author: Buchanan, J. Meekiok, O. J.

text:
    Widow and Heirs of George King v. P. G. Wartelle.
    The action of one partner, or his representative, against the other partner, for an account, is prescribed m ten years after the dissolution of the partnership. The amendment of a petition for an account by praying for a partition of property held in common between the partners, is allowable.
    The moaning of Article 2861 of the Civil Code is, that the rules of partition among heirs, apply to partitions among partners; not that the rules governing the action of partition among heirs, apply to all actions which may be exercised by one partner against another.
    When the action is one for partition of property, and the liquidation of partnership affairs, the settlement of the accounts being an incident to the partition, the prescription of thirty years only is applicable to the case.
    An opposition to the report of auditors, must specially mention the items of credit objected to.
    from the District Court of the Parish of St. Landry, Martel, J.

      T. H. Lewis <& Porter, for plaintiffs and appellants. J. &. Olivier <® C. H. Mouton, for defendant.
   Buchanan, J.

The late George King and tlie defendant, on the 13tb of May, 1829, entered into a partnership, in the business of cultivating cane and making sugar.”

The contract of partnership was in the form of an authentic act, and stipulated :

1st. That certain lands particularly described, belonging to the parties either jointly or individually, should be “ employed in cultivation for the use of the said copartnership, so long as it shall continue to exist.” ,

2d. That the parties should “ each furnish an equal force of slaves for the purpose of cultivating and carrying on said business, the said slaves to be at the risk of their respective owners.”

3d. That expenses for buildings, &c., should be equally borne, and the buildings, &c., so bought and constructed, should be common property.

4th. Advances in cash, made by either partner, to be reimbursed out of the proceeds of the next crop ; or if not then reimbursed, for want of means, to have an interest of ten per cent.

5th. “ At the end of every year, or when the crop shall have been disposed of, and the expenses paid, the net proceeds shall foe divided, equally, between the said partners.”

The last crop made for the account of the partnership upon the land described in the first Article of this contract of partnership, was so made in the year 1839.

In the month of February, 1840, George King, having purchased a tract of land in the Bellevue prairie, of one Gray, removed all the slaves belonging to him, from the plantation cultivated in partnership by himself and defendant, to the tract of land thus purchased, and put an end to the partnership.

George King died in November, 1850 ; and in Oct., 1851, his heirs bring this suit against the defendant, for “ a full and complete account of his administration of the affairs of the said partnership,” and pray “ that he be condemned to pay to plaintiffs such sum as he may be found to owe, on a fair settlement of the partnership accounts.”

The defendant pleads the prescription of ten years to this action; and the plea, in our opinion, is well taken. The partnership was dissolved more than ten years previous to the institution of this suit; and the action of one of the partners, or his representatives, against the other partner, for an account, and for the balance resulting from such an account, is a personal action, which is prescribed in ten years.

All the parties are residents of the parish of St. Landry. O. 0. 3508.

After the plea of prescription was filed in the cause, the plaintiffs filed an amended petition, with leave of court, praying for a partition of the undivided tracts of land, and other undivided property held in common by the parties, under their contract of partnership.

The defendant excepted to this amendment as altering the nature of the demand. The District Court overruled the exception ; and the defendant, under reservation of his exception, answered the amended petition, assenting to the partition of two tracts of land, which he averred to be the only property of the parties still remaining undivided.

While we concur with our brother of the District Court in allowing the amendment offered by the plaintiffs, for the reason, that there is nothing in it inconsistent with the original petition, we cannot give it the effect which the learned counsel of plaintiffs claim for it, of absorbing, as it were, the original action, and giving to that, a vitality beyond the limit assigned to it, by the Article of the Code above quoted.

The Article 2861, upon which the plaintiffs rely, does not say, that the action for the settlement of partnership accounts, is governed by the same rules, as the action of partition of inheritances among heirs.

That Article, which is the last in the title of “ partnership” in the Code, reads as follows:

“ The rules concerning the partition of inheritances, the manner of making such partition, and the obligations which result from the same between heirs, apply to partners.”

The meaning of the legislator is, obviously, that the rules of partitions among heirs, apply to partitions among partners; not that the rules governing the action of partition among heirs, apply _ to all actions which may be exercised by one partner against another.

The judgment of the District Court rejects the action of plaintiffs for a settlement of partnership accounts ; and sustains that for a partition of the property remaining undivided between the partners.

For the reasons above given, the judgment appealed from is affirmed. And it is further decreed, that plaintiffs and appellants pay the costs of appeal.

Same Case — Os a Re-heaiiing.

Meekiok, O. J.

On a reconsideration of this case, we are still of the opinion that the amendment of plaintiffs’ petition was properly allowed. Indeed, the defendant’s counsel admits that there was no inconsistency between the two demands. In the settlement of partnership accounts, it may frequently happen that each partner is indebted to the partnership for the sums withdrawn ; each may have in Ms possession funds received, and there may be assets on hand.

In such case, if one partner call upon the other for an account, it is evident that judgment ought not to be rendered in favor of such plaintiff, for one-half of what such defendant may owe the partnership, but only for such balance as may he due on the partition after the plaintiff has, himself, accounted for what he has received and what he owes. Thus we said, in the case of Pratt v. McHalton, 11 An. 265, that a several judgment against one in favor of other individual partners, should not be rendered, where there are available partnership assets, by which the amounts received by the partners can be readily equalized. The amendment, then, was properly allowed, as it tended to a complete liquidation of the partnership. When the amendment was once allowed, it formed a part of the pleadings, and plaintiffs’ demand was precisely what it would have been, had plaintiffs’ original and amended petition been filed at the same time. See 3 Mart. 40, 41.

The action is then one for partition and the liquidation of partnership affairs. The prescription of this action is thirty years. C. C. 2861, 1227, 1228, 1229.

The settlement of the account of the partners is but an incident to the partition, precisely as the recovery of the rents and revenues is an incident to the action of revendication of real estate. The defendant may be an usurper and a possessor in bad faith, yet the prescription of one year will not bar the action for the rents and revenues, as an incident, to the petitory action. 3 Toul. 72 ; 6 Saugrey, 248-251, Berlin ed.

So, here, the settlement of the accounts is an incident to the partition, and without the same, there can be no equality in the partition. 0. C. 1279, 1280, 1281. Mackeldy says :

“ Losqu’une succession, ou un objet particulier, fait l’objet de la communauté, chaqué co-héritier ou co-propriétaire a le droit d’intenter contre l’autre une action enpartage ; le co-héritier oule co-propriétaire qui jusque-laa administré la succession ou la chose commune est tenu de rendre compte de sa gestión et de par-tager proportionellement avec les autres tout ce qu’il a acquis.” Brussels ed. 1846, p. 239, sec. 503, No. 2, Partie Spéciale; see also Dig., lib. 10, t. 2, lex. 19; Dig. 10, t. 3, lex. 20.

The point was also decided by this court in the case of Aiken v. Ogilvie, 12 An. 354, wherein it was held, that the plea of prescription of ten years did not apply.

This brings us to the consideration of the case on the merits, and it is presented as follows:

On the 5th of June, 1852, upon motion of the plaintiffs, and without objection from defendant, the settlement of the accounts between the parties, was referred to auditors, who qualified according to law, and on the 25th of October of the same year, notified the plaintiffs and defendant that they would, on the 29th inst., following, enter upon their investigation.

“ On the 14th of August of the next year, (1853,) the auditors made their report, establishing from the exhibits before them, a balance in favor of the plaintiffs, up to the 1st of August, 1841, of $4,996 60.

“ This report did not include the value of the movables and immovables held jointly and left in indivisión, or the account since pleaded by the plaintiffs.

“ On the 13th of December, 1854, the plaintiffs filed their motion to amend the report of the auditors, praying to be allowed as credits the amount of an account for advances made the partnership in 1828, of $2,095 50, with interest thereon, as stipulated in the articles of co-partnership, and that all the sums claimed by the plaintiffs in this suit, and not credited by the auditors, -be allowed. With these amendments, they pray the homologation of the report, and that the defendant be cited to show cause why it should not be homologated accordingly.

“On the 16th of May, 1856, the defendant answered the rule by denying all the allegations alleged in the motion for the amendment of the report; and for cause why it should not be homologated, plead :

First. That the auditors have adopted the first day of April of each year as the period from which to compute the interest, when, by the terms of the contract, the settlement was to be made at the end of each year, or after the sale of the crop ; and that the interpretation thus given to the act by the auditors is in direct violation of the construction put upon it by the parties themselves.

“ Secondly. That said auditors have allowed interest to the defendant on the balance due him annually from the first day of April of each year ; when under the articles of co-partnership, as understood by the parties themselves, interest was due him from the date of the advances.

Thirdly. The auditors have allowed interest to the plaintiffs on the partnership funds, or proceeds of the sale of the crops, from the first of April of each year, when by the terms of the contract no interest was due or would be allowed on these funds ; but interest was due, and only could be allowed by one partner to the other out of his individual funds, and that in point of fact no funds remained in the coffers of the partnership at the end of any one year.

