that were untouched received marginal additions as memoranda, or were left entire for use in copying.

It will be observed we have paid no attention to the testimony of the three women of his declarations touching his having revoked his will, because their testimony was objected to on the ground that it was parol (upon which we make no ruling) and for the better reason that, if admissible, it adds nothing to the force of the internal evidence of the paper itself.

It is contended that, whatever may have been the intention of the testutor in making these erasures and obliterations, conceding they were made by himself, yet they do not revoke the will because the Code has provided the several modes of revocation, of which this is not one, and the erasures must be considered as not made, because they were not approved by the testator. And the argument is elaborated and extended until it culminates in this extraordinary proposition, that the destruction of a will by the hands of the testator animo revooandi is not a legal revocation. Says the brief on behalf of Epps :

It is simply making it impossible to produce and probate the destroyed or suppressed instrument, unless perchance parties in interest should procure secondary proof, sufficient for the purpose. Hence, testators usually resort to this mode of getting rid of—not of legally revoking their will.”

It is however correctly asserted that the intention to revoke may have existed, but if not legally effected, the instrument remains a will, and Hollingshead vs. Sturgis, 21 Ann. 450, is cited as establishing that a will was not revoked by another, subsequent in date, which latter was invalid for want of form, although the intention to revoke was energetically expressed in the later instrument. ' The doctrine is not ■new, and may be found in any of the books on Wills, and with a distinction therein drawn as to the purpose and effect of the act of revocation very pertinent to the matter in hand. Thus:

“ But if the testator revokes his will upon the mere general purpose of thereafter making another, it will not hinder the revocation becoming effectual because he dies without carrying such purpose of making a new into effect. Williams vs. Tyley, Johns Eng. Ch. 530. It is only where the testator revokes a former will, upon the supposition that he has executed a subsequent valid will, which proves invalid, that the act of revocation is held Incomplete. 1 Redfield on Wills, *308.

The Code declares that a revocation of a testament by the act of the testator may be express or tacit, general or particular. It is express when the testator has formally declared in writing that he revokes his will, or a particular disposition in it. It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will. Rev. Civ. Code, Art. 1691 (1684).

The meaning is plain. If the testator has made another disposition, repugnant to and inconsistent with the previous one, although nothing is said about revoking the former, a tacit revocation will thereby be made. So also if he has done any act which supposes a change of will, let that act be what it may, provided always the intention to revoke is fairly and legally deducible from it, a tacit revocation will result from the act.

■ With language so- unambiguous as the text of the Code before us, the argument upon it is startling. It can be epitomised thus: The word act does not mean act in the sense of something done, a deed, or such like, but an act, that is to say, a testamentary instrument. It is defined in the next Article which reads, the act, by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments and clothed with the same formalities. In the words of the brief: “that is the general rule both as regards express and tacit revocation. There must be a writing, and the instrument must have all the elements of a valid will.”

By this reasoning it. follows,—when the Code enacts that a revocation of a will may be express or tacit, it means by express, a formal declaration in writing to that effect; and by tacit, a declaration still more formal, viz., a testamentary act.

A similar perversion of Art. 1589 (1582) is urged. By that Article erasures not approved by the testator are considered as not made, and it is insisted that this applies to the erased signature equally as to erased legacies. No particular method of approval is specified, nor does it seem essential that approval shall be indicated by writing, in which respect our Code differs from the English statute of Wills. ■There is no indication of the testator’s approval of the erasures other than the approval which erasure by his own hand manifests. But it is apparent the Article is not treating of the erasure of a signature to a will. The erasures, which are considered not made if not approved, are those which change or strike out parts or clauses of a paper recognised as an existing will, not that part, the erasure of which would destroy it as a will. Erasures of clauses in the body of the will affect only the dispositions erased. Erasure of the signature strikes at the existence of the instrument as a will.

The same Article further provides: if the erasures are so made as to render it impossible to distinguish the words covered by them, it shall be left to the discretion of the judge to declare if he considers them important, and in this case only to decree the nullity of the testament.

All the numerous counsel treat the adjective “important” as qualifying “ words.” On one side it is urged that the signature is a word, and since the judge has discretion to declare if he considers that word important, the erasure of the signature is not more significant than the erasure of an ordinary word. It would be remarkable indeed if the Code in any place had treated the signature to a will, even by implication, as a thing the importance of which varied with the discretion of judges, since it emphatically attaches so much importance to it that signing an olographic will cannot be dispensed with.

It is not the words that the judge must consider important, but the erasures, as is evident when we observe that only in the case of their being important can lie decree the nullity of the will. The Article can be paraphrased thus: if the erasures so obliterate the words that it is impossible to distinguish them, and the judge considers the erasures important, that is to say, of material words, he shall pronounce the nullity of the will, but if he considers these erasures unimportant, he cannot decree nullity.

And thus erasures are recognised as one of the acts which will operate a revocation of a will. This might have been expected, since it is the law both in England and France, the two countries whose legislation and jurisprudence have moulded our own.

But it is argued that the contrary is the true interpretation, and in this wise. Before the adoption of the Napoleon Code, the provinces of France had different laws, and different customs which had the force of laws. Some of the provinces had the droit écrit—others the droit coutwmier. ■ The Napoleon Code produced a uniform law for the whole country. A voluminous jurisprudence was developed upon the subject of tacit revocation of wills, and there were conflicting opinions of commentators, approving or antagonizing the decisions of the Court of Cassation upon the revocation of wills by erasure, laceration, suppression, or destruction. These decisions were founded upon the Roman law, which had not been expressly repealed. Now, Art. 3521 of the Code of 1825 enacts that the Spanish, French and Roman laws, which were in force in this State formerly, are repealed and shall not be invoked as laws even under the pretence that their provisions are not contrary to that Code. Ergo all the French jurisprudence touching the revocation of wills by erasure, laceration, etc., is altogether inapplicable here, because our Code has not provided for the revocation of wills by such means.

' This is what logicians call petitio prineipii. The Code has provided for the tacit revocation of wills, and that provision is of the most enlarged and comprehensive kind, viz., by any act that denotes a change of intention. Of course, the acts are not specified. They could not be. They are as numerous and as varying as the diflerenfcircumstances under which men act on such occasions. The compilers of our Code were careful to omit even the classification of these kinds of acts into erasure, laceration, suppression, destruction, etc. Those clashing commentaries, in which jurisconsults had invented the most subtle distinctions, were before them, and they therefore formulated a general rule, leaving to courts, of necessity, to apply it to each particular case that fell within its scope.

How could it be otherwise 1 How could any community or people 'get on with, a law that declared the perpetuity of a will, unless revoked by an act as solemn as that by which it was made? That although a will is ambulatory and has no effect until death, yet when once made it is irrevocable by any act of destruction, or defacing, or cancellation. That is the contention of the attorneys for the will.

The French authorities are full to repletion with discussions upon the revocation of wills by different acts, such as those heretofore mentioned. XIV Laurent, pp. 268, 271; Rogron, Art, 970; 2 Boileux, p. 335; 4 Marcadé, Art. 290; IX Duran ton, p. 471. As to the proof of laceration, etc., XIV Laurent, pp. 262, 265. One quotation only will be made, and that because it expresses what we have enforced above. Duranton writes : “ II y a invocation tacite lorsque de nouvelles dispositions, sans révoquer expressément les précédentes, sout néanmoins incompatibles avec ellos; on bien encore lorsqu’il resulte de certains faits généralement désignés par la loi, que le testateur n’a pas persévéré dans sa volonté de maiutenir ses premieres dispositions.” Tome IX, Art. 427.

The contention is that these French legists cannot be followed in interpreting our law, but the modern English decisions may be consulted, because “ the Louisiana departure from the French jurisprudence on revocation of wills has elicited the approbation of the British Parliament.” The statute of Wills was passed in 1838, and it is confidently asserted, “ under the adjudications of the English courts upon questions of actual and symbolical destruction of wills arising under that Act, the testament of Louis Miib with all its erasures would without diffculty be admitted to probate, precisely discarding the erasures.”

