author: Nicholls, O. J.

text:
    No. 11,368.
    Delia Jackson, Individually and as Tutrix, vs. Illinois Central Railroad Company.
    l. In a suit for damages for the death of a person alleged to have been caused by the negligence of the employes of a railroad company, where the plaintiffs allege themselves to be the widow and children of the deceased (the widow suing for herself individually and for the minors as their mother and tutrix), defendant is not entitled under an unrestricted offer or tender of evidence to introduce generally and against all the plaintiffs an extra-judicial admission made by the mother since the institution of the suit, that she was not married to the deceased, when prior to this admission she had testified as a witness in the case that she was his widow. Had she sued alone and in her own behalf, such an admission, if legally proved, was admissible against'her. Quoad admissions made by her as affecting herself, her status as a party was not merged into that of a witness.

      2. Where, in such a ease, the Supreme Court lias grave doubts as to the fact of the marriage of the plaintiff with the deceased, it will remand the case for a new trial, notwithstanding the verdict of a jury and the judgment thereon rendered.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    B. B, Forman, Attorney for Plaintiff and Appellee :
    1. Neither a license, witnesses, nor a written act, are essential to the validity of a marriage. It may be proved by any competent evidence. Reputation, having cohabitation as man and wife, as well as direct testimony. Taylor vs. Smith, 8 La. 83; Holmes vs. Holmes, 5 La. 170; Hobdy vs. Jones, 2 An. 911; Hub-bell vs. Inkstein, 7 An. 253; Succession Pearce, 30 An. H69; Sabalot vs. Populus, 31 An. 851.
    2. In order to contradict a witness (examined under commission or in open court) by contradictory statements — if in writing they should first be exhibited or read to the witness, if verbal the witness should be first asked whether or not she had made such statements, and an opportunity afforded for explanation.
    3. Ex parte statements can be received in no other way; and if the contradictory statements are made after the depositions are given still the rule is not changed — party must give notice and take out a new commission. Rice on Evidence, page 618. This is especially true of the ex parte statements of a tutrix occupying a fiduciaiy relation to minors in whose behalf she is suing.
    1. Gratuitous passengers are entitled to safe carriage, and can recover damages for injuries sustained hy the negligence of those operating the train of a railway. Hutchinson on Carriers, Secs. 500, 568, 561; Austin vs. Great Western Ry. Co., 2 Queen’s Bench Oases, 112; Jacobas vs. St. Paul & Chicago R. R. Co., 20 Minnesota, 125; Buffalo R. R. Co. vs. O’Hara, 9 American and English R. R. Cases (Pa.), 317, 1882; Railway Co. vs. Stevens, 9 U. S. 655; Ohio & Miss. Ry. Co. vs. Nickless, 71 Ind. 271; Godin V3. St. Paul & Duluth Ry. Co , 30 Minn. 217, (1883); Lemon vs. Chausler, 68 Mo. 310; Ohio & Miss. Ry. Co. vs. Selby, 17 Ind-171; Waterbury vs. N. Y. Central R. R. Co., 17 Ped. Rep. 671.
    5. Plaintiff was not a gratuitous passenger; his labor and the freight received for carrying the staves was the consideration for his carriage, and being lawfully on the train he was entitled to safe carriage. Ib.
    6. In cases of gross negligence it is proper to give such damage as would serve as a warning to defendant. Block vs. Carrollton R. R. Co., 10 An. 10.

      Farrar, Leake & Lemley Attorneys for Defendant and Appellant:
    1. The judge a quo should have sustained the motion for a new trial, and thus enabled defendant to have proved that plaintiffs were not the widow andminor children of James Jackson. It being patent on the face of the record, defendant could not, in the exercise of due diligence, have obtained said evidence prior to the trial herein.
    2. The evidence does not establish that plaintiffs were the widow and minor children of the said James Jackson, alleged to have been killed.
    3. The evidence shows that the alleged James Jackson was killed instantly; hence, no damages can he awarded for the suffering of the deceased. 11 An 698.

      4. Plaintiffs liave suffered no pecuniary loss, as the evidence shows Jackson did not contribute to their support. 44 An. 689; 42 An. 827.
    5. Punitive and exemplary damages can not be allowed. 42 An. 824-829; 10 An. 88'
    6. The damages awarded are excessive. No damages at all should be awarded, or at the very utmost merely nominal damages. 42 An. 824.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiff appears in this suit individually on her own behalf and as natural tutrix of the minors Delphine Jackson and DaWid Jackson. She alleges that she is the widow and the minors named are the children of James Jackson, issue of her marriage with him. That on or about the 27th April, 1892, James Jackson was employed by the Brooklyn Cooperage Company to go to a point near Manehac, on the line of the Illinois Central Railroad -Company, to load one of its trains with staves, which the Illinois Central Railroad had agreed to carry and transport from a point on its line of road near Manehac to New Orleans; that the Brooklyn Cooperage Company engaged for said Jackson’s passage on the said railroad to be carried from New Orleans to near Manehac and return to New Orleans, and it was the duty of the said company to safely carry said Jackson, and it did carry him from New Orleans to the point on the line of the railroad near Manehac with other laborers, where they loaded the cars of the defendant compauy with staves; and the said Jackson was then directed to get upon the train of the 'defendant company to be transported back to New Orleans, whichhe .did after dark on.or about the said ,27th April, 1892, and was entitled to safe carriage to New Orleans; but the officers and agents of the said Illinois Central Ráilroad Company were guilty of gross negligence in the operation and running of its train upon which the said Jackson was being transported, in that they had the engine reversed, with the headlight and the cowcatcher turned to the north against the end of the box car of the train, when the train was traveling at rapid speed south, so that the engineer and fireman could not look forward and see obstructions and had not the benefit of the headlight to observe obstructions, and had not the benefit of the cowcatcher to throw obstructions off the track, and when so proceeding in such a seriously negligent and dangerous manner the said engine and train ran against some cows upon the track; that no bell was rung and no whistle was blown or warning given to frighten the said cows off the track, and by reason thereof the said train was derailed and the said Jackson was crushed to death and killed, whereby he suffered great agony of body and mind, and damage to the sum of one thousand dollars for his sufferings, which right of action has survived to petitioner, his widow, and his two aforementioned minor children, and that petitioner individually and the said two minor children of the deceased were damaged by the loss of the husband and father aforesaid in the sum of nine thousand dollars; that the said railroad company could have prevented said killing and injury and did not do so. Petitioner prayed for judgment against the railroad company for ten thousand dollars, with legal interest from date of judgment until paid.