Fourthly. That there is error in striking out of the account of the defendant the price of slave Charles, purchased at the succession sale of Washington Butler, whieh, with another slave, Simon, purchased on the 18th of May, 1835, were bought on account of the partnership, though the titles to them were taken in the individual name of defendant. That immediately after the dissolution of the partnership, a division of the property susceptible of a partition in kind having-been effected, the late Judge King took the boy Simon, and defendant the slave Charles. That King subsequently sold Simon to Wihoff, and concluded with a prayer for the rejection of the plaintiffs’ demand ; that the report of the auditors be set aside ; that the errors here complained of be corrected by the court, or that the report be resubmitted to the auditors for correction ; and again reiterates his plea of prescription.”

It is thus seen that the whole controversy is confined to the objections of the parties to the auditors’ report.

I. Plaintiffs claim that the report of the auditors should be amended, by allowing the plaintiffs credit for $2,095 50, and ten per cent, interest thereon from 1829 until the present time. There is much uncertainty in the testimony on this branch of the ease, and we are not disposed to disturb tfe auditors5' report ihithfe particular.

II. The second objection of plaintiffs’ counsel to the auditors’ account, is too1 general. If any items of credit hare not been allowed, they should be specially mentioned in the motion to amend, or in the opposition to the1 report ; otherwise^, the report of auditors would be of little or no assistance t©> the court in the investigation of a case.

III. The defendant objects, that the auditors have assumed the- first of April,, instead of the first of January, as the period at which the1 accounts were to-be-settled and the interest calculated. The difference in the result would be so ia-considerable as to make the change a matter of but little importance. Probably it would not benefit the defendant at all, and would require- a new reference to-auditors to make the calculations. The first of January is not- absolutely fixed! by the contractas the period for such calculations, but it is in tfe- alternative, and! the period when the crops are sold and the expenses paid is also- mentioned iro the contract. The auditors assumed the first day of April as that period, aodi we cannot say that the contract did not authorize them so to do>.

IV. The defendant complains that lie has been allowed advanxes only from, the-first day of April of each year, instead of the date at which they were made-. It. appears by the fourth clause of tfe contract, that it was when the advances-, exceeded the crop, that they were to hear interest, otherwise, the partner advancing, received, annually, his disbursement, at the same time that he -withdrew his. share of the net proceeds of the crop. Thus, it seems, that the partner-advancing, was-to wait until this period, before he could require the interest to be stated,

V. It is objected, that the plaintiff ought not to have been allowed! interest-from the first of April of each year, on his portion of tfe proceeds- of the crop sneh year ; and that in point fact, no funds remained in the coffes of the partnership at the end of any one year. The defendant has claimed! interest at the-rate of ten per cent, per annum, for his advances and for sums individually furnished the deceased, George King. While availing himself of the- stipulations- off the act of partnership, he has no reason to complain of the application of the-same rule to himself.

This construction of the contract appears reasonable and shouH bind hires. He controlled the funds of the partnership and received the same. Whilst he is-, entering up charges against his co-partner, for principal and ten per cent, interest, he must allow, as a credit under the contract, the funds which his partner is ere-titled to withdraw, and which he chooses to manage for the benefit of the partnership affairs. They may well be considered advances when so detained.

VI. The auditors do not appear to have erred in refusing the defendant credit for the price of tfe slave Charles. Judge King, himself, appears to have paid! a part of the price. The proof is too uncertain, and we will allow it to stand as an offset to plaintiffs’ claims for horses, mules, &c., furnished in 1828 or 1829.

We do not think Judge King’s letter to defendant, requesting a loan of $550, a waiver of his demands against tfe defendant as a partner. Among many persons, the loan of cash for a short period, is looked upon as a kind of debt of honor and to be returned without reference to tfe state of accounts between the parties. Perhaps a creditor would apply more willingly to his debtor, for such favor, than to another person.

By tfe act of partnership, the heirs are entitled to recover ten per cent, interest from April 1st, 1841, until paid.

The appellant did not complain of the mode adopted to settle the accounts between the partners, as it seemed to favor his argument on the plea of prescription. But it leaves the one partner personally indebted to the other, on the statement of the accounts, whilst the residue of the partnership property must be equally divided between the partners, and we shall so decree.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment heretofore pronounced by us, be set aside, and that the judgment of the lower court be avoided and reversed; and that the plaintiffs, as administrator and heirs of George King, deceased, do recover and have judgment against the defendant, Pierre G. Wartelle, for the sum of four thousand nine hundred and ninety-six dollars and sixty cents, with ten per cent, interest thereon, from April 1st, 1841, until paid, and the costs of both courts to this date. And it is further ordered, that the case be remanded for an inventory and partition between the plaintiffs and defendant, of the property remaining in kind; the decree being without prejudice to the rights of Mrs. Louisa King, wife of said Wartelle, to claim her interest in said debt and real estate in the hands of said administrator, when he .shall have received and administered the same.


source: Caselaw Access Project

author: Büchanax, J.

license: Public Domain

text:
    J. Deshotels et als. v. J. B. Soileau, fils.
    The policy of the State since the Act of the Legislature of the 6th of March, 1857, prohibiting the emancipation of slaves, is that the slaves within her borders shall remain slaves, and there is nothing unconstitutional in such legislation.
    Where the testator, by will, directed his residuary legatees, in case his slaves could not he emancipated with permission to remain in the State, to remove them from the State, after having had them emancipated, and the Legislature, before the consummation of the emancipation of the slaves accord ■ ing to the forms prescribed by law, passed an Act prohibiting the emancipation of slaves — Held: That the slaves had no vested right to freedom under the will, until the formalities required hy the laws previously existing, for consummating the emancipation, had been complied with. Held, also: That the legacy to the slaves of their freedom, lapsed by the Legislature having passed a law rendering it impossible for them to he omuicipat3d,and they became the property of the heirs-at-law of the testator.
    from the District Court of the Parish of St. Landry, Martel, J.

      Swayze <& Moore, and Dupre efi Garland, for plaintiffs, argued :
    The judgment of the District Court is so vague, that we are left to the inference, and the inference only, that the legacy to the slaves having lapsed, it inures to the benefit of the universal legatees instead of the heirs.
    First. Because they have forfeited any claim under the will, (if declared valid) having failed to comply with the conditions attached to the legacy to them. So far from doing so, André H. Deshotels, on his examination on his voire dire, says : “ He desired the will should'be broken, because he thought it unjust. He never took any steps to have the slaves emancipated.”
    Secondly. Because, if the legacy to the slaves of their freedom has lapsed, and they are to bo returned to the estate, the heirs are entitled to them. The only portion of the will under which the intervenors could assert any claim to the possession of the slaves, is in these words : “ I will, in the event of my said slaves refusing to leave the State, should the laws of the State require this as a consideration of their emancipation, then I will them to my said nephew and niece, and discharge them from the conditions 'above, and only require them to have them emancipated whenever the laws oí the State will permit them to remain in the State.”

