author: Beeaux, J.

text:
    No. 11,816.
    Succession of Mary Unforsake—Tutorship of the Minor Bessie Lutt.
    The tutor some time after he had qualified in that capacity adopted his ward by authentic act duly authorized.
    After the adoption a relative of the minor obtained the appointment of under tutor and moved the court to compel the tutor to file an account of tutorship.
    The account was filed, but a protest was made on the ground that as an adoptant, succeeding to the father, and his wife to the mother, he owed an account to the ward only, and that at her majority or emancipation.
    The court holds that the tutor may adopt his ward, but that he does not thereby , acquire any right over the minor’s estate that he did not have as tutor.
    He can not lessen his responsibility, or that of the securities on his bond as tutor by.becoming an adoptant.
    On ¿-he secondjbranch of the case, under the textual provision of the Civil Code the court holds “ that the tutor is bound to give an account of his administration whenever he is ordered to do so by the judge.”
    And that while the costs are to be paid out of tüc minor’s estate, ordinarily, there is no necessity for very expensive litigation and large bills of costs.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Benjamin Bice Forman for Charles Baur, Tutor, Appellee.

      Carroll & Carroll for Thomas Powell, Under-tutor, Appellant.
    Argued and submitted February 26, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Beeaux, J.

The plaintiff, an uncle, as under-tutor of the minor Bessie Lutt, suggesting that no account had ever been filed by Bauer, filed a rule on Bauer, her tutor, to compel him to render an account of tutorship.

Bauer qualified in 1883 tutor of the minor and gave bond with surety in amount equal to the inventory taken at the time.

About four years afterward Bauer and his wife applied to the Civil District Court for permission to adopt the former’s ward. Judgment was granted upon the application, and subsequently, by authentic -act, the minor was adopted by them. The under-tutor was api pointed some time after the minor had been adopted.

Bauer interposed an exception to the rule, averring that the appointment of Powell as under-tutor was void; that by the effect of the adoption he and his wife became the legal parents of the minor; entitled to the usufruct of the property, and that he owed no account until her majority or emanicipation.

Moreover, the defendant in rule pleaded; if Powell had been appointed under-tutor that the only action is one of removal and to cause another tutor to be appointed.

The exception was maintained by the District Court and the rights of the minor reserved were to be asserted when she becomes of age.

The under-tutor appeals from the judgment.

We will not specially pass upon the validity of the adoption. We have found no reason to declare it invalid.

The following propositions suggest questions presented for our determination:

1. The effect of the adoption upon the tutorship.

2. The right of action of the under-tutor against the tutor.

The different statutes relative to adoption- do not change the responsibility of the tutor or lessen his obligation to account for his administration. These statutes do not, either expressly or by implication, amend the articles of the Civil Code on the subject of tutorship.

The provisions of the Code throughout are that the tutor shall have the care of the person and property of the minor.

The statutes relative to adoption have not given to the word “ adoption ” the broad and unrestricted meaning, in so far as relates to the persons adopting, that it had during early periods in the history of the civil law, when the adoptant was entitled to the property of the son and exercised toward him all the rights and privileges of a father; in short, when the relationship was to all intents and purposes the same as existed between natural father and son; when persons brought into a family by adoption obtained the same rights as if they had been born in that family, and when on the other hand persons who passed out of the family by adoption, which brought them under a new patria, potes tas, lost all which had been theirs by birth.

This was the view, substantially taken of the Roman law in several decisions of this court, in so far as the person adopted was concerned.

The first was the case of Vidal vs. Commagere, 13 An. 516.

The rights of the adoptant were never referred to in any of the decisions of this court, save in one case, and that does not sustain the contention of the tutor and adoptant here.

We refer to the case of Succession of Forstall, 25 An. 430. The law upon the subject has not been uniform and unvarying. It has been altered, and important changes made even under the Romans at a period later than that above referred to in the history of the civil law.

We copy from D. I, T. 7, O. VIII, T. 48:

Sed hodie ex nostra constitutions cum filius-familias a patre naturali extráñese personse in adoptionem datur, jura patris, naturalis minime dissolvuntur; nec quicquam ad patrem adoptivum transit nec in potes - tate ejus est; licet ab intestato jura successionis ei a nobis tributa sint.

From this extract it is evident that under the reign of Justinian the power of the father was not entirely dissolved by the adoption of his child.

The principle relative to adoption has encountered downright opposition at times.

The Israelites of old were unacquainted with the process of adoption; it would have been, with them, inconsistent with the Mosaic law regarding the inheritance of property. The views of their descendants upon the subject are not as rigid and unbending.

The conclusions of Mr. Laurent, the French commentator, are decidedly against the process of adoption. He announces unquali-fiedly that the ancient Germans ignored all laws upon the subject, and made part of their unvarying custom “ adoption n’a lieu."

But on the other hand Merlin is authority for the statement that adoption among the ancient Germans was made with military ceremony; that in compliance with that custom, Guetrai, King of Orleans and .Burgundy, wishing to declare his nephew Ohildebert of age, and to adopt him, said to him: “ I have placed this javelin in your hands to make known that I have given you my kingdom.” Turning to the assembly he said: “ My son Ohildebert is now a man, obey him.” History recounts that he was obeyed. Godefroy, duke of lower Lorraine, was adopted and invested with imperial robes by the Emperor Alexis in 1096. Baudoin, his brother, was adopted by the Prince de’Edesse.

In early epochs there were adoptions in France and laws prevailed under some of the “ eoutumes" relative to the process of adoption in other 11 eoutumes," adoption-n’a lieu, it was said. We read that under the eoutume of Audernerde the stranger was not excluded from the custom of adoption provided he chose to take the name of the adoptant and bear arms in his behalf..

But the stranger did not thereby become the owner of the adopt-ant’s property. He became the owner only by donation inter vivos or mortis causa. There was also in France another sort of adoption (only with the consent of the parents) for orphan children in asylums by those in charge. The rectors of these institutions, as adopting parents, had charge of the education and of the property of the adopté. The authority ceased at the majority of the latter.

Adoption was reinstituted throughout France' after the revolution. The commission appointed by the First Consul and charged with preparing a project for a civil code were opposed to the complete changes effected under the Roman laws of adoption. Under the Code Napoleon there is not an absolute change of family. Laurent, Vol. 4, p. 273.

The extreme views of the First Consul, as a member of the Council of State, in support 'of unlimited reciprocal obligation between the adoptante and adoptés, as at Rome, were not received and treated with favor in the debates of the body which led to the adoption of the Code Napoleon. That code, as a result, does not seek to emancipate the adopté from all ties and place him entirely and exclusively under all circumstances under the absolute control of the new father and mother. Laurent, Vol. 4, p. 272.

Under the English law if a man undertakes to rear a child not his own the law will hold him to his undertaking, and compel him, as far as possible, to rear him in a proper manner.

Prior to 1865 in this State, adoption under general laws was prohibited.

The laws upon the subject, enacted since, are silent in many respects as to the effect intended. ' They, in the main, give the needful authority to adopt. This court has, in several decisions, construed the extent of the right of the persons adopted. We will state, in passing, that it is not our purpose to abridge any of these rights.

In referring to history we have not found that in so far as relates • to the adoptant, adoption always has the meaning it is here contended it has.

The extent of the right and the meaning of the word can not be determined with precision by reference to history. It is ever varying, as we have already noted; with the times, customs and ideas. In modern times such antagonism to the laws and customs have been defeated; justly defeated we may say but the purpose seems to have been assistance to the one adopted, and there was indifference to the interest of the adoptant.

The court can not supply those measures' which the legislator has omitted or forgotten.

We have not found that adoption gives a right of usufruct to the property of the one adopted, nor that it relieves the tutor from' accounting as a tutor.

We conclude on this point: the tutor may adopt his ward with the consent of the parents, but it in no wise relieves him from his responsibility as a tutor, as he, as an adoptant, does not succeed to all the rights of the father and mother.

This brings us to the second branch of the case; that the under-tutor is not the proper person to demand the filing of the tutor’s account; that his action must be restricted to an action for removal

The article of the Oode is plain, and, we think, is a complete answer to the tutor’s contention on this point.

If the tutor should neglect to render his annual account, the under-tutor must notify the judge, whereupon the latter shall order him to account.

That was the action of the court in this case.

Although it is true that the court will not settle the tutor’s account, until some time after the ward comes of age, that the ward may have opportunity to investigate it; yet the law requires accounts prior to the majority, whenever it is deemed to the minor’s interest.

Something was said in argument at the bar about costs that the annual account would occasion. We do not see the necessity, under all circumstances, for incurring large bills of costs and for other charges.