Defendant filed an answer denying generally all the allegations of plaintiff’s petition, and specially denying that the plaintiff was the legal wife of the deceased; that Jackson was killed on its train on the 27th of April, 1892, and that it was guilty of negligence in the premises.

The case was tried by a jury, which returned a verdict in favor of plaintiff for §5000. Defendant moved for a new trial, which was overruled, and judgment having been rendered in conformity to the verdict defendant appealed.

The only testimony adduced on the trial to support the allegation that Delia Jackson was the wife of the deceased and that the two minors are his children — issue of her marriage with him, was that of the plaintiff herself and one Joseph 0. Camors, the testimony of both having been taken under commission.

All that the latter said on the subject was: “I knew the late James Jackson and Delia, who he claimed as his wife, and their two children, David and Delphine. He did leave (surviving him) his said widow, Delia Jackson, and their two children.”

The plaintiff herself said: “ I knew the late James Jackson. He was my husband. He left myself as his widow and two minor children, one named David and the other named Delphine.”

Defendant filed no cross-interrogatories to either of these parties, but prior to the issuing of the commission objected to the questions propounded, on the ground that the interrogatories were leading and suggestive of the answers.

This objection was renewed when the depositions were offered, but it was overruled. The interrogatory objected to was as follows: Did you know the late James Jackson, who was killed on the Illinois Central Railroad, near Kenner, about 27th of April, 1892? Did he leave a widow and minor children, and what are their names?”

After plaintiff’s case was closed defendant offered in evidence an ex parte affidavit, made by the plaintiff before Jcnes Cross, notary public, on the 25th May, 1893. The affidavit was as follows:

Baton Rouge, May 25, 1893.

To whom it may concern:

Be it known that, whereas, I, Delia Jackson, the undersigned, have recently made oath to the statement that one James Jackson, who was killed by a train on the Illinois Central Railroad on or about the —day of — 1891 or 1892, was my husband; now, therefore, Imakethis my declaration for the purpose of qualifying and explaining my oath aforementioned. I did not mean to swear falsely that the said James Jackson was my lawfully wedded husband or that I was legally married to him under a license from the State, but only that he claimed me as his wife and I claimed him as my husband, and that we lived together as man and wife. We were .never legally married, and I did not intend to swear falsely when I called him my husband, but only called him husband as I was accustomed to do, because of his living with me in that relation, and I make this explanation because I want to state the truth in regard to the matter and have it properly understood. . her

(Signed) Delia x Jackson. Witness: mark.

(Signed) C. E. Alexander.

(Signed) K. S. Collins.

Before me, T. Jones Cross, a notary public duly commissioned and sworn in and for the parish of East Baton Rouge and State of Louisiana, personally appeared Delia Jackson, known to me, who being duly sworn and after due reading of the foregoing statement of facts did under oath declare the same to be true and made voluntarily by her for the purpose therein set forth.

Thus done and passed at my office in the city of Baton Rouge in the presence of Messrs. Cornelius E. Alexander and Kirby S. Collins, competent witnesses, who sign as such. Delia Jackson being incompetent to write affixes her signature by mark, as attest my hand and official seal, the day and date first above written.

(Signed) T. Jones Cross, Notary Public.

Plaintiff objected to the introduction in evidence of this affidavit on the ground that pursuant to an order of court a commission was issued to take the deposition of Delia Jackson, the plaintiff in this suit, and she was asked whether or not James Jackson, who was claimed to have been killed on the 27th April, 1892, had left a widow and minor children, and what were their names; that defendant was duly served with notice to cross-interrogatories and declined bo cross them, and that the method of endeavoring to qualify the deposition of a witness should be by cross-questions and not by ex parte affidavits, inasmuch as it was impossible to show the circumstances, and surroundings by which an affidavit may be obtained or extorted from the witness, and that no ex parte affidavits can be received, as the case had been at issue since the 25th of April, was fixed for the trial on Tuesday the 23d of May, was then continued, according to the minutes of the court, to Thursday the 25th and then to the 26th, all of which time the counsel for the defendant company gave counsel for plaintiff no notice of his intention to qualify the testimony of the witness, whose deposition was returned in court on the 23d of May and opened by the clerk. The court sustained the objection, stating that the affidavit was dated May 25, 1893, the day before the trial of the case. That there was no evidence before the court as to the manner in which the affidavit was obtained. That it might have been obtained by threats or violence. That the man who had obtained thb affidavit had not been presented to the court to explain how or why he obtained it. That it might have been obtained by bribery or corruption. That it was not justice tojpermit an affidavit of that kind to be offered. Defendant reserved a bill of exceptions, to which, with the leave of the court, the affidavit was annexed and made part thereof. Counsel for defendant testified that knowledge of this affidavit had only come to him the evening preceding the trial and that the affidavit itself had only been handed him on the morning of the trial.