      This, it will be said, is a positivo and direct disposition in favor of the intervenes, manifestly showing the intention not to give them to the heirs. Not so. The intention in this clause is still to emancipate the slaves “ when the laws of the State will allow them to remain in the State.” They were only to be placed in their possession for that purpose until the period when the emancipation could be effected. There was then still a condition imposed, and on that condition only were they willed to the intervenors. That condition having become impossible, the legacy based upon that condition, which was the motive of the bequest, must fall also.
    Upon a careful examination and reading of the will, it seems evident to us that the motive for making- it, the important consideration with the testator, his only aim and object, gathered also from his repeated declarations at other times, was the emancipation of his slaves. I-Ie did not desire that they should become the property of either the heirs or universal legatees. If this is so, they must be returned to the estate and belong to somebody. In that event, the heirs are entitled to them, even had the testator stipulated expressly the contrary ; for the law gives them inheritance whenever the disposition made of the property in favor of other persons, fail or cannot be carried out. The court must not forget that all testaments are interferences with natural and legal order of descents ; they are exceptions to the general law ; must be construed as such strictly, and in questions of doubt, the general law should prevail. 12 An. 417.
    The last question is that involved in the conclusion of the judgment decreeing the return of the slaves to the estate, the statute of March, 1857, having prohibited the emancipation of slaves; and it is the important issue, if the will is declared valid by your honors. It will bo strenuously contended by the learned counsel of the defendant, that the slaves, by the will, became statu liberi; that they acquired a vested right to their freedom, of which they cannot be deprived by any subsequent legislation, and, therefore, as to them, the Act of 1857, is retroactive and as such unconstitutional.
    We will not examine the question of vested rights, nor the power of the Legislature (or of the government) to pass laws affecting these rights, or impairing the obligations of contracts. We will leave the court to examine this matter in Story and Kent, where the subject is treated of at length, and content ourselves with the endeavor to show that this inquiry can not be made in this case, because there is no vested rights destroyed or interfered with by the statute of 1857. Rights are either natural, created by law, or arise out of contracts. •
    Leaving- to the casuist and to the pseudo-philanthropist, the question of the natural right of the slave to his freedom, we will deal with him here, as we find him in the condition of slavery and considered as property. “ A slave is one who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his industry and his labor. He can do nothing, possess nothing, nor acquire anything but what belongs to his master.” O. C. Art. 35.
    Slaves, therefore, as such, have no rights but those given them by express statute. In other respects they are like any other property. The right allowed to the master to liberate his slaves upon complying with certain formalities, confers no right upon the slave ; it is a law affecting the right of the master, or rather permitting him to make a particular disposition of this peculiar property, iindcr certain circumstances. It is in the nature of a grant to the master to change the character of this property, to alter its condition from slavery to freedom, after a compliance with the formalities which are established in view of the public welfare. Until the formalities are complied with, the master cannot avail himself of this “ permission” of the law, nor does the slave acquire any right which is perfect and so absolute as to be beyond legislative interference. It is an inchoate right. 11 An. 425.
    It is the attribute of every government to establish and regulate such modifications of the rights of property in things within its jurisdiction, as the public interest requires. 2 An. 381.
    “ The right of the Legislature to regulate the condition of this class of persons is unquestionable.” See 2 An. 180.
    “ There can be no question as to the legislative power to regulate the condition of this class of persons within its jurisdiction, and to proscribe in what form and by what facts such condition shall be changed.” 5 An. 697.
    And, finally, in 12 An. 419, repeating- the language in 11 An., your honorable court expresses the opinion, that “ the policy of the State has annexed conditions to the enfranchisement of slaves, which the court cannot permit to be disregarded. This language holds good of a prohibition to enfranchise altogether.
    it has been repeatedly decided that until the formalities which preceded emancipation (under the laws heretofore existing) had been complied with, whatever might be the right of the party to his freedom, the court could only render a judgment ordering the emancipation after compliance with established regulations on that subject. See 3 An. 557 ; 5 Bob. 300 ; 1 Bob. 359.
    But it is said these slaves were “ static liberi” at the death of Deshotels, the period when his will began to be operative if valid ; and as such they had certain rights, that they were capable of receiving by testament or donation ; that they could transmit an estate ; that they possessed a certain “ état civil” ; grant this for argument sake, does that prevent the legislative authority, which has the power to prescribe in what form and bij what fact such condition shall be changed to arrest there the change of condition begun, and to say, “ thou shalt have no other right” ? Unquestionably not. This is not the case of a right arising from a contract under existing laws, giving to the contracting parties certain positive and absolute obligations. This Act of 1857 is the withdrawal of the permission given to the master to dispose, in a certain way, and under particular circumstances, of this property.
    we say further, that there can be no such mixed condition or status as a statu liber since the Act of 1857, because a “ statu liber” is “ one who has acquired the right of being free at a future time, or on a condition which is not fulfilled, or in a certain event, which has not happened, but who in the mean time remains in a state of slavery.” Now, at what future time, in what event, &c., can the condition of this class of persons be changed ? In no event, in no time.
    That matter is irrevocably fixed by the law prohibiting emancipation. The policy of the State, the public necessities, our safety, nay our very social and political existence, forbid any such anomalous mixed state as persons entitled to a freedom which they can never obtain. Before this consideration all questions of private or personal rights must disappear. It may perhaps be urged also, that as the intention of the deceased was to emancipate his slaves, the court is authorized to carry out his wishes by allowing the universal legatee or the executor to remove them beyond the State to some country where slavery is not recognized. To this position, which we cannot consider serious, we would only say, that our courts have no authority but such as is conferred by our laws, and that they can not cause to be done out of the State, that which they have no power to order to bo executed hero. They cannot indirectly contravene a prohibitory statute.
    Since preparing the above, we find the following emancipation case decided in the State of Georgia, which is reported in the National Intelligencer of the 24th of July, 1858 :
    “ Decision of an Emancipation Case in Georgia. — The Macon Telegraph of Tuesday says : ‘ On yesterday morning, Judge Lumpkin delivered an opinion involving an emancipation clause in a will, in a case of this kind : A, the testator, had made a will, in which he bequeathed certain negroes for life to B. After the death of B, the negroes were to be free, and carried to a free State or to Liberia. The court decided that this clause in the will was void under our emancipation acts ; that the negroes wore free eo instante the termination of the life estate in Georgia, and,-as a matter of course, contrary to the spirit and policy of our laws in relation to emancipating slaves.’ ”

      J. H. Overton, for defendant, argued :
    The leading questions involved in the present suit have already been before this court, but in another form of action, and under different issues from those here presented. That case was a suit instituted in Juno, 1856, by the present defendant, as dative executor of the last will and codicil of André Deshotels, who died in this parish in April, 1855, leaving no issue or other forced heirs, against the District Attorney. It was brought under the 77th, 78th and 79th sections of the Bevised Acts of 1855, for the emancipation of the slaves of the deceased, liberated by his last will and codicil.
    Two of the present plaintiffs were intervenors in the case, and additional to the defence set up by the law officer of the State, pleaded various grounds of nullity in both the will and codicil, which are specifically set forth in the record of the suit, and make part of the evidence of this cause.
    It was tried in the month of June following, by a jury of the parish, who, after a full and elaborate investigation of its entire merits, sustained by their verdict the validity of the will and codicil, and the integrity of its devices, and adjudged that the slaves of the testator, to whom their freedom was bequeathed, be emancipated without permission to remain in the State.
    An appeal was taken by the intervenors from the judgment affirming that verdict returnable to the August term (1856) of this court, where it was argued and held over under advisement until the last term, when, by a decision of your Honors, it was reversed, by a dismissal of the proceedings taken by this defendant for their emancipation, solely upon the ground of the unconstitutionality of the only existiug law providing for such cases, then regarded as the only valid and binding-expression of legislative will.
    A careful investigation of that case, upon the evidence of which this cause is to be decided here, will, we think, conclusively’establish the validity of both the will and codicil of the deceased, under which his said slaves claim to be free, and their clear, legal and indefeasible title consequently, to all the rights and immunities which attach to that condition, then secured and guarantied to them by existing laws.
    The case at bar is in its character one of revendication, instituted by the plaintiffs, as heirs at law of the testator, claiming to recover, as owners by inheritance, the entire succession as inventoried, including the slaves liberated by the will, and charging the defendant with detaining and withholding the said property from them without color of right, and appropriating it individually to his own use and profit, and pray to be decreed owners, with a further judgment of five thousand dollars, their estimate of the hire.
    The defence set up denies the allegations of the plaintiffs, and pleads that the defendant is the dative executor of the will and codicil of the deceased, André Beshotels; that they have been probated in due form of law, and ordered to be executed; that he has charge and possession of the successional property of the deceased, yet undisposed of according to law, in virtue of that trust and in due process of carrying into effect the testamentary injunctions of the testator; that the said Beshotels died without issue or other forced heirs in April, 1855, when his said will took effect and was duly probated and ordered for execution in June following; that the said will is valid in law both as to form and the dispositions it contains; that at the death of the testator, the slaves liberated by Mm became absolutely vested with an indefeasible right and title to their freedom, of which no posterior legislation can constitutionally divest them ; and concludes with the prayer that the demands of the plaintiffs be rejected; that the dispositions and provisions of the will be held legal and valid; that the said succession, or those who claim the said slaves as heirs, may be decreed to be divested of all ownership and property whatever in them, and under the bequest to them of their freedom, the said slaves may be adjudged to be statu liberi, and as such entitled irrevocar-bly to all the rights and privileges which by law attach to that condition.
    Such were the original parties, and such the only issues involved in this litigation, when André Hildevert Beshotels and Marie Fidelle Soileau, his wife, intervened, and in singular contrast with their antecedent acts, joined the defendant in sustaining the will and codicil of the deceased, but only however to the selfish extent, as shown by their pleadings, of securing their own rich legacy. They wore the nephew and niece of the testator, to whom a valuable bequest of some thousand dollars had been made upon the condition expressed, that they were immediately after his death to take the necessary measures for the emancipation of the slaves named in the will, with permission to them, if possible, to remain in the State. If by the existing laws their emancipation could not be effected here, which has since, by the Act of 1851, become impracticable, they were required to remove them where it could be accomplished, and to furnish to each one of the said slaves in aid of their removal, one hundred and fifty dollars, and to provide for them, from the date of the testator’s death until their enfranchisement could be effected, all the necessary food and clothing, and to treat them with kindness and humanity. These were the positive and clearly expressed obligations imposed on the intervenors by the testator, and in the language of the will, “ upon their failure to comply with the above conditions, this legacy is to become null and void, so far as they, the said André IBIdevert Beshotels and Marie Fidelle Soi-lea.u, are concerned.”
    Can any rational mind, upon reading the fourth clause of the will, and the first and second clauses of the codicil, made more than two years afterwards to the same effect, come to any other conclusion, but that they promised the testator faithfully to carry out, after his death, these his last wishes and desires ? And how have they discharged the trust so solemnly confided to them, and for the accomplishment of which they were made by his will the beneficiaries of his munificent bounty ? Let the nephew himself answer the enquiry.
    On the trial of the late proceedings instituted by this defendant, as dative executor, for the emancipation of the slaves, he appeared as an opposing witness, and in Ms voire dire examination upon a challenge to his competency, testified under oath, “ that he desired that the will should be set aside, because he thought it was unjust, even if he was to have less as heir than as legatee. He thought it unjust, because it was not such as the deceased always told him he had made it. He was called upon to act as executor in the place of the one named in the will, and lie refused to do so. He has never taken any steps to have these slaves emancipated; on the contrary, he has desired that these slaves should be retained in slavery. Deceased told witness that he had made his will, and given all his property to witness and wife.”
    The further judgment in the case, as appealed from by the defendant, rejects the demands of the plaintiffs, so far as they affect the validity of the will and codicil, which are held to be legal and valid; decrees that the slaves, to whom their freedom is therein bequeathed, be adjudged, notwithstanding, to be the property of the succession of the deceased, and that they be “ returned thereto to be disposed of according to law, the statute of the 6th of March, 1857, having prohibited the emancipation of slaves in this State, and that the costs of the suit be paid by the estate of Deshotels.”

