author: Nicholas, C. J.

text:
    No. 12,803.
    Succession of Henry T. Vennard; Henry Vennard Smith vs. George H. Vennard.
    The law requires under penalty of nullity that any agreement made between a tutor and his ward on reaching the age of majority shall have been preceded ten days before the making of the same not only by the delivery by the tutor to his ward of a full account of his gestiori with the vouchers in support of the same, but also by the giving at such prior date by the ward to his tutor of a receipt by which said facts are made to appear. C. C. S61, corresponding to Art. m, C. N.

      A settlement of accounts between tutor and ward made without a compliance with these requirements is subject to be reopened by a direct action of nullity though the same may have been evidenced by a notarial act and confirmed by order of court.
    There is no obligation on the part of the ward as a condition precedent to the institution of such a direct action of nullity for the purpose of reopening of accounts to tender back to the tutor bonds and property admittedly belonging •to him which he had received from his tutor at the time of such settlement. Rist vs. Hartner, 44An. 373; Rist vs. Hartner, 44 An. 480.
    The rule which exempts a married woman from the general operation of the doctrine of estoppel is applicable to a minor seeking the protection of a provision of the Code made specially in his interest to guard him from the presumed influence of his tutor over him. Recitals made in a notarial act between tutor and his ward on reaching majority which would cut off the right of the latter to avail himself of a declared nullity can not stand.
    Mere acknowledgment made by a ward on reaching his majority that he had received payment in full from his tutor of all moneys due him and all property belonging to him and releasing the tutor from all responsibility does not conclude the minor though made in a notarial act. The ward can disprove the truthfulness of the acknowledgment by parol evidence. 49 An. 1402.
    A minor seeking to reopen by suit a settlement of accounts made -between himself and his tutor whom he had released under the provisions of Art. 361 of the Civil Code is not called on to allege error and misrepresentation to authorize his action. It is sufficient to open the door to examination into the state of accounts if he alleges the non-existence of the fact whose existence the law has made a necessary condition precedentto the release of the tutor.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J.

      Ben. T. Waldo (Omer Villeré of Counsel) for Plaintiff, Appellant.

      Edgar M. Calm for Defendant, Appellee.
    Argued and submitted May 7, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Nicholas, C. J.

The plaintiff in this suit brings a direct action of nullity to set aside an act signed by him on his reaching majority, in which he gave to his tutor, George H. Vennard, a full and complete, discharge as tutor, releasing and relieving him of all responsibility resulting from all acts of his administration,- and acquitted and dis-. charged and released him from all claims and demands whatever 'Which he might have against him on account of said tutorship. In ithis act plaintiff acknowledged that he had settled and adjusted all •accounts with his tutor, George H. Vennard. That the latter had rendered him a full and complete accounting of all transactions and ■doings in connection with his tutorship. That he had paid him the full share, portion and interest to which he was entitled in the succession of the late Henry T. Vennard, and in all other successions and from whatsoever sources they might be, as well as all moneys and property of whatsoever nature and kind to which he was entitled; that he had received from his tutor a true and correct statement and account of his administration, together with the delivery of all the papers and vouchers in connection therewith. That he had continuous possession and control and custody in his hands of all of said vouchers, papers, accounts and statements for more than ten full days prior to signing the act; that he had carefully examined the same, was satisfied therewith and ratified and approved the same throughout.

Plaintiff seeks additionally to have set aside a judgment of court based on said act of release by which the tutor was discharged.

The action is based upon Art. 861 of the Oivil Code, corresponding to Art. 472 of the Oode Napoleon, which declares that every agreement which may take place between the tutor and the minor arrived at the age of majority shall be null and void unless the same was entered into after the rendering of a full account and delivery of the vouchers, the whole being made to appear by the receipt of the person to whom the account was rendered ten days previous to the agreement.”

The District Court was of the opinion that the action could not be maintained for the reason, first, that the minor had not tendered back to the tutor twenty-seven thousand one hundred dollars in Louisiana bonds, which he had acknowledged to have received from, his tutor at the time of the settlement; second, because the minor could not contradict his solemn declarations made in a notarial act; third, because the error which the minor assigned as that on which he sought to set aside the acts was an error in the motive; that in order that such an error should be available as a ground for setting aside a contract, it must be on the principal cause when there are several. That the error in the motive assigned by plaintiff was not an error <6n the principal cause of plaintiff’s signing the act.

That the principal motive for his doing so was his desire on reaching the age of majority to obtain from his tutor his property in order as he was on the eve of getting married and required ready funds,” he could manage the same. That plaintiff was under no error as to this motive, nor did defendant do anything to mislead him. That the statement' made by defendant, that if a settlement was not then made the matter would then be in litigation for an indefinite time, whether true or not, was not the principal motive — that it was not alleged that defendant knew the statement to be false. That, besides, if plaintiff at the time believed it to be true, he signed the ’act to avoid future litigation; that error of law as well as error of fact invalidates a contract where such error is its only, or principal cause, subject to the modification that a contract made for the purpose of avoiding litigation can not be rescinded for error of law (0. 0., Art. 1846). . •

. Plaintiff was of full age, his allegations of ignorance of the law were of no avail and were not consistent with the other allegations of the petition.

4th. Because the allegations of the petition offered would not be sufficient to set aside the notarial act of settlement.

The court erred in supposing that there was any obligation on. the part of the plaintiff to tender back to the defendant the twenty-seven thousand one hundred dollars of bonds which he had received from his tutor. There is no claim or pretence that these bonds did not properly belong to the minor — the tutor formally acknowledged that they did so belong to him. There is no pretence made by the tutor that there was any error in that acknowledgment. The act sought to be set aside evidences no contract or compromise between the parties. It is simply a receipt for money accompanied by a consent that the tutor be discharged from further liability. Plaintiff received no consideration from the defendant to serve as a basis for a contract — what he received was avowedly nothing but his own. No tender back of the amount received was necessary as a condition precedent to instituting this suit. Rist vs. Hartner, Tutor, 44 An. 480; Rist vs. Hartner et al. 44 An. 878.

2. If plaintiff’s allegations be true, the act in question was violative of a provision of law which was enacted expressly for the protection of minors just reaching majority, and was subject to attack as a nullity. Recitals made in a notarial act, which would cut off the right of a minor to avail himself of the benefit of a declared nullity can not stand.

The plaintiff not only alleges facts going to make the acts complained of a nullity under Art. 861, 0. C., but he alleges error and misrepresentation, which of themselves would entitle him to seek at least to have the act set aside. The fact that a mere acknowledgment of receipt of money is made in a notarial act does not, of itself, preclude the party making ihe acknowledgment from disproving its truthfulness by parol evidence. The act in question, as we have said, evidences no contract — it is a mere receipt (Equitable Securities Company vs. Talbert, 49 An. 1402) followed by a release without a consideration. Plaintiff, at the time of making the acknowledgment he did, was over twenty-one years of age, but for the purpose of the act we are now considering he was still under the protection which the law throws around minority.

The law would he a dead letter if a tutor, by simply causing his-ward to appear before a notary and acknowledging away his causes of action could'succeed in shutting the doors of the courts against him. The rule which enables a married woman to attack a confession of judgment made by her, and which exempts her from the general operation of the doctrine of estoppel, is applicable to a minor seeking to avail himself of a provision of the Code made especially in his intorest to guard him from the presumed influence of his tutor over him.

8. The court erred in applying to this case the rules of a contract as to error of motive therein. There is no contract and no compro - mise involved in this matter. Plaintiff avers the non-existence of certain facts whose existence the law makes necessary conditions precedent to the release of a tutor. If these facts do not exist, the act whose validity is dependent thereon fails as a legal consequence. The allegations as to error and misrepresentation, while they strengthen the plaintiff’s case, are not essential to it when founded on the provisions of Art. 861 of the Oivil Code.

4, We are of the opinion that the allegations of the petition, if true, are sufficient to support an action, the object of which is to test the validity and effect of an act signed by a minor on reaching his majority, giving his tutor a full acquittance, and releasing him from all further liability as such.

The lawmaker has, through Art. 361 of the Civil Code, manifested strongly its disapprobation of hasty settlements and releases between parties standing so related. An exception, the effect of which would cut off inquiry into the merits of such a case, is one which courts should not sustain unless absolutely required so to do. As between these parties, where error and misrepresentation have been set up, as well as a failure to comply with legal requirements precedent, it is desirable, as we said in the Succession of Troxler, 46 An. 749, that light should be permitted to be thrown in as far as possible in aid of right. Both parties should desire a full investigation.-

The act signed by the plaintiff, which is relied upon by defendant as estopping him from instituting the present action, fails to show that by a receipt of the minor to whom the account was rendered given ten days previous to that act, that the vouchers, in support of the account were then, or had been prior thereto, delivered to the ward.

Pretermitting any discussion as to what the situation would have-been had the act in question contained such a recital, we think that in its absence the act, though it may not be absolutely null, is open at least to attack and inquiry. C. N. 472, Aubrey et Rau, Vol. 1, page 493, par. 121; Toullier, Vol. 2, No. 1249, Vol. 10, No. 59; Magnin, Vol. 1, Nos. 675, 732; Laurent, Vol. 5, No. 151; Zacharie, Sec. 116, ttexte et note 6; Demolombe, Vol. 8, See. 63; Marcade, Vol. 2, Sec. 281; Baudry-Lacantinerie, Vol. 1, Sec. 111; Mourlon, Vol. —, Sec. 1217.