Among several grounds assigned by the defendant for the new trial, which was refused, were two which we specially mention:

1. That the court erred as matter of law in refusing to allo’w defendant’s counsel to read to the jury the ex parte affidavit of Delia Jackson; that the jury are the soleljudges of credibility of evidence, and the court had no right to exclude said document from the jury’s consideration.

2. That defendant has discovered since the trial hereof new evidence, to the effect that Delia Jackson never at any time claimed to have been married to James Jackson, deceased, but on the contrary, that she has many times stated, in the presence of witnesses, that she never was so married, and that such, evidence is set forth in the affidavits of Joseph. C. Camors, J. H. Duncan, C. P. Alexander, Kirby S. Collins, and statement in the handwriting of Thomas D. Dupré, the notary before whom was taken the testimony of Joseph C. Camors and Delia Jackson, all made part of the motion for the new trial.

Camors’ affidavit was to the effect that he had recently appeared before Dupré, notary, and given testimony, stating that he knew one James Jackson, colored, reported to have been killed by the Illinois Central Railroad Company, and Delia Jackson, colored, as husband and wife; that for the purpose of explaining his testimony he declared he did not mean to say that the said parties were legally married, but on the contrary, that they had only lived together as man and wife, and were not legally married. That Delia Jackson stated to him, after he made the statement, that she was'not legally married to James Jackson, but that they had only lived together as man and wife; that he stated this fact to the notary; that if his testimony was made to say otherwise it was erroneous, and he desired it to be corrected so as to accord with his affidavit.

Duncan, Collins and Alexander deposed under oath that when Delia Jackson appeared before Cross, notary, they heard her make the voluntary statement that she was not legally married to James Jackson, but that she and Jackson had lived together as man and wife, and recognized each other as such.

In Dupré’s statement he says: “ Since the death of James Jackson I have heard Delia Jackson, who resides here (Baton Rouge) , and who claims to be his wife, say that she was not legally married to Jackson; that she made this statement in his presence about the --day of----. She said they were living together as man and wife and she claimed him as her husband, but that they were not legally married. This statement was made on the day he took her deposition in the ease of Delia Jackson vs. Illinois Central Railroad. It occurred in this manner: When I swore Joe C. Camors, she was also a witness. He objected to signing the statement that they were legally married, as he did not know, but that they had always passed for man and wife. I then asked Delia Jackson if she had ever been legally married, and she said that she had not. This was after she had signed the deposition.

In adddition to Dupré’s “ statement” there was filed a deposition, by him in which he declared that since the death of James Jackson he had heard Delia Jackson say that she never was legally married by a preacher with a license from the court house; that the statement was made to him after he took her deposition in the ease of Delia Jackson vs. Illinois Central Railroad Company.

In overruling the motion for a new trial the court stated that defendant had not annexed to the motion an affidavit of any of its officers that it had discovered new material evidence since the judgment was rendered, although it had used every effort and diligence in its power to produce the same, as required by Art. 561 of the C. P., and hence it could not consider that ground for new trial, nor the ex parte affidavits in support of it.

That counsel of defendant, without showing any reason why some officer of the company could not take the required oath, requested permission to do so himself, bul that it had refused this request, as counsel might well be ignorant of evidence material to the case, and yet his client be fully informed.

Referring to the exclusion of the ex parte affidavit pf Delia Jackson by it, the court said that the plaintiff sued not only in her own right but as tutrix; that viewed as an admission, it did not consider that a mother could by affidavit admit away the rights of her minor children, and declare her children illegitimate. She could admit away her own rights, but not those of her children. That the affidavit was not offered as an admission, but as affecting plaintiff’s testimony; that from that standpoint it understood the rule to be that the declarations of witnesses whose testimony has been taken under commission made subsequent to the taking of their testimony contradicting or invalidating their testimony as contained in,the record is inadmissible in evidence if objected to; that the only way for a party to avail himself of such declarations is to sue out a second commission. That such evidence is always inadmissible until the witness whose testimony is thus si ught to be impeached has .. been examined upon the point, and his attention particularly directed to. the circumstances of the transaction so as to furnish him, an opportunity for explanation or exculpation. That Rice on Evidence, p* 618, supported that view. That iu the particular case before the court, not only was the manner in which the affidavit had been obtained not shown, but affiant had no opportunity to explain what representations were made to her, or to give an explanation in exculpation of her former testimony. 1

Counsel for defendant urge in this court that their objection to the interrogatory propounded to Delia Jackson and J. C. Camors under commission, that it was “leading,” was intended to extend and did extend further than to its mere form; that the fact of marriage was the very fact at issue between the parties, and that instead of shaping the inquiry directly to that fact and proof thereof, the marriage was assumed in the question as having existed and the inquiry limited (on the hypothesis that there had been a marriage) to the ascertainment as to who was his widow and who were his children. That whether there had been a marriage or not was not for the witness to decide; that all the facts and circumstances going to show a marriage should, under the pleadings, have been asked and answered; that the answer of Delia Jackson that she was the “widow” of James Jackson was a “conclusion of law” and not evidence of a fact. They further urge that the ex parte affidavit of Delia Jackson was not offered to impeach her testimony as a witness, but as admission by her.