Here then we stand on solid ground, and to these decisions we will now resort.

In the recent case of Woodward in re, Lord Penzance placed the point of ascertaining the precise purpose of a testator in tearing, cutting,- or obliterating any particular portion of a will very clearly. The summary of the doctrine is, if such obliteration, etc., is confined to a particular bequest, the rest of the instrument remaining perfect, the natural conclusion might be reasonably clear, that all the will was intended to remain operative except the particular portion obliterated or defaced ; while on the other hand, if the burning, tearing, cutting, or obliteration is made upon an essential portion of the instrument, as the signature of the testator, or if made generally upon the body of the instrument without regard to any particular provision contained in it, the natural conclusion would be that the whole instrument was intended to be destroyed. 1 Redfield on Wills, *332, 56.

When there are erasures and interlineations on the face of a will, the presumption that they were made before execution does not arise as it does in the ease of deeds. The presumption is that these erasures, etc., were made by the testator with a view to the ultimate republication of the instrument in its altered form. Ibid, c. vii, Sec. 2, 23. In regard to the construction of the word “ tearing,” it has been held to include cutting. It need not be the cutting up of the whole will. Any part cut out, as the name of a legatee, will be a revocation pro tanto. And the cutting out of the principal part, as the signature of the testator will he a revocation of the whole will." 1 Jarman on Wills, 161 and 132,. note 1.

■ A will was found in a wrapper (envelope) in the testator’s locked drawer with other papers, and had been cut in two pieces immediately above the signatures of the witnesses and of the testator, but both parts preserved, Sir Creswell Creswell said, “ I cannot come to the éonclusion that the deceased did not mean to revoke his will by thus cutting it.” Re Simpson, 5 Jur. N. S. 1366. Put erasure for cutting, and there is the present case.

Where the will was found with another testamentary disposition, but the place in which the names of the attesting witnesses should have appeared upon the latter was scratched over with a pen and ink, so that no letter of a name could be deciphered, it was hold that this paper was thereby revoked, and the will was admitted to probate alone. James in re, 7 Jur. N. S. 52. Where one had executed his will as a sealed instrument, and tore off the seal animo revoeandi, it was held a sufficient revocation, notwithstanding the statute did not require a seal. And this case was cited with approbation by Vice Chancellor Wood, a high authority, when he decided that a testator, having torn off the signature from the first four sheets of his will, and struck his pen through' the signature upon the remaining sheet, the animus revoeandi being established, it was a sufficient revocation. Williams vs. Tyley, Johns Eng. Ch. 530.

The rule in regard to presumptive revocations, from the mutilation of the will, seems to be that if the will is traced into the testator’s possession and custody and is there found mutilated in any of the modes pointed out by the statute, it will be presumed the testator mutilated it animo revoeandi. 1 Jarman on Wills, 124.

A case is cited in one of the briefs as Harris in re, 2 Law Rep. Prob. Div. 251, where a testator drew his pen through the lines of various parts of his will, wrote on the back of it “ this is revoked,” and threw it among a heap of waste papers in his sitting room. A servant took it up and put it on a table in the kitchen. It remained lying about in the kitchen till the testator’s death, seven or eight years afterwards, and was then found uninjured; held, that the will was not revoked, the words “ or otherwise destroying” in the statute not being satisfied, as, whatever the testator intended, the will had not been actually injured.

If the animus revocandi is to control, it is difficult to justify that decision, and^er contra Lord Chief Justice DeG-rey said: The statute has specified four modes of revocation, and if these or any of them has been performed in the slightest manner, this joined with the declared intent will be a good revocation. Throwing the will on the fire, with an intent to burn it, though it js only very slightly singed and falls off, is sufficient within the statute. Bibb vs. Thomas, 2 W. Bl. 1043; Hyde vs. Hyde, 1 Eq. Cas. Ab. 408-9.

The American Courts, in this matter as in so many other of construction, have interpreted laws with an enlightened and liberal spirit, and have held in numerous -cases that any act defacing an existing will, done by the testator, derives its character solely from the intent with which it is done, and therefore when the testator has done an act. with the intention of revocation, and is deceived into the belief that he had destroyed his will, when in fact it was not destroyed, the act done shall have the effect of revocation. 1 Redfield on Wills, p. *318, 30, 31.

Finally, it is insisted that, even if the signature at the end of, or beneath the will, is obliterated, the Code does not prescribe where a will shall be signed, and as the testator wrote his name in the first sentence, and also signed the superscription on the envelope, these or either of them is a compliance with the requirement that an olographic will must be signed by the testator.

Signing a superscription on an envelope cannot be deemed a signing of the will, and as to the written name in the first sentence, unfortunately for the pretension, the testator wrote, I, the undersigned Louis Müh, etc., and the under signature was effaced and obliterated by commingled scratches, circles, and blotches of ink.

This effacement and obliteration as we see it in the original brought up with the record, was in our opinion done with the intent to revoke the will, and this intent should be given effect to by the Court. The lower court so held.

Judgment affirmed.

On Application for a Rehearing.

The brief on application for rehearing renews the arguments of those on the hearing, all of which had already been considered and answered, without throwing additional light upon the questions which we had discussed with elaboration, and decided only after a painstaking study of the whole subject.

■ The brief informs us that our quotation of an Article of the Code is correctly made from the Revi sal of 1870, but that a single word was excerpted- by the legislation of -the following years. As it does not affect, the argument in the slightest degree, we have expunged the word.

. We are also told that one of the authorities cited from the English courts antedates the statute of Victoria. If this be so, it does not detract from the force of the other English decisions cited, but it may not be amiss to say that the editions of Jarman and Redfield wo consulted are the latest (one of 187G and the other of 1831) and in their chapters on the Revocation of Wills, treating the law of England as it is at this moment under the statute of Victoria, that case is cited there as it is by us. It is scarcely credible that the latest editions of these standard works, one of them annotated by competent editors, should contain citations of cases inapplicable to the present state of the law in that country.

The rehearing is refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8794.
    Succession of Mrs. T. P. Gusman. On Application of George Garig to be appointed Executor, and Opposition of Mrs. Z. E. Hearsey and Hubsand.
    Whore an application Is made for tho appointment, of a ourator, administrator, or dative testamentary exeoutor, notioe of the application should be published for ten days in the manner prescribed by law. If no opposition is made thereto, and this faot is made known to the J udge, he should thereupon make the appointment, upon the applicant giving the required bond and taking tbe prescribed oath. ■ Before such appointment is made a tender of a bond is premature; and the appointment of another party upon an allegation that the first applicant had failed to give a sufftoiout bond, is illegal, where such first applicant had never been appointed, and where only tho notioe of his application had been published.
    Notice of suoh application must precedo the appointment.
    Where an appointment has been made and the party fails to qualify in ton days thereafter, the appointment is vacated.
    A PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Thos. B. Dupree for Applicant and Appellee.

      Bilis & Bilis and Gross & Jones for Opponents and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The facts relating to this controversy are substantially as follows:

On the 25th of September, 1882, Mrs. Z. E. Hearsey and husband filed an application in the District Court of the Parish of East Baton Rouge, for the probate of the last will of Mrs. Theatiste P. Gusmau, and for their appointment as dative executors, no executors being named in tbe will.

The District Judge, after fixing a day for the probating of the will, ordered that the application of the parties to be appointed executors be advertised for ten days. The will was probated on tbe 2d of October, 1882. On the 7th of the saíne month notice of the application of Mrs. Hearsey and husband for the appointment mentioned was advertised in the Gap i folian-A dvocai e, a public newspaper.

