author: Spofford, J. Merrick, C. J.

text:
    City of New Orleans v. City of Baltimore. — The American Colonization Society and The Society for the Relief of Destitute Orphan Boys, Appellants.
    The clause in the will of JoJm McDonogh, prohibiting the division of the estate between the cities of New Orleans and Baltimore, held to be a condition contrary to law and to be reputed as not written.
    A testator can order that the effects given or bequeathed by him shall not be divided for a certain time, which cannot exceed five years. C. 0.1223.
    The personal charge by the will on the cities to pay over to the American Colonization Society and the Society for the relief of Destitute Orphan Boys, a certain proportion of the revenues of the property bequeathed, did not create a mortgage or real right in favor of the societies on the property.
    The bequests in favor of the societies are quasi usufructs, and as such, they can only last thirty years. C. O. 607.
    APPEAL from the Eifth District Court of New Orleans, Eggleston, J.

      J. J. Michel & Randell Hunt, for the City of New Orleans.

      Gla/rlc & Bayne, for the American Colonization Society;

      Duncan & MaOonnell, for the Orphan Boys’ Asylum, appellants.
   Spofford, J.

The right of either the City of New Orleans or the Oity of Baltimore to demand a partition of the property bequeathed to them as testamentary heirs of John McDonogh under universal title, after the lapse of five years from his death, cannot be seriously questioned. C. C. 1222, 1223, 1506; 8 Annual, 249; 16 How. 412.

Several Articles of the Civil Code must be expunged before the Society for the Relief of Orphan Boys can be heard to object to a partition between the two cities in this case.

The cities having acquiesced in that portion of the judgment which assesses the present value of the “annuities” to the OrphanBoys’ Society and the Colonization Society, the only question of substance left for us, so far as these societies are concerned, is, has the present value of these “ annuities ” been appraised too low.

The questions of form raised by the Colonization Society are untenable. The cities alone are entitled to agitate those questions; for, the property partitioned is theirs. No part of McDonogh's estate existing at the time of his death was bequeathed to either of the societies who complain of the judgment; nor was even an absolute legacy of money left to them. A personal charge was imposed upon the cities to pay over to the appellants a certain proportion of the variable future revenues of property bequeathed to the cities alone. This created no mortgage or real right in favor of the societies on the property of the cities. Proudhon, 1 D’Usufruit, p. 56.

As it is out of the power of the societies to prevent a partition, and as they have no right in the property itself to he partitioned, they cannot complain of the mode or form in which that partition has been made.

Reverting then to the only question of substance, so far as these societies are concerned, we are of the opinion that, under no aspect of the case, has the present value of the so-called annuities been fixed too low.

If the continuance of those annuities were, as the Orphan Boys’ Society seems to contend, inseparably bound up with the testator’s command that his estate be held forever in indivisión, the logical result would be that the annuities must fall with this illegal condition. The prohibition to divide the estate after five years from the death of the testator being reputed as not written, all the clauses whose vitality depends upon that prohibition would have to be reputed as not written also.

Under that view of the case, the societies have obtained far greater sums than they were entitled to by strict law, and, instead of being aggrieved, are under obligations to the cities for their liberality in acquiescing in the judgment.

But we do not find it necessary to decide that point, or to hold that the claims of these societies upon the cities cease with the partition. For, upon a careful examination of the provisions of our Code, we have come to the conclusion that the Legislature has so far assimilated bequests of this character to usufructs, as to limit their duration to thirty years from the testator’s death. 1 Under the title of usufructs, in the section which treats of their expiration, are the following Articles :

Art. 601. “The right of the usufruct expires at the death of the usufructuary.”
Art. 602. “ The legacy made to any one, of the revenues of a property, is a kind of usufruct, which also ceases and becomes extinguished by the death of the legatee, if the contrary has not been expressly stipulated. It is the sa,me with all annual legacies, as pensions of alimony and the like.”
Art. 607. “ The usufruct which is granted to corporations, congregations or other companies, which are deemed perpetual, lasts only thirty years.”

It seems to us that the intention was, not to make such bequests as those “annuities,” usufructs'in reality, for there is no transfer of possession to the usufructuary, but to make them quasi usufructs, only for the purpose of limiting their duration, and that by Article 607 the extreme limit to the bequests before us is thirty years. And so the District Judge held.

The revenues seem to have been appraised at a liberal figure. The manner of estimating the present value of the “ annuities ” by a calculation of interest at the rate of eight per cent., seems to be eminently just and equitable, in the absence of any positive provision of law as to the mode of making the calculation.

The statutory provisions upon the subject of the rente fonei&re and constituted annuities do not appear to a majority of the court to be applicable to a case of this kind.

We are, therefore, of the opinion, that the societies which have appealed are in no wise aggrieved by the judgment.

The City of Baltimore is an appellant as to one question only; and that is, whether in the partition, as between New Orleans and Baltimore, the latter city has any claim upon the former by reason of the disparity between the legacies attempted to be created by the testator for the establishment of a school farm in Baltimore and an asylum for the poor in New Orleans, an annuity of one-eighth part of the entire revenues having been given for the former purpose until it should amount to $3,000,000, and a similar annuity for the latter until it should amount to $600,000.

If these bequests do not fall with the illegal injunction to keep the property in perpetual indivisión, they must, at farthest, terminate at the expiration of thirty years, considered as charges upon one city in favor of the other. And, as neither of the sums proposed could be paid within that period out of one-eighth of the revenues, the question raised by the City of Baltimore becomes of no practical importance.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed with costs.

Merrick, C. J.

The opinion which I am about to read, was prepared previously to that adopted by my colleagues. This remark will account for the extended manner in which the questions at issue have been treated in our opinion, merely concurring.

This is a suit brought by the plaintiff for the partition of the property belonging to the succession of John McDonogh, deceased.

It is alleged in the petition by the City of New Orleans, that John McDonogh died in October, 1850 ; that after a few special legacies, he bequeathed “ all the rest, residue and remainder of his estate, real and personal,” unto the Cities of New Orleans and Baltimore, in equal proportions of one-half to each of said cities, subject to the payment of the following, among other annuities, to be paid out of the rents of the estate, viz, one-eighth of the net yearly revenue of rents of the estate during forty years, to the American Colonization Society for colonizing free people of color of the United States; and the one-eighth part of the yearly revenue of the rents of the estate, to the Society for the Relief of Destitute Orphan Boys of New Orleans, until it shall amount to $100,000 ; that the executors of the will have been discharged from their trusts, and that the Cities of New Orleans and Baltimore are now in the pos_ session of the property which he bequeathed them, which exceeds $2,500,000 ; that the good administration of the estate and the interests of the parties require that this property, held in common by said cides, should be divided, and that petitioner has a right to demand the same, and that it is important that the claims of the American Colonization Society and the Society for the Relief of Destitute Orphan Boys, should be ascertained and adjusted.

The City of New Orleans concludes its petition, by praying that the said societies should be made parties to the suit, and cited to present their respective claims under the will, and that the court should adjudge and determine upon said claims, and order and decree a partition of the estate to be made, &c.

The City of Baltimore, in its answer to the petition, puts at issue the right of the City of New Orleans to demand a partition under the will, and then claims, that if the court should be of the opinion that the action can be maintained, that it is entitled, according to the will, to one million of dollars, which is to be paid and deducted out of said estate, before the residue be equally divided.

The Society for the Relief of Destitute Orphan Boys, excepts to the action, because, as it alleges, that it appears from the will that the property referred to in plaintiff’s petition, was bequeathed to plaintiff and the City of Baltimore for the express uses, purposes and charities in said will fully detailed, and that among the same, the cities were charged and commanded to pay to this defendant one-eighth of the revenues arising from said estate, payable every six, and, at farthest, every twelve months, until the whole sum of the payments thus made to this defendant, should amount to the sum of $400,000, exclusive of any interest which might accrue thereon; that under said will, the cities were bound to pay to this defendant in manner and form directed by said will, the aforesaid sum, as a condition under which the bequest to the cities was made.

This defendant further pleaded, in support of its exception, that said cities have not paid to this defendant the particular legacy bequeathed unto them, and that, therefore, they cannot divide the estate, but are bound to hold and administer the same until the same shall be paid.

The Colonization Society answered, that it was true that John McDonogh, by his will, left his estate to said cities as universal legatee, or under an universal title, and this respondent $25,000 per annum for forty years, provided the eighth of the revenues of the estate should equal that sum ; that the will gave seizin to said cities; that they have entered into possession of the same, and received its annual revenues; that respondents have accepted the legacy to them bequeathed, and are desirous of receiving the amounts thereof, as the same becomes due; that hitherto they have received nothing, though the net annual revenues have amounted to $25,000 each year since the death of said testator ; that the same will continue to amount to said sum for the remainder of said forty years, by management in the terms of the will; that respondent denies the necessity or lawfulness of a partition, but should the same be decreed, then respondent demands that its claim to said legacy should be estimated at its present value and paid out of the mass of the estate, and that the said cities should account to them, for the annuities already due and payable.

The District Court ordered a partition to be made in kind between the Cities of New Orleans and Baltimore, as far as practicable; that the experts appointed to make the partition, also, report the present value of the annuity bequeathed to the American Colonization Society and report the amount thereof, together with the principles upon which they adjust the same, and reportupon a proper provision for settling or paying the same, subject to the order of the court; and that, in the same manner, they report the present cash value of the legacy in favor of said Society for the Relief of Destitute Orphan Boys; and that all the rights of said legatees under the will be reserved for further adjudication in case of necessity.