As the rights of the plaintiffs are essentially dependent upon the -existence of a marriage between Delia and James Jackson, and the present demand must fail if sufficient evidence on chat point be not .adduced, however strong a case might be otherwise presented .against the defendant, the state of the record on that question arrests our attention at the outset. Had the case been one in which .Delia Jackson sued alone, and as widow of Jackson, resting her rights entirely upon testimony other than her own, the question of ■the admissibility as against her of declarations made by her subsequently to the bringing of the suit, to the effect that she had never .been married to the deceased, would scarcely, we think, have been rraised if established by the parol testimony of witnesses, or by written evidence duly proved up. We do not think it would have been claimed that before such declarations could be made available a foundation for their being introduced in evidence such as is required as a condition precedent in cases of the impeachment of witnesses. We understand the rule to be that all admissions material to the issue voluntarily made by a party, whether oral or written, and however authenticated, are admissible against him. This is announced by Rice in his work on evidence (Vol. 3, page 500) as a rule even in criminal cases.

He refers to the two eases of People vs. McMahon, 15 N. Y. 384, and People vs. Wentz, 37 N. Y. 309. In the latter case the court, speaking of the opinion in People vs. McMahon, quoted Mr. Justice Seiden as saying that the law makes a distinction between a statement made before and one made after the accused was conscious of being charged with or suspected of the crime.” If before, it is admissible in all cases, whether made under oath or without oath, upon a judicial proceeding or otherwise, but if made afterward, the law becomes at once cautious and hesitating. We do not understand plaintiff’s counsel to have claimed on the trial, or to claim now, that Delia Jackson did not make the declarations stated in the affidavit at the time and place therein recited — that is to say that the affidavit did not per se prove those declarations to have been made by her.

Had this case been such a one as we have supposed, there being no question as to the affidavits furnishing sufficient and proper proof or authentication of the declarations themselves, we think it would have been admissible. If a party’s counsel should urge surprise, or make any showing which would involve the voluntary character of the declarations or the good faith of the other side, the court should, unquestionably, as said by Mr. Justice Selden, become at once cautious and hesitating, and afford delay and every opportunity for investigation. If we vary the supposed case and introduce into it as a fact that the plaintiff should have gone upon the stand as a witness, and that subsequently she should have made declarations and admissions which negatived all right on her part in the action, would that fact alter the situation as to the admissibility of evidence of such declarations in the manner and form we have just been considering? We think not. Her status as a party plaintiff would not be merged into her status as a witness relatively to the effect of admissions made by her .damaging to her case — quoad admissions we should consider her as a party, not a witness.

Leaving, however, hypothetical cases and coming to the case at bar, we find that plaintiff did not 'sue alone, but that she appears in this suit not only individually, but as the tutrix of two minors; we find also that the rights of all the plaintiffs rest upon a common fact es-sentially necessary to exist and to be established by them, which is the marriage of Delia and James Jackson. When we come to examine the tender of evidence, we find the affidavit offered without restric-. tion, as against both Delia Jackson herself and as against the minors she represents. As against the minors, we think it clear that these: admissions were not admissible, and that the facts admitted would, have to be established through testimony regularly taken. We. think the court was right in excluding the affidavit in manner as offered. ¥e express no opinion as to whether it should have been admitted as to Delia Jackson had it been offered simply as against her. Had it been permitted to have been introduced in that manner, and the case had gone before the jury under such circumstances and full effect been given to it, we would doubtless have had the anomalous condition of the alleged rights of Delia Jackson being rejected by the jury because she was not the wife of the deceased, whilst the demand of the minors, in the same suit, would be maintained because she was his wife.

While under the circumstances of this ease we sustain the action of the court in excluding the evidence offered, we find it impossible to let the verdict of the jury and the judgment of the court stand. We think that independently of the showing made by the defence, through the affidavits filed by the defence, that the testimony as to-the marriage of Delia and James Jackson, particularly under the special denial of that fact in defendant’s answer, is entirely too weak to justify a judgment. We attach little weight in this proceeding and under the pleadings therein to the fact that by an ex parte proceeding Delia Jackson was appointed natural tutrix of the.minorst Whilst the affidavits which are in the record are not before us in strict regular form, we would not feel warranted in concluding either party with the doubts in our minds as to the actual rights of the parties to which they give rise. Davis vs. Dancy, 1 N. S. 589. In our opinion the district judge should have granted a new trial without reference to the technical objections assigned (0. P. 547).

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury and the judgment thereon rendered, appealed from herein, be and the same are set aside, annulled, avoided and reversed, and that this case be remanded for a .new trial, with special directions to have the testimony of Delia Jackson as to her marriage with James Jackson taken either in open ■court or regularly under commission.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,426.
    Lacaze & Reine vs. Their Creditors.
    An exception that tlie petition oí a corporation does not show that suit was authorized, will be overruled if the affidavit accompanying the petition discloses tile name of the vice president of the company, and affirms the truth of its allegations, the necessary inference therefrom being that the suit was ap" parently authorized.
    APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost, J. ■ ,

      J. L. Gaudet for Plaintiffs and Appellees.
    . Prentice E. Edrington, Wm. G. Dufour, Horace L. Dufour for Opponent and Appellant:
    1. No affidavit is necessary for the arrest of afraudulent debtor under our insolvent laws; it is mere surplusage, and hence no defect in it can affect the validity of the proceedings. R. S. 1805; 18 La. 475; 11 An. 557.