We are of opinion that the couro erred in sustaining the exceptions filed herein by the defendant, for the reasons herein assigned:

It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the exceptions filed herein by the defendant be and the same are hereby overruled; that the cause be remanded to the District Court and and there reinstated on the docket and proceeded with according to law.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,798.
    Joseph L. LeBourgeois vs. Gramercy Company, Limited.
    a sugar refinery company entered into contracts with its customers being sugar planters (among others with plaintiff) by which the planters agreed to sell and deliver to the company on cars or switch nearest their [respective plantations their crops of sugar cane, and the company bound itself to purchase and receive said crop, to pay all railroad freights delivered under the contracts, and to pay cash to the planters at the rate of ninety cents per ton-(less freight) of the price for each cent of the price of prime yellow clarified sugar according to official quotation of price.
    Plaintiff’s plantation being near the refinery, his particular contraetiwas modified so as to permit him to deliver his crop at the refinery.with his own carts, the refinery company agreeing to pay him twenty cents per ton more — Beld: That the freight rate was not a mere deduction from a charge upon an otherwise fixed price for the cane per ton. It was one of the two factors upon which the company fixed the price itself. The price itself agreed upon was what would remain after deduction of a fixed rate of freight conventionally agreed upon between the parties from the second variablé or sliding factor.
    The agreement of the company with the plaintiff was that he should receive twenty cents net more than the other planters,

      \ PPEAL from the Civil District Court for the Parish of Orleans. Théarcl, J.

      W. S- Benedict for Plaintiff, Appellant.

      Saunders & Miller and Farrar & Lemle for Defendant, Appellee.
    Argued and submitted May 5, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff seeks a judgment against defendant for two thousand six hundred and forty-one dollars and eighty cents under the following allegations:

That on the 20th of July, 1896, he entered into a written contract with the Gramerey Company, Limited, to sell and deliver to said company a crop of sugar cane for the grinding season of 1896, and in consideration thereof said defendant company agreed to pay weekly in cash therefor at the “rate of ninety (90) cents per ton (less freight) on the price for each cent of the price of prime yellow clarified sugar;” any balance remaining due to be paid at the end of the season. That it amended said contract, which was by petitioner fully executed. That he delivered four thousand four hundred and two tons, one thousand nine hundred and seventy-five pounds (say four thousand four hundred and three tons of cane) to defendant, and for which weekly payments were made, leaving unpaid a balance of two thousand six hundred and forty-one dollars and eighty cents, which remained due and owing to petitioner by defendant.

That the estimated price per ton for cane delivered was two dollars and ninety-two cents, but defendant deducted therefrom freight at sixty cents per ton, making cash payments of two dollars and thirty-two cents per ton, whereas said cane was delivered free of freight by cane carts of plaintiff, and no deduction was contemplated except when paid by defendant, and at the rate of sixty cents per ton, said balance was justly due and owing petitioner by defendant, for which amicable demand had been made without avail.

Defendant answered pleading first the general issue.

Further answering he averred that it admitted that on the twentieth day of July, 1896, it entered into the contract with plaintiff, which was annexed and made a part of plaintiff’s petition. That by Section first of said contract, it agreed and obligated itself to pay for-all cane delivered upon the conditions of the contract, the prices, indicated in the schedule appended to said contract, less sixty cents per ton railroad freight, based upon the weekly average of the actual sales of prime yellow clarified sugar, as reported by the New Orleans Sugar Exchange, for the week in which the sugar was delivered, the average of the first week after the cane was delivered to be taken.

Respondent further answering averred .that its agreement to pay the prices named in said contract was based on .plaintiff’s agreement to load and deliver the cane in cars on switch, nearest to his plantation, and not less than thirty-five tons per day. That respondent’s-object in requiring plaintiff and all parties that sold cane to it, to deliver by rail was, to do away with the expense and labor necessary to load the carriers and handle the cane where it was delivered by cart or wagon, it having provided machinery for the unloading of cars directly to the carrier when delivered by rail, and in addition thereoo, to increase the receipts of the railroad company, the stockholders of the Grameroy Company, Limited, being large stockholders, in its railroad company.

Further answering respondent averred that during the year 1895 -, it had contracts with plaintiff and others to purchase their cane in effect the same as in 1896, by which plaintiff and all others were to deliver their cane by rail, and that it settled in accordance with agreement with plaintiff and all others delivering by wagons and carts, by paying them twenty cents per ton net, more than was paid net to those delivering by rail. That in 1896, in accordance with agreement it again settled with plaintiff and all others delivering by wagons and carts by paying them twenty cents per ton more than was paid to others not delivering by rail, as was done in 1895; but respondent repeatedly during the years 1895 and 1896, urged upon-the plaintiff to deliver by rail in accordance with his contract.

Respondents further answering averred, that during contract with plaintiff, it was to make a settlement with him weekly for the cane delivered by him, and that in settlement of the first week respondent sent a check and voucher to be signed in full settlement of amount due him, based on thirty-five thousand-ton receipt, the price being twenty cents per ton, net, more than was paid others not delivering by rail, and that thereupon the said plaintiff complained that the settlement and check were not correct, and returned it. That on November 16, respondent wrote plaintiff, as per letter annexed. It subsequently returned the check and voucher to be signed in full settlement, and plaintiff received said check and cashed it, and still retained the proceeds thereof.

Further answering respondents averred that, after the receipt of this letter, plaintiff continued to deliver cane, and respondents continued to settle with him weekly, at the rate of twenty cents per ton, net, more than was received by other parties not delivering by rail, by forwarding to him weekly statements, stating that it was in full settlement, with checks attached to each statement, and plaintiff having accepted and cashed the checks, they being paid coupled with the condition that it was in full settlement, was now estopped from claiming that there was any balance due him, which estoppel it specially pleaded.

Further answering respondent averred that it had paid and settled in full for all cane received from plaintiffs.

The District Court rendered judgment rejecting plaintiff’s demand, and he appealed.

In the contract between the parties, plaintiff (referred to therein as the party of the first part, and defendant as the party of the second part) agreed and bound himself to sell and deliver to the party of the second part, all of his crop of sugar cane which he might raise, except so much thereof as might be necessary to be retained for seed, and the party of the second part agreed and bound itself to purchase and receive from the party of the first part, not less than two thousand and not more than four thousand tons of sugar cane during the grinding season of 1896, on the following conditions: First, the party of the first part agreed and bound himself to commence cutting and shipping cane, and to complete the same on dates to be thereafter agreed upon by both parties to this contract; and agreed and bound himself to load and deliver on ears on switch nearest to his plantation not less than thirty-five tons and not more than-tons of cane per day, provided that any days lost through storms which interfered with loading shall not be counted.

Fifth — The party of the second part agreed to pay all railroad freights and produce taxes on all cane delivered under this contract.

Sixth — The party of the second part agreed to pay in cash to the party of the first part, or to his written order, at the rate of ninety (90) cents per ton (less freight) of the price for each cent of the price of prime yellow clarified sugar, one week intervening between the delivery of the cane and the payment therefor, this time being allowed for the purpose of obtaining official quotations and adjusting accounts. The balance due would be paid at the end of the season when the company had determined the total of cane delivered at the factory.

Seventh — The party of the second part agreed to pay the party of , the first part for all cane delivered under the conditions of this contract, the prices indicated in the schedule appended to the contract, less sixty cents per ton for railroad freight, based upon the weekly average of the actual sales of prime yellow clarified sugar as reported by the New Orleans Sugar Exchange for the week in which the cane is delivered; provided that if there were no sales reported by the New Orleans Sugar Exchange for the week in which the cane was delivered, the average of the first week after the delivery of the cane should be taken.

Cars should be . loaded with not less than fifteen tons of cane and might contain twenty tons. Not less than nine dollars per car (or sixty cents per ton on fifteen tons) should be deducted as the minimum freight on every car.

Plaintiff claims that the contract between defendant and himself, after being signed, was verbally modified, the modification consisting in an agreement that the plaintiff should deliver his cane at the mills of the defendant in his own carts, and that plaintiff should pay him twenty cents more . per, ton. Plaintiff’s cpntention as to the effect of the modification is that it entitles him to disregard entirely any reference to the deduction for railroad freights and to add twenty cents per ton to the price which would be payable if the railroad freight should be left out of view. Plaintiff’s theory of the case is that the railroad freight referred to was not a factor in estab - fishing the price fixed per ton for cane, but a deduction made as a charge or expense upon a price already fixed. The conclusion drawn is that if the expense for railroad carriage was not entailed for the reason that the planter himself delivered his cane, the entire price fixed would be due without deduction. That the defendant in this particular case not only agreed to this, but agreed that he would pay him twenty cents per ton more. The evidence on the subject of the modification of the contract is found in the testimony of the plaintiff and of Mr. Spelman, the president of the defendant company. On cross-examination of the plaintiff the following questions and answers were asked and made:

‘‘Q,. You say that prior to the hauling season of 1896, that Mr. Spelman stated to you that you would get twenty cents a ton more if you hauled it?
“ A. Yes, sir; he said to me one day: ‘Well, Joe, you will get twenty cents a ton if you haul it.’
“ Q. If you haul it?
“A. If you haul it, and that was all he said.
“ Q. What did you say to that?
“A. I didn’t say anything; I left.”