Under this order, the experts proceeded to make partition of the principal part of the real estate belonging to the succession, amounting to one million four hundred and eight thousand eight hundred and eighty dollars. They allotted property in value, $704,440, to each city. "

They reported the presentvalue of the legacies to the American Colonization Society, and the Society for the Relief of Destitute Orphan Boys, at $84,230 27, each on the basis of eight per cent, compound interest. The report of the experts making a partition, was homologated, and the present value of the two legacies as reported by them, was also adopted, and the court decreed, that on the payment of said sum of $84,230 27, to each of said societies, said annuities or legacies be extinguished. The claim of the City of Baltimore against the City of New Orleans to establish a farm, school was rejected, and in like manner the claim of New Orleans against the City of Baltimore to establish an asylum for the poor of New Orleans, was also rejected.

The American Colonization Society and the Society for the Relief of Destitute Orphan Boys appealed. By consent of parties, the City of Baltimore also appears before us as appellant in relation to all moneyed claims between the two cities.

The plaintiff’s counsel submit the following' propositions for the consideration of this court, viz, 1st. “That the City of New Orleans has the right to demand a partition of the McDonogh estate between the City of New Orleans and the City of Baltimore; and that the division reported by the experts, approved by both cities and sanctioned by the judgment of the District Court, is just and equal.”

2d. “That the legacies to the Colonization Society and to the Society for the Relief of Destitute Orphan Boys, is based upon the indivisibility of the estate and the scheme of administration projected by John McDonogh in his will, and that they cease to ho binding on the division of the estate.” And,

3d. “ That if the validity of the legacies be not destroyed by the partition of the estate, the legacies must be considered a kind of usufruct, lasting only thirty years from McDonogWs death, and of the value at this time of $84,230 27 each, and that the cities are willing that a judgment be rendered in favor of the societies for that amount, in payment and extinguishment of the legacies, without regal'd to the legal effect of a partition on their validity.”

The American Colonization Society sets forth in the brief some objections to the form of the proceedings in partition, but in the main that society and the Society for the Relief of Destitute Orphan Boys, controvert the foregoing propositions, and by considering them we shall dispose of the whole case except those questions between the two cities.

I. Has the City of New Orleans the right to provoke a partition ?

The discussions which have arisen upon this will in two former cases, and the opinions of this court already pronounced upon other questions growing out of the same and incidentally reflecting on the question before us, as well as the luminous and learned arguments of the counsel who have argued this case, have freed the solution of the present question from all difficulty. See the case in 8th An. p. 174, and the case of the Society for the Relief of Destitute Orphan Boys v. The Cities of New Orleans and Baltimore, 12 An. 62.

In both of these cases, the right of the cities to make a partition of the property bequeathed to them, was strongly intimated, although, as just observed, the court was not directly charged with the decision of the question.

In the 8th Annual, Mr. Chief Justice Eustis, speaking for himself and Mr. Justice Dunbar, said: “ There is one mode or condition, and it is that on which the District Judge has decided the case, the utter impossibility of compliance with which cannot be contested. It is that prohibiting the partition of the lands bequeathed to the Cities of New Orleans and Baltimore, and requiring their joint ownership to continue forever.”

This was doubtless said in view of the positive provisions of the Civil Code on this subject. They are as follows : “Art. 1215. No one can be compelled to hold property with another, unless the contrary has been agreed upon ; any one has a right to demand a division of a thing held in common by the action of partition.”

“ Art. 1220. It cannot be stipulated that there never shall be a partition of a succession or a thing held in common. Such stipulation would be null and of no effect.”

“ Art. 1221. Nevertheless the co-heirs can agree that there shall not be a partition of the effects of a succession for a certain limited time, and such an agreement will be valid; but it will be assimilated in this case to a contract of partnership between the heirs and subject to the same rules.”

“ Art. 1222. A donor or testator cannot order that the effects given or bequeathed by him to two or more persons in common shall never be divided, and such a prohibition would be considered as if it were not made.”

“ Art. 1223. But a donor or testator can order that the effects given or bequeathed by him, be not divided for a certain time, or until the happening of a certain condition.

But if the time fixed exceed five years, or if the condition do not happen within that term from the day of the donation, or of the opening of the succession, the Judge, at the expiration of this term of five years, may order the partition, if it is proved to him that the co-heirs cannot agree among themselves or differ as to the administration of the common effects.”

These Articles of the Civil Code seem to bear directly upon the question before us, and must be held decisive unless there are some other provisions of law which control or are exceptional to them.

The American Colonization Society, in assuming that it is an heir recognized by being made a party to the suit (C. C. 1252), or that, as usufructuary, it is entitled to possession of a portion of the property in the partition (0. C. 1232), opposes nothing to the right of the parties to demand a partition. The objections are to the mode in which it is effected.

The Society for the Relief of Destitute Orphan Boys, without citing any statutory provisions exceptional to the Articles of the Code cited, rely (if I rightly apprehend its counsel) upon the following argument, viz :

That the destination given by McDonogh to the legacies to the cities for the benefit of the Society for the Relief of the Destitute Orphan Boys, has been declared to be valid and within the range of the powers and duties of its public authorities ; that this destination is a part of the deed of conveyance, and, being lawful, the cities have no right in law to disregard or disobey ; that the cities have accepted the donation cum onere and are bound to execute it; that the legacy never would have been made to the cities, except on the supposition that the distinction would be observed, and that now the cities cannot change the estate into a different form from that in which it was left them, and that the legacy is satisfactorily invested at the present moment and defendant cannot be deprived of this advantage.

Before considering these objections we will observe, that these societies are in a position in which they cannot be heard to urge that the two cities have forfeited any of their rights by the non-fulfillment of the conditions upon which the legacies were granted them, because such forfeiture would be fatal to the pretensions of the societies whose rights can be enforced only by maintaining the legacies to the cities in their integrity. C. C. 1703, 1540 ; Girod's legatees v. Crossman, 11 An. 497.

The Society for the Relief of Destitute Orphan Boys must have under the will:

1 st. The quasi usufruct alleged by plaintiff; or,
2d. A right to an annuity as contended for by the defendant; or,
3d. Some other right either to and in the property bequeathed by McDonogh, or to claim the revenues personally of the executors or universal legatees.

If it is the quasi usufruct or even an absolute usufruct of one-eighth of the estate, it is no defence to the action of partition.

If it is an annuity or other personal charge, it is evident that the society can have no right to interfere to prevent a partition, for then their remedy would be a personal action against the executors or universal legatees for the annuity, as it should fall due. If the societies have some other right in the property bequeathed, the jura in re, then the partition cannot prejudice them, because their rights will follow the pi’operty into whose hands soever it may come, and the one-eighth of the rents can be exacted of such possessors. The mere inconvenience to the societies of collecting the revenues of two or more persons separately, instead of two jointly, is no sufficient answer to the action of partition. The five years from the death of the testator, having sometime since expired, we have no hesitation in saying that the action of partition must be maintained.

II. The second proposition of the plaintiff is, that the legacies to the two societies are based upon the indivisibility of the estate and the scheme of administration projected by John McDonogh in his will, and that they cease to he binding on the division of the estate. I do not think this consequence follows, whether we consider the legacy a quasi usufruct as contended for by the plaintiff, or as an annuity as maintained by the counsel for the Society for the Relief of Destitute Orphan Boys.

If it be a quasi usufruct, the view the most favorable to the plaintiff on this point, it cannot place the cities in a better condition than that of mortgagors. A mortgage is indivisible ; still it does not prevent the children of the deceased mortgagor from making a partition of his estate. The mortgagee can sell any portion of the mortgaged property in the hands of any of his heirs, to pay his entire debt, nevertheless it does not prevent the debt itself from becoming divisible among the heirs of the mortgagor, each for his virile part. So here, by accepting the legacies to them, the two cities bound themselves to pay the charges upon the legacies in favor of the societies so far as the same can be considered valid and legal. C. C. 1606, 1603, 1751. The partition of the property between themselves cannot relieve them from this obligation, and perhaps the societies have also a mortgage upon the real estate to enforce it under Article 1626 of the Civil Code.

This Article is in these words, viz : “The heirs of the testator or the debtors of a legacy shall he personally bound to discharge it, each in proportion to the part that falls to him in the succession.”

“ They shall be bound by mortgage for the whole, to the amount of the value of the immovable property of the succession witheld by them.”

If the heirs or universal legatees are personally bound, as it appears from the Articles of the Civil Code cited, how can the .sale or partition of the property release them from such obligation ?

Suppose the testator bequeaths a plantation and slaves to A and B and charges them with the payment of an annual sum to (7, would the partition of the plantation, or even sale of it, destroy the personal obligation ?

The texts of the Roman law cited by plaintiff’s counsel, while they prove that the legacy of the fruits or of a part of the fruits of a farm or other real estate did not prevent the sale of the property out of which the revenues were to arise, nevertheless establish that the personal obligation remained upon the vendors after such sale, to pay an amount equal to the annual revenue to be estimated according to the usual income derived from the property. The partition cannot have any greater effect than the sale of the property.