On the 24th of the same month George Garig presented a petition to the court, alleging that Mrs. Hearsey and her husband had been appointed and confirmed dative executors of the last will of Mrs. Gusman, deceased, on the 13th day of October, 1882, but had failed to furnish the required bond and security, and that ten days had elapsed since their appointment, and prayed to be appointed dative executor of tbe last will of said deceased. Thereupon, on the same day, the petitioner, Garig, was appointed and confirmed as dative executor, and it was ordered that his application be published ten days in a public newspaper.

On the 25th of October, 1882, Mrs. Hearsey and husband filed an opposition to Garig’s appointment, and alleged that they had seasonably presented a good and sufficient bond, and that the same bad been refused by the clerk of the court. They prayed that opposition be maintained, and for their appointment as executors, and that letters of executorship be issued accordingly.

There was trial had on this opposition, and the same was dismissed and judgment rendered appointing Garig dative testamentary executor i‘ upon his complying with the law,” and from this judgment Mrs. Hearsey aud husband have appealed.

The proceedings in the lower court, it will be seen from the foregoing statement, were marked with the greatest irregularities. In the first place, Mrs.- Hearsey and husband were never appointed and confirmed as dative testamentary executors and, therefore, did not and could not vacate the appointment by any failure to comply with the requisites of the law. Yet upon such alleged forfeiture of the appointment the application of Garig is based. His petition distinctly states that the Hearseys were appointed and confirmed as executors, but had failed to furnish bond and security. The judgment or order of the court appointing and confirming Garig immediately on the presentation of his petition was evidently founded on the hypothesis that the Hearseys had been previously appointed a,nd confirmed, but had forfeited the office for non-compliance with the law. As shown, the only proceedings respecting their application were, that the application was filed and ordered to be advertised, and no opposition had been filed thereto, but acting upon the supposition that they had forfeited their right to the appointment, the Judge appointed Garig executor.

The Hearseys, leaving out of view their own application, as the parents and representatives of their minor children, who, by the will, (which appearsin the record) were the universal legatees of the testatrix, had the legal right to oppose the appointment of Garig as executor ; and without regard to any previons application and even considering the application of Garig as the only one made, his appointment was clearly unauthorized, for the reason that the notice prescribed to precede such appointment had not been given or published. This is an imperative requirement of the law. C. C. 1115, 1116; C. P. 967; 2 R. 391; 13 An. 582; 16 An. 231. And this Court has held, that under the Act of 1842, now made part of Article 1041, R. C. C., which provides that the Judge shall forthwith appoint a successor to an administrator who fails to qualify in ten days, that even in case of such failure, still no appointment can be made without previous publication. 13 An. 582.

The irregularities shown in the proceedings in this case have grown out of confused ideas touching the construction of the several Articles of the Code relating to this subject, Articles which, at first view, might be regarded as conflicting.

Art. 1115, C. C., prescribes: that the Judge, on receiving an application or request to be appointed curator of a succession, “ must order public notice to be given, with notice to all who wish to make opposition thereto, to do it in ten days from the date of such notice.” C. P. Art. 967 is tó the same effect.

This notice has, by the decisions above citéd, and under other provisions of law, been held requisite with regard to applications for appointment of administrators and dative executors.

Art. 1041 provides : As soon as the inventory is finished, the Judge * * shall name an administrator to manage the property thereof, and oblige him to give good and sufficient security for the fidelity of his administration. * * * If the person appointed administrator

shall suffer ten days to elapse after his appointment, without furnishing the security required, the Judge shall forthwith and ex-officio appoint a successor, as if no such administrator had been appointed.”

This last clause o'f the Article is an amendment to the original Article, and is substantially the Act of 1842, referred to above, embodied therein.

Again, Article 1678, C. C., declares : “ If the testator has omitted to name'-a testamentary-executor, orjf the one named refuses to accept, the Judge shall appoint one ex-officio.”

Article 1679: ‘‘The testamentary executor thus appointed by the Judge is bound to give security in the same manner as curators of vacant successions.”

Under these Articles the proper mode of procedure is, first, to present a petition asking the appointment, whether it be of a curator, administrator or dative executor.

The Judge should thereupon give his order requiring notice of the application to be published in the manner and for the time prescribed by law; the object of the notice being to afford opportunity to those desiring it, to make opposition thereto.

If no opposition be made within the time prescribed, ten days, then the applicant, satisfying the Judge of that fact, should, by motion or orally, ask to be appointed, and the Judge should forthwith make the appointment, upon the applicant giving the required bond and taking the oath prescribed in ten days therefrom. If these essentials are complied with, then letters to the appointee should issue, and he could then become fully invested with legal authority to discharge all the functions of administration. If he should fail within that time thus to qualify, the Judge is authorized to declare and treat the appointment as vacated, and appoint a successor to the previous appointee.

In the instant case, Mrs. Hearsey and husband never having been appointed and confirmed as dative executors, the Judge a quo was not authorized to appoint another executor, as if they had been appointed, and by failure to comply- with the requirements of the law had forfeited or vacated the appointment. And he was the less authorized to do so, for the reason that, though notice of their application had been duly-published, no opposition had been made thereto.

The proceedings of Mrs. Hearsey and husband were irregular, inasmuch as after the delay had expired without opposition to their original application they made no further request, in view of no opposition being made to their application, to be appointed executors. Before their appointment they were under no obligation to tender a bond, no bond could be given, and the Judge was not called on and had no occasion to require one.

The opposition of Mrs. Hearsey^ cannot be considered as an application for her appointment as dative executrix, in furtherance of her petition for letters as such. The District Judge was not authorized to confer the appointment upon her in the absence of a proper showing of the publication of her application, the expiration of the delay within which the same could have been opposed, and the evidence that no opposition had been made thereto.

Up to the present day that petition has remained without action. We do not know in what condition it may exist before the lower court. As long as it lias not been granted or refused, oppositiou thereto is in time. There may now exist such opposition. If we were to confer the appointment, we might do so in disregard of some pending opposition. We deem that our action must be restricted to the rejection of Garig’* application and a reserve of Mrs. Hearsey’s rights.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court dismissing Mrs. Hearsey’s opposition and conferring the appointment of dative executor ou Wm. Garig be reversed; and it is now ordered and decreed that the application of said Garig for letters of dative executorship be rejected, reserving the right to Mrs. Hearsey and husband to further proceedings under their application for said appointment, tile appellee to pay costs of both Courts.


author: Poché, J.

text:
    No. 8751.
    The State of Louisiana ex rel. The Southern Bank vs. Edward Pilsbury, Mayor, et al.
    Under our jurisprudence a final judgment is the property of the party in whose favor it waF rendered, and such party or his assignee or subrogee alone has the part to issue and to control execution thereon.
    The District Court, to whom a cause is remanded from this Court, cannot execute the judgment rendered in the case in a manner differing from the order of this Court. In such a case the functions of the District Court are merely ministerial. It cannot render any new judgment which would authorize or render an appeal necessary. The execution which it orders is subject to the revision of this Court. And any error which it may commit in directing such execution, will entitle the party aggrieved to an appeal.
    APPEAL from the Civil District Court for the Parish of Orleans. Hightor, J.

      JS. Howard McCaleb for Relator and Appellee :
    1. A party, against whom a judgment is rendered by an appellate court, who thinks himself injured by the manner in which the execution was ordered, must seek relief by a superardeaSy to he granted by the court from which the mandate was issued. No appeal lies from the order of execution. C. P. Arts. 6*29, 877, 878; 11 L. 366; 6E. 92; 20 An. 581; 11 An-196 ; 97 U. S. 361.
    2. A party demanding the execution of a judgment rendered by the court of appeal is not required to give previous notice to the opposite party. C. 1?. Art. 620.
    3. The transferred of a judgment has the right to issue execution thereon in the name of hi» transferror (13 An. 325) or in his own name. 8 An. 267; 7 An. 94.
    4. On the natural or civil death (cioilter mortuus) of plaintiff, his representatives, assigns, * ayant cause, may take out execution. 6 N. S. 514; 5 N. S. 520; 13 An. 374.
    5. Where plaintiff has assigned his interest, the control of the suit will be given to (his assignee) the party having the beneficial interest therein. 19 How. 384.
    6. A party has a general right to change his attorney (10 Wall. 496) and to employ other counsel to protect his interest. 28 An. 293.
    7. The Articles of the Code relative to payment with subrogation have no application to the absolute transfer of a debt. 13 An. 273.