The tutor «should file his annual account, showing debits and credits, during the year. Ordinarily it does not require professional skill to prepare such an account for tfie examination of the court, in order that the court may determine whether the estate of the minor is properly administered. Of this, by reference to the account vouchers, and other evidence, if necessary, the court should be entirely satisfied. We do not wish, however, to be understood as saying that there is never occasion for litigation in matter of these accounts. Whenever the necessity arises as in the present case, counsel is entitled to a fair compensation. In fixing principles in the interest and for the protection of minors, counsel representing their tutors should be paid by them.

The account of the tutor has been filed and is now before the District Oourt for its action. The tutor has reserved the right, when his account was filed, to have the questions here decided.

The case must be remanded in order that the court may pass upon the items of the account.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed.

It is further ordered, adjudged and decreed that the case be remanded and the issues tried and decided in accordance with the views herein expressed.

That the appellee pay costs of appeal.


source: Caselaw Access Project

author: WATKINS, J.

license: Public Domain

text:
    No. 11,885.
    Succession of Amelie Rixner, Wife of Count Joseph de Sarzana—Opposition of the Board of Administrators of the Charity Hospital to Final Account, etc.
    A citizen and subject of Italy is exemptfrom the payment of the ten per centum tax levied againt foreign heirs, on property situated in this State, under Act 180 of 1894, the title to which is derived by testamentary disposition of his mother’s will, she having likewise been a citizen of Italy at the date of her death.
    The “most favored nation clause ” of the treaty between Italy and the United States entitles citizens and subjects of the former to the same tax exemptions as the citizens and subjects of the latter are; and the same right to acquire and dispose of.personal and real property within the territory of the latter, by donation, testament or otherwise, from or to aliens and subjects of the former.
    It is both wise and conservative for courts to adhere to what has been repeatedly adjudged; and when the intent and meaning of a law has been settled by the uniform and consistent course of judicial construction, the construction becomes, in so far as contract and treaty rights acquired thereunder are concerned, as much a part of the law as the text itself. *

    A PPEAL from the Civil District Court for the Parish of Orleans, Monroe, J..

      Charles F. Claiborne for Succession, Appellee, Henry Denis as Amicus Curiee submitted a brief on same side;

      Branch K. Miller for Opponent, Appellant.
    Argued and submitted November 21, 1895.
    Opinion handed down February 10, 1896.
    Rehearing refused March 28, 1896.
   The opinion of the court was delivered by

WATKINS, J.

The opponent claims 10 per centum on whatever amount shall be due on decedent’s account to Ignazio Yincanzo de Sarzana, the heir instituted under a will, said heir being domicil-iated in Marcella, and a citizen and subject of the kingdom of Italy, and the succession of the testatrix being administered in the parish of Orleans, Louisiana.

The opposition was, after due proceedings and trial, dismissed, and the executor’s account approved and homologated; and the opponent has appealed.

In the lower court the case was tried and decided upon an agreed statement of facts, the purport of which is as follows, viz.:

1. That the universal legatee under the will of Amelie Rixner, Ignazio de Sarzana, is a minor, and not domiciliated in or a citizen of the State of Louisiana, or of the United States of America.

2. That he is a citizen and subject of the kingdom of Italy, wherein he now resides, and where he has always resided, and has his domicile.

3. That the property proposed for distribution on the account that is opened consists of the following, viz.:

Immovables valtied at. $70,100 00

Movables valued at. 574 23 $70,674 23

Less debts stated on the account the total is. $67,648 38

4. That Joseph de Sarzana is the father and tutor of said minor, and Jules Andrieu, of the city of New Orleans, Louisiana, is the agent and attorney in fact of the said tutor.

5. That the treaties between Italy and other nations and the United States are contained in the volume which is entitled “Treaties and Conventions between the United States and Other Powers,” and same is to be used in the original for all the purposes of this ease.

The volume referred to is produced in the original as constituting part of the transcript.

Opponent propounds its claim under and in pursuance of the terms and provisions of Act 130 of the General Assembly of the State of Louisiana, approved on the 11th of July, 1894; and it claims that under said act “ every person not domiciled in this State, and not being a citizen of any State or territory of the Union, who shall be entitled, whether as heir, legatee or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this State or elsewhere, shall pay a tax for the benefit of the Charity Hospital of ten per cent, on all sums due on the value of all property which may have actually been received from said succession, or so much thereof as is situated in this State, after deducting all debts'due by the said succession.”

That it is made the duty of the executor, curator, etc., having charge of the administration of the succession property belonging to a person residing out of the State, to retain in his hands the amount of the tax imposed, and pay the same over to the treasurer of the Charity Hospital,” etc.

He demands that the executor of the estate of the deceased comply with the law and pay over to the said administrators ten per centum of the net value thereof.

The executor resists opponent’s demand and says that he is protected from making the payment demanded, and against the provisions of said law, by the clauses of the treaty between Italy and the United States concluded, ratified and proclaimed in the year 1871, and especially by Art. XXII thereof, which provides:

“ The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by sale, donation, testament or otherwise, and their representatives being citizens of the other party shall succeed to their personal goods, whether by testament, or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such duties only as the inhabitants of the country wherein such goods are shall be subject to pay in like cases.

“As for the case of real estate the citizens and subjects of the two contracting parties shall be treated on the footing of the most favored nation.”

His averment is that this court in placing an interpretation upon similar rights of French citizens and the subjects of Bavaria held that they were protected against the operation and effect of similar statutes under and by virtue of treaties existing between the United States and France and Bavaria, respectively, and that the legatee of Mrs. Amelie■ Rixner ought to be afforded like protection by the treaty above cited and relied upon. *

That, in so far as the statute upon which opponent relies is opposed to or comes in conflict with said treaty stipulation, same is null and inoperative, as in contravention of section two (2) of Art. 6 of the Constitution of the United States, viz.:

“ This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State tp the eontrarf notwithstanding.”

Counsel for opponent has employed, substantially, the language of the legislative act which is relied upon for the enfprcement of the tax demanded. Act 180 of 1894.

It purports to be a revival of the provisions of Secs. 1221, 1222 and 1223 of the Revised Civil Code, relative to the tax due by foreign heirs, which was repealed by Act 86 of 1887; and also to amend the same.

The act of 1877 merely repealed, in terms, the sections of the Civil Code referred to, and corresponding provisions of the Revised Statutes.

A careful comparison instituted between the provisions of the articles of the Civil Code and the statute of 1894, above referred to, discloses that the institution of the Charity Hospital as the beneficiary in lieu of the State is the only difference between them. These articles have no counterpart in the Code Napoleon, and were for the first time introduced into our own Code in its revision in 1870, being the codification of See. 7 of Act 315 of 1855.

Counsel for the executor has accurately quoted the language of the treaty of the United States with Italy.

Treaties and Conventions between the United States and Other Powers, pp. 581-587 (Article XXII).

As it appears from the agreed statement of facts, that the decedent’s succession exclusively consisted of real estate, it is manifest, that the executor chiefly relies on that clause of the treaty with Italy which declares that ‘1 as for real estate the citizens and subjects of the contracting parties shall be treated on the footing of the most, favored nation,” therefore an examination of the provisions of some of the treaties which the United States has made is important.

The following is an extract from the treaty which was concluded • between the President of the United States and the Emperor of the French, and proclaimed on the 12th of August, 1853, viz.:

Article VII. “In all the States of the Union, whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfer, inheritance, or any others different from those paid by the latter, or to taxes which shall not be equally imposed.” Treaties and Conventions, p. 352.

The first sentence has exclusive reference to the right of Frenchmen to “enjoy the right of possessing personal and real property by the' same title and in the same manner as the citizens of the United States,” and the second declares that “Frenchmen shall be free to dispose of their property as they may please,” and “in no case shall they be subjected to taxes on transfer, inheritance, or any others, different from those paid by the latter, or to taxes which shall not be equally imposed.”

It is with the latter that we are alone concerned, as no question has been raised with reference to the right of Frenchmen to acquire and hold property in either of the States of the Union, and to tha^ alone does the language of the treaty refer.

The treaty of Bavaria is as follows, Tueaties AND Conventions (p. 46):

“Art. III. The citizens or subjects of each of the contracting parties shall have power to dispose of their real and personal property within the States of the other by testament, donation or otherwise ; and their heirs, legatees and donees being citizens or subjects of the other contracting party shall succeed to their said (real and) personal property, and ma.y take possession thereof either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duty only as the inhabitants of the country where the said property lies shall be liable to pay in like cases.”

The foregoing is an extract from the treaty which was concluded between the United States and the King of Bavaria, and proclaimed on August 16, 1846. Treaties and Conventions, p. 46.