We will quote the whole of one passage, as it has some bearing on another branch of this case, as well as the one under consideration :

JPundi iEbutiani reditus uxori mese quoad vivat, dari volo. Qusero, an posit tutor hceredis fundum vendere, et legatario offerre quantitatem am/nuam, quam vivo paterfamilias, ex loeatione fundi radigere consueterat ? Respondit posse. Item qusero, an habitare impune prohiberi possit ? Respondit, non esse obstrictum hseredem ad habitationem praestandam. Item quasro, an compellendus, sit hseres reeficere praedium ? Respondit, si haeredis facto minores, reditus facti essent, legatarium recté desiderare quod ob earn rem deminutum sit. Item qusero, quo distat hoc legatum ab usufructu ? Respondit, ex his, quae supra responsa essent, intelligi differentiam. Dig. xxxiii, tit. 2, 1. 38 ; See also Domat, book 4, tit. 2, sec. 5, No. 4 ; Dig. xxx, Lex. 120. I conclude, therefore, that the partition cannot destroy the rights of the two societies. On this point, I differ in opinion from some of my colleagues.

III. The third proposition which plaintiff’s counsel maintained is, that if the validity of the legacies to the two societies, be not destroyed by the partition of the estate, the legacies must be considered a kind of usufruct lasting only thirty years from XeDonoglis death, and of the value at this time of $84,230 27 each.

The American Colonization Society has demanded in their answer, that if a partition be ordered, that it be paid the present value of the legacy to that society. The Society for the Relief of Destitute -Orphan Boys, demand in their opposition to the report of the experts, that “ the whole suit for a partition be dismissed as being premature,' that if this be not done, that the report of the experts now before the court be rejected; and that it bo -ordered, adjudged and decreed herein, that the value at this time of the legacy due them, the Society for the Relief of Destitute Orphan Boys, is .of the valueof $400,000, and without the payment of which, said universal legatees of John MeDonogh cannot have and maintain any action of partition of said estate between themselves.” It is thus apparent, that both societies demand in the event a partition be decreed, that the present value of their legacies be awarded them by the decree of the court. The two cities consent to this demand and aver their willingness to make such payment. It is, therefore, essential to a correct determination of this case, that the third proposition of plaintiff’s counsel should also be considered.

The will gives to the American Colonization Society, “an annuity for the term of forty years, counting from and after (the testator’s) decease, of one-eighth part (or twelve and .a half per cent.) of the net yearly revenues of rents of the whole of the estate as hereinbefore willed and bequeathed unto the Mayors, Aldermen and inhabitants of the Cities of New Orleans and Baltimore, but which one-eighth part of the net yearly revenues of rents of said estate as aforesaid, shall not entitle said American Colonization Society for colonizing the free people of color of the United States to receive or demand in any one year a larger sum than twenty-five thousand dollars, should one-eighth thereof amount to a larger sum.” 8 An. p. 176.

The bequest to the Society for the Relief of Destitute Orphan Boys is in these words, viz:

“Thirdly. I give and bequeath to the Society for the relief of Destitute Orphan Boys of the City of New Orleans, in the State of Louisiana, (of which institution Beverly Chew was president on the 28th of April last, 1888,) for the express and sole purpose (and no other) of being invested in the purchase of real estate (say, lots of ground and houses and lots of ground) situate in the city of New Orleans and its suburbs, from which perpetual revenue from the rents of said real estate may be drawn for the support of said institution, or an annuity of one-eighth part (or twelve-and-a-half per cent.) off the net yearly revenue of the whole of the general estate, as hereinbefore willed and bequeathed to the Mayors, Aldermen and inhabitants of the cities of New Orleans in the State of Louisiana, and of Baltimore, in the State of Maryland, which annuity of one-eighth part of the net yearly revenue of rents as above stated shall be set apart yearly or half yearly by the commissioners and agents of the general estate, (to be appointed as hereinafter set forth,) and deposited in some one or more of the banks in the city of New Orleans, (which pay an interest on money deposited with them,) until such time as said annuity shall amount to the sum of four hundred thousand dollars, (exclusive of any interest which may have accrued on it,) when it shall cease ahd be no longer paid.”

It is apparent from the reading of these clauses, that the legacies in question are of the one-eighth of the annual revenues of the estate for a time to each of the societies.

Article 602 C. C. defines these bequests : “ The legacy made to one, of the revenues of a property, is a kind of usufruct which also ceases and becomes extinguished by the death of the legatee, if the contrary has not been expessly stipulated.

“ It is the same with all annual legacies, as pensions of alimony and the like.”

Although this Article defines the legacy of the revenue of property to be a kind of usufruct, still it is not in all respects an usufruct. As shown in the text of the Roman Law cited, the legatee is not entitled to actual possession; he cannot in case of sale of the property by the owner claim the actual revenues received but an equal amount of the same kind, and the debtor of the legacy is bound to indemnify the legatee for his acts by which the revenues are diminished. See also Dig. VII, tit. 1, L. 58. § 1. Ibid, XXXIII, tit. 2, L. 22.

Still the lawgiver has classed this species of legacy with the usufruct and consequently subjected it to the rules which he immediately proscribes in that and a subsequent Article for the duration of usufructs. In the COlth Article O. O. it is declared, that “ The usufruct which is granted to corporations, congregations or other companies which arc deemed perpetual, lasts only thirty years.

“If these corporations, congregations or other companies are suppressed, abolished or terminated in any other manner, the usufruct ceases and becomes united with the ownership.”

That it was the intention of the legislature to limit the legacy of the revenues of property in this manner is apparent from the fact that this legacy contains so few of the essential requites of the usufruct proper that it can hardly be supposed that the Legislature introduced it in the place where it is found except for the purpose of limiting its duration in the same manner as the usufruct proper.

Again, the limit here fixed is in harmony with the provisions in regard to the duration of the rente foncüre. Art. 2759 provides, that “ The rent charge, although stipulated to he perpetual, is essentially redeemable. But the seller may determine the terms of the redemption, and stipulate that it shall not take place until after a certain time, which can never exceed thirty years.” See also 2767 C. C.

I conclude, therefore, that the partition does not defeat the right of the societies, but, that their right to recive the one-eighth of the revenues must be considered as limited to thirty years from the death of the testator, beyond which period it could not be recognized except by the sufferance of the cities, were the property even to be kept in a state of indivisión.

But it is contended, that the present value of these legacies as estimated by the experts for the twenty-four years yet to run, does not rest upon any sufficient data, and that the two societies ought to be allowed much larger sums.

It must be observed, that the opponents have not adduced any testimony to show that a larger revenue might reasonably be expected from the property than that assumed by the experts, viz: sixty-four thousand dollars per annum, that is eight thousand dollars for each society. In the case recently before us between the cities and the Society for the Relief of Destitute Orphan Boys, we fixed the one-eighth of the net revenues received by the executors up to 30th June, 1856, a period of near six years, at $12,534 09. I am by no means prepared to say that the estimate formed by the experts who have an intimate knowledge of the situation of the property, the repairs required, its productiveness, &c., is not a fair one. If dissatisfied with this estimate it was incumbent on the societies to furnish testimony on which a different conclusion could be predicated. If this estimate be rejected, we are without proof to supply its place by any other. I shall, therefore, assume the estimate of the annual income made by the experts to be correct. It is equivalent to a revenue of six per cent, on $1,066,666 66|-, which is the estimate furnished by the counsel for the Society for the Relief of Destitute Orphan Boys to the experts. It is based on the supposition, that the cash value of the estate is $1,066,666 66f. If we look into the inventory we shall find that the productive property does not exceed this sum.

Assuming that the probable income will reach $64,000 per annum, and yield each of the societies $8000, the question then arises, upon what rate of interest shall the present value of the annuities or quasi usufructs be estimated. The societies answer five per cent., for that is the legal rate of interest. The cities say no; money always commands the highest rate of conventional interest, and it is but fair that the value of the legacy should be estimated at eight per cent, interest. In favor of the first position is the presumption of the fairness of the estimate arising from a general law applying to all contracts where the parties have neglected to contract in regard to the rate of interest. In favor of the second is the fact, that for the last thirty or forty years money has not commanded a less rate of interest than eight per cent., and this is the rate adopted by the lawgiver in discounting the paper of the purchasers of property, not yet due, in making partitions. Civil Code 1264, Acts of 1853, p. 157.

As the Legislature has not positively prescribed the mode in which the calculation is to be made it is doubtless abandoned to the prudence of the Judge, and any calculation between the legal rate of interest and the highest rate of conventional interest probably might be adopted by him. Hence, I do not feel called upon to dissent, although I think six per cent, interest the basis upon which the calculation ought to he made.

But in setting about the consideration of this subject, I start out on the principle that I am discussing rights which the Society for the Relief of Destitute Orphan Boys and the Colonization Society have to demand, and not a mere charity which the cities are willing to give.

As remarked by the counsel for the Society for Destitute Orphan Boys, these legacies are well secured, and the investment is safe as it now stands. The income bequeathed the two societies partakes of the nature of the rent charge in some respects, and if Article 1620 C. C. should be held applicable to this case it is secured in the same way. C. C., 2755, 2762. I think the rate of interest adopted by the Oode for calculating the value of the rent charge to he redeemed, being on an analogous subject, might he applied to the present case, and, that the present value of the annuities would be most safely ascertained on the basis of capital producing six per cent, interest.

Art. 2760, O. 0., provides, that if the value of the property has been determined by the contract, the possessor who wishes to redeem cannot be made to pay anything beyond that value, and

Ax’t. 2763, that “If there has been no valuation, the rent is considered as fixed at the rate of six per cent, on the value, and the lessee may pay the capital at that valuation.”