      8. Notice of assignment is only necessary to perfect tbe transfer in so far as third persons are concerned. Rev. C. C. Arts. 2643, 2644. It is for the assignee’s and creditor’s benefit; a matter in which the debtor has no interest.
    9. Payment to the holder of negotiable instruments will discharge the debtor, although such holder be not the real owner nor empowered by him. Rev. G- C. Art. 2145.
    10. Judgment on one of a series of bonds is res judicata as to all holders of other bonds of the same series. 7 "Wall. 619 ; 29 An. 690.
    11. “If the judgment of the State Court is reversed, it is bound to dispose of the case as directed, and has no power either to evade or reverse the judgment of the United States Supreme Court.” 1 Wheaton, 304; 8 Pet. 312; 17 Wall. 253.

      O. F. Bucle, City Attorney, for Defendant and Appellant:
    1. One not a party to the record has no control over the execution of a judgment. 5 N. S. 707.
    2. The District Court can act only ministerially in the execution of a decree returned to it from this Court. Its proceedings, in this respect, are subject to revision by this Court. 6N. S. 276; 7R.92.
    3. Limitations, conditions or directions of this Court, as to the mode in which a judgment shall be executed, are binding on the inferior tribunal. Especially is this true in a suit, the object of which is a mandamus to compel the performance of some specific act, or duty, by public officers.
    4. The ownership of bonds of the character on which the j udgment is based, by a person not a party to the suit, should be established contradictorily with the defendant before any action or proceedings can be had in the suit, at his instance, if such action were otherwise admissible.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The City of New Orleans prosecutes this appeal from an ex parte order or decree directing the execution of the mandate of the Supreme Court of the United States, and of the decree of this Court predicated thereon, rendered in this case.

The order complained of was rendered on the motion of R. D. Shepherd, as the. holder and owner of four of the six hundred and thirty-one bonds declared upon by the Southern Bank.

Appellee contends that no appeal lies from the order of the lower court ordering the execution of a decree rendered by this Court. But the very complaint of the City is, that the mandate ordered to be executed by'the District Court is not the decree of this Court and, hence, her appeal presents a question properly to be reviewed by this Court. As stated in the case of Cox’s Executors vs. Thomas, 11 La. 366; The functions of the District Court in relation to a mandate which has issued from this Court to have a judgment executed, are merely ministerial. It cannot render any new judgment which would authorize or render an appeal necessary.” Lovelace vs. Taylor, 6 R. 92.

The gist of the City’s complaint is, that the District Judge, in granting an execution to Shepherd, the appellee, who is not an original party to the suit, nor an assignee of the original plaintiff, has virtually rendered a new judgment, and she has the undoubted right to have a revision of such alleged judgment, as was done in the case from the Eleventh Louisiana.

The motion to dismiss is, therefore, denied.

On the Merits.

The decree rendered in this case by the Supreme Court of the United States reversed the judgment of this Court, and granted the relief prayed for by relator.

The mandate of that exalted tribunal being presented to this Court on the 29th of May, 1882, the following order, was then made: “The Court, upon consideration, orders that the mandate be recorded, and that the judgment heretofore rendered in the cause be set aside and annulled, and that judgment be given in this Court in accordance with the judgment pronounced by said Supreme Court, and that the same be the judgment of this Court.”

“ And the Court orders, decrees and adjudges that the cause aforesaid be remanded to the Civil District Court of the Parish of Orleans, with directions to enter a judgment therein, upon the motion of the plaintiff, to conform to the mandate aforesaid and judgment therein in this Court, and that the judgment heretofore rendered in the Third District Court in this case be vacated.”

“ The said Civil District Court will, upon the motion of the plaintiff or their attorney of record, direct a writ of mandamus, etc., etc.; ” then follows a description of the relief granted by the Supreme Court of the United States to the plaintiff.

Among other grounds of complaint the City charges error in the order of execution rendered by the District Court, on the ground that it is not rendered on motion of plaintiff or their attorney, and that, in thus acting, the lower court ignored the mandate of this Court, which is its sole guide in the premises.

Under the views which we have reached, we shall confine our examination to that ground. Under the very authorities quoted by appellee, our jurisprudence is shown to have firmly settled the rule that, “ The District Court can act only ministerially in the execution of judgments rendered by the Supreme Court.” 11 La. 366; 6 R. 92.

Under the decree sent to the lower court from this tribunal, the execution of the judgment in favor of plaintiff was conditional on a motion to that effect by plaintiff or their attorney. If it be true, as alleged, that the insertion of the condition was an erroneous interpolation, the authority of the lower court to correct the error, or to amend the decree is not apparent. The reverse is the truth. The execution of the mandate of the appellate court by the inferior tribunal must be ordered as that tribunal understands it, but subject to the former's revision. Holstein vs. Henderson, 6 N. S. 276; Succession of Triche, 34 An. 1148.

It is very patent that the decree emanating from this Court has not yet been altered, modified, reversed or set aside in any proceeding known to our laws, and it is equally clear, that it was and is yet binding on the District Court.

It is confidently charged that, in thus restricting the execution of the mandate emanating from our superiors, we have taken the attitude of seeking to “evade or reverse the judgment of the United States Supreme Court. The charge is very serious, and involves a line of conduct, very little in keeping with our uniform and cheerful obedience to the judgments of that highly respected tribunal. It would ill become us to undertake our defense on that score.

In restricting the right of defhandiug execution of this mandate to the plaintiff or their attorney of record, we applied a rule of our jurisprudence, which is as ancient as it is wise and logical; and in so doing we exercised the undeniable right and authority vested “ in the Court of dernier ressort in every State, to decide upon its own jurisdiction and upon the jurisdiction of all the inferior courts to which its appellate power extends.” Davis vs. Packard, 8 Peters, 324. No principle is better established than the rule of practice under which a party not of record in the suit cannot order or control the execution of the j udgment. Fluker vs. Turner, 5 N. S. 707; Florance vs. Bridge, 5 An. 735. Therefore, in inserting the condition now complained of, we made no attempt to alter or modify the mandate of the Supreme Court of the United States, to which we conformed our judgment, but we merely enunciated a condition which might, be considered as implied, under our well established jurisprudence. And in this connection we note the very significant fact, as shown by our minutes, that the decree, as rendered by this Court, was in literal compliance with the motion of plaintiff’s counsel, and that the obnoxious condition was, therefore, inserted at the suggestion of the party owning the judgment. In view of tlrs fact we are at a loss to appreciate the right of this appellee to complain of a state of things resulting from the act of the only party to be affected by the condition, the insertion of which is unquestionably justifiable.

Our conduct in the premises is erroneously assimilated to that of the Supreme Courts of Virginia and Missouri, in the cases of Martin vs. Hunter, 1 Wheaton, 304, and Tyler vs. Maguire, 17 Wall. 253. In both of these cases the State tribunals assumed the authority to deny the jurisdiction of the Supreme Court of the United States over causes ■which had been tried on the merits by tiie latter Court, and over which that Court had affirmatively claimed and exercised jurisdiction.