The Spanish treaty provides as follows, viz.:

“ART. II. The citizens and subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation or otherwise, and their representatives being subjects pr citizens of the other party shall succeed to their said personal goods, whether by testament or ab intestat'o, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases.”

The foregoing is an extract from the treaty which was concluded between His Catholic Majesty and the United States, and proclaimed on August 2, 1876. Treaties and Conventions, p. 1009. #

The German treaty provides as follows, viz'.:

“Art. X, Sec. 3: In all successions to inheritances citizens of each of the contracting parties shall pay in the country, of the other such duties only as they would be liable to pay if they were citizens of the country in which the property is situated, or the judicial administration of the same may be exercised.”

The foregoing is an extract from the treaty which was concluded' between the United States and the German Empire, and proclaimed June 1, 1872. Treaties and Conventions, p. 366.

The treaty with Great Britain provides as follows, viz.:

“ Art. IX. It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now. hold lands in the dominion of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein, and may grant, sell or devise the same to whom they please, in like, manner as if they were natives, and that neither they nor their heirs or assigns shall, so far. as may respect the said lands and the legal remedies incident thereto, be regard'ed-as aliens.” ' •

The foregoing is an extract from the treaty which was concluded between the United States and his Britannic Majesty, and proclaimed on the 29th of February, 1796. Treaties and Conventions, p. 385.

It will be interesting and instructive to examine and consider the legislation of this State on this subject and the course of our jurisprudence under it as auxiliary to our investigation and decision of. the question at issue.

The first enactment on the subject is Act 95 of 1828, Sec. 1 of which declares “ that any person who is not a citizen of the United States, or is not domiciliated in any part of said States shall be subject to pay to this State ten per cent, on all sums which may be due to him as heir, legatee or donee by any succession which may be opened in this State.”

This act was repealed in 1830 and was again re-enacted in 1842— being incorporated in the general revenue law of that year in slightly altered language. Sec. 4, Act 154 of 1842.

The terms employed are, “that each and every person not being domiciliated in this State, and not being a citizen of any State or territory in the Union who shall be entitled,” etc.

It is again reproduced in the general revenue law of 1850 in the following terms, viz.:

“ Every executor, curator, tutor, or administrator having charge or administration of succession property belonging in whole or in part to a person residing out of this State and not being a citizen of any other State or territory of the United States shall be bound to retain in his hands the amount of the tax imposed by law,” etc, Sec. 76 of Act 194 of 1850.

As this statute did not repeal former laws, except those on “the subject treated in this act,” the language of the section quoted may be regarded as a legislative interpretation of former laws on the subject mentioned.

But the identical language which is employed in the statute of 1842 is reproduced, in totidem verbis, in the law of 1855, Sec. 7 of Act 315 of 1855.

In this condition the law remained until the revision of the Civil Code in 1870. Vide supra.

The same language is preserved in Revised Civil Code, 1221; but in defining the duties of succession representatives, with regard to this tax, the language employed is: “A person residing out of the State, and not being a citizen of any other State or Territory.” R. C. 0. 1222. And in the next section the language is: “ Persons who are neither residents of this State nor citizens of any other State or Territory.” R. C. C. 1223.

These articles of the Code and their corresponding provisions in the Revised Statutes were repealed in 1877; and there was no law on the subject until the statute of 1894 was enacted. Vide supra.

This act follows the language of the articles of the Oode very closely; and it declares the legislative purpose to be to revive the same. Act 130 of 1894.

It thus appears that the phraseology of the legislation on the subject has remained, practically, unaltered since 1842; and that the statute of that year continued uninterruptedly in force until 1877; and there has been no law on the subject since until 1894.

Taken chronologically, the treaties referred to were proclaimed in the following order of dates, viz.:

That of Great Britain on February 29, 1796.

That of Spain on August 7, 1796.

That of Bavaria on August 16, 1846.

That of France on August 12, 1853.

That of Italy on November 23, 1871.

That of Germany on June 1, 1872.

It is readily observable that in the last two there is a change of phraseology different from the language of our statutes and that of some of the previous treaties. For, in the “ most favored nation” clause of the Italian treaty the language employed is, “ the citizens and subjects of the two countries,” and in the German treaty it is ‘‘citizens of each of the contracting parties.”

And the language of the Spanish treaty is “ the citizens and subjects of each party;” but that of the British treaty is, “British subjects” and “American citizens.”

The Bavarian treaty employs the phrase “ the citizens or subjects of the contracting parties,” while the French treaty says “Frenchmen shall enjoy the same rights as citizens of the United States.”

To relieve our minds of any complexity in the matter, the decisions of this court have come to the rescue in determining the true meaning of “the most favored nation” clause of the Italian treaty, in giving an interpretation to some other treaties, the effect of which is to subordinate our statutes thereto and place the citizens and subjects of other countries upon the same plane as the citizens of our own State.

As best calculated to present the controverted question in the clearest light, the case of State of Louisiana vs. Succession of Poydras, 9 An. 165, which was decided in 1854, may be taken as the initial point in our jurisprudence, as the tax in controversy was laid under the act of 1850, and the court in the course of its decision took occasion to attract attention to the fact that the statute embraced “ persons residing out of this State,” and those, also, “not citizens of any other State or Territory of the United States,” and said:

“ From this view of the statute we conclude that the tax attaches not only to property falling to alien heirs who are non-residents, but also to the property falling to citizens of our own State residing abroad. The successions falling to non-resident heirs who are citizens of any other State or territory of the United States than Louisiana are alone exempted from it, and this exemption was probably intended to satisfy the requirements of the second section of the fourth article of the Oonstitution of the United States.”

The effect of that decision was that the language of the law of 1850 rendered citizens of Louisiana residing abroad liable to the tax, while exempting therefrom citizens of “ any other State ” of the Union.

At the date when that case arose the French treaty'bad not been concluded, but it was concluded in the following year.

During the year 1855 the Succession of Dufour, 10 An. 391, was decided, Mr. Chief Justice Slidell being the organ of the court, and having been the organ of the court in State vs. Povdras, supra.

The decedent, in that instance, having been a Frenchman by birth, while Julien Poydras was. one by adoption, and the death of the latter occurred prior to the conclusion of the French treaty, and that of the former two days subsequent thereto — the heirs in each case having the recognized status of French subjects when the successions were opened respectively. In the course of their decision 'the court said:

“ That by a reasonable and just interpretation of the terms of the (French)'treaty, the exemption from taxation for which its seventh section provides applies to this case.”

And holding the provision of the treaty to have been within the constitutional prerogative of the president, they said it must be “obeyed as supreme; that, consequently, the statute of Louisiana (1842) has become pro tanto inoperative during the continuance of said treaty.”

Judgment of the District Oourt enforcing the provisions of the French treaty and relieving the French subjects from the payment of the tax was affirmed.

A forcible illustration of the view which was by this court entertained of the provisions of the-French treaty is found in Succession of Prevost, 12 An. 577, which was decided in the year 1867. Referring to the decision in Succession of Dufour, supra, the court said:

“The present ease, however, differs from that of Dufour in the essential particular that Prevost died many years before the conclusion of the consular convention with France, and the right of the State of Louisiana to tax consequently attached at a period when French citizens did not enjoy an exemption from the operation of the act of 1842.”

The court thus completely eliminated from consideration the act of 1850 and affirmed the principle of exemption which was announced in the Dufour case.

Subsequently the Prevost case was considered by the Supreme ■Court and their opinion will be hereafter considered by us.

The principle of the Dufour case was affirmed in Succession of Amat, 18 An. 403.

In Succession of Crusius, 19 An. 369—decided in 1867—the heirs of the resident succession, being citizens of Bavaria, were exempt from the payment of a tax which was levied under the act of 1856 by virtue of the stipulations of the Bavarian treaty of 1846, affirming the Dufour and Amat cases.

The question of the liability of Frenchmen to the payment of a tax levied under the act of 1855 arose in 1878, and was considered in Succession of Marquis de Circe, Manning’s Unreported Cases, 412, decedent’s death having occurred in 1869 in France.

The court held that the act of 1855 was a revisory statute, which merely reiterated the provisions of the act of 1842, saying:

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

The French heirs were relieved from the payment of the tax on authority of the Dufour and other cases cited.

This was the condition of our law and jurisprudence when, in 1870, the Civil Code was revised, and the provisions of the act of 1842 were incorporated therein as Arts. 1221, 1222 and 1223.

They each continued without alteration until 1877, when those articles were expressly repealed, and so remained until 1894, when the Legislature revived them, and re-enacted them in terms and without change in phraseology. This, notwithstanding no alteration has been made in the treaty rights of citizens of other countries; and no contrary decision of this court has been intermediately rendered.