Now, as the testator contemplated that the money for the Society for the Relief of Destitute Orphan Boys should he deposited in banks bearing interest and as when drawn out it was to be invested in real estate, we ought not to suppose that, as to that society, the annuity can be satisfactorily redeemed on the basis of a higher rate of interest than six per cent. The law supposes, when invested in real estate, it will bear six percent, interest for long periods, (2761) and we cannot say that this is not a safer estimate than that founded on the conjecture, that as money has for the last ten or twenty or even fifty years commanded eight and ten per cent, interest, it will, therefore, command eight per cent, for the next twenty-four years to come. In 1844 the highest rate of conventional interest was reduced two per cent., and a further reduction may occur. If it is proper to assume that the revenues are at the rate of six per cent, on the real estate, it is proper to adopt that basis for the estimate of the value of the revenues to be redeemed in present money.

Moreover, whatever calculation is adopted should he such that the society cannot lose by the redemption of the legacy. To make the calculation upon the basis of a capital producing eight per cent, would necessarily subject the society to some loss, as there must be intervals between the collection and annual investment of the yearly interest or X’evenues, to say nothing of the cost of making collections and investments and the risk of loss of capital. I see no sufficient reason why there should be a distinction between the societies as to the basis on which the calculation should he made.

I conclude then, that an examination of the inventory satisfies me that much of the real estate is unproductive, and that the conclusions of the experts, that the income should he taken at the rate of six per cent, per annum on $1,086,666 66f, is reasonable, and, furthermore, that in finding the present value of the annuities the calculations should be made as upon a capital producing and which will continue to produce the same rate, viz: six per cent, interest.

At six per cent, the present value of the legacies to the societies for the period yet to run from the date of the report of the experts, twenty-four years, would amount to several thousand dollars more than allowed by the decree.

I should, therefore, prefer that the decree should be amended in favor of the societies to this extent. This disposes of all I have to say on the subject of the appeal of the American Colonization Society and the Society for the Relief of Orphan Boys.

The city of Baltimore is also appellant on her demand for $3,000,000 to establish the school farm. The will of MoBonogh gives the one-eighth of the revenues of his estate to the city of Baltimore until they shall amount to $3,000,000 to establish a school farm for the destitute poor of Baltimore and other maritime cities, &c. See will, 8 An. p. 178. It gives in like manner to the city of New Orleans also one-eighth of the revenues of the general estate until they shall amount to six hundred thousand dollars, for the purpose of establishing anasylumforthepoor of both sexes and of all ages, castes of color, &c. See p. 176-7.

Erom what I have already said, these quasi usufructs, as a charge upon each city in favor of the other, cannot last longer than thirty years from the death of MoBonogh. The cities stand before us, then, as having equal rights upon each other. Under Article 1293 C. C., there is no reason why each city should not be charged on its own portion of the estate for the payment of the whole annual legacy due itself. They, as well as the societies, will then each become bound to the States of Louisiana and Maryland, or the heirs at law of John MoBonogh, for the substantial performance of the conditions, as far as legally imposed by the will upon these legacies. 11 An., 497.

Cole, J., concurred in this opinion.


source: Caselaw Access Project

author: Spoitobd, J.

license: Public Domain

text:
    Adelia Laycock and Husband v. Thomson J. Bird.
    The true construction of Art. 2419 of the Civil Code is, that the party attacking a sale as being a disguised donation must prove, either that there was no consideration paid, or that the price paid was less than the one-fourth of the real value of the property pretended to be sold.
    The advantage which a father bestows on his son, though in any other manner than by donation or legacy, is subject to collation.
    APPEAL from the District Court of the parish of East Baton Rouge, Beale J.
    Tried before a jury.

      T. G. Morgan, for plaintiff and appellant.

      A. S. Herron, for defendant.
   Spoitobd, J.

The plaintiff sued her brother, Thomson J. Bird, io set aside a sale of land, slaves, &c., made by their mother, shortly before her death, to the defendant.

The alleged grounds are lesion, and that the pretended sale was a donation in disguise.

The plaintiff has appealed from a judgment rendered against her claim, in pursuance of the verdict of a jury. It would seem from the printed argument upon which the cause was submitted by her counsel, that the only point relied upon for reversing this judgment is embraced in a bill of exceptions to the District Judge’s charge to the jury. The charge objected to was this : “ that the true construction of the article 2419 of the Louisiana Code is that the party attacking a sale as being a disguised donation, must prove, cither that there was no consideration paid, or that the price paid was less than the one-fourth of the real value of the property pretended to be sold.”

This appears to be a correct interpretation of the Article 2419. “ The sales of immovable property or slaves, made by parents to their children, may be attacked by the forced heirs as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovables or slaves sold at the time of the sale.”

The expression in both texts is below one-fourth of the real value, and cannot be construed to mean, as the appellant contends, one-fourth below the real value.

The evidence preponderates in favor of the conclusion that the property in question was sold by the mother to one of her forced heirs, at a very low price, although exceeding one-half of the real value of the land, -improvements and slaves. So there was no.lesion beyond moiety, nor such proof as is required by Article 2419 of the Code to set aside the sale in toto as a simulation or disguised donation. The contract seems to have been a real one, although perhaps made to give the vendee an indirect advantage over his co-heir. The plaintiff’s remedy, if any she has, is not by an action in the present form, but by an application to have her co-heir collate when a partition takes place.

Civil Code, Art. 1824. “ The heir is not bound to collate the profits he has made from contracts made with his ascendant, to whom he succeeds, unless the contracts, at the time of their being made, gave the heir some indirect advantage.”

Art. 1826. “ The advantage which a father bestows on his son, though in any other manner than by donation or legacy, is likewise subject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.”

It is, therefore, ordered, that the judgment of the District Court be affirmed, ■ with costs, without prejudice to any right the plaintiff may have to demand a collation of the difference between the real value of the property in question, and the price contracted to be paid by the defendant.


author: Spojtord, J.

text:
    Robert M. Lanier v. Nicholas Gallatas.
    Tbe statute of April 80,1858, requiring that appeals in cases in which the right to office is involved should be made returnable in ten days after judgment of the District Court, does not apply to the case of a contested election.
    In contested election cases the appeal must be made returnable as in other civil cases from the same parish or district, and will have precedence in the Supreme Court only over all other cases from the same district or body of parishes having the same time assigned by law for the trial of their appeals.
    A case which has been submitted for decision to the Supreme Court is not subject to any control by the Legislature.
    Where evidence was offered in the court below but rejected, to show that the value of the office in dispute was over $800, held that the evidence should have been received and that the case is appealable.
    To contest an election, there should be an averment that the illegalities charged did alter the result, not that it was probable the result had been changed.
    APPEAL from the District Court of the Parish of St. Tammany, W-ilson, J.

      Henry Duncan, APPEAL for plaintiff.

      Angus Bowie,-Geo. 8. Laey andií. A. Upton, for defendant and appellant.
   Spojtord, J.

The plaintiff and defendant were candidates for the office of Sheriff of the parish of St. Tammany at an election held in November last. The latter having apparently a plurality of votes in his favor, the former contested the election under the special statute authorizing such a remedy to be sought in the District Court.

•The verdict and judgment declared the election void and referred it back to the people.

The defendant has appealed.

The plaintiff has moved to dismiss the appeal, 1st, because the transcript was filed too late, and 2dly, because there is no evidence of record to show that the value of the office in controversy exceeds $300.

Judgment was signed on the 1st December, 1857.

The order of appeal made the same “returnable according to law.” The law then in force prescribed the 4th Monday in February as the return day for appeals from the parish of St. Tammany. (Rev. Stat., p. 278, sec. 12). The transcript in this case was filed before that time, to wit, on the 19th February, 1858.

But the appellee insists that the case falls within the Act of April 30th, 1853, (p. 250) requiring appeals in cases in which the right to office is involved, when returnable here, to be returnable in ten days after judgment of the District Court.

At that time, contested election cases were not appealable, and the law was not made in reference to such cases.

On the 14th February, 1856, (Acts 1856, p. 9), appellate jurisdiction of such controversies was first given to this court. That Act declared that “in all contested elections brought before the courts of this State the party cast shall have the right of appeal to the Supreme Court, as in other eioi'l eases, where it is shown in the record that the amount of the emoluments of the office in contest is over $300, on the appellant giving' bond and security in such sum as the judge of the court which renders the judgment shall direct, and that such appeal shall bo considered suspensive in its operation and effect.”

Another section declared that such contested cases shall have preference in the Supreme Court over all other cases therein pending.

In this case, the transcript does not appear to have been made out within ten days after the judgment, so that, if there was fault in not bringing the record here within ten days, it might be imputable to the Clerk, and, in such case, would not be cause for dismissal.

But we have already decided that the statute of April 30th, 1853, (p. 250), does not apply to this class of cases. The subject was fully considered in the case of Auld v. Walton, upon a motion to dismiss because the appeal was not made returnable within ten days after judgment. We overruled a motion to dismiss on that ground, entertained the case upon its merits, and reversed the judgment in toto. In overruling the motion to dismiss we said: “under the provisions of the Act of 1856, it appears to us obvious that all appeals in cases of contested elections must be considered as falling within the general rule applicable to appeals in all other civil cases. Adopting a different construction would, in our opinion, have the effect of substituting the exception to the general rule, defeating thereby the clearly expressed will of the Legislature.” 12 An. 825.

If the present case had been returned here within ten days after the judgment, we find no law authorizing us to displace the city cases, or other country cases, and to take up the time devoted to them in the trial of cases from St. Tammany, which, with appeals from the other parishes of that district, have their own specially allotted period for argument and consideration. We understand the Act of 1856, declaring that appeals shall be allowed in contested election cases as in other civil cases, to mean that they shall be returnable as other civil, cases from the same parish or district, and shall havfe precedence in this court over all other cases from the same district or body of parishes having the same term assigned by law for the trial of their appeals.