Mr. Spelman’s testimony was to the effect that in the month of September of- 1896, the plaintiff spoke to him, saying that he wanted, as he had done the year before, to deliver the cane by cart rather than by rail. That he (Spelman) urged him, as he had the year before, to deliver by rail, because all the company’s system was rail work and it wanted to get all the cane that way. Plaintiff preferred, however, to deliver by cart rather than deliver by rail, and got his twenty cents extra per ton, and the company permitted it to be done, as it had been done the year before without any (written) modification or endorsement on the contract. He did not know that LeBourgeois said anything when he told him he would get twenty cents more per ton. It was understood that he was to go on the same as he had the year before. He did not know that any specific words were used. He urged him to deliver by rail, but he preferred not to do so.' The company’s object in having cane delivered by rail was because its whole system was for rail and not cart delivery. It preferred to have it come in by rail because it had special machinery for unloading the cars and putting the cane on an incline which it had put up at great expense. That method ■of unloading the cars was far more economical to the company than handling the cane from carts. The company wanted to utilize its machinery for unloading. The object of rail delivery was not to force people whose places were only a mile or two off to ship by rail, but it was to avoid if. possible any handling at all by hand, as a great part of the cost of making sugar was the handling on cane to a carrier. The ■company had machinery for putting the cane' on the carrier, and it wanted to avoid doing any handwork. The company had a contract with plaintiff for 1895 calling for delivery by rail. Mr. LeBourgeois had a derrick and a switch for delivery by rail, but he preferred to deliver by carts provided he got paid for hauling instead of paying railroad freight. Therefore the contract for 1895 was modified to the extent that the company paid Mr. LeBourgeois twenty cents per ton more than it paid others net that shipped by rail. Twenty cents per ton net (was) to cover the cost of hauling instead of shipping by rail, so that although that contract called for rail delivery, by the personal contract Mr. LeBourgeois afterward ■delivered and the company accepted what he hauled in carts, and paid him twenty cents per ton more than if he had delivered by rail. It would have cost the company or any one else sixty cents a ton to have taken the cane by rail from Mr. LeBourgeois’ place to the factory. The company had in 1895 and 1896 with a Mr. Shepp (who had a plantation near Mr. LeBourgeois’) contracts similar to that with Mr. LeBourgeois and had settled with him both years precisely as it had done with Mr. LeBourgeois — that is, twenty cents per ton more than it paid other shippers. Mr. LeBourgeois on direct examination testified that after the grinding season of 1896 had commenced and upon the first settlement with the defendant company ■disclosing that it claimed he was only entitled to twenty cents per ton net more than it was paying to parties who shipped cane to it by rail, he went over to see Mr. Spelman about the matter. Spelman ■said, “LeBourgeois, you are paid exacts as you were in 1895.” He answered “ that he did pot expect to be paid in 1896 as he had in Í895, not at all.” Then Spelman said,. “ But you are.” He replied, “ Why did you not give me a duplicate of the 1895 contract to sign instead of the 1896 contract, which is entirely different?”

Mr. Spelman said: “Gome to the office and you will find you are getting as much money for your cane as you were in 1895.” He (LeBourgeois) answered, “ That cuts no figure, whether lam getting as much or more, bub I expect to be paid on the basis of the contract I have signed.”/ Spelman said, “ You certainly understood there would be a deduction of sixty cents freight,” and he replied, “No, sir.” He testified that he recalled to Mr. Spelman a remark he had made to the effect that “He did not see why he would persist in killing off his mules and wanted to haul that distance, when it would be more convenient for him and for the factory to receive his cane by rail;’ to which remark he (LeBourgeois) had replied “ that if he could deliver four thousand or four thousand five hundred tons, as he expected, it would be a net saving to him of one thousand eight hundred or two thousand five hundred dollars;” and Mr. Spelman shrugged his shoulders and said, “ You know best.” That though Mr. Spelman said he did not recollect that conversation, it did, in point of fact, take place bhe first week before delivery. He testified that when he saw the company persisted in placing the construction it did upon the contract, he went to see his attorney, who told him it was so late in the season that he had better go on, and he had done so under protest.

Defendant’s counsel presents its view of the situation as follows:

“ Plaintiff entered into a written agreement to sell his cane in 1896 to defendant. The contract expressly stipulates that the cane so sold should be delivered on cars. Mr. Spelman, the president of the refinery company, testifies that special arrangements were made at the refinery for unloading the cane from the cars by machinery, and that it was more convenient and cheaper for them to handle the cane from the cars than from carts. As between cane delivered on cars and cane delivered by carts, the company preferred to receive it on cars and could afford to pay for cane so delivered a higher price than it could afford to pay for same delivered by carts.

“ The printed form of the contract with the company signed in 1896 by Mr. LeBourgeois contains, in the seventh paragraph, a stipulation that the company will pay the prices shown on a subjoined table for cane delivered on ears, less sixty cents a ton for freight. In order to ascertain the price therefore the sixty cents a ton must be deducted. And the price as thus ascertained was for cane delivered on cars; this is for cane which cost the company least to handle when delivered, and for which it could therefore afford to pay the highest price.

“The net price to the planter — what he really got for his cane — was found by deducting sixty cents a ton from the figures given in the table.

After signing, in July, 1896, a contract binding him to deliver his cane on cars, Mr. LeBourgeois determined to deliver his cane by carts. He met Mr. Spelman just before the grinding season began and told him of this determination. Mr. Spelman, who was in a hurry, remarked that he would then give Mr. LeBourgeois twenty cents a ton more, and Mr. LeBourgeois assented.

“ Mr. Le Bourgeois claims that by this he understood that he would get twenty cents a ton more than the price stated in the table without deducting the sixty cents a ton for car freight.

“ For example, the price stated in the table, when sugar sold at four cents, was three dollars and sixty cents per ton. The planters who delivered by rail would get only three dollars per ton, at this price, and the total cost of the cane to the refinery was the three dollars paid the planter, plus sixty cents paid for the freight, or three dollars and sixty cents in all. And for this price of three dol - lars and sixty cents per ton the refinery got the cane on cars in the manner it had been contracted for, and in the shape which cost it least to handle. Now, Mr. LeBourgeois claims that Mr. Spelman meant that the refinery would pay him three dollars and eighty cents per ton for his cane delivered in carts, when the cane of other planters was costing only three dollars and sixty cents delivered on cars. In other words, he says that he understood Mr. Spelman to mean that the company would pay him three dollars and eighty cents per ton for cane in carts, while it paid only three dollars and sixty cents per ton for cane in cars. That is, the company was to pay a higher price for the cane that cost it most to handle. We submit that reflection should have precluded Mr. LeBourgeois from attaching any such interpretation to Mr. Spelman’s words. He knew that the refinery did not want the cane delivered in carts; he knew that it had expressly stipulated that the cane ■ should be delivered in cars; he knew that the cane delivered on cars cost the company less to handle, and yet he says that he inferred that the company was willing to pay more for what cost it comparatively much than it would pay for what cost it comparatively little.

“Now, if the cane of Mr. LeBourgeois cost the company three dollars and eighty cents and the cane of the other planters cost the company three dollars and sixty cents, then the transportation of Mr. LeBourgeois’ cane would cost the company eighty cents, while the transportation of the cane of other planters was costing only sixty cents. That is, the company would be paying more for delivery in carts than for delivery in cars, notwithstanding the fact that cane delivered in cars was handled at less cost than that delivered in carts.

“ We submit, therefore, that it was impossible for Mr. LeBourgeois to have reflected when he supposed that the company meant to pay him more for his cart cane than it paid other producers for railroad cane. And as Mr. LeBourgeois’ conclusion in this matter was reached without reflection, he can not be upheld in it, but will be bound by that sense which the words clearly meant in the situation in which they were spoken. And that sense very evidently was that Mr. LeBourgeois should receive twenty cents net more than the other planters. That is, in the case supposed, where the other planters on the basis of 3 5-16c. sugar, were getting 3 12-60, or $2.61 per ton net, Mr. LeBourgeois would get $2.81 per ton net, or 20 cents a ton more than the other. And he was settled with on this basis.

“ That this was a proper and just basis is corroborated by the fact that in 1895 Mr. LeBourgeois and Mr. Shepp were both paid in this manner. In 1895 they received for hauling their cane in carts twenty cents per ton more than the other planters. This shows that they regarded twenty cents a ton as a suitable compensation to them, under the circumstances, for hauling their cane. Presumably, the same compensation for hauling would be just in 1896.”