In the instant case, this Court expressly conformed its action to the decree rendered by the Supreme Court of the United States, and as the mandate did not direct any mode of proceeding in the execution of the decree rendered by the Court, this tribunal simply directed that the execution should issue on the motion of plaintiff or of their attorney of record. And in so doing it did nothing more than give practical effect to the rule that the judgment is the property of the party in whose favor it was rendered, and that in our law that party is entrusted with the exclusive management and control of Its execution.

Our conduct in the premises is directly sanctioned by the jurisprudence of the Supreme Court of the United States.

The following doctrine was laid down by Chief Justice Marshall, as the organ of that Court in the case of Davis vs. Packard, 8th Peters, p. 324: Upon a writ of error to the court for the correction of errors for the State of New York, its judgment was reversed by the United States Supreme Court, aud a mandate sent to proceed according to the opinion of the latter Court. The court of errors thereupon entered a 'reversal of its judgment, and declared that only an error in fact being assigned, which they had no jurisdiction to try, the writ of error out of that court was dismissed. The practical effect of that ruling was to deprive the plaintiff in error of the benefit of the judgment rendered in his favor by the highest tribunal in the land, and yet it was held by that Court that its mandate had not thereby been disobeyed, because the State Court of last resort had the undeniable authority to judge of its own jurisdiction.

■ As long as the mandate of this Court remains unreversed and undisturbed, it is the law which must govern the District Court, and the latter is powerless to act in disobedience of the same.

' Prom the very motion for execution presented in this case it appears that the mover was not a party to the original suit, and that he accompanied his motion with the muniments of his interest in the premises, consisting of four bonds originally owned by plaintiff, the Southern Bank, and since acquired by him, and that upon this ’alleged interest he, the mover, was entitled to an order for the'execution of the judgment rendered in favor of the Southern Bank by the Supreme Court of the United States, and by this Court.

It is apparent that the execution which was ordered by the District Court was not in keeping with, and was totally different from that which was contemplated by our decree; and hence, we conclude that the lower court was in error.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and that the motion of R. D. Shepherd, for execution of the final judgment rendered in the case of the State ex rel. Southern Bank vs. Edvvárd Pilsbury, Mayor, etc., et al., be denied and dismissed at his costs in both Courts.

The Chief Justice recuses himself, having been of counsel.


author: Fenner, J.

text:
    No. 8229.
    James W. Fee vs. The New Orleans Gas Light Company.
    The articles of consolidation between tlie N. 0. Gas Light Co. and the Crescent City Gas Light Co., executed under the legislative authority conferred by Act 157 of 1874, operated a complete and perfect amalgamation, the effects of which were to terminate the existence of the original corporations, to create a new corporation, to transmute the members of the former into members of the latter, and to transfer the property, rights and liabilities of each old Company to the new one. ; •'
    The law authorized three-fifths of the stockholders of the original corporations to effect this consolidation, but it did not authorize them to place stock of non-participating stockholders on an inferior footing to their own, or to transfer their rights to a third person without their consent.
    Plaintiff as holder of stock in the Crescent City Gas Light Company, became entitled to tbe equivalent in stock of tbe new Company, secured by the articles of consolidation to his fellow stockholders, and no payment or delivery to a third person, unauthorized by him, can he set up in satisfaction of his rights.
    Inasmuch as plaintiff’s claim is not for any particular shares of stock in the new corporation, he has nothing to do with such unauthorized transferree, and need not make him a party to his suit. It is only where the claimant of particular shares of stock in a corporation encounters a rival claimant to ownership of the same, that the latter must be made a party.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Singleton & Browne and. Beovy & Kridtsclmitt for Plaintiff and Appellee: ' ...
    1. Plaintiff is the holder of 100 shares of the capital stock of the Crescent City Gas Light Company. - >• , >v
    That Company has consolidated with the Hew Orleans Gas Light Company. The effect of this consolidation is the dissolution of both of tbe constituent corporations, and the creation of a new corporation, to which passed all the lights and obligations of the old ones. Act 157 of 1874; Green’s Brices Ultra Vires, pp. 606, 607, 608, 637 ; Indianapolis, C. & L. R. R. vs. Jones, 29 Ind. 283; S. C. Withrow’s American Corporation Cases, vol. 1, p. 351; Paiue vs. Lake Erie &. Louisville R. R. Co., 31 Ind. 283; S. C. Withrow’s American Corporation Cases, vol. 1, p. 404.
    3. Plaintiff, in au action against the new Company as the heir or successor to the person of the old Crescent City Company, is entitled to be recognized as the owner of the fraction of the capital stock of the new Company representing and standing in lieu of his 100 shares of the capital stock of the old Crescent City Company.
    4. He is also entitled to recover in an action against the new Company, even if we view it as a third person, with whom a contract has been made by his agent for his benefit, because the contract hail not been executed by delivery of stock to the agent at the date of the institution of this Quit, by which suit the agency was terminated, and a direct delivery to plaintiff claimed.

      Tlios. J. Semines for Defendant and Appellant:
    1. A suit to recover shares of stock or their value, brought by a corporation, cannot bo adjudicated in the absence of the person in whose uame such shares stand on the books of the company. Such person ia a necessary party. 2 Woods, 147; 20 An. 383; 32 An. 548-
    2. He who stands by and allows another to deal with property as his own, cannot dispute the light of one whom he has assisted iu deceiving. 2 Story Eq. § 1537; 2 Phillips Ch. K. 123; 10 A. and E. 90; 5 John. Ch. 272.
    3. A party who sues in affirmance of a contract is estopped to dispute any of its provisions. 1 P. E. Smith (Pa.) 483; 7 How. 276; 27 An. 631; 14 Gray, 533; 43 Wis. 420 j Bacon'# Abridg., vol. 3, p. 314, verbo Election; 25 Beav. 598; 12 How. 58,
    4. A contract between A and B for indemnity from loss by claims of third porsous against B, cannot be of any avail to such third persons. ‘Whitehead vs. Dugan, 27 An. 410.
   The opinion of the Court was delivered by

Fenner, J.

On the 29th of March, 1875, the New Orleans Gas Light Co. and the Crescent City Gas Light Co., two corporations chartered under the laws of this State, amalgamated, united and consolidated themselves into one consolidated Company, in pursuance of the provisions of an Act of the General Assembly, No. 157 of 1874, entitled, “An Act to authorize the consolidation of business or manufacturing corporations or companies.”

That Act authorized such consolidation into one consolidated company, holding and enjoying all the rights, privileges, powers and franchises belonging to each, and under such corporate name as they may adopt or agree upon,” the consolidation “ to be made by agreement in writing, by or under authority of the Board of Directors and the assent of the owners of at least three-fifths of the capital stock of each of said corporations.”

All requirements of the Act were fully complied with.

The name adopted for the consolidated Company was The New Orleans Gas-Light Company.”

The capital stock of the consolidated Company was fixed at $10,000,000, of which the sum of $3,750,000, or 37,500 shares were to be then issued as full paid. Of these, 25,000 shares were to be divided pro rata among the stockholders of the old New Orleans Gas Light Company.

With reference to the stock of the other Company, the Articles contained the following provisions : “ All certificates for stock issued by the Crescent City Gas Light Company are hereby annulled and can-celled, and considered as of no legal effect, or iu any manner binding on tlie consolidated Company, to which Company the said cancelled certificates, together with the archives, and rights and property of said Crescent City Gas Light Company are to be transferred and conveyed and surrendered upon the ratification of this agreement; and in lieu thereof, there shall be issued to Henry Y. Attrill, as representative of all the stockholders of said Company, and at their request, 12,500 shares of full paid stock of the consolidated Company, amounting to $1,250,000, the same being the proportional part of the $3,750,000 of full paid stock allotted under this agreement to the stockholders of the Crescent City Gas Light Co.”