The transcript in this case was, therefore, seasonably filed.

Since the preparation of the foregoing opinion upon this point, the counsel for the appellant has presented to our notice a special Act of the Legislature, approved .March 15th, 1858, purporting to fix the return day of this appeal upon the fifth day after the passage of that Act, and a motion has been made to reinstate the case on the docket, that it may be heard anew.

That motion is overruled. The case had been submitted to us before the passage of that Act, and was beyond the legislative control. Our respect for the General Assembly and the Executive forbids the inference that they intended to instruct this court what to do or not to do, whilst passing upon the legal rights of parties in a special case already under advisement. The utmost that we can suppose is, that they intended to fix a return day for this particular appeal without knowmg the posture of the case. Whether it is competent for them to fix a return day for any special case, even before it is submitted to this court, we need not inquire; for, this motion to dismiss will be disposed of solely upon the law as it stood at the time the motion was filed, and without any reference to the Act of March 15th, 1858.

As to the amount of emoluments yielded by the office, there is an allegation in defendant’s answmr, that they exceeded $1500 per annum.

Before the appeal was taken, he offered evidence to prove this allegation, which the District Judge refused to hear and had an order entered upon the minutes to that effect. The evidence should have been received; considering it as received, the record discloses that the case is appealable.

The motion to dismiss is, therefore, overruled.

The defendant, Qallatas, excepted to the plaintiff’s petition, that it did not set forth a sufficient ground of action, and the exception was overruled.

The allegations are that the returns show Qallatas to have received two hundred and twenty-five votes, and Lanier, the contestant, two hundred and eighteen, thus giving Qallatas a majority of seven votes; that, at said election, fourteen illegal votes were received and counted, a list whereof is annexed to the petition; that from the precincts in wards One and Two the Commissioners failed to furnish the returning officer of the parish with a list of voters as required by law; and that this failure to return the list of voters, and the illegal votes cast as aforesaid “ vitiate and annul said election, because, if the said illegal votes had been rejected it would, in all probability, have changed the result in favor of the petitioner.

These allegations are very vague; to contest an election, there should be an averment that the illegalities charged did alter the result, not that it was probable the result had been changed; and we think the exception should have been sustained.

Upon inspecting the evidence, we find that there is nothing but the most vague and remote suspicion to sustain the plaintiff’s case.

Of the alleged fourteen illegal votes specified by the plaintiff, but two or three are shown to have been illegal, and not one of the whole list is proven to have voted for the defendant, whilst some of them are shown to have voted for the plaintiff and contestant.

The allegation as to the failure of the Commissioners to return the lists of voters in the precincts of wards One and Two are disproved.

Upon the whole record there is no showing of any illegality or informality which affected the result of the election'to the prejudice of the plaintiff.

It is, therefore, ordered and decreed, that the judgment of the District Court and the verdict of the jury be annulled and set aside ; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendant, declaring him legally elected Sheriff of the parish of St. Tammany; the costs of the contest to be borne by the parish of St. Tammany.


author: Spofford, J. Merrick, C. J.,

text:
    H. Dusuau De la Croix v. Myra Clark Gaines.
    ÜPhe District Court may entertain jurisdiction of a suit to set aside a decree of the Supreme Court probating a will, when the existence of the will is denied and sufficient charges of fraud are made by one who was not a party to, nor concluded by the decree sought to be annulled.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Duncan & McDonnell, for plaintiff and appellant

      P. B. Bonford, Smiley & Perm and Molse & Randolph, for defendant.
   Spofford, J.

The present action was brought to set aside a decree of this court rendered on appeal in the case entitled the Succesion of Qlafk, reported in 11 An., 124.

The defendant excepted, 1st: That the plaintiff has not in his petition set forth any cause of action.

2d : That the District Court in which this suit was brought was without jurisdiction to try it.

In case these exceptions should be overruled the defendant further pleaded to the merits.

These two exceptions only are before us now ; the District Judge, conceiving that the second exception was well taken, dismissed the suit, and the plaintiff has appealed.

The decision of the lower court was based exclusively upon the authority of the case of Melançon's Heirs v. Broussard, 2 L., 8.

Whatever effect may be given to that precedent in analogous cases it fails to be an authority for this case, which is widely different.

The judgment of the Supreme Court in Broussard v. Duhamel, 3 N. S. 11 was rendered in a contested case, and was conclusive and final between the parties who were before the court, as it contained no reservation of any rights as to the title in controversy. In Melançon’s Heirs v. Duhamel it was held that a suit by the party cast against the other party to annul such decree of the Supreme court, could not be entertained by a District Court.

But, by referring to the case of Clark’s Succession, in 11 An., it will be seen that we carefully guarded against any inference being drawn that the decree should not be open to attack. We even asserted that it would be open to attack by a direct action in the name of a party interested. And if, as alleged, (and we must, at this stage of the case, take the allegation for the truth,) the defendant is seeking to avail herself in the courts of the United States of a rule there recognized, that an ex parte decree probating a will, although open to question collaterally in all the courts of the State where it was rendered, is not to be so questioned in a United States Court, but is to be held conclusive upon all the world, there is a manifest propriety in giving the relief which was reserved by the very terms of our former opinion and decree to third persons whose interest might be sought to be affected by it.

But it has been suggested in our deliberations that thepetitioner in this case who is the legal representative of Francois Dusuau De la Croix, does not stand in the same category with other persons who, as we unanimously think, might be permitted to bring an action to annul the decree in question: it is said that he was a party bound by the decree, and that this proceeding may be assimilated to an application for a new trial.

Upon this point a majority of the court think that Franpois Dusuau De la Croix was not technically a party to the decree heretofore rendered by this court.

It is true, he filed what is called an intervention in the District Court before which Mrs. Cannes made her application to prove the alleged lost will of 1813. But even in that ho took an attitude hostile to the application, and avowed his disbelief of the assertion that such a will was left by Daniel Clark. But it is said that his prayer to be appointed executor in the contingency that such will should be established, and the fact that in our decree he was so appointed, estop him from questioning the validity of the will or the conclusive effect of the decree.

But no effect seems to have been given to his intervention, or rather opposition to the probate of the alleged will, by the District Court. That court treated the application of Mrs. Caines as entirely ex parte and refused to hear oppositions. The application of Mrs. Caines was rejected by that court, on the ground of a defect of proof that the witnesses whose evidence was offered to establish the will had frequently seen the testator write and sign his name' The dismissal of the application was just what De la Groix desired, for he opposed the petition of Mrs. Gaines. If, then, he was strictly a party to the proceedings in the Second District Court, which we doubt, then the judgment of that court was in his favor and against Mrs. Gaines. That "judgment could not be changed so as to bind him without making him a party to the appeal. Mrs. Gaines alone appealed. She took no notice whatever of De la Groix, procured no citation against him, and gave no appeal bond in his favor. The only appellee, so far as the record shows, was G. LeQardeur, attorney of absent heirs, who was the only obligee in the appeal bond, although even he does not appear to have been cited. De la Groix made no appearance in this court pending the appeal, either in person or by counsel. Siehard Self was inadvertently made a party, and so careful were we not to prejudice the rights of any one by what was intended to be purely an ex parte proceeding, that we granted a re-hearing to declare that the decree should not be held conclusive even upon Self.

We changed entirely the judgment of the District Court, and rendered a new judgment. But De la Groix, being no party to the appeal, was not bound by ourjudgment.

It is true the decree appointed him executor ; but it is not pretended that he has ever accepted the appointment or acted under it. As he was not before us, this action of the court cannot prejudice him. And we are of the opinion that his conditional prayer for such an appointment before another tribunal had not the prospective effect to estop him from questioning the pretended will or our ex pande decree in relation thereto.

It only remains to inquire whether the petition, taking its averments as proven, discloses any cause of action. It is voluminous and not free from ob_ scurity. But we find it contains in substance a denial that Daniel Ola/rle left subsisting at his death a will, dated in 1818, and charges of fraud sufficiently grave and pointed to authorize a legal investigation as to the truth of the matters complained of.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, that the exceptions hereinbefore considered be overruled, and that the cause be remanded for further proceedings according to law; the costs of this appeal to be paid by the defendant and appellee.

Merrick, C. J.,

dissenting. This suit is brought to annul the judgment rendered by this court in the matter of the probate of the will of Daniel Clark, of the year 1813. See 11 An., 124.

A petition was filed in the Second District Court of New Orleans for this purpose, in the name of Frangois Dusuau De la Groix, a few hours after his death.

The present suit was commenced an the-21st day of April, 1857, by a petition filed by the present plaintiff, as the testamentary executor of said Frangois Dusuau De la Groix, wherein he adopts and reiterates the allegations of the petition filed in the name of the testator.

That petition sets up at great length the will of Daniel Glande of 1811, the admission of the same to probate, the sole heirship of Mrs. Mary Glorie, both under that will and as heir at law, and her acceptance of the succession, the acquiescence of petitioner in the same, the order of sale of property by the court of probates, the purchase of property (slaves) at the probate sale, and the purchase of others at private sale from Mary Clark, and that petitioner was, therefore, deeply interested in maintaining the probate proceedings in the matter of said last will and testament, (of 1811.)