We are of the opinion that the judgment appealed from is correct. It is difficult to imagine upon what ground or from what motive defendant would have departed from the terms of its advantageous written contract to give plaintiff several thousand dollars more than the contract called for for a less desirable delivery of cane. In the general contracts (similar to the written one between plaintiff and defendant) made by defendant with its customers, the latter obligated themselves to load and deliver the cane sold on cars, on switch nearest to their respective plantations, defendant itself paying freight and produce taxes.

Plaintiff is in error in supposing that the freight rate was a mere deduction from or a charge upon an otherwise fixed price for the cane per ton. It was one of the two factors upon which the company fixed the price itself. The price itself agreed upon was what would , remain after deduction of a fixed rate of freight conventionally agreed upon between the parties from the second variable, or sliding factor.

When defendant said it would pay plaintiff twenty cents per ton more than it paid to other shippers, the obvious meaning of what was said was, that plaintiff should receive for his cane twenty cents per ton more than the other sellers would actually receive for theirs— that is to say, twenty cents more than what may be called the net price fixed in the written contracts. The judgment of the District Court is hereby affirmed.


text:
    No. 12,602.
    M. L. McNeely, Tutrix, vs. J. H. McNeely, Executor; Succession of L. McNeely, Deceased. Opposition to Account of Executor by M. L. McNeely, Tutrix to Minor.
    Clerks of the District Courts throughout the State of Louisiana, the parish of Orleans excepted, are authorized by Act No. 106 of 1880, and Act No. 43 of 1882, in the abseneo of .the District Judge from the parish, or in case of his recusation, to order the execution of wills and to confirm testamentary executors.
    Creditors and legatees of a succession accepted under benefit of inventory are at liberty, if the beneficiary heir does not come forward within the legal delay to claim the administration of a succession for himself, to have the succession placed under administration in other hands. C. C., Arts. 1034, 1035, 1036, 1041, 1047, 1058, 1101. The executor appointed by the will of the deceased, though not given seizin, properly takes charge of and administers the suceession under such circumstances, assuming that the tutrix of a minor forced heir would have had, on a contest, a preference over him.
    The powers, duties arid responsibilities of testamentary executors in Louisiana under existing laws, run closely to those of curators and administrators. Parties in interesthave the rightto exact security at their hands for the faithful performance of their duties. O. C., Arts. 1670, 1673; McGehee vs. McGehee, 41 An. 660.
    Article 1607 of the Civil Code, which declares that “ when at the death of the testator there are heirs to whom a certain proportion of the property is reserved by law, these heirs are seized of right by his death of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament, “whatever be its scope or interpretation was not intended to apply to a case where a succession is accepted under benefit of inventory by a minor heir, and where its property has never been placed in the actual possession of such heir, but has, on the contrary, been legally placed under the administration of, and in the actual possession of a testamentary executor, who by the will was made the universal legatee of the deceased. Bird vs. Jones, 5 An. 548.
    When the universal legatee is himself the testamentary executor appointed by the will, and on his petition and prayer the will has been probated and ordered executed, and the executor has qualified and taken possession of the property of the succession, there is no basis for the contention that the fruits and revenues of the thing or things which were “legally” bequeathed to him, belong to the heir, pending the administration.
    The application by the person created universal legatee and testamentary executor by last will and testament for an order probating and executing the will, confirming him as executor and placiag him in possession under the will as legatee, is a sufficient demand for the delivery of his legacy to cut off the possibility of the fruits and revenues of the things “legally” bequeathed to the universal legatee enuring thereafter to the benefit of the forced heir.
    The taking possession during administration by a universal legatee of the property bequeathed to him by the will (the universal legatee being also testamentary executor), does not have the effect, ipso facto, of closing the succession and discharging the executor. Succession of Sterry, 38 An. 854; Succession of Francez, 49 An. 1732.
    The “ legitime ” is due in Louisiana under a status of heirship, though forced heirs are sometimes alluded to as and assimilated to creditors. The foi’ced heir may, by claiming as such, as an heir under benefit of inventory, escape direct personal liability for the debts and charges of the succession, but in fixing the reserve, the law has not ordered it to be established regardless of payment of the succession debts and charges out of the property of the succession, though certain charges are excluded by express provision of law, as for instance, commissions of executorship and costs of delivery. 0. 0., Arts. 1632,1687.
    Costs and attorney’s fees incurred by the executors in defending an action brought by a forced heir to set aside the will in its entirety as a nullity are chargeable against the succession, so also are costs incurred in the general settlement of the succession, also reasonable fees for services of attorneys, necessary for that purpose. Funeral expenses and expenses of last illness, are also chargeable to the succession.
    An executor who is also universal legatee, who takes possession ex ¿arte of all the property of the succession, and deals with it as his own with knowledge of the existence of a minor forced heir, is chargeable with the rent of the portion of the succession which vested legally in the minor forced heir. Being charged with rent and accorded revenues, the expenses incurred in the cultivation and administration of the plantation, includingoverseer’s wages and ordinary incidental repairing of buildings and clearing of land, are at his cost. The rights and obligations of the parties relative to permanent improvements placed upon the property by the universal legatee, having to be considered from the standpoint of the parties being undivided joint owners of the plantation, these rights and obligations should properly be determined in an action of partition not on opposition to the account.

      A PPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J.

      W. 0. Roberts and R. E. Milling for Executor, Appellant.

      R. J. Bowman, J. G. White & Thornton and J. P. Hadnot for Opponent, Appellant.
    Argued and submitted December 16, 1897.
    Opinion handed down January 24, 1898.
    Rehearing refused March 7, 1898.
    Statement oe the Case.
    On November 7, 1893, Mary L. McNeely in her capacity as tutrix of her minor child, Ross B. McNeely, filed a petition in the District Court for Grant parish, in which she alleged that the said child was born on the 10th of April, 1890, being the issue of her marriage with Ludlow McNeely; that her husband died on or about the 29th of April, 1893, leaving no other descendants. That on or about the 12th of May, 1893, John H. McNeely petitioned said court to probate and order to be executed a document purporting to be the last will and testament of her said husband by which all of his property was bequeathed to said John H. McNeely. That said will was probated and ordered to be executed and the said John H. McNeely qualified as testamentary executor. That although said will did not give the said John H. McNeely the seizin of the estate ■of the testator, nor was there any decree giving or decreeing him to have the seizin of said estate, he had taken possession of said estate consisting of a large plantation and improvements thereon yielding a revenue annually of about twenty-five hundred dollars and also of town lots in the town of Colfax and of personal property yielding a further revenue of four or five hundred dollars. That the entire property of her husband and disposed of by the said last will was at his death and was still worth twenty thousand dollars.
    That said will was in form a nuncupative will by private act and was an absolute nullity for want of form as prescribed by the Civil Code for the validity of a nuncupative will by private act. That her husband could not dispose of his entire property to the detriment of said minor, who, even if said last will was valid, was entitled to one-third of said estate, together with one-third of the rents and revenues from the death of his father and during the time the said estate was administered by said McNeely as executor.
    In view of the premises she prayed that the said J. H. McNeely be cited in his said capacity of executor and as legatee to answer her demand that said will be decreed to be null and void, and that in her said capacity she do recover of the said McNeely, in his capacity of executor and as legatee, the entire property left by Ludlow McNeely at his death, with the revenues since his death. That in the event that the will be maintained as valid that its disposition be reduced to the disposable portion, and that in her said capacity she recover of the said McNeely one-third of the property left by the said Ludlow McNeely, together with one-third of its rents and revenues since his death.