      X In a suit by a corporation the use of its corporate name is sufficient, without r naming any of its.officers; authority to sue is matter of proof when called for, ; . and not of pleading. Act 3fi of 1888; R. S. 684; C. P. 112; C. C. 432 ; 33 An. 946; 2 An. 1017.
   The opinion of the court was delivered by

Watkins, J.

The question for decision is raised upon án exception that was urged in favor of the insolvents and sustained — the opponent appealing from the judgment dismissing their opposition.

• The commercial firm of Lacaze & Reine, and the individual members thereof, made a cession of their property, under the insolvent law oE the State, and caused a meeting of their creditors to be convoked.

Subsequent to the convocation of the creditors; the Joseph Bowling Company, Limited, filed an opposition to the discharge of the insolvents, charging fraud and praying for their arrest. To this opposition the counsel for the insolvents tendered the following exception, to-wit: ' '

“That the allegations of said petition and of the affidavit thereto attached fail to show that B. W. Bowling, styling himself the vice president of said company, is authorized to sign said affidavit or to appear in any judicial proceedings, and bind the said company in the present proceedings.”

This exception was sustained and the opposition dismissed, and the opponent company, limited, has appealed.

I.

No affidavit is contemplated as accompanying an opposition to the discharge of an insolvent debtor — the law simply providing that “ should any creditor of an insolvent debtor deem it necessary to * * * charge fraud against the debtor, he shall, within ten days next following the meeting of creditors, lay before the court his written opposition, stating specially the several facts of * * * fraud alleged against the insolvent debtor,” without any further formality. R. S., See. 1802.

Consequently, we need not examine the sufficiency of the affidavit of the opponent, but confine ourselves to the allegations of the petition and affidavit in determining the merits of the exception.

II.

The question is whether the petition discloses that the opponent company, limited, is represented by a person authorized to institute the suit or opposition, and is capacitated to stand in judgment therein and bind the company in the instant proceedings.

The following is the opening paragraph, viz.:

“The petition of Joseph Bowling & Co., Limited, a corporation domiciled and doing business in the parish of Orleans, State aforesaid, with respect represents, that it is a creditor of the insolvents herein,” etc., charging fraud; and the concluding paragraph is that, the premises considered “ your petitioner prays,” etc.

The company uses its own name and does not appear in and through, its president, vice president, or any other person or officer for the purpose of bringing the suit. It is the accompanying affidavit alone that employs the name of B. W. Bowling, vice president. This was quite necessary, for the reason that the corporation could not make the affidavit, though it was perfectly competent for it to sue in its corporate name. The law declares that “corporations shall have power and authority ” amongst other things to “ sue and be sued in their corporate name.” R. S., Sec. 684.

It further declares that corporations must have a name given to them and that “ it is in that name they must sue or be sued, and do all their legal acts.” R. 0. 0. 432.

But these provisions only go to the power, authority and capacity of corporations. We must look into the Code of Practice to find the manner in which corporations must enter courts of justice in the assertion of their rights; and examining its provisions — Art. 112 — we find that “ bodies corporate and chartered institutions act judicially through their proper representatives under the name or title given to them in the act of incorporation. ’ ’

Not only must a corporation sue “under the name or title given to it in the act of incorporation,” but corporations can only act judicially through “ their proper representatives.”

The case of Insurance Oil Tank Company vs. Scott, 33 An. 946, was one to restrain the defendant from infringing its trade mark, and the defendant tendered the exception that the plaintiff corporation did not appear through its proper officer as required by law. Of this exception the court said :

“ The petition was in the name of the corporation without the designation of any officer. The exception was cumulated with the merits, and, on trial, it was proved that the action had been brought by the president with the approval of the board of directors. This cures the defect.'1'1

The theory of that decision is, that plaintiff’s failure to state, in its petition, the name of the proper representatives through whose instrumentality the suit is brought, was a defect, but that the defect had been remedied by the cumulation of the exception with the merits, and proof having been administered, on the trial of the merits, that suit had been brought with the authorization of the board of directors.

There can be no doubt of the correctness of that ruling, as the exception was tried with the merits, and the objection fully .met by evidence that the suit was duly authorized.

In this case the exception is directed against the petition and! accompanying affidavit; and, notwithstanding, it was unnecessary for the purposes of the opposition, yet it may be properly considered for the purpose of determining the sufficiency of the averments of the petition; and thus, considering the petition and affidavit, it is evident that the suit was apparently authorized, the vice president of-the corporation having made same, affirming the truth aDd correctness of the allegations of the petition.

We can not doubt that the suit was authorized, nor that B. W. Bowling, vice president of the corporation, represented the corporation in instituting the suit; that is to say in making the opposition.

The exception was improperly sustained, and the judgment appealed from must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the exception be overruled, and the opposition reinstated, and the cause remanded to the court a qua for trial according to law; costs of appeal to be taxed against the appellee, and those of the lower court to await final judgment thereon.


text:
    No. 11,264.
    William H. Stuart et als. vs. W. W. Sutcliffe et als.
    A policy of life insurance made payable to the assured, his executors, administrators and.assigns, is, in law, assignable as any other incorporeal right. Such a policy does not constitute an asset of the “ succession of a living person and ' become amenable to the denunciation of R. 0. 0. 2454.”
    APPEAL from the Civil District Court, Parish of Orleans. J.