The petitioner further averred that said proceedings had never been called in question except by an abortive proceeding instituted by Myra Clark Whitney, aided by her then husband William Wallace Whitney, in the District Court of the United States for the Eastern District of Louisiana, then having chancery powers and jurisdiction, that the case was transferred to the Circuit Court, that Whitney died and the said Myra subsequently married E. P. Gaines, who became a party to the bill in chancery, “ that the complainant therein took divers and sundry proceedings therein, until finally the present defendant hereto, with her then husband, E. P. Gaines, by way of an amended or supplemental bill of complaint, did expressly and specifically set forth and declare that they did thereby, and would forever and thereafter abandon all claim of whatever nature or kind she or they had to the property of the estate of said Daniel Clark, growing out of the said alleged will made, as averred by her, in 1813, in her favor by said Daniel Cla/rk, and that she would thenceforth maintain her rights to the property and estate left by Daniel Clark at his decease on the sole ground that she was his legitimate child and heir at lam, and that as such she could not be deprived of her legitime ; and that she would thenceforth always maintain the fact that said Cla/rk did make a last will and testament, dated in 1813, in her behalf, but that she would only do so as evidence of and acknowledgment by said Daniel Clark of the legitimacy of her the said Myra; that petitioner being one of the defendants to said original bill and amended and supplemental bill, as will also be seen by a printed copy of said amended and supplemental bill referred to, herewith filed as part hereof — accepted her abandonment aforesaid, filed his answer to her claim to be the lawful representative and legitimate heir of Daniel Clark, a printed copy of which petitioner also filed herewith as part hereof; that issue was fairly and duly joined and tried in said cause; that a final decree was entered, after hearing in the Circuit Court of the United States aforesaid, in favor of your petitioner, rejecting the claim of said Myra to be the representative or heir at law of said Daniel Clark ; that from said decree the defendant herein prosecuted her appeal to the Supreme Court of the United States, and after due proceedings therein had, and after full and fair consideration of the whole case the said Supreme Court of the United States, at the December term, 1851, thereof affirmed the aforesaid decree of the Circuit Court aforesaid, and petitioner files herewith a printed copy of the opinion of the Supreme Court of the United States in said case.”

The petitioner further alleged (and we give the residue of the petition in full) as follows, viz:

“ And now your petitioner avers that notwithstanding the facts aforesaid, notwithstanding the fact that the estate of Daniel Clark had been duly opened as aforesaid, notwithstanding the succession as opened aforesaid of him the said Daniel Clande had been duly accepted by the heir at law, Mary Clark, and the instituted heir the same Many, the mother of Daniel; and thus then was no longer any snch thing as an estate or succession of Daniel Glande, the whole of which was merged in the said Mary Clark, against whom alone thereafter there could be any claim prosecuted either as against said succession or for the restoration of the succession if it had been wrongfully or unlawfully taken possession of by her, the said Mary Gla/rk, by any one, and especially by defendant hereto, who claimed a paramount right thereto — she the said defendant hereto intending a palpable and gross fraud in the premises, and notwithstanding the facts aforesaid — and intending to abuse the decree and authority of this court, which in the progress of legislative and constitutional proceedings has become the successor of the Court of Probates aforesaid, hath now sole and exclusive jurisdiction of all probate matters arising in the parish of Orleans aforesaid, did on the day of January, 1855, file in this court a written application praying for the probate of the same alleged will of Daniel Dlaurk, averred by her to have been made in 1813 — being the very same alleged will which she had specially and fully set forth in her original bill of complaint aforesaid, and also subsequently in special terms abandoned as aforesaid; that your petitioner hearing of said proceedings of said defendant hereto, and knowing the same to be, as he now chan'ges they were grossly fraudulent, did file an intervention in said case which is numbered 8646 on the docket in this court; and other parties also filed opposition therein, but the Judge of this court then entertaining the opinion that in all cases the probate of a will in the absence of the heir was necessarily ex pande and could not be opposed, inasmuch as by the laws of Louisiana said probate could bind no person, and every question as to the existence and legality of said probate would necessarily be left as reserved to all persons in interest, refused to hear any of the oppositions filed in said case, and disregarded the application of your petitioner, then filed, that the said applicant should be obliged to make Mary Olark or her heirs parties to said proceedings ; that the said defendant hereto being thus left to proceed with her expande proceedings, presented to the Judge certain written depositions of several witnesses, which had been chiefly used by her in her aforesaid proceeding in the Federal Courts, and where much of it had been shown to be false and gross perjury ; that acting upon said testimony and other testimony, among others that of your petitioner, given at several times, all of which was true, the then Judge of this court rejected the said application of defendant— who thereupon prosecuted an ex parte appeal to the Supreme Court of this State, who viewing the proceedings in the matter of the probate of wills as necessarily ex parte, and as binding in no way whatever upon any person whatever against whom the same might be set up as a muniment of title, and expressly reserving all such rights to all parties — the said Supreme Court of Louisiana having no other testimony before it than such as defendant herein had presented originally in this court as aforesaid, did declare on said ex parte showing aforesaid that defendant herein had shown that Daniel Glande had made such a will in 1813 as said defendant herein in her application had set forth and acknowledged — and directed it to be probated and recorded — all of which will more fully and at large' appear by reference to the whole of the said proceedings in said case No. 8646, and the decree of the said Supreme Court therein on appeal, and the subsequent proceedings in this court thereon and therein.
“And now your petitioner avers that the whole of the aforesaid proceedings in said case No. 8646 were fraudulent and void, because: •
First. The succession of Daniel Glande had already been accepted and there could be no such thing as two successions of one deceased person.
Second. That after the probate of a will of a deceased person, such as was the fact of the case of the succession of Daniel Clrn'k, no subsequent will, real or alleged, can be received and its probate ordered while the other probate stands; and, all proceeding for the probate of any other will, real or alleged, must be conducted contradictorily with the representatives of the estate under the will previously admitted to probate; and all proceedings, decrees, or judgments, taken in said estate once represented, without proper parties, are null and void; and, that said proceedings, in said case 8646, were not only fraudulent, but void absolutely, because taken ex parte. That said proceedings were originally intended for a fraudulent purpose and intent, in this, that it was known by defendant that she could never establish the said alleged will set forth by her in said proceedings in case 8646, in any fair and honest contestation against any person having any interest to contest the same; that, therefore, in pursuance of advice, and a scheme concocted by and for her in the city of New York in the year 1852, she took her aforesaid proceedings, intending that after obtaining the probate of said alleged will by her fraudur lent and expande proceedings, to carefully avoid presenting the same in any manner or form where the validity, truthfulness, and honesty, might be put in issue, either by way of exception or answer; but, intending to avail herself of the peculiar and limited jurisdiction of the Federal Judiciary in the matter of the probate of wills, being advised that if she could obtain an expande order of the probate of said alleged will of Daniel Clark, that by means of said limited jurisdiction of the Federal Courts, she might avail herself of said ex pa/rte decree, and, by avowing herself a citizen of another State of the Union, could go into the Federal Court, institute her proceedings there under said ex pande proceedings and decree, set the same up as conclusive upon said tribunal while they stood, that such a decree would be carried into execution by the federal tribunals without allowing any plea or answer thereto contesting the validity or verity of said probate proceedings whatsoever; that, in pursuance of said original fra/adulent pvnpose, to abuse the authority of this court, the State in'ibunal, into an instrument of oppression, and a medium for the consummation of wrong and fraud, the said defendant hath taken the aforesaid deeree herein, given in suit No. 8646, and hath commenced a prorceeding in chancery in the Circuit Court -of the United States, holding sessions in the Eastern Distn'ict of Louisiana, and claims immunity therein against all right to attack the same by defendant therein, your petitioner herein, a printed copy of which he herewith also files as part heo'eof.
“ Petitioner also avers that the proceedings in said suit, No. 8646 on the docket of this court, and the decree therein given, were entirely null and void db initio, because that it was shown that the said alleged will, if over made, which is expressly denied, was dated, as stated by the applicant therein, in the month of July, 1813, that consequently more than thirty years had elapsed from its date before it was offered for probate, and also more than thirty years, after the death of Daniel Clark ; that even if Daniel Clrn'k had, by will, constituted his estate into a testamentary succession, and instituted a universal heir to represent it, said testamentary succession could not be established or recognized by the probate of a will after the lapse of more than thirty years after the death of the testator; that the acceptance of any such extinct succession was utterly null and void, and only intended to cast a shadow over the titles of those deriving title under other and adverse claimants to said succession.
“ In consideration of the premises, your petitioner prays that defendant, Myra O. Gaines, may be cited to appear and answer this petition; and, after due proceedings had, it may be herein decreed that the aforesaid proceedings of said defendant in the case No. 8646, on the docket of this court, are fraudulent and void, both in fact and in law; that the decree establishing the pretended will of Daniel Glarlc, and ordering its probate, may be declared null and void, and accordingly called in; that she be perpetually enjoined from ever taking out a copy of said proceedings from this court.
“ He prays for general relief.
“ (Signed,) Duncan & McConnell,
Attorneys for Petitioner.”

To this petition the defendant excepts:

“1st. That plaintiff has not in his petition'set forth or shown any cause of action whatever.”
“2d. That this court (the Second District Court) is without jurisdiction to try or determine the matters and things set forth in said petition.”
“ 3d. The defendant pleaded the prescription of one year.”

In the proceeding for the probate of the will of 1813, sought to be annulled by the present proceeding, the said Frangois Dusuau de la Groin intervened, stating his disbelief that any such will was executed, as that claimed by petitioner, but prayed, however, that if the same should be established, that he might be appointed executor under it. In pursuance of such prayer, the decree was finally rendered by this court, recognizing him as executor and confirming him as such. See 11 An. 131.

We will consider the first ground of exception filed by defendant, although perhaps the second stands before it in the natural order of proceeding.