    Having thus shown, as we think, conclusively, that the acts in question were executed in strict conformity with the requirements of the law; that the testator was sufficiently versed in the English language to have dictated them in that language, and when thus written, to have understood their contents when read to him and the witnesses; and that they are entitled to be regarded as the truthful depositories of his last wishes. We proceed, in the next place, to examine the legality of the bequests which they contain, of freedom to certain of his slaves, and what rights those testamentary dispositions confer upon them.
    The plain and obvious provisions of our law upon that subject had so long been understood and acquiesced in, as a measure of beneficent and humane policy towards that class of our population, that it had become lastingly incorporated with our system of domestic rule and polity. It formed an integral part of that wise law of rewards and punishment, which lies at the foundation of all well-ordered governments, human or divine, and has received, on account of its infallible adaptation, the deserved sanction of every age and relation in life. It has come down to us from the earliest history of Louisiana, nearly a century ago, when her agriculture was in its infancy, and the concomitant relations of master and slave had but just begun.
    The law, as it then existed, provided that when a testator had emancipated his slave by a last will, the latter might enforce his enfranchisement against any one who opposed or otherwise resisted it. Again, when a slave, after acquiring-money from sources independent of his master, gave it to any person to keep, who promised to buy him of his master and emancipate him, — if such person, after having received the money, refused to buy said slave according to promise, or having- bought him refused to liberate him, the slave could appear in court and enforce a specific performance of the obligation. Or, if any one had stipulated with a slave to buy him of his master, under a promise to enfranchise him, whenever he reimbursed him the purchase money, and should, after he had bought him, refuse either to receive the money and set him free, or having received it, should likewise refuse to liberate him, the slave could also appear in court and compel the performance of the contract. Partida 3, tit. 2, salv. 8. Such were some of the beneficent provisions of the Spanish law in force in this country for nearly a half century, and until after its cession to the United States, when it underwent, in 1807, by an Act of the Legislative Council, some modifications, leaving however the right to emancipate intact, when once legally acquired.
    This Act, for the most part, directory of the forms to be pursued in cases of emancipation, was, in its provisions, restrictive only as to the age of the slave and his good character previously, and even these conditions were dispensed with, in cases where the slave to be emancipated had saved the life of the master, his wife or any of his children.
    In the following year, the Code of 1808 was adopted, recognitive of the same right, that “ a master may manumit his slave in this Territory, either by an act inter vivos or by a disposition made in prospect of death, provided that such manumission be made with the forms and under the conditions prescribed by the special law enacted thereupon by the Legislature.” 0. 0., Art. 25, p. 40.
    Experience had fully demonstrated the efficacy and wisdom of such laws, when those relations of master and slave came in for their appropriate share in the more comprehensive textual legislation of the Code of 1824. By its provisions, the powers and rights of each were more fully and clearly defined, and this strong' incentive to the slave, as a guerdon for his obedience, fidelity and devotion to his master, was amply maintained. The subsequent Acts of the Legislature for the years 1827,1830,1831,1842,1852 and 1855, were only amendatory of the forms to be pursued in effecting emancipations, with additional guards and checks against its abuse; but in nowise did they affect existing cardinal legislation upon the subject.
    Additional to the laws already in force touching that relation, the Code of 1824 expressly authorizes the slave (an exception to his general incapacity) to contract on his own account for his emancipation, Art. 1783 ; and further establishes the status of one who had acquired the right of being free at a future time, his capacity to receive by donation or testament, and his right to the protection of the laws against all attempts to disseize him of his vested freedom. Arts. 193,194.
    The cursory review we have taken of this branch of the law from the earliest settlement of the Territory down to our own times, has been entirely with the purpose of illustrating the settled views so long entertained here, and so uniformly embodied in the legislation of the country. From such an expose of what was obviously, for so long a time, the uniform and invariable policy of the State in matters of emancipation, we expect to maintain before this court, that no interpretation should be given to the Act of 1857, beyond the prohibition to emancipate from and after its passage.

    Such a statute repealing all remedy for perfecting title to rights which may continue to be vested, under laws yet in force and intact, would, we have no doubt, in the enlightened age of the English Judiciary, when Coke, Hobart and Iiolt were the learned and intrepid expounders of its jurisprudence, have been pronounced void as against common right and reason. The same sense of justice and freedom of opinion which distinguished those ornaments of the English Bench in their resistance to destructive innovations and encroachmenes by Acts of Parliament, upon those great and fundamental principles which underlie and support all government and property, would, if adopted by our own courts, go far towards the protection of individual rights against the follies and inconsistencies of our own legislation. It is only by the free and fearless exercise of either this power, or that resorted to in its stead, that when a statute is “ contrary to natural equity and reason, or repugnant or impossible to be performed,” the courts, upon the presumption that no such absurd or unjust consequence was within the contemplation of the law, ought, out of duty and respect to the law-giver, to intervene and give it a reasonable interpretation.
    Such an interpretation would be, in our judgment, to confine the prohibition enacted by the statute to the emancipation of the slave within the State, which is distinct and different from acquiring a right and title to freedom, and is but the perfection of the latter by a compliance with the formalities prescribed for its accomplishment. The condition and status of a slave who has acquired that right is, while in obeyauee, restricted in his legal capacity, and subject to service until his enfranchisement; when it is to take effect at some future time. When emancipated, he becomes a free agent, no longer liable to service, and exempt from the civil disabilities which attach to his condition as a statu liber. G. G. Art. 143; Angelina v. Whitehead, 3 An. 556.
    Éut constructively carried to the extent contended for and evidently assumed by the plaintiffs, as the grounds of recovery in this case, would be to fasten another shackle to the many which already, under the positive restrictions of our laws, clog that free and unrestricted disposition of one’s own property, in a case too where the will of the owner could be carried out or executed by removal or colonization, and without violation of the law.
    If, therefore, the right of acquiring and disposing of property gratuitously, by last will, remains in force as it was previous to the passage of the Act of 1857, and unaffected by its prohibitory provisions; — if, as affirmed by this court in one of their late decisions, the testament he a law, devolving upon courts as their first duty, in that as in other laws, to ascertain the intention of the law-maker, and when satisfactorily ascertained, to execute it, it follows, of necessity, that the dispositions whether in the manumission of a slave, which is but the donation to him of his value, or a universal legacy, must alike stand or fall as the intention of the testator can or cannot be carried into effect consistently with the rules of law.
    But there yet remains in this connexion another consideration which ought to enter into the views of the court, and have its proper weight in the application and effect to be given to this statute. It is without any preamble exposing its object, and we are, therefore, left to ascertain its intent and meaning by other-means. But it is no less clear, that the evident purpose of the Legislature was effectually to prevent any addition to the free-colored population of the State, by emancipation within its limits, in virtue either of testamentary dispositions, or in any of the other modes authorized by our laws.
    Adopting the policy of a majority, if not the entire slave-holding States of the Union, regarding this class of their population, as far back as 1842, this State enacted that all statu liberi in the State, when they become free, shall be transported out of the State at the expense of their last owner, by proceeding before the District Court, at the suit of any citizen, and each statu liberi, when transported out of the State, shall, on returning into the State, be liable to all the penalties provided by law against free negroes or persons of color coming into the State.” And in 1852, ten years afterwards, another Act was passed, providing in its first section that, thereafter, no slave should be emancipated in the State, except upon express condition that, when once emancipated, they shall be sent out of the United States, within twelve months after their emancipation, — and further prescribed, that the Police Juries of the several parishes, and the Common Council of New Orleans, before granting an emancipation, shall require of the owner or other person applying therefor, to deposit in the Parish Treasury of the parish in which the Act is made, or with the Mayor of the City of New Orleans, the sum of one hundred and fifty dollars for each slave to be emancipated, to be applied in payment of voyage to Africa and support after arrival. And further, by the second section of the Act it was declared, that claims for emancipation not yet perfected by the proper authorities shall not be granted, except upon the conditions just recited; and upon a failure to comply with those conditions, the slaves shall be hired out until the sum of one hundred and fifty dollars shall have been made, and so deposited, after which the emancipation may be perfected and the slaves sent to Liberia within ono year. And in case every slave so emancipated should not be sent to Liberia within ono year after his emancipation, or should return again after being sent, ho shall forfeit his freedom and become the slave of his former owner, or revert to his legal representatives.
    Next in order follows the Act of 1855, which was declared by this court to be in conflict with Article 118 of the State Constitution, and therefore unconstitutional. Now, what in effect is the law of the 6th of March, 1857, which declares that from and after its passage, no slave shall be emancipated in this State, but a repeal of the conditions of the first section of the Act of 1852, by a compliance with which emancipations of slaves could then be perfected. It is evident that the passage of the former law grew out of the inexecution of the latter, and was alone aud exclusively designed by the Legislature to subserve the same end : to close the door for all time to come against the right of a statu liberi to perfect his emancipation in this State, and thus to remain and enjoy his freedom here.