Under “ the most favored nation” clause of the Italian treaty, which was concluded in 1846, the instituted heir of the decedent is entitled to have as favorable construction put upen his property rights in this State as have been accorded by this court to French - men under the treaty with France, or to the subjects of Bavaria.

The intimation of the court in the Poydras case, to the effect that the act of 1850 contemplated that property in this State coming to citizens of our own State residing abroad” was liable to the tax, has not been followed in any subsequent decision of this court; and that act has not been considered in any subsequent decision of this court.

Omitting from consideration the word other, as it has been • eliminated from all statutes since 1850, the citizens of Louisiana alone are dealt with in our law and the adjudications of this court, and they are put upon the same plane in this regard as the citizens of other States and countries are by the terms of the treaties.

The British treaty employs the terms “British subjects” and “American citizens.” That of the Spanish treaty is “ the citizens and subjects of each party.” That of Germany is the “ citizens o^ each of the contracting parties.” That of Bavaria is same as that of Germany. That of France is “Frenchmen shall enjoy” the rights enjoyed by “the citizens of the United States.” Fredericson vs. State, 23 Howard, 447.

All of these treaties deal with the respective property rights of the citizens of the contracting parties, and not with those of inhabitants merely.

Not only is this true of the treaty stipulations respecting French citizens, but the law of France provides that “ every child born of a Frenchman in a foreign country is French.” C. N. 10.

“ A foreigner shall enjoy in France the same civil rights as are or shall be accorded to Frenchmen by the treaties of that nation to which such foreigner shall belong.” O. N. 11.

The comity existing between the two countries seems to be perfect and complete.

The petition of the opponent has closely followed the phraseology of the act of 1894, and avers that “ every person not domiciliated in this State, and not being a citizen of any State or Territory”— thus including, necessarily, the citizens of Louisiana.

The phraseology of the act of 1894 was not accidentally employed by the Legislature; but it was manifestly employed with the purpose of keeping our law in line with the provisions of previously existing treaties, and which are “the supreme law of the land.” Sec. 2, Art. 6, U. S. Const. The act of 1894 reviving the articles of the Code which has been repealed -fifteen years'previously, could not, in any event, have the effect of breaking the force of the repeated decisions of this court giving an interpretation to the law of 1842, which had been kept uninterruptedly in force until its repeal by the Legislature in 1877.

The manner in which the treaty rights of all nations have been treated for so great a length of time by the Legislature of the State and its highest court is not to be lightly considered.

However, some reference has been made to some decisions of the Supreme Court as possessing some features which are antagonistic to this view.

One of the cases cited and relied upon is Prevost vs. Gremoux, 19 Howard, 1, in which the Succession of Prevost, 12 An. 577, supra, was reviewed on a writ of error.

The court held that the right to tax was completely vested in the State when Prevost died, and was not divested by the treaty subsequently concluded, and that the heirs of the deceased acquired their rights subject to the tax.

But the court observed, in affirming the judgment of this court, “that the obligation of the treaty and its operation in the State, after it was made, depend upon the laws of Louisiana;” and then added the further observation that the operation of the treaty is “ expressly limited ” to the States of the Union whose laws “ permit it, so long and to the same extent as those laws shall remain in force; and there is no act of the Legislature of Louisiana repealing the law” — the ’aw of 1842, under which the tax in question has been levied — “ and accepting the provisions of the treaty,” etc.

The foregoing paragraph of that opinion was pressed upon our attention in the DeOirce case, and the courc was, on its account, urged to reverse the ruling of their predecessors in the Dufour and other cases; but this insistence did not prevail, and the ruling in the Dufour case was adhered to.

But, independentlyof that consideration, it must be borne in mind that the act of 1842 was repealed in 1877, and was not again revived until 1894; and in the meanwhile, if not before, the provisions of the French treaty were operative. And the subsequent revival of the law could not abrogate or defeat them.

The next case cited is Frederickson vs. State of Louisiana, 23 Howard, 445, which involved an interpretation of the Bavarian treaty, and a decision of this court also. In that case the court, through Mr. Justice Campbell, said:

“The case before the court in Louisiana concerned1 the distribution of a succession of a citizen of that State, and of property situated there;” and then added that they concurred with this court in the opinion that the treaty does not regulate the testamentary dispositions of citizens or subjects of the contracting powers, in reference to property within the country of their origin or citizenship. The cause of the treaty was that the citizens and subjects of each of the contracting powers were or might be subject to onerous taxes upon property possessed by them within the State of the other, by reason of their allegiance; and its purpose was to enable such persons to dispose of their property, paying such duties only as the inhabitants of the country where the property lies pay under like conditions.

“ The case of a citizen, or subject of the respective countries, residing at home, and disposing of property there, in favor of a citizen or subject of the other, was not in the contemplation of the contracting powers, and is not embraced in this article of the treaty.”

The opinion of the court in that case does not, in any way, militate against the decisions of this court.

The record shows that Amelie Rixner died at Marcella, Sicily, where she was domiciled; and, at that place, she executed her last will, on the 24th of July, 1892. That her property is situated in Louisiana, where her succession is being administered; and her universal legatee resides at the place of of her domicile.

It is therefore evident that this case does not come within the purview of that decision.

This investigation has led us to the conclusion that the situation of the parties to this litigation is the same, identically, as that of the litigants in the Dufour and other cases; and that the heir of the deceased is quite as much entitled to the protection of the French treaty as were the subjects and citizens of France — he having invoked the benefit of “the most favored nation” clause in the Italian treaty with the United States.

In Levy vs. Hitsche, 40 An. 501, we said, after a careful review of the authorities, that after the intent and meaning of a law has been settled by judicial construction, the construction becomes, in so far as contract rights acquired under it are concerned, as much a part of the law as the text itself; and the same rale must be true in so far, also, as treaty rights and obligations are concerned. Vide Douglas vs. County of Pike, 101 U. S. 677; State vs. Thompson, 10 An. 122.

It is both wise and conservative for courts “ to adhere to what has already been adjudged.”

Entertaining this view we deem it unnecessary to examine and decide the constitutionality of Act 130 of 1894; for, accepting the same in its fullest force, it yields precedence to the treaty stipulations invoked as part of the supreme law of the land.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,948.
    Manuel Abascal vs. City of New Orleans.
    Holders of floating debt certificates are not entitled to recover money judgments against the city therefor.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Louque & Pomes for Plaintiff, Appellant.
    ' E. A. O'Sullivan, City Attorney, and Horace D. Dufour, Assistant City Attorney, for Defendant, Appellee.

      Submitted on briefs, February 25, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff seeks to obtain against the city a money judgment upon certain certificates which represent the floating indebtedness of the city. The city answered, first, pleading a general and special denial, and then tendered a plea of no cause of action. This plea having been sustained and the suit dismissed, the plaintiff prosecuted this appeal.

In Johnson vs. City, 46 An. 714, it was decided that the holders of demands against the city of New Orleans — whatever the character of the evidences of indebtedness might be, whether certificates or claims, original or transferred — who are entitled to payment only out of funds appropriated for that purpose, are not entitled to recover an absolute judgment against the city therefor in case the fund prove inadequate from any cause.

In thus deciding the court followed the precedent established in Creole Steam Fire Engine Company vs. City, 30 An. 981.

In that case suit was brought upon certificates of appropriation representing a part of the debts of the city for current municipal expenses, and we restricted judgment of the lower court to the revenues of the several years in which the respective claims arose.”

These two decisions are in strict keeping with other adjudications on this and kindred questions. State ex rel. Wood vs. Board of Liquidation, 40 An. 398; Fernandez vs. City, 42 An. 1; Newgass vs. City, 42 An. 169; Paving Company vs. City, 43 An. 464; State ex rel. Fernandez vs. City, 45 An. 1889; Fernandez vs. City, 46 An. 1130.

In our opinion the question of the city’s liability to a money judgment upon the evidences of floating indebtedness has been effectually settled by repeated decisions which are binding on us and with which we are indisposed to interfere.

Judgment affirmed.


text:
    No. 11,923.
    State ex rel. The City of New Orelans vs. The New Orleans Traction Company, Limited.
    The respondent having acquired from the city of New Orleans a franchise entitling it to construct, operate and maintain a line of street railway through certain designated streets of the city, the adjudication of which contained the stipulation that all the-streets through which its tracts are laid shall be maintained in first-class order between the tracts and two feet on each of side of said tracts, Held that this eonvenant does not impose the additional duty of elevating the entire surface of the street on either side of its tract to the height of its roadbed.
    A PPEAL from the Civil District Court for the Parish of Orleans. J King, J.