Has the plaintiff set forth such a cause of action as would justify the District Court in setting aside the decree, provided it had been originally rendered in that court?

The grounds of complaint may be reduced to three heads :

1st. That there cannot be two successions of the same deceased person.
2d. The fraudulent institution of the original suit, with the intention subsequently carried out of supporting the same and obtaining a decree upon false testimony; and,
■ 3d. The absolute nullity of the proceedings db initio, because of the lapse of thirty years, and the non-acceptance of the Succession of Glarlc by the defendant.

I. On the first head, I observe that Frangois Dusuau de la Groin was a party to the proceedings in which the will of 1813 was admitted to probate. He filed in that case a paper which he called an intervention, but which was really an opposition and required no order of the court for its filing. On this opposition, which thus became an answer to Mrs. Gaines' application for the probate of the will, the opponent says he has taken notice of the filing of her petition, and he recites some of the allegations of the same, and particularly the averment that he was unwilling to accept the executorship under the will of 1813, and expresses his decided disbelief in the supposed will of 1813, and gives his reason therefor, and concludes his petition as follows, viz:

“ But so it is, if this honorable court pleases, it is certainly untrue, that he ever evinced any sort of indisposition to qualify as the executor of any lawful will which may be established in a legal manner, as having been made by said Daniel Claris, and, therefore, inasmuch as said petitioner by her petition doth show that he hath an interest in the matter of the probate and execution of said will; and inasmuch as there remains of record in this honorable court, a will duly probated and its execution ordered, whereby the whole estate of Daniel Clai'ls, after the payment of his just debts, was given to his mother, ■Mary Claris, of Germantown, Pennsylvania, who has since departed this life, and whose heirs are believed to be absent and unrepresented; and inasmuch as he, the said intervenor, is reluctant to see their interest in any manner disturbed without lawful notice, he prays that this honorable court may appoint an attorney or curator ad hoc to represent the said absent heirs of said Mary Clmds, that if there be a probate of said supposed will granted, that it may be seriously made as a contest and issue with said heirs of Mary Claris, and after all due and legal proceedings had herein, if it should be decreed that there shall be probate of said supposed will, then he prays that he may be recognized as executor thereof, duly sworn as such, and letters testamentary ordered to be delivered to him according to law.
(Signed) Dusuau De la Croix."

The attorney for absent heirs was appointed accordingly.

The appeal was taken to this court generally, and was allowed at the same time at which the judgment was rendered. But the appeal bond was made in favor of the attorney for absent heirs. There was no motion to dismiss the appeal, and when the final judgment was rendered, De la Croix was so far considered a party not only to the suit, but to the appeal, that a decree was rendered in his favor recognizing him as executor of such will. lie must, therefore, be considered a party to the suit, and also to the appeal- For if he be not a party to the appeal, then the judgment of the District Court dismissing the application for the probate of the will is final, and this suit is useless, and the party is seeking to annul that which, as to him, by a final judgment of a competent court, has no existence; which is absurd.

The plaintiff considered himself a party to the appeal, as he proves by bringing this action of nullity. Indeed, I understood the counsel to admit as much in substance in their oral argument. To verify these facts, I have deemed it right to look into the former record, a doubt having arisen in the minds of some of the members of the court.

Now, if there be anything inconsistent in the two wills, so that they cannot stand together, the executor or heir of De la Croix, at least, cannot be permitted to allege such inconsistency, for by his own showing he was as much aware of the inconsistency at the time he filed his intervention praying to be appointed executor as afterwards.

II, The alleged fraud consists (as charged in the petition) in presenting with defendant’s ex parte proceedings to the Judge, “ certain written depositions of several witnesses which had been chiefly used by her in her aforesaid proceeding in the Federal Courts, and where much of it had been shown to be false and gross perjury.”

The petition alleges that the judgment of the court was based “upon said testimony and other testimony, among others the testimony of petitioner given at several times, all of which was true.”

Now, if a party against whom a judgment has been rendered, should file an affidavit with his motion for a new trial, making the same allegation, it is clear that it would be insufficient to entitle him to such new trial. It is not clearly shown that the defendant was aware that the testimony was false, nor what portion of it was false, nor what witnesses were perjured, nor that the false testimony was material, and that there was not sufficient testimony which was true to sustain the decree.

New trials are rarely if ever awarded, in order to show that the testimony of witnesses is false, and, we think, where an action is brought by a party in whose favor a decree has been rendered, to set aside the decree which subsequently proves to be detrimental, his allegations should at least show a case which would have entitled the party to a new trial. That case has not been shown by the plaintiff. Meakin v. Anderson, 11 Bail. Sup. Ct. 215; Deer v. The State, 14 Miss. 348; Thompson's case, 8 Grat. 637; Beard v. Simmons, 9 Geo. 4; Ewing v. The State, 13 Geo. 513.

III. The plea of prescription of thirty years, cannot be set up in this form against the decree. The exception of prescription presupposes the pendency of a suit, and is in general a matter of defence.

I, therefore, conclude, that plaintiff’s petition does not disclose a sufficient cause of action. It is unnecessary to consider the question whether an action of nullity can be 'brought in the District Court, to set aside a decree of this court.

I think, therefore, the judgment of the District Court ought to be affirmed.

Cole, J., concurred in this opinion.


author: Buchanan, J.

text:
    William Keller v. William Loflin.
    In presenting an appeal to the District Court from the decision of the Register of the State Land Office, under the Act of the Legislature of 1853, it is not necessary there should be an order of ap* peal made and an appeal bond filed.
    The Register after granting a certificate of entry upon the location of a warrant, has the power to determine whether such location has not been made in violation of a settlement right.
    The Acts of 185$ and 1857, which give an appeal from the decision of the Register of the State Land Office, require that the appellant should make a special assignment of errors upon which he relies for a reversal of the decision.
    APPEAL from the District Court of the parish of Carroll, Farrao', J.

      Short & Pwrham, Sparrow and Montgomery, for plaintiff.

      L. Selby, for defendant.
   Buchanan, J.

The Acts of 1852, page 168, section 3d, and of 1853, page 22, section 1, gave to the Register of the State Land Office jurisdiction to decide between conflicting claims of preference right to enter lands in the State Land Office. .

The Act of 1853, also gave the right to the claimant aggrieved by the decision of the Register to appeal from the same, within six months, to the District Court of the parish in which the land is situated.

In conformity to those statutes the Register of the State Land Office took cognizance of a dispute between the parties to this suit, in relation to the right to enter the S. E. quarter of section No. 2, township 20, range 11 east, of the district of public lands in Louisiana north of Red River, and rendered a decision upon the same, after hearing evidence on both sides, on the 2d February, 1857: which decision was in favor of William Lofiin.

On the 11th March, 1857, William, Keller presented to the Register a written application for an appeal from said decision, to the Tenth District Court for the parish of Carroll, in which parish the land in controversy is situated.

The law did not require an order of the Register upon the petition for appeal. The 2d section of the Act of 1853, p. 23, provides, that “as soon as an application for an appeal is made to the Register, it shall be his duty to deliver to the party applying for such appeal a certified transcript of all the proceedings had in his office relative to the conflicting claims.”

Neither did the law require the party appealing to file with the Register an appeal bond. The 2d section proceeds to enact, that the party appealing, to whom the Register shall have delivered a transcript as abovesaid, “ shall forthwith file the same in the office of the Clerk of the parish in which the land is situated, and give bond, as in ordinary cases, as security for costs.” The expressions in the French text of the section are “ et fournira le cautionnement ordinaire pour le paiement des frais.” It is proved that the appellant on filing the transcript from the Register in the District Court, procured to be endorsed!,, on the accompanying petition, which he presented in conformity with the 3d section of the statute, an obligation for the security of the costs, subscribed by one Ingram, which the Clerk of court testifies is the usual mode of securing costs in his court. We consider this a compliance with the statute.

The plaintiff, in his petition presented to the District Court, has set forth the following alleged errors of the Register of the State Land Office:

1st. That after the certificate of entry had issued to William Keller on the 19th January, 1856, the Register had no right to institute proceedings to have the same cancelled.
2d. That no application for a preference right of entry had been filed in the State Land Office, or marked as filed or received in the office within the time prescribed by law to secure a preference entry under the State preemption laws.
3d. The Register erred in not taking parol proof to establish the fact, that Loflin had parted with all his rights to enter the said land, if any he had, prior to the time of making' proof of settlement on the said quarter section.
4th. The proof laid before the Register fully establishing the fact, that Loflin had parted with all his rights to enter the said quarter, ho erred in not confirming the certificate of entry which had been issued to William Keller.
5th. The Register erred in supposing that it was a title to land that he was investigating and not a right to enter land depending upon facts, the proof of which must necessarily be by parol, as all conflicting rights prior to the existence of a title out of the government may be established by parol testimony.

I. On the first error assigned. The first section of an Act to provide for the sale of swamp lands granted by Congress to this State, approved 17th March, 1852, (Session Acts, p. 167,) provides, that “the Register of the Land Office, and Treasurer of the State as receiver of public moneys, are hereby authorized to sell warrants for one million acres of land, to be located on the swamp or overflowed lands donated by Act of Congress of 2d March, 1849, and 28th of September, 1850, said warrants to be issued for not more than six hundred and forty, nor less that forty acres, according to the laws regulating the surveys and legal subdivisions of sections adopted by the United States; provided, the same shall not be sold for less than one dollar and twenty-five cents per acre; and provided, further, that no warrant shall be issued until the expiration of three months after the passage of this Act.”