Before these 12,500 shares of stock were issued to Mr. Attrill, who claimed to represent all the stockholders, it appears that the president and directors received notices from persons not represented by him and claiming to hold stock; and asa guaranty against such claims, with his consent, there was endorsed upon 1,200 shares of the stock issued to him, the following statement: “ this certificate is issued subject to the right of this Company to cancel the stock it represents on the books of the Company, in case it becomes necessary to indemnify itself to cover claims of any person who may establish rights to stock in the Crescent City Gas Light Co., and is only assignable subject to this condition.” This stock so endorsed is aptly termed, black-eyed stock,” and the evidence establishes that 630 shares of it still stands in the name of Attrill.

The plaintiff in the present case alleges that, long prior to the consolidation, he became and remains the owner of one hundred shares of the stock of the Crescent City Gas Light Co.; that he took no part, and was unrepresented by Attrill or anyone else, in the consolidation ; that, after the consolidation, he promptly notified defendant of his rights; that he is entitled to stock in the new Company in the proportion to his old stock stipulated in the'articles of consolidation, with all dividends declared thereon from the date of his notice.

The defenses urged in- pleading and argument are as follows:

1. It is denied that plaintiff was a stockholder in the Crescent City Gas Light Co., as claimed. The evidence satisfies us that he was, and we conceive this defeuse to be substantially abandoned.

2. It is claimed that Attrill was a necessary party to this suit. -

The circumstances of this case are entirely different from those presented in the cases of St. Romes vs. Cotton Press, 20 An. 383, and Reid vs. Ins. Co., 32 An. 548. In those cases the plaintiffs claimed ownership of particular shares of stock in the defendant corporation, which had been transferred to third persons and was claimed by them. It was held that the stock in controversy could not belong, at the same time, to the plaintiffs and to the transferrees, and that the question of ownership could not be determined except contradictorily with the latter. But here Fee has never owned, and does not claim, any particular shares of stock in the defendant Company. The only particular shares of stock he evey owned, were one hundred shares in the Crescent City Gas Light Co. It is not, pretended that he, or any other person acting as his agent, has ever transfeired these shares of stock to any one on the books of that Company, nor is it claimed that anybody pretends to be the owner thereof.. His ownership of these shares entitles him, under the articles of consolidation, to the stipulated equivalent in the stock of the new Company. This equivalent stock has never been set aside or allotted to him, and he now claims that this should be done. He has nothing to do with Attrill... If the new Company has given Attrill more stock than he was entitled to, this cannot operate to the prejudice of plaintiff. It is not a case where all the stock of the. corporation has been issued and where, therefore, however clear his rights, they could only be enforced by.way of damages. The articles of consolidation show that the corporation has a large amount of unissued stock, which, in the worst event, could be used in satisfaction of his demand. But fortunately, in the. black eyed stock,” the defendant has made ample and sufficient provision for its own protection against injury from the excessive issue to Attrill. That, however, is a matter between defendant and Attrill, with which plaintiff has no concern.

3. It is contended that the consolidation does not give plaintiff a right of action against the new Company.

We cannot take this view.

The articles of consolidation and the legislative Act by authority of which they were executed, evidently present a ease of complete and perfect amalgamation, the effect of which was', under American authorities, to terminate the existence of the original corporations, to create a new corporation, to transmute the members of the former into members of the latter, and to operate a transfer of the property, rights and liabilities of each old Company to the new one. Brice Ultra Vires, pp. 606-608, 637; Field on Corporations, Sec. 434; Indianapolis R. R. vs. Jones, 29 Ind. 465; Paine vs. Lake Erie, 31 Ind. 283.

These authorities, and the reason of the matter, satisfy us that plaintiff can and must look to the defendant Company for the satisfaction of whatever rights he had against the Crescent City Gas Light Co., in the mode and on the terms provided in the articles of consolidation.

4. It is urged that inasmuch as plaintiff sues in affirmance of the contract of consolidation, he is estopped from disputing any of its provisions, and is, therefore, bound by that provision'which authorized the delivery to Attrill, as representative of all the stockholders, of 1,250 shares in satisfaction of all the stock to which the stockholders of the Crescent City Gas Light Co. were entitled.

Numerous authorities are cited in support of the general proposition above stated ; but their inapplicability results from the fact that he is not affirming, but only submitting to the contract. He was no party to the contract, and he is bound thereby just in so far as the contracting parties had the right to bind him, and no further. The law conferred upon three-fifths of his fellow-stockholders the power to effect a consolidation without his consent and even against his will, and he is bound by that consolidation and by the legal effects thereof, which we have heretofore stated. But the law did not confer upon three-fifths or ninety-nine one hundredths of the stockholders, the power to place his rights as a stockholder on a different and inferior footing to their own rights as stockholders in equal case ; nor did it confer upon them the power, without his authority, to transfer his rights to any third person whatever. He has the right to repudiate any such attempt. Bound by the consolidation, he-is entitled to the same rights in the. new Company which were secured to his fellow-stockholders, and no payment or delivery to any unauthorized third person can be setup in satisfaction of those rights. The evidence establishes no express or implied acquiescence in, or ratification of, the delivery to Attrill of any stock in satisfaction of plaintiff’s rights.

This disposes of the case; for the mere inaction of plaintiff in not inviting the Crescent City Gas Light Co. to sue him for assessments on his stock which he did not believe to be legal, was a violation of no legal duty, and was without legal effect. It is not pretended that his stock was forfeited, and not even any claim for the alleged assessments is now set up.

If plaintiff has acquired the valuable fruits resulting from the judgment herein for a song, he is, in that respect, only in common case with his brother stockholders in the speculative concern known as the Crescent City Gas Light Co.

Judgment affirmed at appellant’s cost.

On Áriu.iCATioN i?oit Rehearing.

The constitutional objections which, it is now’ suggested, Fee might have urged to the Act of 1874, authorizing the consolidation of corpo-' rations, on the grounds of impairment of the obligations of his contract and divestiture of his vested rights as a stockholder in the Crescent City Gas Light Co., which was chartered prior to the passage' of that law, did not escape our consideration in our original decision herein. No such objections, however, uTere urged by Fee. He w’as' not bound to urge them, and we could not supply them. We were, therefore, fully authorized in treating that law as a valid law, binding on him and on all persons who did not possess and urge the right of constitutional exemption from its operation.

Prom this point of view, it will be at once apparent that the objections now urged to our decision have no force. Defendant acted under that law and is bound by it. Pee submits to that law and is entitled to its protection.

Rehearing refused. • •


author: Manning, J.

text:
    No. 8651.
    Succession of Julia A. Lampton.
    An ex parte order of court reoognising 'one as -heir of a deoeased person and putting her in possession of his sucoession, laoks the essential elements of the thing adjudged and oan* not bo pleaded as res adjvdicata.

    The reoord of a suit in .another State is admissible in evidence to prove rem ipsam, but is inadmissible to establish the status of one, not a party thereto or privy. The judgment rendered in such suit is not conclusive on those who had no notice, either actual or constructive, of the proceedings, and who made no appearance therein.
    The depositions of witnesses, relating to pedigree, taken in this State to be read in evidence in a- suit in another State, can bo used as evidonco in a subsequent suit in this State between different parties, when it is admitted that the witnesses are dead, and the testi-. mony is offered for the sole purpose of proving pedigree.
    An ex parte order of oourt, suoh as hereinbefore described, is not such “ title ” as will enable the party who obtained it to plead the prescription of ten years under eolor of tille against an attack of creditors of the deoeased.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livaúdais, J.

      A. Lartigue and F, 0. Zaeharie for the Tutor, Appellant.

      F. H. MeOaleb and MAler, Finney & Miller for the Opponents, Appellees.
   . The opinion of the Court was delivered by

Manning, J.