      Joseph Brewer, Girault Farrar, H\ L. Dufour and H. J. Delesdernier Attorneys for Plaintiffs and Appellants:
    1. Where a partnership styled “ John Klein.& Co.” was dissolved by the death of one of its members in 1888, and shortly afterwards a new firm was formed under the same firm name, composed of different individuals, the firms are not the same, nor are the assets and liabilities of the firstfirmthe assets and liabilities of the second firm. 19 An. 289; Abat, Generes et als. vs. Mrs. Emeline J. Penny | et als.
    2. Where a member of the second firm who was also a member of the first firm assigns to the second firm his policy of life insurance to secure a debt due the first firm, such assignment is null and void.
    3'. Where a member of a firm executes his promissory note in favor of said firm and pledges or assigns a policy of life insurance, to secure the payment of said - ■ note, said pledge or assignment is personal to said firm, and said policy can . not be subsequently assigned by said firm.

      4. Where a member of a firm executes his note in favor of said firm and pledges a life insurance policy to secure said note and authorizes the firm to pledge said policy, but said firm assigns said policy instead to a third person, such assignment is null and void.
    5. An assignment of a life insurance policy to be valid must be signed by the person assured.
    6. A life insurance policy is not negotiable.
    7. A pledge can not be separated from the note to which it is attached, for if the note be worthless the pledge would be-invalid.

      Carroll & Carroll for Defendants and Appellees:
    If the assured legally and properly assign a policy of insurance for value and in good faith, neither his heirs nor executors can ignore such assignment, or set it aside, on the ground that it is in contravention of Art. 2454, Ü. 0. An insurance policy so assigned can not in any sense be construed as the succession of the deceased, the sale of which is prohibited. Compare Bliss on Life Insurance (Sees. 3 and 325 to 356) with Civil Code, Arts. 871 et seq.

    One who has effected insurance on his life may assign the policy, or a part of it, to a bona fide creditor. 11 R. 298.
    Transfers and assignments of insurance policies have often been considered by our Supreme Court and have always been dealt with as perfectly valid and proper. There is not the faintest intimation or suggestion that such assignments are contrary to good morals, or against the law. 11R. 298; 13 An. 508; 14 An. 1; 26 An. 326.

      Howe & Prentiss Attorneys for Mutual Life Insurance Company of New York, Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This suit is prosecuted by the executors of William Stuart, deceased, for the recovery of a policy of insurance in the Mutual Life Insurance Company of New York, for the sum of $3000, and its dividends and avails, which risk had been taken on the life of the deceased, and which, it is alleged, by its terms and by operation of law, is made payable to the heirs and legatees of the deceased; and, as such, is an asset of his succession — the present value of same aggregating at date of the death of Stuart $9215.

Plaintiffs allege that the policy is in the possession of either W. W. Sutcliffe or John Klein, who claim the right to collect from the life insurance company, but they aver that their claim is unfounded, and that the demands set up by them against Stuart are void and of no effect or validity. That said policy being an asset of Stuart’s succession, no assignment or transfer thereof, whether made by said Stuart during Ms life, or by any other person, is valid, because same was in contravention of the prohibitory terms of Art. 2454 of the Civil Code; and further, that the pretended assignments under which the said Klein and Sutcliffe claim to hold said policy were made without any consideration, and same were in violation of the rights of the forced heirs of said Stuart — said executors being the sole surviving issue of the deceased, who have accepted his succession with the benefit of inventory.

Upon appropriate averments and prayer a sequestration was ordered, and the policy taken into legal custody; but subsequently the indebtedness of the company was ascertained and the amount fixed at $9215, which was paid over to the sheriff, under orders of the court, to await the result of this litigation.

Klein, in his answer, avers that William Stuart, at the time a mem - ber of the partnership of John Klein & Co., which was composed of Klein, Stuart and Mrs. Widow George H. Shotwell, did, for a valid and adequate consideration, make and deliver to said partnership his certain promissory note, dated May 10, 1889, payable one year after date, for the sum of $4000, to the order of said partnership, and that to secure the payment of said note Stuart pledged and assigned to John Klein & Oo. said policy of insurance, and at the same time authorized said partnership to pledge the same to any future holder.

That, on the 31st day of July, 1889, said Stuart did execute his promissory note to the order of said partnership for the sum of $2000, and in order to secure the same he further pledged and assigned said policy of insurance, and authorized said partnership to pledge the same.

He further avers that since the execution of said notes they were discounted, and the proceeds thereof placed to the credit of Stuart on account on the partnership books, and that, since that time, various transactions have taken place pro et eon, consisting of credits to and charges against Stuart, and that, as matters now stand, his net indebtedness aggregates the sum of $5763.55, with 6 per cent, interest thereon from June 30, 1892, which amount may be diminished or increased on final liquidation of said partnership; and the right is reserved by John Klein & Oo. to claim any such addL tional sum as may be found due on final settlement.

He further represents that the plaintiffs have no rights or claims, except as standing in place of, and as representing the deceased, and that said credits on the books of the partnership in favor of Stuart, as well as the loan from Sutcliffe to said partnership, were lawfully-made on the faith of the pledge of said policy of insurance, and that its pledge and assignment were made for a good and valuable consideration, and in perfect good faith; and that the deceased had the full benefit of the sums of money that were advanced by Klein & Oo. to him, and by Sutcliffe to Klein & Oo., and neither the deceased nor his heirs, or legal representatives, could legally demand the restitution of said policy, or of its avails, without first paying or restoring the amounts thus received — for all of which Stuart was responsible, personally, and as a member of the firm.

His prayer is that the demands of Klein & Co. and Sutcliffe be recognized and enforced.