      E. A. O’Sullivan, City Attorney, for Plaintiff, Appellant.

      Farrar, Jonas & Kruttschnitt for Defendants, Appellees. ■
    Argued and submitted February 29, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

WATKINS, J.

The city prays for a writ of mandamus to compel the respondent to reconstruct Julia street, from Dryades street to St. Charles street; and this claim is based upon the averment that under an ordinance of the city the respondent acquired certain franchises, which consisted in the right to construct, operate and maintain for a period of fifty years a street railroad in and upon certain designated streets of the relator, and, among others, upon the street designated above.

That as an incident of the acquisition from the city of the aforesaid franchise, the respondent came under obligation to relator to keep and maintain in first-class condition all the streets through which its tracks shall pass, “ between its tracks and two feet on each side of the tracks.”

That, in order to build its tracks, it was necessary for respondent to procure from the Oity Surveyor the lines, levels and speeifica-tions to which the work was required to conform; but the tracks as laid by the respondent on Julia street, from Dryades to St.'Charles street, were placed at a level of from three to sixteen inches above the actual level of the street; and that as a consequence of the roadbed of the respondent having been so constructed, said street has become absolutely useless, cutting off one portion of the street from the other.

Relator charges that under its contract respondent assumed, as at part of its obligation, to place the whole street in such a condition as its general usefulness to the public would not be impaired,”-and that the respondent knew, before laying the track, that their cars could mot be operated on Julia street without raising its roadbed considerably higher than the then level of the street.

Relator claims that the condition in which the respondent had placed said street, by the manner in which it constructed its roadbed, has greatly damaged the adjacent properties on said street by causing rain water to be dammed up and flood the banquettes thereof, to the serious inconvenience of pedestrians and hinderance to its use as a public-thoroughfare.

That it is the duty of the respondent to raise the street on either side of its track so as to bring the street surface up to the level of its roadbed, and that unless this is done it would be of no practical use to keep its tracks in repair, and the streets between its tracks, and for two feet beyond the tracks.

The respondent alleges that it acquired its franchise from relator, and constructed its roadbed in exact conformity with the lines, levels and specifications it received from the City Surveyor, and’that they directed and required that its roadbed through Julia street should be elevated to the height of from. three to sixteen inches above the established grade of that street.

The case of the respondent is very clearly and fully stated in- its return, and we give it in its entirety, as follows, viz.:

It admits that the city of New Orleans, by Ordinance No. 7462, Oouneil Series, approved April 25, 1898, advertised for sale to the highest bidder the street railway franchise therein set forth and described, which street railway franchise this respondent purchased and paid the city of New Orleans therefor the sum of one hundred and twenty-five thousand dollars in cash, but this respondent avers that it subsequently transferred the said franchise to the Orescent City Railroad Company, who is now the owner of the same, and made a contract with the said Crescent City Railroad Company to construct the railroad provided for in the said ordinance, in accordance with ijhe terms and conditions of the said ordinance, and the contract thereafter made between your petitioner and the city of New Orleans before Joseph D. Taylor, notary public, and that this respondent is bound to comply, under its contract with the Crescent City Railroad Company, with all of the terms and conditions of its' contract with the city of New Orleans.

“Respondent further admits that a. part of the line of said road runs through Julia street from Dryades to St. Charles street.

“And further answering, respondent avers that the reason why it paid the sum of one hundred and twenty-five thousand dollars for the railway franchise aforesaid was due to the fact that it contained in it no obligation whatever relative to improvements or pavements of the streets through which the said franchise was laid out, and imposed no obligation of maintenance upon the purchaser thereof, except the obligation to maintain between tracks, and for two feet on each side of the tracks; that the said franchise, so advertised, by Ordinance 7462, Council Series, contained no provision whatever for public improvements, such as pavement, for the reason that a previous franchise, covering a larger portion of the same route which had been sold by the city of New Orleans to Judah Hart, and by Judah Hart sold to this respondent, was annulled by the Circuit xjourt of the United States, because it provided for the payment of the franchise in pavement, and that the franchise aforesaid was put up and sold by the city of New Orleans, as a compromise with the said Judah Hart, as a result of said litigation and said decision of the United States Circuit Court.

“ That it is true that the said franchise provides that the lines and levels upon which the purchaser thereof is to construct said road shall be given by the City Engineer, and that the purchaser of said franchise was therefore obliged to follow any lines and levels which the City Engineer might give; but this respondent denies the right and power of the City Engineer so do change the established grade of streets as to compel respondent, in the construction of its road, to perform necessary public work which the city of New Orleans is obligated to perform under her charter and her public duties, and your respondent avers that Julia street is a very broad street; that for many years it has been paved with a square block pavement, from curb to curb, laid upon a grade so low that Julia street has been a public nuisance from St. Charles to Dryades street, and a source of public complaint from residents and general citizens, owing to the grade established when the said pavement was laid; that as a result of.this condition of Julia street the City Council, in the year 1893, passed an ordinance making an appropriation of six thousand dollars for the purpose of raising the grade of Julia street, so as to abate the public nuisance aforesaid, and that your petitioner believed, and had a right to believe, that when the lines were given to it by the City Engineer for the construction of said road through the cen-tre of Julia street, that the city of New Orleans would expend said appropriation in raising such portion of the grade of the street as lay outside of the limit of this respondent’s obligation under the said franchise.

“And further answering, respondent says that it has laid its road through Julia street on the lines and levels given by the City Engineer; that it has not taken up or interfered with the pavement on the balance of said street lying from two feet outside of respondent’s track to the counter-curb, and that the pavement of said street from the said point two feet outside of its line to the counter-curb is now in the same condition in which it has been for more than thirty years; that this respondent is not at all responsible for the lines or grades given to it by the City Engineer through the said street, and that the burden of taking up all the pavement on that street from curb to curb, putting in new filling, relaying square block, putting in new counter-curbs and going to all the expenses necessary to improve said street in accordance with the convenience of the public can not be cast upon this respondent by the grades given it by the City Engineer; that it would cost this respondent the sum of $10,000 over and above the cost of the work provided for in its franchise to raise the grade of Julia street and improve the same as required in the mandamus herein; that the whole of the square block on both sides of respondent’s track to the counter-curb would have to.be taken up, that a new counter-curb, expensive in character, would have to be set in; that the lines of the gutter would have to be «hanged; that several thousand cubic yards of additional filling would have to be hauled into the street, and that the whole of the ¡square block taken up as aforesaid would have to be relaid.

“This respondent admits that somebody ought to pnt Julia street in that condition required by the city of New Orleans, and that the track of this respondent, as now laid on said street, in the centre thereof, at a grade elevated aboye that of the square block on each of the streets is an inconvenience to the public and an obstruction to the said street, but this respondent denies that it is in any manner responsiole for the lines or grades upon which the said track is laid, or that the whole cost of a municipal improvement in contemplation of the public prior to the time when the said track was laid could be cast upon this respondent by the City Engineer in giving it these grades.

“That this respondent avers that the City Engineer gave the grades aforesaid in order to put the track of your respondent in line with contemplated improvement of Julia street, and your respondent accepted the said grades in the belief that the city of New Orleans would do her share in the elevation of the grade and the improvement of Julia street from Dryades to St. Charles street; that the whole rights and obligations of this respondent to the city of New Orleans are set forth in detail in the said Ordinance No. 7462, Council Series, and the contract made in pursuance therewith by the city of New Orleans by act before Joseph D. Taylor, of date the 25th day of April, 1893; and respondent, for greater certainty and proof, makes a certified copy of the said act a part and parcel of the return herein, and craves leave at all times to refer thereto.

“Wherefore respondent prays that the demand of the relator may be dismissed with costs.”

On the foregoing statement we are of opinion that there is no ground upon which relator is entitled to a writ of peremptory mandamus, as there is nothing to show that the legal duty of keeping Julia street in repair, or of keeping and maintaining it at the surface grade of its track, was cast upon the respondent by the terms and stipulations of the city ordinance under which it acquired its franchise, or the adjudication itself, except that portion of the street between its tracks, and for two feet on either side of'its tracks.

The decree appealed from was in favor of the respondent.

Judgment affirmed.


author: Milleb, J.

text:
    No. 11,825.
    A. M. Lamotte vs. Mrs. Louisa Lamotte.
    Transiera of property by the father to his daughter designed to provide for the indebtedness arising from his tutorship or other causes, and intended also as an advance on the eventual rights of the daughter in the succession of the father, can not be deemed sales, though in that form, because there is no price paid and no sales intended. Civil Code, Art. 2439; 12 An. 529; 5 Martin. 698.
    In the elation enpaiement the amount of the debt must be fixed; the transfers in this ease are not dations, because there was no such intention nor adjustment of the debt. Civil Code, Art. 2656; 10 La. 161.
    Transfers of such character are, in legal effect, donations, though dictated in part by the desire to provide for some indebtedness, and the acts will avail for the real object, i. e. as donations. Civil Code, Arts. 1636, 1586, 1900 et seq.; 5 Martin, 693; 12 An. 629.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Edwin Laizer and Gabriel Fernandez, Chrétien & Suthon for Plain tiff, Appellant.