    The policy of both statutes was the same, and the object the same, progressively varying only in the rigor of the measures adopted the more effectually to suppress any further addition or accession to the free-colored population of the State. They, together with the entire antecedent legislation upon that subject, are strictly acts in pari materia, and according to the authorities, must be taken together and compared, in giving a construction to the Act under consideration. The object of the rule is to ascertain and carry into effect the intention of the Legislature, and it is laid down as a legal inference, that a code of “ statutes relating to one subject was to bo governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions.”
    Applying these principles, elaborated here perhaps at too great length, to the questions involved in the present case, the following propositions, we think, may be safely and conservatively established by the court, without trenching upon the general power and dominion of the owner over his property, viz : That the authority of the master to manumit his slave is distinct from the emancipation of that slave, as shown by the obvious difference between the status and copacily of each : while one is subject to civil disabilities and hold to service, the other is free from those disabilities and left to the untramelled enjoyment of his liberty. That the power to manumit does exist independently of any right to emancipate here. And finally, that the Act of the 6th of March, 1857, prohibitory of the exercise of the latter within this State, was never intended, nor can it be construed, consistently with the established rules of interpretation, to interdict the emancipation of a slave beyond her territorial limits, which could work no possible injury to her, and would in no wise be violative, either in letter or spirit, of existing’ laws.
    Will this court then, give such an interpretation to the Act of 1857, as to take away or impair a remedy or the exercise of a right which had previously accrued and become vested ?
    Such a construction would give a retrospective effect to that statute, a principle now universally reprobated.
    A distinguished American Judge, in the leading case upon that subject, of Bash v. Vanhleecke, 6th Johnson’s Rep. 477, says :
    “ It is not pretended that wo have any express constitutional provision on the subject; nor have we for numerous other rights dear alike to freedom and to justice. An expost facto law, in the strict technical sense of the term, is usually understood to apply to criminal cases, and this is its meaning when used in the Constitution of the United States; yet laws impairing previously acquired civil rights, are equally within the reason of that prohibition, and equally to be condemned. There is no distinction in principle, nor any recognized in practice, between a law punishing a person criminally, for a past innocent Act, or punishing him civilly by divesting him of a lawfully acquired right. The distinction consists only in the degree of oppression, and history teaches us that the government which can deliberately violate the one right, soon ceases to regard the other.”
    In the commentaries of the same learned jurist, he lays down this limitation to the general condemnation pronounced upon giving a retrospective effect to laws. That it may apply to remedial statutes, provided it does not impair or disturb absolute vested rights, and go to confirm rights already existing and in furtherance of the remedy, by caring defects and adding to the means of enforcing existing obligations. Kent’s Com., vol. 1, p. —.
    Would not the refusal of this court to decree the removal of these slaves by the present defendant, as ordered by the testator, disturb them in their vested rights ? Would such a refusal confirm them in these rights, and be in furtherance of their remedy? And lastly, would such judicial action cure defects in the execution of those devises, or add to the means of enforcing obligations growing out of the right of the testator to make those testamentary dispositions. ?
    Leaving these questions with the court, we now proceed, in the close of this argument, to notice the decisions of your Honors upon the effect to be given to the Act of 1857.
    The case at bar presents no issue in its pleading, involving the right of the slaves to be emancipated in this State. The defendant, acting as dative executor, and charged in virtue of his office and duties with the execution of its devises, claims in defence, to have the statu', of these slaves defined and adjudged, and to be decreed by the court to remove them, with their consent, beyond the limits of this State, where their emancipation can be perfected, and where they will be protected by law in the quiet enjoyment of their liberty.
    Two cases decided : Belphine,/. w. c., v. Quillet et al., unreported, and Turner, Curator, v. Smith et al., reported in 12 An. 417, both brought to enforce emancipation within the State of Louisiana, and consequently decreed against as prohibited by the Act of 1857.
    These cases, neither in their cause of action, or in the remedies sought, bear any affinity in point of fact or law to the case at bar, and, therefore, can offer no precedent to control the court in the decision of this cause.

      T. H. Lewis <& Porter and A. Bejean, for intorvenors, argued:

      Adré Be'.hotels died in April, 1855, without issue or forced heirs, leaving a last will and codicil, wherein, after making certain specific legacies, he bequeathed “ the residue of his estate both personal and real, of every description whatsoever, including slaves, lands, cattle, horses, hogs, sheep and movable property, to his nephew, André HUdevert Desholels and Marie Fidéle Soileau, his wife, in equal portions, with the following condition, that they, the said André Ilildevert Deshotels and his wife, Marie Fidéle Soileau, immediately after the death of testator, take such steps, as shall-be necessary, under the then existing laws of the State of Louisiana, to emancipate and set free the following slaves, to-wit,” &e.
    Testator further nominated and constituted Eloi Vidrine, of the above parish, his testamentary executor. Said will and codicil were admitted to probate and ordered to be executed, and the said Eloi Nidrine refusing to accept the testamentary executorship, J. B. Soileau, fils, one of the particular legatees, was appointed and duly qualified as dative testamentary executor.
    On the 13th October, 1851, Joseph Deshotels and others, representing themselves as the legal heirs of the said André Deshotels, deceased, brought an action against the said J. B. Soileau, fils, individually, and not in his said capacity of dative testamentary executor, setting forth : “ That the said Soileau, without any color of right or title to the said property, has taken possession of the estate aforesaid, and withholds it from the petitioners, who are legally entitled to the same, by virtue of their heirship aforesaid.”
    The petition concludes with a prayer, that petitioners be decreed to be the owners and proprietors of the estate of the said André Deshotels, consisting of lands, slaves, &c.; that the said Soileau be ordered to deliver the same to your petitioners, and condemned to pay to them five thousand dollars for the use and hire of said lands and slaves, &c., &c.
    Defendant, for answer, denied generally the allegations in petition contained, and specially the heirship of plaintiffs.
    For further answer, he represented that the said André Desholels, deceased, had left a last will and codicil, which are valid and in due form of law ; that said will and codicil were probated and ordered to be executed, and that respondent was appointed and duly qualified as dative testamentary executor thereof.

      André HUdevert Deshotels and Marie Ftdele Soileau, his wife, as instituted heirs and legatees of the testator, intervened in the above suit, and set forth : “ That J. B. Soileau, fils, the defendant, is the dative testamentary executor of the last will and testament of André Deshotels, deceased, and in such capacity he holds possession of the property claimed by plaintiffs. They also alleged the validity and legality of the will and codicil, and that it was the duty of said Soileau, as testamentary executor thereof, to see them faithfully executed.”
    They conclude with a prayer to be permitted to unite with the defendant in defending the validity of said will and codicil, and that they be declared universal legatees under said will and codicil, &e.
    Upon these issues, parties went to trial, and the following judgment was rendered, in substance:
    “ That the claims of Joseph Deshotels and others, so far as said claims relate to the nullity of the testpment, be rejected.
    That André HUdevert Desholels and Marie Fidéle Soileau, his wife, are universal legatees, under said will and codicil.
    That the will and codicil be recognized as legal and valid.
    That all the slaves to whom the deceased had bequeathed their liberty in said will, with the right to claim the same from the said legatees, be and are hereby decreed to be a part of the succession of said deceased, André Deshotels, and to be returned thereto, to be disposed of according to law, the statute of the 6th of March, 1857, having prohibited the emancipation of slaves in this State. The costs of suit to be paid by the estate of Deshotels.”