“ Section 2d. Be it further enacted, That every white person being the head of a family, or over twenty-one years of age, who has made a settlement on any part of said lands previous to the passage of this Act shall have the privilege of entering not less than forty, nor more than three hundred and twenty acres of the same, at the office of the State Land Office at Baton Rouge, at the minimum price of one dollar and twenty-five cents per acre ; provided, that application and payment thereof be made before the expiration of twelve months after the passage of this Act; and provided, further, that the party thus applying’ for a preference right shall make oath before some officer of the State qualified to administer the same, that he or she had settled on the land applied for, with the view and purpose of cultivating the same, and not for the purpose of speculation, and shall state as near as may be the date of such settlement, which oath as to the location and settlement, shall be sustained by the affidavit of two disinterested witnesses.”

“ Section 3. Be it further enacted, That all conflicting claims of preference rights to any of said lands, shall be decided by the Register, who shall adjudge the same to the person first locating or settling thereon.”

Various Acts subsequently passed — 1853, March 16th, and April 28th, Session Acts, p. 35' & 156 ; and 1855, March 15th, Session Acts, p. 260 — have extended the time for actual settlers to make application,, proof and payment, to secure a preference right upon the State lands.

Under these statutes, it is obvious that locations of warrants must be very apt to come in collision with settlement rights; and there is nothing in the law which precludes the Register from interfering, after a certificate of entry upon the location of a warrant, to determine whether such location has not been made in violation of a settlement right. On the contrary, it seems most likely that a conflict could only arise between those two classes of claims after an entry made by the purchaser of a warrant.

II. The application of William Lojlin for a right of preemption is proved to have been made, in the manner required by the Acts above quoted, in the month of February, 1854, which was less than twelve months after the passage of the Act of 1853, March 16th, (Session Acts, p. 35,) and was consequently within the time prescribed by law to secure a preference entry under the State preemption laws.

It has been argued in this court by one of the counsel for plaintiff, that there is no proof William LojUn made payment for the land within the delay prescribed by those laws.

But we agree with the counsel of defendant that we cannot reverse the Register’s decision for an error not assigned in the pleadings.

The Acts of 1853 and 1851, which give an appeal from the decisions of the Register of the State Land Office in these matters to the District and Supreme Courts, both require that the appellant should make a special assignment of errors, upon which he relies for a reversal of the decision, in his petition to the District Court. He must be confined to the errors assigned. And in this case he only complains that there was no proof of an application by Lojlin under the statutes — and not that there was no proof of payment by Lojlin.

III, IV and V. These three grounds of error may be considered together. Keller did not pretend to make his entry upon a preemption right growing out of actual settlement upon the land, but upon the location of a wai'rant purchased from the Land Office. His entry was not made until June 19th, 1856. But in the month of September following, searches made among the archives of the State Land Office having discovered that the proof of an actual settlement of the same land entered by Keller had been filed by William Loflin as far back as February, 1854-, the Register of the State Land Office notified Keller that his entry must be cancelled, as having been issued in error, unless Keller should prove a superior right to Loflin, by evidence to be taken before a Justice of the Peace of Carroll parish, contradictorily with Loflin. Whereupon a great many witnesses were examined on both sides, whose testimony was reduced to writing and laid before the Register. One of the witnesses examined for Keller was Williami L. Knox. It was attempted to be shown by this witness that Loflin had sold his settlement right upon the land in question to him {Knox) early in the year 1853, and that Knox had subsequently sold it to Keller.

The Register disregarded the testimony of Knox, because a title to land cannot be proved by parol. In the District Court a bill of exceptions was reserved to Knotfs testimony, not only upon this ground, but also because he is an interested witness, as vendor of Keller, by his own statement.

We do not think it necessary to determine at this time whether a sale of the preemption right of an actual settler upon State lands, can be proved by parol; being convinced that the objection to the witness on the score of interest, was well taken, and that he was clearly inadmissible without a release at least. We are not even prepared to say, that a written release by plaintiff would have removed the objection to his liability under the circumstances.

Apart from Knox's testimony, there is nothing in the record showing an assignment of Loflin's settlement right to Keller.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and proceeding to give such judgment as should have been rendered by the District Court, it is further decreed that the certificate of entry No. 362, dated 19th June, 1856,.in the name of William Keller, of the southeast quarter of section 2, township 20, range 11 east, district of lands north of Red River, be cancelled, and that plaintiff pay costs in both courts.


text:
    William Gwartney v. His Creditors — J. P. Cady, Opponent.
    The burden of Proof is upon the party opposing the appointment of a syndic, on the ground that he was elected by a person who was not a creditor.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Durant & Hornor, for opponent and appellant.

      Elmore & King, for the syndic.
   Buchanan, J.

James A. Lush having been returned by the notary as elected syndic of this insolvency, by a majority in amount of the creditors, his appointment is opposed by John P. Gady, who was also a candidate for the syndicate at the meeting of creditors, on .the grounds:

- 1st. That one James Chapman, who voted for Lusk, is not a creditor of the insolvent; and,
2d. That Lusk voted for himself as syndic, under a power of attorney from one Nicolas Caspm', which was not signed.

The District Judge properly decided that the burden of proof is upon the party opposing the appointment of a syndic, on the ground that he was elected by a person who was not a creditor. The rule was distinctly laid down in the case of Pandelly v. His Creditors, 9 L. R., 393, and has not since been doubted.

The opponent attempted to prove that James Chapman is a part owner of the steamboat Music, which is surrendered by the insolvent to his creditors. The evidence is not clear on this point; but even if it were, that fact would by no means amount to proof, that Chapman is not a creditor of the insolvent. They might have had many other dealings together, besides a joint ownership of a steamboat.

Upon the second ground of opposition, Nicholas Caspar, sworn as a witness, testifies that he authorized a person named Work, to sign his name (he being unable to write) at the bottom of the power of attorney, upon which Lusk voted, in his name, at the meeting of creditors.

Judgment affirmed with costs.


author: Merrick, O. J.

text:
    Eleanor E. Woods and Husband v. F. A. Woods.
    An action to annul a sale of negroes alleged to have been bought at a succession sale by the administrator through persons interposed was properly brought against the administrator at his domicil, in regard to nullities arising subsequent to the order of sale. The order of sale itself and the proceedings anterior to it could only be attacked in the court which decreed the sale.
    The heirs have such an interest in the succession while under administration as to authorize their bringing a suit against the administrator to set aside a sale made to himself through persons ‘ interposed.
    APPEAL from the District Court of the parish of West Baton Rouge, Beale, J.
    D. N. Ba/rrow, for plaintiffs and appellants.

      H. C. Hudson, for defendant.
   Merrick, O. J.

The present case is before us on an appeal taken by plaintiffs from a judgment dismissing their petition.

The action as it now stands is brought in the parish of West Baton Rouge by the plaintiffs, as the heirs at law of Ezer E. Woods, Amanda Smith, their mother, and of Ma/t'ia E. and Edith Woods, their deceased sisters, to annul the sale of certain slaves bought, as plaintiffs allege, by the defendant, the .administrator of said Ezer E. Woods, deceased, through persons interposed.

It is alleged that the succession of said Ezer E. Woods was opened in the parish of De Soto, where the defendant, Erame A. Woods, was appointed administrator, and where he provoked the sale of the slaves in controversy. The petition alleges causes of nullity previous to and in the decree of sale, and also in the sale itself to the administrator through persons interposed. The petition also contains other causes of action which, after exception, were voluntarily dismissed by plaintiffs. On exception taken by defendant’s counsel the residue of the action was dismissed at plaintiffs’ costs.

It is contended by defendant that the District Judge did not err in dismissing the suit, because the District Court of the parish of De Soto is the forum in which to settle all matters relative to the Succession of Ezer E. Woods. This is true as it respects all that part of the action which alleges nullities anterior to and in the decree of sale. These proceedings can only be attacked in the court which rendered them. O. P. 608. But in regard to the nullity arising subsequent to the order of sale, and in the practices of the defendant, the suit is properly brought at the domicil of the defendant. Mississippi Marine and Fire Insurance Company v. Bank of Louisiana, 11 R. R., 47.

It is further contended, that the heirs cannot sue the administrator for a single act of his administration, but must call upon him to account. The question is not entirely free from difficulty. We think, however, that the heirs have such an interest in the succession while under administration as to be able to have the sale made to the administrator either through a person interposed or to himself directly declared null. If the sale should be declared illegal the property’’will be subject to a re-sale to pay debts, if it be needed, and no injury can result to the creditors of the succession, while the fights of the heirs will also be protected.

The defendant’s counsel has filed in this court what he denominates a peremptory exception to the action, based on the want of an allegation in the petition that plaintiffs ever tendered the defendant the price for which the slaves sold.

Without deciding whether an exception of this kind can be filed in this court we deem it sufficient to remark that the petition alleges that the allegation in the petition for a sale, that the estate was involved, was untrue, and, furthermore, it is alleged that said administrator had in his hands, or ought to have had, sufficient funds to pay all the pressing liabilities of the estate. Now, if the sale was unnecessary, the administrator has the funds arising from said sale in his own hands, and a tender, if needed under other circumstances, does not appear to be required in this case.

We think, so far as it respects the nullities arising since the order of sale was made, that the action can be maintained at the defendant’s domicil, and that the exception should be overruled and the plaintiffs be permitted to introduce proof of such nullity.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be'reversed so far as it dismisses plaintiffs’ action for nullities alleged to have arisen since said order of sale, and that this case be remanded to the lower court for further proceedings, the defendants payingthe costs of appeal.

Spopfobd, J., took no part in this case.