    On the 4th of June, 1894, defendant appeared in both capacities to except and contingently to answer plaintiff’s demand.
    By way of exception he contested the right of the plaintiff to bring the action, inasmuch as he denied and contested the fact that the child of whom she claimed to be tutrix was the child of Ludlow McNeely, but the offspring of an adulterous connection between the plaintiff and.'some person other than her husband; that he was illegitimate and had no rights in, to or upon the property of the estate.
    Answering contingently, defendant, after pleading the general issue, admitted that the last will and testament of Ludlow McNeely had been probated and himself appointed executor under it. He averred that the will probated was the last will and testament of the deceased, and that the same was written and executed according to law and was a valid will. That the probate proceedings contained a judgment confirming respondent as testamentary executor and giving him seizin and possession of the estate left by the deceased, and that he had taken possession as universal legatee under said judgment and will. That he had, since the death of Ludlow McNeely and since the probate of the will, caused valuable improvements to be placed on said property, as described in his pleadings; that he had also partially paid a mortgage resting on part of the property bequeathed, and had made repairs and clearings on the property, as set forth in his answer. He averred that he would be entitled to recover the entire amount of said expenditures and improvements in case the minor recovered the entire property, or one-third thereof should he recover one-third of the property, he being a possessor in good faith under said will and judgment.
    He prayed that plaintiff’s suit be rejected and dismissed; that the minor child be decreed illegitimate and without right to inherit it from the deceased, and that he as universal legatee be quieted in the ownership and possession of said property bequeathed to him by the will; that it be decreed valid. That in ease the plaintiff should recover the entire estate claimed, that defendant have judgment in reconvention for the sum of five thousand seven hundred and sixty-five dollars, or if plaintiff should recover one-third of the estate that defendant have judgment for one-third of said amount with the right of detention of the property until said amounts be paid him.
    Motions were made to strike out the exceptions, as the issue therein raised could, if raised at all, be only raised in a direct action and contradictorily with a tutor ad hoo to represent the minor. This motion was overruled and a motion to refer the motion to the merits was sustained. The case went to trial and resulted in the District Court in a judgment in favor of the defendant in both of the capacities in which be was sued, decreeing that the minor was neither the child nor heir of Ludlow MeNeely and rejecting plaintiff’s demand at his costs. The plaintiff appealed to the Supreme Court, which rendered a judgment to be found reported in the 47th An. 1825 (MeNeely vs. MeNeely).
    By that judgment it was decreed that the judgment of the lower court be avoided, annulled and reversed, that Ross B. MeNeely was the legitimate child of Ludlow MeNeely and his wife, M. L. MeNeely, and as such entitled to the legitime of one-third of the property left by said deceased; that the will of the deceased in favor of his brother, J. H. MeNeely, be reduced to the disposable portion, two-thirds of said property; that all questions of rents and revenues, improvements and debts paid and to be paid be reserved for further proceedings in the lower court, and that defendant pay costs.
    Upon the return of the cause to the District Court plaintiff on the 6th of August, 1895, obtained an order from the court that defendant file an account as testamentary executor. In obedience thereto, the executor presented, first, a provisional account, then a correction as to certain items, and finally, an additional or supplemental account.
    To these the tutrix filed several oppositions covering a general opposition to each and all of the items of the account, followed by minutely detailed oppositions as to special items. The court sustained the account to a certain extent, but also partially sustained the oppositions, and homologated the account as so amended. Both parties appealed.
    The following admissions were spread upon the record: “That the rent for the entire estate of L. McNeely, deceased, for the years 1894, 1895 and 1896 would be the sum of fifteen hundred dollars a year; that the mortgage claims and taxes paid for said years were not disputed by opponent. That proof would show that the fence erected between the estate of McNeely and the Citizens Bank property being a necessary expense of the estate, was worth two hundred .and fifty dollars.
    “ That the sum of fifteen hundred dollars a year, as stated, was a -correct rental for said years above all improvements, except the fence just mentioned, value as stated two hundred and fifty dollars. That the proof would show that the old gin house claimed by opponent to be on the estate of McNeely was removed from said property before the death of McNeely, and, therefore no rent is due on said property.
    “ That the proof would show that the following items on the account of 1893 are the property of J. H. McNeely: The gin house, two gin stands, one boiler and engine, one steam cotton press and fixtures and one grist mill, and, therefore, no rent is claimed on the gin and its appurtenances by opponent.
    “That the proof would show that a proper rental value of the property of the estate for the year 1893 would be the sum of fifteen hundred dollars. This admission is made reserving to the executor all his rights to resist the claim for rent for said year, as set forth in his account, and does not affect the executor’s right to claim a charge for other improvements placed on the property during the year 1893, as appears by his account.
    “ It is understood that the admissions in the record as to what the proof would show with reference to the items made in that connection does not affect the right of the executor to press his claim for court costs, attorney’s fees and expenses of last illness, as appears by his account, nor the right of the opponent to oppose them.

      “ It is further understood that in consequence of the admissions in the record with reference to the gin house and the property that the claim for insurance and taxes on said property is withdrawn.
    “ It is admitted that the costs in the case of M. J. McNeely, Tutrix, vs. J. H. McNeely, Executor, amounting to $465.65, were paid by the executor.”
   The opinion of the court was delivered by

Nicholls, C. J.

The tutrix of the minor, Ross B. McNeely, denies in this court that J. H. McNeely was ever put in possession of the estate of L. McNeely. He avers that “ no such judgment was ever rendered; that the clerk probated the will, confirmed the said McNeely as testamentary executor and granted him letters of executorship, and at the same time made the following order: ‘That J. H. McNeely be recognized and confirmed as testamentary executor of his brother, Ludlow McNeely, he having taken the oath required by law as such with power to execute-said will according to the terms and tenor thereof and that letters testamentary issue to said J.' H. McNeely according to law and that he be recognized as testamentary heir and universal legatee-of said will, with the right of seizin and possession of the estate-according to the terms of said will according to law. That the-taking of the oath as executor and the letters of executorshipnegative the pretence that the said McNeely was put in possession, by the ex parte and contradictory order of the clerk of court, and that said fact is negatived by his still acting as executor and filing-his account as executor. That the clerk was without authority to-render any judgment putting a legatee as heir in possession, and no such judgment can be rendered or could have been rendered except by the District Oourt, in open court, and by suit in the ordinary form-of petition and citation, contradictorily with the heir or attorney of absent heirs, and if said ex parte order pretends to put the said McNeelyin possession it is an absolute nullity on its face, and the said McNeely is not a possessor as owner in good faith, but is in possession as executor (citing 0. P. 1001, Sees. 1, 2 and 3; The State vs. Judge of the Court of Probates, 4 Rob. 42; Succession of Lampton, 35 An. 419). That the minor and forced heir was seized of right of all the effects of the succession, and he was entitled to the enjoyment of the fruits and revenues thereof from the date of the death of the testator;' that said fruits and revenues do not belong to the succession, but are the property of the minor. That the forced heir is a creditor of the succession to the extent of his legitime, and is in no way responsible for costs and attorney’s fees of the suit of McNeely, Tutrix, vs. McNeely, Executor, etal., and those of the succession settlement, they being chargeable to the legatee; that the executor was without authority to cultivate and make crops upon the plantation, or put up improvements, or make repairs thereon for account of the succession; that he did not, in fact, do so, as he cultivated the plantation for his own account, and he alone is chargeable with the expenses of administration — the clearing and repairs upon the place and the improvements put up. That the executor, being also a legatee, was entitled to no commissions as such.

On the 12th of May, 1893, J. H. McNeely filed in the District Court a petition, in which he alleged the death of L. McNeely; that he had left a last will and testament, íd which he was constituted universal legatee and appointed testamentary executor; thaj he had the! right to have said will probated and himself put in possession as testamentary executor on qualifying as well as to be recognized as universal legatee and put in possession of the estate. The prayer of this petition was in consonance with its allegations. Annexed to this petition was petitioner’s affidavit to the fact of the absence of the District Judge from the parish of Grant.

On the same day the clerk of the District Court probated the will according to its terms and tenor, ordered its execution, and recognized and confirmed petitioner as testamentary executor, and decreed that letters issue to him as such, according to law. It further recognized petitioner as universal legatee, with right of seizin and possession, according to the terms of the said will.

The probate of the will and the order directing its execution has never been contested, though a direct action was brought to annul the will itself, the action being directed against the testamentary executor who had confirmed under the will and its probate and against the same party individually as universal legatee.' In this suit the latter was averred to be in possession of the property and fruits and revenues were demanded of him. We do not understand that the claim is made now that the clerk was without authority to probate the will itself and to confirm the executor, but that a proceeding co place heirs in possession is a proceeding which has to be conducted and disposed of in open court contradictorily with the heirs or an attoraey of absent heirs, and that the order for possession can only be signed by the District Judge.

We need not inquire whether, under the laws as they now stand, a clerk of court would be authorized to place the heirs of an intestate succession in possession upon their petition to be so placed, for that is not the case before us. The case at bar is that of an application made for the probate of a will — the granting of an order directing its execution and confirming the appointment of the testamentary executor named therein.

The authority to grant these particular orders is conferred upon clerks of court throughotit Che State outside of the city of New Orleans by Acts Nos. 106 of 1880 and 43 of 1882. The constitutionality of those acts has not been called in question. We are of the opinion that the will was legally probated and ordered executed and the tes - tamentary executor legally appointed and confirmed.

Being so confirmed we think under the circumstances of this case he was legally authorized to take charge of the property of the succession and liquidate its affairs. The testator was directly authorized by law to appoint a testamentary executor. C. O. 1658, 1659. It is true that in this case he did not grant him the seizin of the estate, but the situation was such as to require that some one take charge of the administration of the estate and its property. Had Ross B; MeNeely been of age and had he accepted the succession of his father purely and simply a question might have arisen as to the rights and powers of the testamentary executor appointed by the will. He was, however, not only a minor incapable of accepting the succession otherwise than under benefit of inventory, but no one on his behalf appeared to claim or take charge of the administration of the succession. There was no necessity for parties interested in the succession to call upon the tutrix to declare whether the heir accepted or not, and if he accepted, to declare whether he did so unconditionally or not — the law itself settled that fact. The situation under and through the law was precisely that which would have resulted had creditors or legatees called upon a major heir to declare his status in respect to the succession, and had he declared that he accepted under benefit of inventory. Under such conditions the appointment of a succession representative became at once called for by the law (0. 0.1058), if parties interested should demand one. This representative in the case of an intestate succession would have been either an administrator or a curator. In the case of a testamentary succession it would have been either the testamentary executor appointed by the will, or an administrator appointed by the court, if the legal heirs under certain conditions should exact that the latter character of representative should be appointed.