Mark Lampton, a resident citizen of Kentucky, bequeathed certain land in Louisville in that State to his son, Edward S. Lampton, and in the event of the son’s dying without lawful issue of his body surviving, then the land was devised to the daughters of the testator; Edward Lampton sold these lands January 2, 1839, to J. B. Bland and W. P. Pettit, for fourteen thousand seven hundred and fifty dollars, with covenants of warranty and seizin, the deed expressing that his wife Elizabeth joined therein, and both signing it. They were residents of Plaquetniue Parish in this State when this sale was made, and Bland and Pettit lived in Kentucky.

Edward Lampton died in Plaquemine Parish in May, 1865, and shortly thereafter his widow Elizabeth and her daughter, styled Julia Ann Lampton, presented a petition to the proper court, praying to be put in possession of the decedent’s estate as his sole heirs, the one claiming to be his widow and the other his only child, and an order ■was made recognising them as heirs and as such putting them in possession. These proceedings were esparte,

In December, 1866, Fanny M. Crutchfield, a sister of Edward Lamp-ton, instituted suit in Kentucky for the recovery of these lands, the defendants being one Stone and others who had acquired from Bland and Pettit, claiming absolute ownership for herself and sister under their father Mark Lamptou’s will, because their brother Edward had died without lawful issue. The Chancery Court of Louisville so decided, and Bland aud Pettit’s vendees were evicted, and on appeal the court declared the conclusion that Edward Lampton died leaving no issue to be irresistible, aud that it was much more than questionable whether he was ever married. Stone vs. Crutchfield, 8 Bush, 647,

In 1878 R. T. Beauregard, at the instance of the evicted vendees, had himself appointed curator of Edward Lamptou’s succession, and instituted suit against Julia A. Lampton (her mother being dead) to recover the property the two took possession of under the ex parte order, which resulted in a decree of this Court rejecting his demand. Beauregard vs. Lampton, 33 Ann. 827.

On May 14, 1881, Julia Lampton died, having appointed Chas. W. Fox executor, and bequeathing her property to two children, Edward and Delka Henritzy, of whom Fox also qualified as tutor. Fox filed a provisional account, and the legal representatives of J. B. Bland and W. F. Pettit (both having died) opposed it, and claimed to be placed on it as creditors for $14,750 and interest, and $5,000 additional as damages for eviction from the Land sold them by Edward Lampton,The opponents charge that Elizabeth Lampton and her daughter Julia rendered themselves liable for the debts of Edward' Lampton when they obtained the order putting them in possession as widow and heir of his succession, aud Julia is now solely and wholly responsible therefor, being heir of her deceased mother.

That is the important aud interesting litigation now before us.

Fox, as executor, excepted to the opposition for not disclosing any cause of action in this:

1. That the opponents, by suing Julia Lampton’s succession by virtue of her heirship of Edward Lampton, are estopped from pleading irregularity in the order of court giving- her possession as heir, and can' no longer contest her filiation.

2. That Julia remained iu the unchallenged possession of Edward ' Lamptou’s estate, under and by virtue of au older of a court of competent jurisdiction, recognising lier as his sole heir, from Dec. 11, 1806, for more than ten years continuously.

3. That her status as legitimate daughter and heir has been established by a competent court of her domicile, which judgment was rendered more than a year ago, iind has never been attacked.

The pleas of res judicata, and one and ten years’ prescription were consequently made, and an answer was filed, reserving these exceptions, and averring that neither Elizabeth nor Julia Lampton were parties or privies to the suit in Kentucky, nor had they any knowledge of such suit, and that the status of Julia as heir and legitimate daughter of Edward Lampton cannot be attacked by proceedings had in a foreign tribunal, to which she was not a party.

The ex parte order, recognising the mother and daughter as entitled to the estate and putting them in possession thereof, cannot form res judicata as to anyone. It lacks the essential elements for such plea. It was made in a proceeding, not a suit in jits legal sense. There were neither proper parties, nor issue joined. It was made without notice to any one, without proof, and without hearing. Baillio vs. Wilson, 8 Mart. N. S. 348; Suc. Durnford, 1 Ann. 92; Marchand vs. Gracie, 2 La. 147; Gillespie vs. Day, 14 La. 289; Verret vs. Aubert, 6 La. 353. The order is prima facie evidence of their capacities as widow and heir, but their recognition cannot preclude other heirs nor creditors from shewing the contrary. Glover vs. Doty, 1 Rob. 130. The transcript of the proceedings of the Pláquemine probate court in Edward S. Lampton’s succession therefore prove rem ipsam, and nothing more. Remy vs. Municipality, 8 Ann. 27; Wells on Bes Adjudicata, Sec. 14.

The admissibility in evidence of the record of the Kentucky suit, and the effect to be given to it, is a more serious question. The opponents contend it is admissible to prove eviction by title paramount, on the ground that in each State full faith and credit must be given to the judicial proceedings of every other State, and a number of common law authorities are cited to sustain the doctrine that an evicted vendee can use the record of the judgment of eviction as evidence that the recovery was upon title paramount.

It must be observed that not only were Elizabeth and Julia Lampton not parties to the Kentucky suit, but the judgment of eviction therein rests solely upon the determination of the latter’s status. There could not have been a judgment of eviction unless Julia Lampton had been adjudged not to be Edward Lampton’s legitimate child. The investigation of her parentage and legitimacy, and the judicial ascertaiment and declaration that she was not the issue of Edwrard Lampton, begotten in lawful wedlock, was more than the pivot upon which the case turned. It was its only foundation.

. A judgment or decree is always evidence of the fact that such judgment or decree was rendered, and of the legal consequences of that fact, whoever were the parties to the suit in which it was rendered. Wells on Res Adjudicata, Sec. 354, citing Baylor vs. Dejarnette, 13 Gratt. 163; Barr vs. Gratz Heirs, 4 Wheat. 213; 1 Stark Ev. 18; 1 Greenl. Ev. Sec. 538. The record of the Kentucky suit, if admitted not only to prove that fact and its consequences, but the verity of another alleged fact that is the basis of the suit, would determine the status of Julia Lampton without notice to her or hearing. Neither our jurisprudence nor that of Kentucky sanction such doctrine, the consequences of which, if established, would’ be so far-reaching as to penetrate every avenue of social and business life. If the validity of one’s marriage, the legitimacy of birth, and the title to one’s property can be conclusively settled by the judgment of a court in a suit.to which one is neither party nor privy, without actual or constructive notice or vol- . untary appearance, the foundations of the family and society would be shaken, and the rights of property imperilled. Happily no such consequences can follow the right application of the constitutional requirement to give full faith and credit to judicial proceedings in other States. Wells on Res Adjudicata, Sec. 519.

Kling vs. Sejour, 4 Ann. 129, is parallel with the case at bar in this : the defendants in New Orleans sold to the plaintiff a tract of land in Mississippi by the common law form of deed of bargain and sale with full warranty. The plaintiff alleged that since his possession a suit had been instituted against him, and judgment rendered against him; The aetion is based upon this judgment and eviction as a breach of the warranty, and it is even stated that 'Sejour was cited in warranty, -and defended the suit by counsel. The Court say: Sejour was not made a party, there was no judgment against him. It is impossible to hold him bound by either the notice of the action of ejectment to his son, or this latter’s employment of counsel. P. 133.

. In McNairy vs. Bell, 5 Rob. 418, it was held that without service of citation or appearance a judgment is per se of no'effect, and due notice of the suit must have been given to a party to give the court jurisdiction of his person.

. The judgment of the Court of- Kentucky has no greater force here •than there. Neither the constitutional mandate nor the comity of States require that authenticated judgments from a State shall have greater force without its courts than -within them.

There are several cases cited from Marshall’s and Bibb’s Reports in the briefs, which we were unable to examine (those books having been lost from the State library) wherein it is said it was decided that the record of a case, in which there was judgment of eviction, is not evidence of paramount title against one not a party to the suit, and all the parties were citizens of Kentucky. Gaither vs. Brooks, 1 Marsh. 304; Booker vs. Bell, 3 Bibb, 175.