    From this judgment, J. B. Soileau, fils, the defendant, appealed.
    The questions, we think, presented in this case for the decision of the court, are these :
    1st. Is said will good and valid as a nuncupative will under private signature ? If so,
    2d. Have not the slaves therein emancipated an indefeasable and constitutional right to their liberty, notwithstanding the statute of the 6th of March, 1857, which was enacted subsequently to the probating of said will ?
    3d. Should the court be of opinion that the will is good and valid in form, but that said slaves cannot be emancipated, are not the intervenors, who are instituted heirs under tlic will, and to whom the residue of the estate is bequeathed, • also universal legatees, and as such, are not said slaves to revert to them, and not to the legal heirs ?
    Having conclusively shown, as we believe, that said will and codicil are good and valid in form, and that testator understood perfectly the dispositions thereof we will briefly allude to the second proposition in order, to-wit: Have not the slaves therein emancipated an indel’easable right to their freedom, notwithstanding the statute of the 6th of March, 1857, which was enacted subsequently to the probating of said will ?
    Article 105 of the Constitution of the State oí Louisiana, says : “ No ex post facto law, nor any law impairing the obligation of contracts, shall be passed, nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made.”
    As the will bequeathing to these slaves their liberty, was not only made, but was also probated and ordered to be executed previous to the passage of the aforesaid statute, had they not, therefore, a vested right to their freedom, which no subsequent legislation could constitutionally divest them of?
    But should your honors be of the opinion, that said slaves are not entitled to their freedom or cannot be emancipated, are not intervenors, who are instituted heirs under the will, and to whom the residue of the estate is bequeathed, also universal legatees, and, as such are they not benefited by the lapsed legacies; that is, are not said slaves to revert to them and not to the heirs-at-law ?
    That they are universal legatees, we think there is little doubt. According to Prendí commentators, whose interpretation of the civil law is considered high authority, they undoubtedly are universal legatees.
    What says Toullier on this point ? Book 3, tit. 2, art. 513, p. 487 — ■“ Si le testateur faisait d’abord un legs particulier et donnait ensuite le surplus ou le res ■ tant de ses biens a uu autre légataire ; par exemple, je legue a Sécundus le fonds Cornélien, et le surplus ou le restant de mes biens á Primus.” Ce dernier legs serait universel, parce qu’il est sense que je n’ai voulu restreindre le legs de tous mes biens que j’ai fait á Primus qu’en faveur de Sécundus, et dans le cas sculement ou celui-ci recueillerait son legs particulier.”
    This position is sustained in 3 An. 705, to-wit: “ One to whom a testator bequeaths the residue of his estate after the payment of a particular legacy, is entitled. as universal legatee, to the possession of the estate of the deceased, when there are no heirs to whom any portion of the testator’s property is reserved by law.”
    Now, if these intervenors are universal legatees, are they not benefited by the lapsed legacies, and do not these slaves revert to them and not to the heirs-at-law ?
    The doctrine of lapsed legacies or lapses, and the rights of universal legatees thereto, is very fully treated by the French commentators. Rogron, book 3, t. 2, p. 210, says: “ Ce qui forme le caractére essentiel du legs universel c’esl le droit éventuel qu’a le légataire á tout ce qui compose ou composera la succession ; il a, de plus, le privilege de continuer la personne du défunfc et de le représenter comme ferait un héritier légitime.”
    Paillet, book 3, t. 2, p. 362, says : “ II est de principe que dans le cas de nul-lité ou de caducité des dispositions particuliéres, le legs universel profile de la ' nullité ou de la caducité.”
    Toullier, 1. 3, t. 2, p. 484, says : That even when there is a forced heir, the universal legatee inherits by right of accretion, to the exclusion of said heir, the lapsed or repudiated legacies.
    We could multiply quotations from the above authorities, in support of this point, but wish to be brief, and therefore forbear.
    But passing over the question of lapses, of universal legatees and their rights, &c., &c., let us see what disposition the will has made of these slaves, should they not be emancipated. The testator, it seems, provided for this contingency. Let us read from the will, p. 21, 2d line : “ I will, however, in the event my said slaves refusing to leave the State, should the laws of the State require this as a consideration of their emancipation, then I will them to my said nephew and niece, and discharge them from the conditions above, and only require them to have said slaves emancipated, whenever the laws of the State will permit them to remain in the State.”
    The above clause indicates clearly the intentions of the testator, as to the disposition to be made of these slaves should they not be emancipated. And we contend that any other disposition of them would be a palpable violation of the expressed will of the testator.
    Therefore, by the terms of said will, be they universal legatees or not, they are entitled to said slaves should they not be emancipated.
   Büchanax, J.

Upon the questions of fact relating to the formalities required by law for the confection of a nuncupative testament under private signature, having been observed in the present instance, we concur in the conclusions of the District Judge, from the voluminous, and to some extent, contradictory testimony before him.

The will of André Deshotels is valid in form, and has been duly probated.

Several questions of law are presented to us, upon the following clause of that will:

“ Fourth. I will and bequeathed unto my nephew, André Hildevert Deshotels, and to his wife, Marie Fidile Soileau, in equal portions, all the residue of my estate, both personal and real, of every description whatever, including slaves, lands, cattle, horses, hogs, sheep, and movables. This bequest is given and made with the following conditions, that is to say : that they, the said André Hildevert Deshotels, and his wife, Marie Fidile Soileau, immediately after my death, take such steps as shall be necessary, under the then existing laws of the State of Louisiana, to emancípale and set free the following slaves, to-wit, Harriet, Louise, Hyacinthe, Lucy, Jean Pierre, Eliza, Pauline, Coralie, Louison, Aimie, Jean Batiste, Valmont and Louisa, upon such terms as will permit them to remain in the State of Louisiana; and should this not be permitted by the laws, then they shall have them emancipated, and furnish each one of the said slaves with one hundred and fifty dollars, to remove them from the State of Louisiana. And upon the further condition, that the said legatees shall, during the time from the date of my death and the emancipation of my slaves, furnish them all necessary food and clothing, and treat them with kindness and humanity : and on their failure to comply with the above conditions, this legacy is to become null and void, so far as the said André H. Deshotels and Marie Fidile Soileau are concerned. And in order fully to carry out this provision of my will, I give and bequeath unto my said slaves their liberty, with the right to claim the same from my said legatees, immediately after my death. I will, however, in the event my said slaves refusing to leave the State, should the laws of the State require this as a consideration of their emancipation, then I will them to my said nephew and neice, and discharge them from the conditions above, and only require them to have said slaves emancipated, whenever the law of the State will permit them to remain in the State.”

And in a codicil, there is a similar testamentary disposition in relation to a slave named Marie.

The heirs-at-law of André Deshotels contend, that the legacy of freedom to the several slaves named in these clauses of his will and codicil, has lapsed, from the incapacity of the legatees to receive, (O. 0.1696,) the emancipation of those slaves being now a legal impossibility, under the provisions of the statute of the 6th of March, 1857. Session Acts, p. 55.

On the part of the executor, it is contended that the right of the slaves to their freedom, became vested and indefeasible, upon the death of the testator, which took place on the 6th of April, 1855, about two years previous to the passage of the Act of the Legislature in question : and that it would be contrary to the 105th Article of the State Constitution, to give to that statute the effect of defeating a right thus vested.

The operation of the Act of 6th of March, 1857, has boon considered by us in various cases, commencing' with that of Delphine v. Guillet. The constitutional view of the subject now presented, was lately considered by us in several cases decided during- the last spring in New Orleans — the cases of the Succession of Baker Woodruff, and that of Johnson v. Johnson. The same point was raised in the case of slave Minnie and others v. John Ray, Executor, lately decided at Monroe. We then held, and wo adhere to -the doctrine, that the right of a slave to freedom under the will of his master, was not vested, until the formalities required bylaw for consummating the emancipation had been complied with.

' The right of the owner of a slave to give the slave his freedom, was always a qualified right in Louisiana, subject to the action of the constituted authorities, and by the Act of the 6th of March, 1857, the right, qualified as it was before, has been annihilated. Dating from the passage of that Act, we understand the policy of this State to be, that the slaves within her borders shall remain slaves. In this, there is nothing unconstitutional.

The Legislature has not pretended to say, that those who were formerly slaves, and who, having been solemnly emancipated with all the forms of law, have become free, shall returnin to slavery. It has merely rendered it impracticable for the future, to consummate the emancipation of a slave, by withholding that sanction which was always necessary to the consumation of emancipation.

And the last will now under consideration, affords internal evidence that the testator was aware of his inability to give complete and perfect freedom to his slaves, and desired to provide against every legal contingency that might occur, to prevent the accomplishment of the object which he had in view. For,

First. He devises these slaves, with other property, to certain persons, on condition that the devisees shall take the necessary legal steps to have the slaves emancipated, with permission to remain in the State.

Secondly. On condition, (in case the law will not permit the slaves, when enfranchised, to remain in the State,) that the devisees shall have them emancipated, with the obligation to remove from the State, and shall furnish the slaves with necessaries funds to operate such removal.

Thirdly. For fear the devisees should disregard the preceding conditions of the devise, the testator gives to these slaves the right to sue the devisees for their freedom, immediately after the death of testator; and,

Fourthly. Should it ever happen that the slaves themselves would refuse to accept the boon of liberty, coupled with the obligation to remove from the State, the testator makes a special devise of the slaves to certain persons, upon trust. that the devisees will have the slaves emancipated, whenever the law shall be so changed, as to permit them to remain in the State after enfranchisement.

The whole of this complicated machinery has been constructed with reference to the peculiar legislation on this subject, as it existed when the will was made, and the modifications which that legislation might undergo thereafter. One contingency alone was omitted ; that the'Legislature should think proper to take away the power of emancipation altogether. This contingency has happened ; and the will has made no provision for such a case. The special devise of the slaves to the nephew and neice of the testator, has no application nor effect to this state of the case, because it is only made in event, that the negroes should refuse to leave the State as a legal condition of their emancipation.

It is argued by the able counsel for the testamentary executor, that the will has conferred upon his client, the power which the testator might unquestionably liave exercised in Ms lifetime, of taking tlie slaves in question out of tlie State. But we do not so understand tlie clause referred to, and which we have copied above.

The residuary legatees are directed, in a certain contingency, to remove the slaves from the State, after having had them emancipated. This is a very different thing from authorizing the executor to remove the slaves without being emancipated.

The only question which remains to be considered, is one raised by the inter-venors, the residuary legatees, namely : that the legacies of freedom to the slaves named in the will, having lapsed, to whom do the said slaves belong — to the residuary legatees, or to the heirs-at-law ? This question is settled in favor of the heirs-at-law, by the decision in Turner v. Smith, 12 An., which affirmed the doctrine of the case of Compton v. Prescott, 12 Bob ; also, case of Josephine Lewis v. Heirs of Williams, lately decided at Alexandria.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended ; that the will and codicil of André Deshotels, admitted to probate and execution by decree of the District Court of St. Landry, be recognized as valid in form ; that the defendant, Jean Baptiste Soileau, as testamentary executor of said last will and codicil, do account to plaintiffs, as heirs-at-law, and to intervenors, as residuary legatees of said André Deshotels; that the legacy of their freedom, to the several slaves named in the last will and codicil, be declared to have failed; and the said slaves to be the property of plaintiffs, in the proportions in which they are severally heirs-at-law of the testator. It is lastly decreed, that the costs of this suit, in both courts, be borne by the succession of André Deshotels.


author: Buchanan, J.

text:
    C. G. Williams et al. v. Donat Leblanc.
    A judgment in a petitory action will lie received as proof against llioso who were parties to the suit as warrantors.
    Relief hy amendment of the judgment of the court below cannot be extended to one appellee against another appellee.
    The warrantor is not liable for counsel fees paid hy the party calling him in warranty.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.