We think that the creditors and legatees of a succession accepted under benefit of inventory are at liberty, if thelbeneficiary heir does not come forward within the legal delays to claim the administration of the succession for himself, to have the succession placed under administration in other hands (0. 0., 1034, 1035, 1036, 1041, 1047, 1058, 1095, 1101).

The powers, duties and obligations of testamentary executors in Louisiana, under existing statutes, run closely toward those of curators and administrators. Parties in interest have the right to exact security at their hands for their faithful performance of their duties (0. 0. 1670, 1673; Heirs of McGehee vs. McGehee, 41 An. 660).

Holding as we do that J. H. McNeely was legally appointed testamentary executor of the succession of his brother charged under the circumstances of this case with the administration of its property and its affairs we now direct our attention to the consequences of that fact upon the rights of the parties to this litigation.

Counsel of the minor cites Art. 1607 of the Civil Code, which declares that: “ When at the death of the testator there are heirs to whom a certain proportion of the property is reserved by law these heirs are seized of right by his death of all the effects of the succession and the universal legatee is bound to demand of them the delivery of the effects included in the testament,” as establishing beyond question that it was the duty of J. H. McNeely to have made a demand upon the tutrix for the delivery of the portion left legally to him by the will, and that he not having done so the entire property should be held in law as to have been constantly in the actual possession of the minor up to the present time in so far as a right to fruits and revenues is concerned.

The article in question, whatever may be its scope or interpretation, was clearly not intended to apply to a case where a succession is accepted under benefit of inventory, and where its property has never been placed in the actual possession of such heir, but has, on the contrary, been legally placed under the administration and in the actual possession of a testamentary executor who is himself the universal legatee of the deceased, and this is the case at bar (Bird vs. Jones, 5 An. 643).

We are of the opinion that when the universal legatee is himself the testamentary executor appointed by the will and on his petition, to the court the will has been probated and ordered ex cuted according to its tenor and he has qualified and taken into his actual possession the property of the succession and assumed the liquidation of the estate, there is no basis whatever for the contention that the fruits and revenues of the thing or objects legally bequeathed to the universal legatee belong to the heir.

Hven in the special cases to which Art. 1607 may be held to refer the next article provides that, “ nevertheless, in those cases the universal legatee will have the enjoyment of the effects included in the testament from the day of the decease if the demand for the delivery has been made within a year from that period; if not, enjoyment will ouly commence from the day of the judicial demand or from the day on which the delivery has been agreed upon.” The law did nob contemplate that the universal legatee in the actual possession of the objects bequeathed to him under the will should make a demand for delivery from one not in possession. We think a judicial demand made by the universal legatee for the probite of the will for an order for its execution and the placing of himself in possession under the will is a sufficient demand for delivery of his legacy to cut off the possibility of the fruits and revenues of the thing leg illy bequeathed to him thereafter enuring to the benefit of the legal heir.

Article 1628 of the Civil Code declares that the testamentary executor who has the seizin of the effects of the succession and who is at the same time a legatee is nob bound to damind the delivery of his legacy; that he can retain it in his possession subject to the obligation mentioned in Art. 1627 of being bound to give it up for the purpose of contributing to the payment of debts in case it be liable for any. It is true that Art. 1628 has direct reference to the case of a testamentary executor who is a particular legatee, bub we think the provisions of that article fairly extend bo the case of a universal legatee situated as is the universal legatee under the circumstances of this case, in their bearing upon the question of the fruits and revenues of the thing legally bequeathed to the universal legatee. ,

What we have said does not refer to the question of the fruits and revenues of that portion of the thing which the .universal legatee may have taken possession of which did not and could not legally belong to him or pass to him under the will, but which remained in and belonged to the heir. That presents a different question. We Simply say that the fruits and revenues of that portion of the prop-, erty of the succession of L. McNeely which was legally bequeathed (the will to the extent of two-thirds having been sustained) to J. H. McNeely, and which went originally into his possession as testamentary executor, belonged to the universal legatee. We think he had the right quoad the plaintiff to consider that portion as his own, to so deal with it, subject to such rights on the part of the heir and such liability on the part of the legatee as would result from the ownei'r ship of the heir of an undivided interest in that property under the circumstances of this case. We leave out of view in this connection any discussion as to what the situation would be were rights of creditors involved. The question before .us is freed from that complication. What those rights and liabilities were in respect to the plaintiff, we will hereafter,have to ascertain and declare..

We may say at once that the taking possession by the executor of the property mentioned has not had as its effect the discharge of the executor. He is still executor and his account is properly before its for examination. Succession of Sterry, 38 An. 854; Succession of Frances, 49 An. 1732. The first question with reference to that account which we will take up is that of the costs and attorney’s fees in the matter of the suit of McNeeley vs. McNeeley, 47 An. 1321, and those incurred in the general settlement of the estate.

Counsel claim that a forced heir is a “.creditor” to the amount of. his legitime of one-third'of the estate as it existed at the .date of the death of the testator, and that this amount he is entitled to take as. of that date, not reduced by succession costs and charges and attorney’s fees.

Counsels claim that the minor’s position is that of a .creditor is inconsistent with those advanced.on. his behalf in other portions of their argument. It is true, that forced .heirs have sometimes., in, some respects, been assimilated to creditors, but it is very clear that that is not their legal status.

When a person dies in Louisiana, leaving descendants, they become at the instant of his death his heirs. Of this status they can not be deprived by their ancestor, unless through legal, disinher■> ison for legal cause. In the absence of testamentary dispositions, the law by its own force determines the extent of .their respective portions, but it allows the ancestor within limits fixed and announced by itself to modify those proportions, subjecting any modification' made by him in excess of this limit to successful reduction by the heir to within those permitted. This power of' the ancestor to thus alter by the exercise of his own will the extent of the rights of his descendants in his succession does not result in transforming their statiis from that of heirs to creditors. Of that status they can not be deprived by the act of their ancestor. It is by reason of that fact and-of their forced legal right to be maintained in their claims as heirs to the portion which as such the law has reserved to them if they elect to claim the same that they are designated as forced heirs. It is only under their status as heirs that they can claim this proportion known as the legitime. The seizin which they are- declared in Art. 1607 of the Civil Code to have, is not peculiarly and ápeeially given to them as “ forced heirs,” but is given to them by law as “heirs” of their father. The seizin is not “ granted” to them through that article. It is simply recognized therein in its bearings and consequences upon the special condition of affairs to which that article refers. The articles of the Code in describing and fixing the rights and obligations of these forced heirs evidently contemplate cases where the reserve should have been trenched upon either by the donatious inter vivos or the testamentary dispositions of the ancestor, and where they are forced to fall back for their protection upon their legal right reserved to them by law, hence it is that they are careful to place themselves before the court exclusively as heirs occupying the position assigned them by law as such. What is that position? It is certainly not that claimed by the tutor of holding the full amount of the proportion allowed them by the law entirely regardless of the debts of the deceased and entirely regardless of legal costs and attorney’s fees properly and legally chargeable as such to the entire estate for the purpose of its general settlement out of the property belonging to the succession at the date of its opening. The forced heir may, by claiming as such, as an heir under benefit of inventory, escape direct personal liability for the debts and charges of the succession, but in fixing the reserve, the law has not ordered it to be established regardless of payment of the succession debts and charges out of the property belonging to the succession at its opening, though certain charges are excluded by express provision of law, as, for instance, the commissions of executors as declared in Art. 1687 of the Civil Code and the costs of delivery as declared in Art. 1632.

The question of costs and attorney’s fees is complicated in this litigation by the particular manner in which plaintiff brought his suit and that in which it was defended. The action was primarily one to have declared null and void in its entirety the will of Ludlow McNeely, coupled with a demand as resulting from such nullity for the ownership and possession of the entire property with its fruits and revenues from the date of his death, and contingently and subsidiarily for the reduction of the legacy to the disposable portion, with a contingent demand for the ownership and possession of an undivided one-third of the property and one-third of its revenues from the same date.

The defence on the part of the executor was an insistence upon the validity of the will as written, coupled with a denial that the plaintiff was the legitimate child and heir of the deceased. This denial struck at his right either to attack the will as a whole, or to ask for a reduction of the legacy to the disposable portion.

Plaintiff’s demand in so far as it attacked the entire will was not in aid of his legitime or reserve, but as a general legal heir seeking to be decreed to be the sole heir in the succession. He was cast in the action to the extent that he was proceeding upon that line of attack, and the executor was justified on that same line in the defence he made upon that special issue. Had the suit contained no other issue and claimed no other than that paitlcular relief, plaintiff would unquestionably have had the costs of the suit thrown upon him, and the executor would have been entitled to costs and reasonable attorney’s fees (Succession of Hasley, 27 An. 589).

Dalloz and Verge, under Art. 1016, C. N. (our Art. 1631), under the No. 10, refers to a decision, the syllabus of which was to the effect that: “L’article 1016 qui porte que les frais de délivrance d’un legs ne peuvent jamais étre pris sur la réserve ne met par obstacle a ce que ces frais soient compris dans la condemnation aux dépens contre le réservataire par le jugement qui a repoussé son action en nnllité du testament.”

We have seen that plaintiff’s action contained a contingent demand in which he was successful for a reduction to the disposable portion of the legacy made in the will.