The answer of Sutcliffe is that on the 13th of March, 1890, he loaned John Klein & Oo., through William Stuart, a member of that partnership, the sum of $5000, for which it gave its promissory note, payable to his order one year after date; and that in order to secure payment of same, said partnership pledged to him, as collateral security, the policy of life insurance above mentioned — said note being from time to time renewed upon payment of interest.

That the said note is still unpaid, and that he is entitled to retain said policy or its proceeds now in the possession of the court, in their entirety, and apply the same to the satisfaction of said indebtedness, capital and interest — specially denying the plaintiffs’ legal right to a sequestration, and praying for its dissolution.

In a supplemental petition plaintiffs alleged that for many years antecedent to his death, William Stuart was in very bad health, partially blind, and unable to transact business; and that, by reason of his physical infirmities, Klein obtained undue influence and control over him, and thus obtained from him the pledge and assignment of said policy of insurance through imposition and false pretences, from the effect of which petitioners, as his legal representatives are entitled to be relieved, and to have said pledge and assignment set aside and revoked, and the policy and its avails restored to their possession and control.

To this petition the defendant Klein pleads a general and special denial.

Upon the issues thus formulated a general judgment was rendered in favor of the defendants which is couched in the following terms,, to-wit:

“ It is ordered, adjudged and decreed that there be judgment in. favor of the defendants and against the plaintiffs, rejecting their demand and dissolving, setting aside and quashing the writ of sequestration issued herein, at the costs of the plaintiffs; and, inasmuch as during the pendency of these proceedings, the policy of insurance issued by the Mutual Life Insurance Company of New York, on the-life of William Stuart, sequestered herein, has become due and payable, and the amount due thereunder, say the sum of |9215, has been paid over to the civil sheriff, and as said sum is in excess of the-claims and debts set up as being secured by pledge and assignment of said policy, it is further ordered, adjudged and decreed that the-pledge and assignment made to and in favor of the defendant, W» W. Sutcliffe, be recognized and enforced, and accordingly that out of said sum in the hands of the sheriff the said defendant, Sutcliffe,, be paid the sum of $5000, with interest at the rate of 6 per cent, per annum from September 16, 1891, until paid, by priority and preference over all parties whatsoever; that the sheriff retain in his hands a sum which, when added to the amount to be paid said Sutcliffe as-above provided, will make the total sum of $5763.55, with interest thereon at the rate of 6 per cent, per annum from June 30, 1892, up-to the date upon which payment shall be made to said Sutcliffe as-above provided; that said sum be so retained until the liquidation- and settlement of the business and affairs of the partnerships of John Klein & Co. shall be effected, or until the appointment of a liquidator of said partnerships, and until the further order of this court 'r that the balance of the amount in the hands of the sheriff be paid over to the plaintiffs, William H. Stuart, Charles D. Stuart and Frank P. Stuart, executors of the late William-Stuart; that, as to the claims of John Klein and Mrs. Sarah L. Shotwell, as members of the partnership of John Klein & Co., for and on behalf of said partnership against the plaintiffs and the succession of William Stuart, and as to the alleged transfer, assignment and pledge by William Stuart of the policy of insurance sequestered herein to said John Klein & Co. to secure said claims, the rights of all parties be reserved, to be determined and settled on the final liquidation of said partnership; that the right of the plaintiffs and the succession of William Stuart be reserved to claim and receive, on the final settlement of the business and affairs of said partnerships of John Klein & Co., full and proper credit for the amount to be paid to the defendant, W. W. Sutcliffe, under this judgment; or such part thereof as should be properly so credited; that the Mutual Life Insurance Company of New York be released and discharged from any and all further liability under said policy of insurance; and that the plaintiffs pay all costs of these proceedings.”

It is from this judgment that the plaintiffs have appealed; and, in -this court, the defendants have respectively made answers to the appeal, which, in effect, request such amendments as will conform the decree of this court to the demands of their original answers.

The foregoing synopsis of the pleadings and issues of the case resolves the controversy into the following propositions, viz.:

1. That the policy of insurance by its terms, as well as by operation of law, is payable to the heirs and legatees of William Stuart, and as such, same is an asset of his succession, and no assign ment or transfer, whether made by said Stuart during his life, or any 'other person, is valid, because same is in contravention of the prohibitory terms of Article 2454 of the Civil Code.

2. That the pretended assignments under!which Klein and Sutcliffe claim, were made without consideration, and in violation of the rights of the forced heirs,

3. That by reason of the physical infirmities and partial blindness Of the deceased, John Klein obtained over him an influence and control which he could not have obtained had the deceased been in good health and in the possession of his eyesight; and that the assignment was procured by said Klein from Stuart by imposition and under false pretences.

I.

Referring to the policy, we discover that it contains the following stipulation, to-wit:

“And'the company do hereby promise and agree to and with the said assured, his executors, administrators and assigns, well and truly to pay, or cause to be paid, the said sum insured to the said assured, his executors and administrators, or assigns, within sixty days after due notice,” etc.; while the claim of the plaintiffs is that, “ by its terms and by operation of law, it is payable to the heirs and legatees of the deceased,” whom they personate; and “ said policy being an asset of the succession of William Stuart, the. assignment thereof was in contravention of the prohibitory terms of Article 2454 of the Civil Code.”

Plaintiffs do not make claim as beneficiaries of said policy, but as the executors and heirs of deceased; hence, for all purposes of this case, the plaintiffs occupy exactly the same situation as that occupied by the deceased, and can invoke no other cause of nullity than such as he could have urged while living. And it is evident that Stuart had no succession in the ordinary acceptation of the term while living, and his heirs had no inheritance.