      Albert Voorhies for Defendant, Appellee.
    Argued and submitted February 25, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Milleb, J.

The suit is by the father to set aside conveyances to his daughter, the defendant. The petition alleges the acts, in form, sales, were in fact donations, dispossessed him of all he possessed; that his daughter has failed to provide for him and has-been ungrateful. The answer is that the property, the subject of the acts, did not belong in full ownership to plaintiff, was part of the community between plaintiff and his deceased wife, plaintiff’s mother, or belonged to her as dotal property; that plaintiff as tutor was indebted to defendant, made the conveyances in satisfaction of her rights, and the answer then assails conveyances by plaintiff to his second wife, one to a person alleged to be interposed for her benefit, and the others directs to her. The judgment maintained the conveyances to defendant and the injunction protecting her possession; and in respect to the sales by plaintiff to his second wife, which defendant sought on her reeonventional demand to have annulled, there was judgment of non-suit. The plaintiff appealed, dying subsequently. His executrix, his wife, has been made a party, and answering the defendant’s motion to make the succession a party, avers that the deceased left two children of the second marriage; that plaintiff’s death ends the suit, practically, to be restored to the property conveyed to defendant; that his succession will have to be settled, the rights of all the children adjusted, and the executrix prays that the judgment of the lower court be reversed, the property conveyed to defendant be decreed to belong to plaintiff’s succession and this suit be cumulated with the succession proceedings. The defendant, answering the appeal, prays for the affirmance of the judgment with the amendment annulling the sales to the second wife.

The alleged ingratitude, the ground to annul the conveyances to defendant, is, in our view, not sustained, nor sought to be maintained in argument. Instead of dispossessing himself of all his property we find the plaintiff at a later period made conveyances to his second wife, and died still owner of some property. The acts stand unaffected in these respects.

There is testimony to support an indebtedness of the plaintiff to his daughter, the defendant, for her share in her mother’s succession opened years ago and never closed. The record indicates the plaintiff’s mother had property for which her heir may have a claim against her father. On the other hand, it is shown that as might well be expected in the years since the death of the mother, there were remittances of money by the father to the daughter, a resident of Prance, and it is insisted that his liability to his daughter arising from his tutorship or otherwise has long since been discharged. Still in 1890, there is his letter expressing his desire to settle the amount due on his tutorship, referred to as six thousand dollars. Whatever the state of the accounts between plaintiff and daughter it is apparent, there was no adjustment on which his conveyances to her can be sustained as dations en paiement. In that contract the debt for which the property is conveyed is fixed, and supplies the fixed price required both in the dation and sale. Civil Code, Arts. 2665, 2439. Barremore vs. Bradford, 10 La. 151. There having been no settlement of accounts in this case, the price named in. the conveyances not determined with reference to any indebtedness ascertained to be due, is to be viewed as nominal. It is shown that no price was paid, although the acts recite the payment of the price. The conveyances can stand neither as sales or dations en paie/nent, and were never so intended. The father was advanced in years, and desired to put his earthly affairs in train of settlement. He conceived it best to convey the property the subject of the two acts to his daughter, to avail in securing whatever might be coming to her in settlement of his tutorship or as his heir. About the same time he made other conveyances to the woman he afterward married, manifestly intended as a provision for her and the children of the second marriage. In the brief for defendants it is contended the conveyances to her were in the nature of advances on her rights as an heir, and in part to settle the plaintiff’s indebtedness. Under this view the acts can be regarded only as donations, resting, it is true, not entirely on the basis of benefit intended to be conferred, but in recognition also of indebtedness, and the probable eventual rights of the daughter when called as an heir to his succession. Under the Code the act not capable of support as the contract it professes to exhibit, will avail as that established by the testimony. Civil Code, Arts. 1894, 1900. Delabigarre vs. Municipality, 3 An. 230. Wolf vs. Wolf, 12 An. 529. There is no basis to sustain the conveyances as dations en paiement. The judgment of the lower court simply maintaining the conveyances might be deemed to have that effect, and thus preclude any rights arising' out of the second marriage in favor of the children, one incontestibly the child of that marriage, and the other claimed to be legitimated. Our judgment will therefore uphold the acts as donations, and, of course, subject to attack by the heirs, if any ground exists, or collation the Code authorizes. Civil Code, Arts. 1502 et seq., 1227 et seq.

The reconventional demand for the annulling the conveyances by the father to his second wife can have no adjudication in this case, to which she is no party, waiving any opinion whether such a demand by a child during the life of the father can be maintained. The judgment of the lower court of non-suit on this issue was, in our view, proper.

In the record there is the proof and admission of the second marriage, and there has been in this court much discussion of the relations of the parties and the rights arising out of the marriage. We omit expressing any opinion of the points involved in that discussion. The issue is the effect of the conveyances to the defendant, and maintaining them as donations, preserves the rights of defendant and at the same time protects any rights that may arise from the second marriage. We decide no issue except to maintain the acts as donations.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to maintain the conveyances of plaintiff to defendant as donations inter vivos and in other respects be affirmed,' the costs of the lower court to be paid by plaintiff, those of this court by defendant.


author: McEnery, J.

text:
      No. 11,929.
    State of Louisiana, vs. William and Jean Baptiste Chevis.
    The disqualification of a juror can not he taken advantage of in a motion in arrest of judgment.
    The Supreme Court-will not interfere with the rulings, of the trial judge relating to the argument andconduct of counsel in the trial of cases.
    The trial judge instructs the jury as to the law applicable to the case, and if an erroneous statement of the law has been made by counsel, it can be corrected, and the law applicable to the case given in his charge by the trial judge. If he fails to do so, the party complaining has his remedy by ashing for special instructions,‘and if refused, the reserving of a bill.
    A PPEAL from the of St. Landry. Eleventh Judicial District Court for the Parish Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. DuBuisson, Dis- ■ trict Attorney, for Plaintiff, Appellee.

      C. F. Garland for Defendants, Appellants.

      Argued and submitted January 25, 1896.
    Opinion handed down February 10, 1896.
    Rehearing refused March 28, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendants were convicted of murder and sentenced to be executed.

There was a motion in arrest of judgment filed on the ground of the incapacity and incompetency of a juror who participated in the finding of the indictment.

There is nothing on the face of the record to show this fact, and evidence dehors the record must be produced to prove the incompetency of the juror. The motion was properly overruled, as the incompetency of a juror can not be taken advantage of by a motion in arrest of judgment. State vs. McGee, 36 An. 207; State vs. Griffin, 38 An. 502; State vs. Miller, 38 An. 158; State vs. Pete, 39 An. 1095; State vs. Crawford, 32 An. 526; State vs. Green, 42 An. 644.

The bill of exception, which was reserved on the part of William Ohevis only, recites that the District Attorney argued to the jury that the failure of the defendant, William Ohevis, to testify in his own behalf was proof positive of the truth of the matters and things that had been testified to by the witnesses against him;” that he objected to said agreement, but the objection was overruled by the court, etc. The statement of the court gives the following reasons for overruling the objection, viz.:

, This court made no such absurd ruling as this bill charges. The prosecuting attorney did not argue to the jury that the failure of the accused, William Ohevis, to testify was a presumption against him, but replying to the argument of counsel for the defendant stated to the jury that a certain fact alluded to by counsel for the defence had been shown to have been peculiarly within the knowledge of defendant, William Ohevis, and that if the jury did not know more about it it was because the said defendant had not chosen to make it known to the jury, and that the rule of law was that evidence which was shown to have been peculiarly within the knowledge or under the control of a litigant, if not produced, was to be construed against said litigant. Counsel for the accused (thereupon) objected on the ground that the failure of the accused to testify was not to ’be construed for or against him. The court, declining to interfere ■•at that time, stated to the jury that they would be fully instructed ■in the premises when the time came for the court to charge them. 'The District Attorney thereupon desisted from further argument upon the point, except to state to the jury that counsel for the •defence was correct as to the principle that the failure of the accused to testify was not to be construed against him, but that the State ■should not be charged with failure to establish a fact which the •evidence showed to be peculiarly within the knowledge of the defendant. And the court, in its charge to the jury, broadly instructed them that the right of an accused to testify was a privilege which the law accorded to him, and which he had a right to exercise ■or not, as he saw fit; if he testified, he subjected himself to all the rules which applied to other witnesses, and that his failure to testify, if he chose not to do so, was not to be construed for or against him.”