With reference to that portion of the cáse this court held that the attack upon the legitimacy and heirship of the plaintiff was totally unwarranted by the law. That the child though born after a separation from bed and board was born in wedlock and therefore had had his status as a legitimate child and heir irrevocably fixed by the fact that the father had not brought before his death and within the time fixed for such an action, an action “ en desaveu” of the child. The executor was aware of the fact that no such action had been brought by the father. He had knowledge of the fact of the existence of the child, and that it bad been born during marriage before the bonds of matrimony had been finally broken, and he must be held in law to have known that the special defence he set up was unauthorized and unwarranted.

Had the plaintiff limited his action to a claim for a reduction of the legacy made in the will to the disposable portion, and had he been met with the defence that he was not the child and heir of the deceased, judgment would have been rendered and should have been rendered in his favor for costs. We do not think, under the circumstances of this case, opponent can be made responsible, directly or indirectly, for any portion of the costs incurred, in the attempt to make that defence good, nor for the fees of the attorneys employed for that purpose. The error of law into which the testamentary executor and universal legatee fell as to his right to set np this special defence, and his belief that any estoppel which might have struck the father on this subject did not reach to him, did not have the effect of authorizing the executor to charge up those particular costs and attorney’s fees to the succession. He must sustain them himself. The evidence shows that the attorneys in the suit of McNeely, Tutrix, vs. J. H. McNeely, stipulated for a fee of two hundred and fifty dollars for contesting the legitimacy and heirship of opponent. That amount is included in the sum of twelve hundred and fifty dollars, which figures on the account as an item for attorney’s fees and should be struck out. The costs incurred in the case of McNeely, tutrix, must be separated; those incurred in attempting to defeat the heirship of opponent should be changed entirely to J. H. McNeely individually; the balance is a proper general charge against the suceession. The District Court should make the separation and apportionment of these costs.

We are of the opinion that the executor is entitled to charge up, as a charge against the suceession, the costs incurred in the general settlement of the succession, as also reasonable fees for services of attorneys rendered necessary for that purpose (0 . 0. 1682; Succession of Lizzie Dean, 33 An. 869). Funeral expenses and expenses of last illness are also chargeable to the succession (33 An. 869). The testamentary executor being also a legatee is not entitled to commissions (O. 0. 1689).

The executor is entitled to charge up the amounts paid by him on the mortgage notes held against the property and for the taxes paid by him on the property.

We next consider the claim made by the plaintiffs for fruits and revenues. His right to the same must be' limited to a claim for fruits and revenues upon one undivided third of the property, that being the extent of his interest in the ownership of the property under our decision in the case of McNeely, Tutrix, vs. McNeely, Executor, 47 An. 1325. He claims that they are due from the date of the death of his father. We have already stated that J. H. McNeely must be held to have had knowledge of the existence of the plaintiff’s claim, as the legitimate child of Ludlow McNeely, to one undivided third of his estate, and of the rightfulness of that claim. The effect of that knowledge was to make him, to the extent of his taking pos - session of thatundivided third, a possessor in bad faith. He did not, though having this knowledge, make the minor a party in any way to the proceedings for the probating and execution of the will, and the course which he subsequently took in contesting to the bitter end the legitimacy and heirship of the child makes it certain that had plaintiff, through her tutrix, made any demand upon him at that time for joint possession of the property, it would have been peremptorily-refused by the executor.

It is admitted that the rental of the property is worth fifteen hundred dollars per year over and above all impro vements for the year 1893, and each succeeding year included in the executor’s accounts. The account should be so framed as to charge the executor for the year 1893, and. each succeeding year, at that rate as for rent, but these rents should be made to enure one-third to opponent, and two-thirds to the universal legatee. The right of the opponent as to rents for years later than the period covered by the accounts should be and is reserved and left open.

The effect of placing J. H. McNeely in the attitude of a quasi-tenant, chargeable as for rent, is, while entitling him to the crops, to make him responsible himself for and to relieve opponent from any responsibility for the expenses incurred in the cultivation of and administration of the property as such (including overseer’s wages) during the period of his holding the property under those conditions —this does not include permanent improvements upon the property, but does include the ordinary incidental repairing of buildings and clearing of land.

In respect to the permanent improvements placed by J. H. McNeely upon the property it must be borne in mind that when placed there by him he held an interest of two undivided thirds in the property — opponent holding the other undivided third interest. The rights and obligations of parties have to be considered in view of such being the relations between them. We understand the parties to say that they have cometo an agreementin respect to the ginhouse, the two gin stands, the boiler and engine, the steam cotton press and fixtures and the grist mill, which are borne upon the account — that they are recognized by opponent as being the individual property of J. H. McNeely, and that he has the right to remove the same from the property. The District Court should so decree and give effect to this agreement.

We think the rights of J. H. McNeely, as resulting from permanent improvements placed by him on the property other than those covered by the admission referred to should be reserved for consideration and determination in an action of partition between opponent and himself. They are not passed on by us, but are reserved. We tnink that the amount chargeable to the succession for attorney’s fees for the general settlement of the succession up to date, instead of being two thousand dollars as charged in the account, should be reduced to and it is hereby fixed at twelve hundred dollars.

We think we have passed upon all of the disputed items of the accounts now covered by the oppositions. It is possible we may not have done so, as matters have been presented to us, in some respects, in a very unsatisfactory, desultory manner. As some of these items need re- examination for decision, and as over a year has elapsed since the accounts were presented, we think the best course to pursue will be to reverse the judgment appealed from and to set aside the accounts filed and remand the cause for the filing of a new account under and through which the rights of parties can be finally determined and fixed.

Por the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the accounts filed by the executor are hereby set aside, and it is now ordered, adjudged and decreed that this cause be remanded to the District Court with orders to that court to order the testamentary executor to recast his account and make it conform to the views herein expressed and decided, and to render judgment on the rights and obligations of parties according to the same. Costs of appeal to be paid by the parties in the proportion of one-third and two-thirds, two-thirds by the universal legatees, and one-third by the opponent and heir.


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    No. 12,751.
    Succession of Mrs. Helen C. Haley.
    Infixing the value of fees clubby a succession for professional services of physicians, the court is justified in taking into consideration the value of the succession.
    The claim that from the moment more than one physician is called in and attends regularly upon a case, every visit made by every physician employed takes rank as a “consultation,” can not be listened to. Succession of Duelos, 11 An. 407.
    Prescription pleaded against a privilege or mortgage should not be permitted to be urged against the debt which the privilege or mortgage secures. The court should not extend the pleabeyond its terms. O. C. 8468.
    Upon an application by a natural mother residing in New York to be appointed tutrix of her minor child living here, it is the duty of the court to look after the good of the child rather than consider the feelings of the mother. Where it is convinced that it is for the interest and good of the latter that the child and its property should not be taken from the jurisdiction of the Louisiana courts and beyond their supervision, the application should not be granted.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Horace E. Upton and Farrar, Jonas, Kruttsehnitt & Gurley for Anatole A. Her, individually, as testamentary executor and applicant for appointment as testamentary tutor, Appellant.

      Albert Voorhies, Henry Chiapella and W. J. Formento for Drs. Formento, Matas, Larue and Mioton, Opponents, Appellees.

      Samuel L. Gilmore, City Attorney, and W. A. Sommerville, Assistant City Attorney, for City of New Orleans, Opponent, Appellee.
    Argued and.submitted May 21, 1898.
    Opinion handed down May 30, 1898.
    Rehearing refused June 13, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

Several distinct matters are included in the appeal in this court under the above title, brought up in one and the same transcript.

The executor of the estate having filed a provisional account in which Dr. Formento was placed as a privileged creditor for seven hundred and fifty dollars for medical services rendered to the •deceased, and Dr. Matas for two hundred and fifty dollars, and in which Drs. Larue and Mioton were entirely left out, the parties named filed opposition thereto, Dr. Formento claiming to be a creditor for three thousand two hundred and sixty dollars, Dr. Matas for five hundred dollars and Drs. Larue and Mioton each for one hundred dollars.

The executor having failed to recognize a claim advanced against the succesion by the city of New Orleans for city taxes on personal property for the years 1884 to 1895, inclusive, with interest, and also for certain taxes on real estate, the city filed an opposition to the account. Mrs. Jeannette.Prescott, as natural tutrix of.her child, •Charles M. Tañe (universal legatee of the deceased), opposed the claim for taxes, pleading the prescription of three years, in bar of the tax lien and privilege. She prayed that the demand for taxes be rejected. The District Court sustained the opposition of Dr. Formento, according him twenty-five hundred dollars, and that of Dr. Matas, according him three hundred and seventy-five dollars It ordered Drs. Larue and Mioton to be each placed on the account for seventy-five dollars. It sustained the opposition of the cfty of New Orleans for city taxes to the amount of the several tax bills sued upon, with interest as prayed for.

A new trial having been granted, the court amended its former judgment, reducing Dr. Formento’s claim as a creditor to one thousand dollars and that of Dr. Matas to three hundred dollars, and according to Drs. Larue and Mioton twenty dollars each.