      JA. T. H. Lewis & Porter and Swayze <& Moore, for plaintiffs. J. E. King, for defendant. Dupré & Garland and B. F. Linton, for warrantor and appellant.
   Buchanan, J.

This is a petitory action for a tract of land measuring six ar-pents front on the Oourtableau Bayou, by forty arpents in depth, being the same for which (with other lands) suit was brought by the same plaintiffs against John Close, and judgment rendered by this court at the August term in Opelousas, ISoI. See 12 An., p. SIS.

After judgment rendered in that case, it appears that plaintiffs discovered that the land embraced in the present suit had been in the possession of the present defendant Donat Leblanc, from a date antecedent to the institution of their previous suit above mentioned. They have, therefore, instituted the present suit against Donat Leblanc, the actual possessor of the land.

L Donat Leblanc has called in warranty his vendors, Honoré Déjean and Casimir Leblanc, who appeared and called in warranty their vendor, John Close. The suit of Williams v. Close, decided in 12th An., was offered in evidence by plaintiffs, and was received as proof against the warrantors, who were parties to that suit. This ruling was correct. The warrantors were the real defendants in this action, and, as to them, the suit in 12th An. was not res inter alios acta. That suit, like the present, was a petitory action, rei vindicettio ; and although the action should properly have been instituted against a party in possession, yet, as the warran-tors, though not in possession, choose to defend the action as if they had been in possession, the judgment rendered therein was binding upon them, as jicti possessors qui liti se dbtulerunt. Mackeldey, Manuel du Droit Romain, section 302,2>a-ragraph 2.

There was judgment in favor of 23laintiffs against the defendant; in'favor of defendant against Honoré Déjean and Casimir Leblanc, his vendors; and in favor of the said Déjean and Leblanc against John Close.

Close alone has appealed; and it is the judgment against him _alone which is open to our revision.

The plaintiffs have answered the appeal, by jrraying an amendment of the judgment as between themselves and the defendant, which allowed a remuneration to defendant for the enhanced value of the land and improvements; but this relief cannot be extended to one appellee against another appellee. The allowance in question, in the judgment of the District Court, was personal to the defendant, who is not before us as appellant.

The judgment appealed from is as follows :

It is further decreed, that the warrantors, Déjean & wife, have judgment against their warrantor, John Close, in his individual capacity, and as administrator of his deceased wife, Euphrosine Barré, for the restitution of the price paid to him for the land, for three hundred dollars counsel fees, and for one thousand four hundred and ninety dollars and 83 cents, being the amount recovered by the defendant from the said Déjean & wife. It is further decreed, that the warrantor, Casimir Leblanc, have judgment against John Close in his individual capacity, and as administrator of the succession of his deceased wife, Euphrosine Barré, for the sum of one hundred dollars, fees of counsel, for four hundred and seventy-five dollars, being the price paid by said Casimir for his land, and for the sum of two hundred and ninety-eight dollars and sixteen cents, the latter sum being' the amount received by the defendant from the said Casimir Leblanc.

This double judgment does not appear to us to be sustained by the evidence.

I. On the 25th of April, 1849, John Close and Euphrosine Barré, his wife, appeared before a Notary Public in the parish of St. Landry, and made a sale of a tract of land of five arpents front to the Bayou Courtableau, left bank, by forty arpents in depth, to their daughter, Euphrosine Close, wife of Honoré Déjean, authorized and assisted by her said husband. The consideration of this sale was a nominal price of one thousand dollars, or five dollars an arpent, laquelle somme do mille piastres est ou sera a déduire de la part ou portion qui reviendra h la dite dame Déjean dans la succession du premier décédé de ses pere et mere, les présens vendeurs, qui alors sera acquittancée sans qu’il soit besoin d’en prendre aucune insertion hypothécaire.”

This recital of the deed shows 2>lainly, that no money whatever was paid by Mrs. Déjean. There was a conveyance to her of a tract of land by her father and mother, in advance of her share in their inheritance, with a stipulation to collate, in the partition of said inheritance with her co-heirs, a sum of one thousand dpi-lars as the value of the advance thus received by her. Mrs. Close has died, hut there is no proof of any partition of her estate, in which a collation has been made by Mrs. Déjean ; and if there had been, Mrs. Déjean’s recourse for restitution would have been against her co-heirs, under the warranty implied in partitions. Close, therefore, owes nothing to Déjean for the price of the land of which defendant has been evicted; for no price was paid by Déjean or his wife, to Close for said land.

Neither does Close owe anything to Déjean for lawyers fees in defending this suit. This point has been repeatedly settled in this court. See Hale v. New Orleans, 13 An., and the cases there cited.

The other items which make up the sum for which judgment is rendered in favor of Déjean against Close, are composed of damages assessed by the judgment in favor of defendant against Déjean; and which, even if proper charges against the latter, (which is not a matter before us,) he has no right to recover of appellant.

II. Casimir Leblanc bought at a public sale, made by order of court, of the effects belonging to the community of acquests between Euphrosine Barré, deceased wife of John Close, and her surviving husband, on the 4th of April, 1853, a tract of wood land measuring eight arpents front, by forty in depth, on the Bayou Courtableau.

On the 18th February, 1854, Casimir Leblanc sold to Donat Leblanc a tract of one and a-half arpents front, by forty arpents in depth, on the Bayou Courta-bleau, which the vendor describes in the deed as belonging to him, “ having acquired the same at the public sale of the succession property of the late widow of Charles Close.” This title does not correspond with that upon which the appellant is called in warranty, The answer of Close to the call in warranty seems, however, to admit the identity of the land conveyed by the two titles; and the argument of his counsel upon the appeal does not call its identity in question. "We may, therefore, suppose the description of Casimir’s title in his deed to Donat to be a clerical error. We consider Close bound to warrant the title of the land sold at probate sale as community property. The price at which it was sold at that sale, was eleven dollars eighty-seven and a-half cents an acre; which for forty acres, the quantity which is covered by the claim of plaintiffs, amounts to four hundred and seventy-five dollars. For this amount the appellant is liable to Casimir Leblanc, his vendee.

There are some other items of damages allowed in favor of Casimir Leblanc by the judgment appealed from, which we reject for the reasons given in relation to the claim of Déjean.

A plea of prescription is filed by defendant, which, if it were an open question, we would think entitled to great attention; for the court in Heirs of O’Conner v. Barré, in 3d Martin, expressly decided that Barré, the author of the title of Close, was a possessor in good faith, and with a good title.

But the decision in 12 An., p. 873, of Williams v. Close, has barred this de-fence as to the appellant; and as to the defendant and his warrantors, who acquired their title less than ten years previous to the institution of the present action, prescription has not run in their favor, independent of the possession of Close, their author.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the call in warranty of the appellant, John Close, by Honoré Déjean, appel-lee, be reversed; and that the said call in warranty be rejected; and it is further decreed, that the judgment of the District Court upon the call in warranty of the appellant, Close, "by Casimir Leblanc, appellee, be amended, and that said Casimir Leblanc do recover of said John Close, upon his said warranty, the sum of four hundred and seventy-five dollars, with costs of his said call in warranty in the District Court. And it is decreed, lastly, that the appellee, Honoré Léjean, pay costs of his call in warranty in the District Court; and that the appellees, Léjean and Casimir Leblanc, pay costs of appeal.


author: Merrick, C. J.

text:
    Payne & Harrison v. Edwin B. Scott, Tutor.
    Where a suit is brought by a merchant on an account rendered against minors for supplies furnished, advances, &c., aud a privilege claimed upon their crop, and it appears that he had dealt with tho tutor in his individual capacity, and the account was made in his name, and no contract is shown to have been made with him as tutor on behalf of the minors — Reid: That he can only recover so much as is shown to have enured to the benefit of the minors, and then only to tho extont of their revenues.
    Article 343 of the Civil Code, which provides that tho expenses incurred in the support and education of minors, shall not exceed the amount of their revenues, without the authority of the court, on the advice of a family meeting, applies also to expeuses incurred in tho management and preservation of their estates.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.
    XX Swayze & Moore, for plaintiffs and appellants. John E. King, for inter-vonor and appellee.
   Merrick, C. J.

This suit is brought to recover the sum of $1498 20, and legal interest thereon from January 20th, 1856, with a privilege upon the crop in tho ground, for goods, merchandize, necessary plantation and household supplies, and money alleged to have been furnished for the use and benefit of a plantation and slaves belonging to the minors, Pannell, Henrietta and Fanny Scott. These minors, are the issue of the first marriage of their tutor, Edwin B. Scott. Scott has a like number of children by his second marriage. He resides with his second wife and mother upon the plantation belonging to the children of the first marriage. These children have six negroes, which appear to be employed upon the plantation; and Scott also employs upon the same three others belonging to his mother. In 1855, he made thirty-five hogsheads of sugar, having given an equal quantity to get the thirty-five ground.