There is a wide divergence of opinion as to the facts between defendant’s counsel and the trial judge. We will, in accordance with the uniform rulings of this court, accept the statement of the trial judge. From this statement it appears that the District Attorney, when his argument was objected to by defendant’s couns.-l, instantly corrected the same, and stated that the defendant’s counsel was ■correct in his statement; but that the State could not be charged with the failure to establish a fact which the evidence showed to be precisely within the knowledge of defendant. There can be no legal objection to the latter part of the statement, as the prosecution •could not be requested to do an impossible thing — prove that which was beyond its power.

But the difference as to the facts between counsel and judge has little or no influence in the determination of the issues involved. We have announced in several cases that we will not interfere with the rulings of the trial judge relating to the argument and conduct of counsel in the trial of cases. State vs. Anderson and Blackstone, 45 An. 654.

The jury are controlled by the judge’s instructions on the law, and ■ not what is stated by counsel.

If the indiscreet utterances of counsel as to the law are objectionable to the opposite party, the remedy is to ask for special instructions in ease the points at issue are not covered by the general charge. If refused a bill can be taken and the charge reviewed by this court.

The defendants have no cause to complain. It is true the trial judge declined to interfere at the time his intervention was invoked, but the District Attorney immediately corrected his statement, and this was all that could have been done by the order of the trial judge. If the judge had instantly corrected the statement of the District Attorney, the accused could not have complained. Where, then, is the cause of complaint, when the District Attorney, on his own motion, corrects his statement and removes from the minds of the jury the impressions which his argument may have made upon them?

Judgment affirmed.


author: Miller, J.

text:
    No. 11,925.
    Succession of Josephine M. Blancand.
    The widow who takes possession of movables of the community, exercises her legal usufruct, and such property being consumable by use. and actually used by her, her liability to heir of the husband is for one-half the value of the property, subject to the reduction of the community debts. R. S., Sec. 629; 0. 0. 534, 549.
    The law does not recognize the fiction that the community movables, in this case groceries long since consumed, are to be deemed still in existence, represented by other groceries bought by the widow in the course of her business, and inventoried at her death as property applicable to pay her debts.
    A claim against the administrator of a succession for property, of which he is claimed to be in possession, belonging to another succession, should be urged in a suit for such property, not by opposition to the administrators account. 6 Martin, 27; 15 An. 228; 41 An. 504.
    PPEAL from the Civil District Court for the Parish of Orleans. lx Rightor, J.

      Solomon Wolff, Felix J, Dreyfous and Frank MeGloin for Adminis tratrix, Appellee.

      Henry Chiappella and E. D. LeBreton for Opponent, Appellant.
    Argued and submitted March 12, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the administratrix of the succession of Gustave P. Blancand and the tutrix of his minor child from the judgment dismissing her opposition to the account filed by the ad-ministratrix of the succession of Josephine M. Blancand.

The deceased died insolvent. The account exhibits assets amounting to four thousand one hundred dollars and debts to a greater amount. The property left by the deceased was mainly a stock of groceries, the sale of which produced the fund for distribution to her creditors.

Gustave P. Blancand, the husband of Josephine, died in 1891, leaving children, on behalf of one of whom, a grandson, the opposition is filed. Gustave P. Blancand was the proprietor of a grocery, the stock of which was all he left at his death. It is proved he died insolvent. There was no administration of his property, his widow continued the grocery until her. death with the result of á remnant of stock insufficient to pay her debts as exhibited by the account, the subject of this appeal.

It is under these circumstances that the administratrix of Gustave P. Blancand and tutrix of his minor child claim by the opposition to be placed on the account of the administratrix of Josephine M. Blancand for the one-half of the proceeds of sale of her stock of goods to the exclusion of her creditors.

The theory of the opponent is that the stock of groceries of Gustave P. Blancand, as it stood in 1891, is to be deemed still in existence and represented by the stock possessed by Josephine M. Blancand when she died in 1894. The stock of Gustave P. Blancand has been consumed. His widow, continuing his business since 1891, used the stock of 1891 in daily sales and replenished her supplies from time to time, until her death. We are asked, because of this continuance of the business by the widow in the same store occupied by Gustave P. Blancand, and replenishing of her stock as required by the needs of her business, to sanction the fictitious existence in 1894 of the groceries in 1891, in the store when Gustave P. Blancand died. On this legal fiction that the stock of Josephine Blancand is the stock long since consumed of her husband, and of the community between them, dissolved by death, it is claimed that one-half the funds on the account should be awarded to the administratrix of the husband and to the tutrix of the minor child, and this result is insisted upon, notwithstanding it takes from the creditors of Josephine the fund to pay them, derived, doubtless, from the groceries sold to her by the creditors.

There is, in our opinion, no basis for the ownership of the proceeds of any portion asserted by the opponents. The amount on the account is derived from the grocery stock of Mrs. Blancand, not in any sense to be deemed the stock owned years since by her husband. It is said that the community between them has never been settled. If there was any property in existence belonging to that community, the suggestion of a settlement would have its force. But that existence rests on the Action that movables consumed in use still exist in kind in the stock bought by Mrs. Blancand and left to her creditors. Not only has the stock of 1891 passed out of existence, but under her usufructuary right as widow in community she had the right to the enjoyment of the stock left at her husband’s death. Revised Statutes, Sec. 629; Civil Code, Arts. 534, 536. It follows, we think, that the claim of the opponent of half the fund brought on this account admits of no support. If the minor had any claim in respect to the stock of groceries left by his grandfather in 1891, and taken possession of by Mrs. Blancand, it would be in the nature of a debt against her, not claimed.

We have considered the contention that there was the good will of the grocery of Gustave Blancand, part of his estate in 1891. No such asset was ever sold. If it existed, it passed to Mrs. Blancand with the business to which she succeeded in 1891. It is claimed that the good will of this same grocery added to the sale of the stock she left at her death in 1894, hence must be deemed to have been equally valuable in 1891. It is quite certain that this supposed good will had long since ceased to be an entity, if it ever existed. It surely is not represented by the proceeds on this account. If an asset in 1891, Mrs. Blancand had the benefit of it at her husband’s death, and if liable to the minor for it, the claim vvas a debt due to her minor child. We can perceive no basis to award the minor a portion of the funds on this account, because of the good will claimed to have existed in 1891.

The demand asserted by the administratrix of Gustave Blancand and as tutrix of her minor child is for property of Gustave Blancand, claimed to be in the possession of the administratrix of Mrs. Josephs ine M. Blancand. We have examined the ground of the demand in deference to the earnest argument addressed to us. But in our view no such demand has any place in an opposition to the account of the administratrix of Mrs. Blancand. If there was the basis for the demand, in our view, the remedy was of a different character. Copse vs. Eddins, 15 An. 528; Succession of Scott, 41 An. 670; Succession of Lerude, 11 An. 386; Succession of Aaron, 11 An. 671.

We have given attention to all the phases of the elaborate argument for the opponent, but the views announced dispose of the controversy.

It is therefore adjudged and decreed that the judgment of the lower court be affirmed with costs.


text:
    No. 12,090.
    The State vs. Joseph Romus.
    The offences of assaulting by shooting, or with intent to commit the crime enumerated in the statute when embraced in one act, may be charged con-junctively in one count. Wharton’s Criminal Law, Sec. 890; 34 An. 529 ; 35 An. 458; 37 An, 768.
    PPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. DuBuisson, District Attorney, for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Submitted on briefs March 14, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

Milleb, J.

The appeal is from the sentence of defendant for assault by shooting at another, or with intent to commit murder, rape or robbery. R. S. 792.

The indictment charged that the defendant, in and upon L. W., did mate an assault by wilfully shooting at him, the said L. W., 'with a dangerous weapon, with intent then and there, and thereby feloniously, wilfully and maliciously to kill and murder the said L. W. The statute makes the offence assaulting another by wilfully shooting at him, or with intent to commit murder, rape or robbery. The motion in arrest and bill of exceptions assigns, as duplicity, that the indictment charges two distinct offences in one count. The assault by shooting or with the intent to murder admitted of an indictment for either, but constituting but a single act we conceive it to be settled that such offences may be charged in one count. 1 Wharton C. L., Sec. 390; State of Louisiana vs. Cognovitch, 34 An. 529; State vs. Samuels, 38 An. 458; State vs. Jackson, 37 An. 768.