It recognized the city of New Orleans as a creditor, as per tax bills sued on for city taxes on real estate for the years 1893, 1894 and 1895, but decreed all the other taxes claimed barred by the prescrip - tion pleaded.

The executor appealed.

All of the opponents asked that judgment be amended. The city prayed that it be amended by recognizing it as an ordinary creditor for the taxes on movables, as shown by the tax bills on which it declared.

The District Judge, in assigning reasons for the modification of his original judgment, stated that he had not altered Lis mind as to the actual value of the services rendered by the different physicians, but that the succession was much smaller in value than he had believed it would be, and that that fact was a proper element for consideration in determining the amount of the fees which should be recognized; “ that the property of the succession had depreciated, rents had ceased, and there was little left.”

This court is not advised of the condition of the estate. The District Court was justified in fixing the fees, in taking into consideration the value of the succession, by the following decisions: Succession of Mager, 12 Bob. 413; Succession of Virgin, 18 An. 42; Succession of Linton, 21 An. 130; Czarnowski vs. Succession of Zeyer, 35 An. 798; Breaux, Fenner & Hall vs. Francke, 30 An. 336.

We do not think that we would be warranted in declaring error in the judgment appealed from in these particular respects.

We think it not amiss, however, to say, that we fully concur with the opinion of this court expressed in the Succession of Dudóse, 11 An. 406, in reference to the legality of an extra charge for the visits of a physician, based simply upon the fact that more than one physician should have been called in, and should have regularly attended the patient.

We think the amendment asked for by the'city of New Orleans should be made. The plea of prescription set up in the District Court was simply as to the lien and privilege by which the taxes on personal property stood secured. The court should not have extended the plea beyond its terms (0. C. 3463). The judgment of the District Court in favor of the city of New Orleans is therefore hereby amended so as to recognize it as an ordinary creditor of the succession of Helen 0. Haley for the amount of the taxes on personal property (as shown in the tax bills for such taxes declared on), with interest thereon as prayed for, and the executor is directed to pay the same as such in due course of administration; the judgment appealed from in favor of the city of New Orleans, against the said succession, is otherwise hereby affirmed. The judgments in favor of Dr. Felix Formento, Dr. Rudolph Matas, Dr. Felix A. Larue and Dr. Eugene J. Mioton against the said succession are hereby affirmed.

The second question involved in this matter is the correctness or incorrectness of the District Court in confirming Miss Jeannette Prescott as natural tutrix of the minor, Charles M. .Taite. She was once before confirmed as such tutrix by that court, but on appeal to the Supreme Court the judgment was reversed and the order of appointment was set aside, as will be seen by reference to the report of the case in the 49th An. 710.

On the return of the cause, she made a second application for appointment and confirmation as natural tutrix of said minor. After hearing evidence, the District Court granted her prayer, and she was confirmed as such.

It is established by the evidence that the applicant is the natural mother of the child; that she was brought to the city of New Orleans about the year 1887 by the deceased, Mrs. Helen 0. Haley, who then, and for many years thereafter, was keeping a house of ill fame in that city; that she was then about sixteen years of age; that while an occupant of this house she gave birth to the child referred to. About the year 1889 she returned to New York, where it appears she was the kept mistress of several different persons. When she returned to New York she left the child with Mrs. Haley, who had exclusive charge of him up to the time of her death, on the 23d day of June, 1895. Mrs. Haley .left a last will and testament in which she constituted the child as her universal legatee and referred to him therein as her adopted child.

In this will she appointed Anatole A. Ker her testamentary exec - utor and tutor of the child. Ker qualified as executor, but the succession not having been yet fully administered, he failed to qualify as tutor. Matters were in this situation when, on or about the 20th ■day of April, 1897, Miss Jeannette Prescott appeared, applying, as mother of the child, to be appointed its natural tutrix. It was upon ‘this application that she was by the ex parte order of the District Court, which this court, on appeal, set aside, confirmed as such tutrix.

In the reasons assigned by the District Judge for his recent action ‘he refers to the very strong claims which a mother has to have possession and control over her child, and he expresses his conviction that the mother can, as matters stand, be safely entrusted with its care. Without entering into the details of the testimonv in the case, we regret that we do not feel justified in affirming his judgment. There has not been on the part of the mother the interest in its welfare manifested which would indicate any great affection toward it. Through the long interval between her departure from New Orleans to the death of Mrs. Haley, we find no evidence of her having kept in touch with the child other than is shown in a single letter written in 1892, in which she refers to him. While no act of adoption has been produced, and doubtless none was passed, the mother seems to have entirely surrendered the child to Mrs. Haley, who cared for it as her own up to her death.

When Mrs. Haley died, she was supposed to have left a very considerable estate and it was only about fifteen months after the date of the opening of her succession that the mother seems to have been aroused to any interest in her son, who, in the meantime, had been placed by the executor, at the expense of the successsion, in a school •presided over by “ sisters ” of the Catholic church. The child is now under influences which the mother herself could not but commend, ■and where it is, it will unquestionably receive all possible care and ■attention. We recognize fully the claims of a mother to have the ■custody of her child, but we are not satisfied in this case that it would be to the latter’s interest, or for its good, that it should be taken from this jurisdiction where the courts of this State could have no supervision over its future condition.

The mother is a resident of New York, and is now in that State. ^Everything points to an intention on her part to have the child sent to her. She seems, at the present time, to have a position as companion of a widow living in the city of New York, but we are not advised of her having any means of support outside of what pay she ean receive from this source. What would become of her, in case she should lose this position, we do not know.

Relations of that character are apt to be broken at any moment. We are afraid that matters would drift back easily to where they were before, and we are not convinced that they have ever been as fully changed as the District Judge supposes. The remark made by Miss Prescott to the Mother Superior of the school where the child is, is calculated to excite grave suspicions on that subject, while she does not seem to have entirely disconnected herself from parties; with whom she had formerly assoeiatod in New Orleans. The changed mode of life upon which the District Oourt relies only dates back to a period after Mrs. Haley’s death in 1895, when it became a matter of interest to avoid the appearance of wrong. ' It is to be hoped that the appearances testified to by the lady with whom she is now living, and others, are genuine and true, but one at least of the parties whose depositions are before us is referred to by herself, in her letter to Mrs. Haley in 1892, in terms having a tendency to very much weaken the force of what he has testified to. It is our duty to look after the good of the child, rather than the wishes or feelings of the mother. We wish we could more satisfactorily than we do, see the way clear to their both running in full accord in the same direction, but as matters are, we do not feel warranted in permitting the judgment of the District Oourt .on this subject to stand.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Oourt appointing and confirming Miss Jeannette Prescott as natural tutrix of the minor, Charles M. Taite, be. and the same is hereby annulled, avoided and reversed, and the appointment set aside.


text:
    No. 12,850.
    A. M. Stewart vs. The Cattle Company et al.
    An appeal lodged in tile Supreme Court should be dismissed when it has been made to appear that the appeal bond furnished by appellant was set aside in the lower court for want of sufficient security, but with the right reserved to file a new bond within a fixed delay, and such reserved right was never exercised.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Stubbs & Bussell for Plaintiff, Appellant.

      Hudson, Potts & Burnstein for Defendants, Appellees.
    Submitted on the face of the papers May 31, 1898.
    Opinion handed down June 13, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

This suit was instituted by the plaintiff, asking for the settlement of the business of a partnership alleged to exist between himself, R. B. Blanks, and John P. Parker, under the name of the Cattle Company. He prayed that an accounting be had under the direction of the court, and that he have judgment against his partners for the sum ascertained to be due him on such settlement.

The District Court, as a result of the accounting, rendered judgment in favor of each of the defendant partners (John P. Parker and R. B. Blanks) against plaintiff for the sum of ninety-seven dollars and forty-eight cents, with legal interest from the date of the judgment.

On plaintiff’s petition he was granted a devolutive appeal, on furnishing bond, with proper security, in the sum of two hundred and fifty dollars.

Plaintiff furnished a bond for the amount named, with securities, on the 25th of April, 1898.

On the 11th of May, 1898, on motion of the defendants, Parker and Blanks, the court ruled the plaintiff to show cause why the bond furnished should not be rejected and set aside for want of sufficient security, movers alleging that the sureties upon the bond were insolvent. Plaintiff answered the rule, averring the solvency and sufficiency of the sureties.

The court rendered judgment upon the rule, setting aside the appeal bond on account of the insolvency of the sureties, but granting plaintiff until the 25th of May, 1898, to give a solvent security on said bond, or an additional good and sufficient appeal bond.

The transcript of appeal having been lodged in the Supreme Court, the appellees, annexing to their motion the proceedings and judgment of the District Court in the matter of the rule to set aside the appeal bond furnished by the appellant, moved to dismiss the appeal on the grounds:

1. That appellant’s bond for appeal had been set aside, because of the insolvency of the sureties thereon, by the lower court.

2. That appellants had failed and refused to execute anew appea bond, or furnish another and solvent surety upon said appeal bond, although accorded an opportunity to do so.

3. Because there is now no appeal bond in this cause.

For the reasons assigned in the motion to dismiss, which are sustained by the evidence, the appeal taken in this ease is hereby dismissed.