In 1856, (the period when this account was made,) the crop consisted of fifty acres of corn, and the like number of acres in cotton. Tho cotton, owing to neglect of cultivation, only produced 700 pounds in the seed, or about half a bale of ginned cottonequal in value to twenty dollars.

The account sued on was made in the individual name of Edwin B. Scott. The first item therein bears the date of 21st of March, 1856, and is for a bill of $518 77, and the last is under the date of April 7th, 1856, and is for an acceptance of a draft for $335 92, including commissions, stated to be for carts and wagons. There is also another charge of $100 for a plantation wagon.

The items of the bill of 21st of March, (with the exception of 5 barrels of pork at $80, 5 sacks of salt at $5 75, and $217 21 for bagging, rope, twine and tar,) were for family supplies, such as coffee, rice, claret, &c. Other items of the account are for dry goods, clothing, furniture, and cash advanced.

The under-tutor intervened in this case in the District Court, for the protection of the minors, and judgment -was rendered in favor of the plaintiff against Scott individually, bnt against the plaintiffs on their demand against the minors.

The plaintiffs appeal.

It has been shown that the credit was given to Scott individually, and not as tutor. The plaintiff cannot, therefore, recover in virtue of any contract; for none has been shown to have been made on behalf of the minors. Messrs. Payne <& Harrison did not, at the time they gave the credit, give it on account of the revenues of the minors; for those gentlemen were not then probably aware of the minors existence.

If the plaintiffs can recover at all, it is in the form of the action known in the civil law as de in rem verso, that is, for so much as has actually turned to the advantage of the minors, and then (their being no permanent addition to their estate) only to the extent of the revenues. C. C. 1960, 2278, 313.

Only fifty acres of cotton were planted in 1856, and Scott could not reasonably have expected to make over fifty bales of cotton, and (as just said) actually made but half a bale, worth twenty dollars. But the minors are sought to be charged with rope and bagging sufficient for over one hundred bales, and at a cost of more than ten times the value of their whole crop, viz, $213 11. This bagging, 720 yards, and the rope, 1021 pounds, were evidently used in some other manner. So of the wagons ; the minors are charged with $435 92 for carts and wagons, and thé proof is, that the following year there were no wagons on the place, and only one pair of wheels.

The plaintiff has not only failed to show that the foregoing items enured to the benefit of the minors, but his allegation is rebutted by the evidence

The plaintiff has also failed in his proof in regard to the pork, salt and tar, which may have been disposed of by Scott, the purchaser, in the same manner as the wagons, carts, bagging and rope. At all events, the plaintiffs, in this sort of action, (where the goods were charged to one person, and the price is sought to be recovered of another,) cannot recover against the minors where the tutor himself would not be permitted to do so. The proof is insufficient in this case.

The plaintiffs deny that Article 343 of the Civil Code, which provides that the expenses for the support and education of the minor shall not exceed his revenues, applies to those which are necessary to preserve and render productive their property ; and it is supposed that it is sufficient to show that the supplies furnished were such as the defendants might reasonably be supposed to need for their plantation.

It appears to us, that the spirit of Article 343 covers the expenses of the minor’s estate, as well as his personal expenses. See Moore v. Nichols, 5 L. R. 488.

In Barbarin v. Barbarin, 3 An. 264, this court, in speaking of expenses incurred in the management of the estate and payment of debts, &c., said : “ The advances made by the under-tutor, not having been authorized by a decree of court, rendered on the advice of a family meeting, he has no claim for them against the minors, beyond the revenues; and he cannot be permitted to enforce his claim against the defendant personally, until that of the minors is ascertained and paid.”

In the case of Hubbell v. Hubbell, the tutrix expended more for the support and education of the minors than the revenues. The court remarks generally, that “ our Code expressly provides that the expenses of a minor shall never exceed his revenues, -without the authority of the court, upon the advice of a family meeting.” 5 An., p. 525.

In the case of Urquhart v. E. B. Scott, Tutor, 12 An. 674, the suit was for “ a balance of account due plaintiffs for alleged advances made and supplies furnished to said Scott, in his capacity aforesaid, for the use and benefit of a plantation belonging- to said minors,” and it was alleged “ that said advances and supplies were absolutely necessary for the proper administration of the property and the maintenance and education of said minors.”

In reference to an action of this sort, we said :

“ It is not shown that the estate was embarrassed with debts at the commencement of the tutor’s administration, nor does it appear that the revenues of the minors were inadequate to their support. The tutor is prohibited, under the stringent but wise provisions of our law, from borrowing money on behalf of the minors. If their support, or the preservation of their property require an expenditure beyond these revenues, it is the duty of the tutor to cause to be convened a meeting of the family or friends of the minor to deliberate upon the propriety of mating a loan. In the absence of such authority, the tutor can mate no contract, binding as such, which creates an indebtedness on the part of his wards. Those who deal with tutors acting on behalf of minors, must do so at their peril.”

It was after mating these sweeping remarts, that the court used the language relied upon by plaintiffs’ counsel. An examination of the case will show, that the court was reasoning in reference to the proceeds of the crop in the hands of Messrs. IV. & D. Urquhart, and so far from countenancing the doctrine that a tutor can by his own acts diminish the capital of the minor, the court, by its decree, rejected the plaintiffs’ demand. 12 An. 674.

The case of Miltenberger v. Elam, 11 An. 667, sustains the same view of the capacity of the tutor and rights of the minors.

It is true, that Article No. 339 of the Civil Code allows the property of the minor to be alienated without the advice of a family meeting when a judgment is to be executed against him. But this Article presupposes that the judgment was obtained upon a just cause and in conformity to law. See examples, 7 L. R. 316, 8 L. R. 321.

There is the greater necessity for a careful examination of the demand against the minor, on account of the effect of the execution of the judgment against him.

We are, therefore, of the opinion, that the judgment of the lower court ought to be affirmed, and it is so decreed.


author: Mebkiok, O. J.

text:
    Succession of Benjamin McClelland.
    The community cannot be allowed more than the actual cost of improvements made on the separate estate of one of the spouses, during the existence of the marriage, although the property had increased in value during its existence.
    One partner in the community will not bo permitted to question the title of the other partner to property possessed by such partner prior to the existence of the community.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.
    XA. T. H. Lewis & Porter, for administrator. J. E. King and C. A. Mouton, lor .opponent and appellant.
   Mebkiok, O. J.

The object of this suit, (which is prosecuted by way of an opposition to the administrator’s account), is to settle the value of the community property which existed between the intestate and the opponent, his widow.

The amount to be deducted for the debts of the community is reserved for future adjustment.

Both parties, administrator and opponent, appeal.

I. The first question presented is, whether the District Judge has allowed enough to the community for the increase of the herds or stock of cattle and hoi’ses in the parishes of St. Landry and Calcasieu?

Both parties complain : one maintains that the Judge has allowed too much; the other, that the estimate is too low.

There is much discrepancy in the testimony, and after a careful consideration of the same, we are unable to say that the District Judge erred on this branch of the case. The testimony leaves it very doubtful whether there had been much increase in the herds of cattle during the existence of the community. We could not interfere with the conclusions of the District Judge on this subject with any certainty that our appreciation of the testimony would be more exact. We do not perceive that the proceeds of the gentle cattle are credited to the separate estate.

II. Was the plantation of the deceased (being his separate estate) increased in value by the erection of buildings thereon by the community ? The District Judge allowed $450 for such improvements. He must have assumed, (which was correct), that the community could not be allowed for more than the cost of such improvements, although the property had increased in value since the existence of the community. The question is not the same when the improvements do not enhance the value of the soil to the amount of the cost of the same. 2 An. 43.

III. The District Judge allowed the separate estate of the husband $6,415 for separate property sold during the existence of the community, but not shown by direct proof to have enured to its benefit. We cannot say, under the peculiar circumstances of this case, that he erred. He charged the separate estate (upon the mere presumption of law) with the sum of $19,133 84, debts of the husband, paid during the existence of the marriage. It might well be inferred, considering the thrifty habits of the deceased, that the $6,475 were used in part payment of his separate debts, no other separate debts having been shown to exist. If the community is credited with the one, it should be debited with the other.

IV. Certain slaves were in the possession of the husband as owner, before his marriage with the opponent. There is no other proof of ownership, and no production of written titles. Is the presumption arising from Art. 2374 C. 0., that all the effects which the husband and wife reciprocally possess at the dissolution of the marriage, rebutted by the proof of such prior possession ? The deceased was, at the time of his marriage, the owner of a large estate of lands, slaves, vacheries, &c.; much of which is conceeded to be separate property. It is to be presumed, that he possessed the slaves he held prior to and at the time of the marriage, as owner also. Indeed, we so understand the testimony. If the widow in community pretends that these slaves belonged to the community, she must show that the title to them was acquired during the community. One partner in the community cannot be permitted, under the mere presumption of Art. 2374, to set up defects and question the title of the other to property possessed by the other prior to the community.

V. The claim against the administrator for the supposed loss arising from a neglect to sell certain slaves, cannot be considered under the pleadings and argument of counsel.

We perceive no other questions which require particular notice, and are satisfied that substantial justice has been done between these parties.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, the administrator and opponent each paying one-half of the costs of the appeal.