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


author: McEnhry, J. Watkins, J.

text:
    No. 11,755.
    Mechanics and Traders Insurance Company vs. Maurice J. Hart.
    In a quasi contract where the original contract is not at issue, to return the price of the sale of a thing which the seller has not delivered', Art. 2276 of the Civil Code does not apply. One witness is sufficient to establish the non-delivery of the thing sold.
    APPEAL, from the Civil‘District Court for the Parish of Orleans. Théard, J.

      Percy Roberts for Plaintiff, Appellee.

      Branch K. Miller for Defendant, Appellant.
    Argued and submitted November 4, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused March 23, 1896.
   The opinion of the court was delivered by

McEnhry, J.

The plaintiff, through a broker, purchased of the defendant nine bonds of the State of Louisiana. They were bonds of one thousand dollars each and numbered 749, 750, 771, 797, 808, 821, 853, 863, 905. These are some of the bonds which are invalid; and which were stolen from the office of the State Treasury by the Treasurer, E. A. Burke, and placed on the market. The status of these bonds has been fixed by this court, and there is no effort in •this suit to establish their validity. The plaintiff brought this suit •to be reimbursed the price, with interest, that he paid for said bonds.

There is no question as to his right to obtain the relief prayed for, if the bonds are such as are described in the petition of plaintiff. 'The evidence fully and completely establishes the fact that the bonds are such as are described, and that they were purchased from ■the defendant.

The only defence is to the insufficiency of the evidence, the defendant claiming that plaintiff’s case depends upon proving a contract for the purchase of ten thousand dollars of State bonds, which must be proved by written evidence, or by the testimony of at least •one credible witness and other corroborating testimony. R. 0. O. 2276.

There is no attempt here to enforce a contract against the defendant for any sum of money over five hundred dollars. Defendant’s liability arises from a quasi contract, to restore the price of that article he has agreed to deliver, and which he has failed to do. The original contract is not in question. It is not specially denied and put at issue. The only question at issue is as to the identity of the bonds. This is fully established by the broker who made the purchase for the plaintiff. But we are strongly inclined to the opinion that the requirements of Art. 2276 of the Oivil Code have been complied with. One witness, the broker, swears most positively to the purchase of the bonds from the defendant: He is corroborated by his clerk and by the president of the insurance company, who instructed him to make the purchase. The broker gave the defendant a check on the Union National Bank for the price of the bonds, and on delivery of the bonds to the company he received a check from the insurance company for the amount.

In fact, there is the testimony of one witness and other corroborating circumstances to the purchase of the time bonds.

Judgment affirmed

Dissenting Opinion.

Watkins, J.

As this suit involves, and the court has dealt with the same issues as those in the case of Pugh vs. Moore, Hyams & Co., 44 An. 209, I dissent from the views entertained herein by the majority of the court, for the reasons expressed in my dissenting •opinion in that case. Vide pp. 227 to 261.

I wish to emphasize the statement therein made, to the effect that Agricultural and Mechanical Oollege bonds of the State of Louisiana,, of the series involved in this suit, were primarily executed and issued by the proper officers of the State.for value. That they are in the form of commercial obligations, payable to bearer, at a future date. Under the funding laws of the State, enacted in pursuance of a constitutional enactment in the year 1874, they were surrendered to the Board of Liquidation of the State as valid and binding obligations of the State, and in exchange therefor consolidated bonds of' the State were issued in the form they are presented to the court.

That they subsequently passed into circulation as valid obligations of the State for value, and in the due course of dealing and business were listed by the local Stock Exchange; that from that date to the month of September, 1889, a period of nearly fifteen years, they were bought and sold in open market without suspicion or suggestion of fraud or illegality; that it was during that period of time plaintiff company purchased saíne from defendant, through the medium of a broker, for a valid and adequate consideration, and in the usual course of trade.

Finding these bonds in its hands after the disclosures that were made in September, 1889, to the effect that they were fraudulent- and illegal because they had been theretofore condemned and placed under ban by a clause in the organic law of 1879, recalling them from circulation and directing them to be destroyed by the Legislature, plaintiff brought this suit against the defendant as vendor thereof, and demands judgment against him on the theory that he sold it,. fraudulent and void obligations of the State, instead of legal and valid obligations of the State.

To what I have said in argument I do not propose to add one word; nor to the authorities cited do I propose to make any addition.

For the proposition that when the State (sovereign though she be) goes into market to borrow money upon her promises to pay she occupies a plane which is occupied by any private individual in like situation; and her obligations possess the same significance as those of private individuals seeking relief in courts of justice, and no other, I still contend.

If that be a correct proposition of law, it follows necessarily that the declaration of the State — albeit through a command in the Constitution — can no more affect her promises to pay, in the hands of third and innocent holders, than a similar declaration made by an ordinary maker of a negotiable promissory note, payable at a future date after it had passed into the hands of an innocent third person for value.

That the obligations of the State had passed into the hands of third persons, and were outstanding, in the hands of third and innocent holders for value, at the date of the adoption of the Oonstitution of 1879, and so remained until the discoveries in September, 1889, was a matter of proof in the case of Pugh vs. Moore, Hyams & Co.; but since that date the Legislature of the State has enacted and promulgated a law, in the shape of a concurrent resolution, in which all these aforesaid facts are specifically set out and enumerated. Act 182 of 1894.

In that resolution it is stated that whereas certain banks, as fiscal agents of the State, had “ paid to the holders thereof certain interest coupons of certain consolidated bonds of the State of Louisiana maturing July 1, 1889; and, whereas, the bonds from which-said coupons had been detached were subsequently ascertained to be-the property of the State of Louisiana, and which had fraudulently' been put in circulation by E. A. Burke, then Treasurer of the State of Louisiana, * *

“Be it resolved, That the Auditor is authorized and directed to warrant in favor of said banks for the sum of two thousand six hundred and sixteen dollars each, said sums being the respective amounts paid by them as fiscal agents of the State aforesaid upon any unexpended balance in the hands of the State Treasurer of the, appropriation made for the payment of interest upon the consolidated bonds of the State of Louisiana by the Legislature of 1888 ;■ and the Treasurer is hereby authorized and directed to pay said, banks the said sums in the usual course.”

This legislative enactment, I take it, is an emphatic and undisguised recognition on the part of the legislative department of the government of the State’s obligation to pay the identical bonds about which this defendant is sued.

This act was passed, approved and promulgated since the Pugh case was decided and with a full knowledge of its scope and effect. And the legality of that resolution was affirmed in State ex rel. Banking Company vs. Auditor, 47 An. 1679.

Considering these facts I can not see how this defendant can be compelled to reimburse the plaintiff the amount it expended for the bonds in controversy, contemporaneously acquired with the payment by the banks of the interest coupons which were detached from the self-same bonds.

The defendant is in identically the same position as the banks.


author: Bbhaux, J.

text:
    No. 12,075.
    State of Louisiana vs. Giovanni Ventura and Giuseppe Dippolita.
    Motion for an appeal must be filed in due time and an order of appeal entered by the court.
    APPEAL from the Seventeenth Judicial District Court for the Parish of St. Mary. Allen, J.

      M. J. Cunningham, Attorney General, and Pierre A. Simmons, Jr., of Counsel, for State, Appellee.
    Submitted on briefs for the State February 29, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Bbhaux, J.

The defendants were indicted for murder. After trial they were found guilty without capital punishment, and were sentenced to the penitentiary for life.

In this court the Attorney General, representing the State, moves to dismiss the appeal on two grounds:

1. The record does not show that an appeal from the verdict and 'Sentence was either obtained or denied.

2. There is no bill of exception in the record, taken to the ruling of the trial judge.

The defendants are not represented by counsel before this court.

The want of an order of appeal, when none has been applied for, is fatal to the appeal.

Further, errors in rulings in criminal trials are available on appeal by exceptions duly taken.

It becomes a question of fact as to whether the record contains an order of appeal, or whether there is any evidence showing that application was made for such an order, and in the second place whether a bill of exception was taken during the trial and is of record before this court.

We have read the transcript from cover to cover, for an application for an appeal or evidence of an order of appeal. In view of the gravity of the case, although there is no order of appeal of record, we none the less .examined the transcript and found no ground which would justify the reversal of the verdict and sentence of the court on appeal.

AS TO EXCEPTION.

A bill of exception was reserved to the court’s ruling on a motion for a continuance, on the ground that no copy of the indictment had been served on the accused. Although the motion was denied by the court, the case was postponed and other copies of the indictment were served on the accused.

At the second calling of the case for trial the accused, through counsel, declared that they were ready for trial without objection in regard to service pf the indictment.

There is a note in the minutes of another bill reserved, but there is no evidence of grounds upon which it was reserved, or of any statement to stand in lieu of a bill. The entry is only: “Bill reserved,” without reference to any fact or law.

The appeal is therefore dismissed.