Cobb vs. Haynes, 8 B. Monroe, 189, is cited on both sides, in which the facts are: John Haynes gave bond in Virginia as administrator of Scott’s succession there with William Haynes and Cobb as sureties, and another bond with Milliner Haynes and another as sureties. Scott’s heirs sued John Haynes and his sureties on the bonds in Virginia, and had judgment. Process was actually served upon all the defendants except William Haynes, and constructively upon him by publication. Cobb, one of the sureties, paid the judgment. Milliner Haynes had removed from Virginia to Kentucky during the progress of the suit, and Cobb instituted suit in Kentucky against him and Williath Haynes, who throughout was a resident of that State. The Court held that Wm. Haynes, having been a citizen of Kentucky when the suit was instituted and there being no actual service on him, but only constructive notice of tlie suit, the judgment of the Virginia Court was null as to him.

We are of opinion that the record of the suit in Kentucky, whereto Julia Lampton was neither party nor privy, is inadmissible to prove anything but the fact that such suit was instituted and prosecuted to judgment, which resulted in eviction of the defendants therein from the lands in question.

While the suit was in progress in Kentucky the depositions of many witnesses resident in Plaquetnine Parish were taken for evidence in the cause. The opponents offer all this testimony in the case at bar, and its reception was objected to on the same ground as was made in the offer of the record just considered, because Julia Lampton was not a party and could not be affected thereby. The objection was good and must be sustained.

The opponents then offered the testimony of Mrs. Harris, given orally in open court in the suit of Beauregard, curator, vs. Lampton, which was objected to on the ground that the opponents are estopped by their pleadings from attacking the status of Julia Lampton.

The petition of the opponents is elaborately drafted, and sets forth all the proceedings had in this State and Kentucky. As to the former, it alleges that Elizabeth and Julia Lampton “were at their instance' put in possession of the property belonging to Edward Lamptou’s succession under benefit of inventory, that is on their rendering themselves liable for the debts of the succession to the value of the property inventoried,” and further on, that “ they are entitled to recover from the succession of Julia 'A. Lampton, who in her lifetime voluntarily-assumed the responsibility of Edward S. Lampton,” the sum of, etc.

The petition was doubtless drafted in view of what was said on this matter in the opinion of this Court read in deciding the appeal in the former case, as follows: It does not even appear that the creditors, who provoked the new administration,.ever even demanded payment, from the beneficiary heir, who had expressly assumed th,e payment of succession debts to the extent of the value of the succession property. Conceding that she would have refused payment, she was open to suit by them in the ordinary tribunals, and as she remained in possession of the property, and as it is not made to appear that she. had either alienated or encumbered it, we cannot perceive why this remedy was not perfectly effective. Pier status as heir was a matter which creditors could in no ease have any right or interest, to contest. It was no. concern of theirs, since their rights of payment were superior to the claim of any heir.” Beauregard vs. Lampton, 33 Ann. 831.

The object in introducing this testimony was to shew that Julia, Lampton was not the child of Edward Lampton. She had voluntarily assumed the position of his heir, had procured an order of court giving, her possession of the property which was liable for this debt, and was the only person that could be sued for its recovery. To claim then, that since it was only as bis child that she was recognised as heir, and. that the opponents by suing her for Edward Lampton’s debt admitted her filiation, is to construct a legal net-work too fragile for its purpose. The creditors of Edward Lampton sue her because of her voluntary assumption of responsibility for his debts, made in legal proceedings provoked by herself.

Another objection, that Julia Lampton was not a party to that suit also, is not considered in the brief of the party in whose behalf it was made, but it is untenable. The plaintiff in that suit is virtually the opponent here, and the defendant was Julia Lampton herself. The witness was absent and could not be procured. In such case, where there has been opportunity for cross-examination, the testimony may be used by either party. Hennen vs. Monro, 4 Mart. N. S. 449; Conway vs. Erwin, 1 Ann. 391. Perfect identity or mutuality of all the parties is not necessary in order to admit the testimony of an absent witness taken in a former suit. Clossman vs. Barbancey, 7 Rob. 438.

The lower Judge excluded the testimony. It should have been admitted. It is in the record as a part of a bill of exception. The witness explicitly states that she derived her information that Julia Lampton was not the child of Edward Lampton from the woman herself—that Julia Lampton bad told her that her father’s name was Rogers, and she was bórn before her mother’s marriage with Edward Lamp ton, or before tlieir concubinage, if that' ivas the relation between' them. It is stated in the brief- Jiilia Lauipton was actually present in court when this testimony was given. She was legally present. The suit was against her, and the main point to he established by the suit was precisely that on which this witness thus testified. She did not attempt to disprove it. • She was a legal witness, and did not offer to testify. The weight of the testimony is immensely augmented by that fact. Whart. Ev., $486; School Bd. vs. Trimble, 33 Ann. 1073; King vs. Atkins, Ibid. 1063.

The plea of prescription is opposed to the demand of the creditors ine that Julia Lampton had been in possession of the estate more than tew years under color of title.

This suit is not for the recovery of an immovable, but of a debt, and for judgment for money. Even if it were, we do not think an ex parte order of court of the kind hereinbefore described is such title-as is meant by the Code when fixing the term of prescription foximmovables.

The Judge below admitted evidence which we have excluded, and excluded evidence which we have admitted, but we have reached the-same conclusion. ■ He gave judgment for fourteen thousand seven hundred and fifty dollars with five per cent, per annum interest from March 26, 1872, and costs. ' -

The judgment is affirmed.

On Rehearing.

We are satisfied that the rejection of the depositions of witnesses, taken in Plaquemine Parish and used in the Kentucky suit, was error. The record contains the admission that the witnesses are dead, and their testimony was offered for the sole purpose of proving pedigree.

The general rule is that depositions relating to pedigree, where reputation would he evidence, are admissible even against strangers. 1 G-reenl. Ev. $ 555. It is put in another form directly applicable to this case: a deposition of a witness since dead, proving the pedigree of a plaintiff, may he offered in evidence, although it was taken in another case between different persons and on a different subject. Weeks’ Law of Depositions, $ 477; Lessee of Barnet vs. Day, 3 Wash. Cir. C. Rep. 243.

The rule has been found so necessary that even the contents of ex parte affidavits to prove pedigree, made several years before, have been held admissible as hearsay, there being no evidence of any actual suit on the subject at that time. Hurst vs. Jones, 1 Wall. jr. 373; Colvert vs. Millstead, 5 Leigh, 88.

These depositions being admitted, the proof that Julia Lampton was not the child of Edward Lampton is so overwhelming as to be to all appearance incontrovertible.

It cannot be pretended the issue of filiation was not tendered in the pleadings. They speak for themselves, and without reciting the averments therein made by the plaintiffs, it is patent from those of the defendant that both were striking at the same object.

The executor repeats it at every stage of his defence. His first ground of exception is that the plaintiffs “ can no longer contest her legitimacy,”—the second, that her undisturbed possession was under an order of court “recognising her as sole heir,”—the third, that her “ status as legitimate daughter of Edward Lampton has been established by a competent court of her domicile which has never been impeached,”—and in the answer it is renewed, “that her status as daughter and heir of Edward S. Lampton cannot be attacked by proceedings in a foreign tribunal, to which she was not a party.”

The issue was tendered and accepted, the defendant emphasising it with point. If we refuse to remand, and the defendant really has evidence which was'not used because under the ruling of the lower court it was unnecessary, great injustice will be done, and an additional reason is suggested in the amount of the judgment which is claimed to be excessive, and beyond the value of the succession.

It is therefore ordered and decreed that our former judgment is set aside, the judgment of the lower court is avoided and annulled, and the case is remanded to be proceeded with in accordance with the rulings in this and our former opinion, the costs of appeal to await the final decision of the cause.