The denunciation of Article 2454 of the Code is directed against the sale of the succession of a living person, which it declares not to be the subject of sale; evidently because such a sale would, in the very nature of things, be prospective and uncertain; the law declaring that i! succession is the transmission of the rights and obligations of the deceased to his heirs.” R. 0. 0. 871, et seq.

But the prohibition contemplates a sale of an entire succession; or, in other words, the sale of all that the vendor may own at his death. It does not purport to prohibit the sale of any single, isolated piece of property that an individual may own, such as a policy of life insurance, although it might happen to be all the property he possessed at the time; and the case would not be altered, if it should transpire that he afterward acquired no other property. To place upon the article the construction contended for by counsel would be to render it impossible for an individual to do as he pleased with his own.

There is no force in this contention and it was properly rejected in the court below.

II.

In so far as the consideration of the pledges and assignments of the policy of insurance from Stuart to John Klein & Oo., and from the latter to Sutcliffe, are concerned, the proof is clear and uncontradicted to the effect that it was freely and voluntarily done on the part of Stuart, and for a fair and adequate value received in one instance, and by his procurement and instrumentality in the other.

There is neither proof nor plausible suggestion of the truth of the charge, that the pledge and assignment of the policy was obtained by Klein by means of undue influence or under false representations.

This court has for many years maintained the assignability of such policies of insurance, as that of an incorporeal right. Succession of Risley, 11 R. 298.

The Succession of Richardson, 14 An. 1, involved quite a similar question to the one raised here — the court giving effect to an assignment made by the deceased, contemporaneously with its issuance. Summers vs. United States Insurance Company, 18 An. 504.

. But in the case of Succession of Hearing, 26 An. 826, the question of the assignability of policies of insurance was expressly announced. In that case it is stated by the court that one of the policies was on the life of another man, that was transferred by the assured to Hearing and by him transferred to his wife. Of this transaction they say:

“A man may take out a policy of insurance on his life in the name of any one; .or having taken it out in his own name he may, with the consent of the assurers, transfer it to whom he pleases.”

We are in accord with that opinion, and it is decisive of the present controversy. But the doctrine therein announced is, in this respect, clearly contradistinguished from the principle announced as that applicable to a policy issued in favor of a wife or child .as beneficiary; for on that question the court is clear and explicit. “A husband,” say the court, “ has the right, we think, to insure his life in the interest of his wife and child as well as in the interest of his creditor, and his obligation to provide for them in ease of his death is certainly well recognized. If the policy issues to the wife, or is properly transferred to her, the amount stipulated therein belongs to her when the event insured against happens, and she can not be forced to inventory it as a part of her husband’s estate. The object he had in view would be defeated if a contrary doctrine prevailed.”

To the same effect is Succession of Boffinschen, 29 An. 711.

The whole question underwent a thorough and careful examination in the recent case of Putnam vs. Insurance Company, 42 An. 789, and in which we said, on reason and authority, that—

“As to her [the wife] the company’s contract was complete in its ineipiency, and never changed thereafter with her consent. In law this policy inured tp her separate paraphernal benefit, though not separate in property from her' husband, the insured, and its character of paraphernal property could not be changed to that of separate property of the husband or that of the community, without her consent, lawfully obtained. As such it could not be placed as security for the husband’s debts. To this effect are many authorities.” Succession of Kuglen, 28 An. 455; Pilcher vs. New York Life Insurance Company, 33 An. 322.

The foregoing authorities make it quite clear that Stuart had the right to pledge or assign the policy in controversy, and the evidence makes it equally clear that he did pledge and assign it to the firm or partnership of John Klein & Oo., and that said firm did subsequently pledge and assign it to Sutcliffe. Consequently the rights of the forced heirs of Stuart are not affected thereby and they are without interest to complain.

III.

With regard to the charge that on account of Stuart’s physical infirmities and partial blindness, Klein obtained undue influence over him and thus procured his assent to the pledge and assignment by means of imposition and false pretences, there is no proof whatever. Klein, as witness, denies it in toto. As Stuart was aged and infirm this was doubtless a stroke in the dark, predicated on mere conjecture.

Our examination of the law and evidence has thoroughly satisfied us of the correctness of the judgment.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,424.
    Octave Schexnaydre vs. The Texas & Pacific Railway Company.
    There is no restriction as to the number of trains, regular or special, which a railroad company may run over its lines, nor is there any law in this State, except in cities, to regulate their rate of speed.
    In the absence of statutory regulations common prudence will regulate the rate of speed in passing stations and crossings, and the degree of negligence will be determined by the facts in each case.
    Where parties, from motives of business or pleasure, cross a track, before going on it, they are required to exercise caution, care and prudence; to look and listen for an approaching train. If they do this it is not negligence to go on the track when no train is seen or heard approaching.
    Where a party goes on a railroad track for the purpose of using it as a highway, he, to a certain extent, assumes all risks; it would require very gross negligence, amounting to malice, to make the railroad company liable to him; and this rule applies with greater reason when the injured party has a safer mode of travel by a public highway.

      Greater care, caution and prudence are required of a deaf mute who goes on a railroad track than one in the full possession of all his senses. If he uses the raised bed as a highway, placing himself in a situation where hearing is one of the essentials of safety, it is negligence on his part.
    APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost, J.

      Morris Marks, H. N. Gautier and J. L. Gaudet Attorneys for Plaintiff and Appellee:
    1. The removal of this case to the United States Court was properly refused by the lower court, the statute and Constitution of this State specially vesting State courts with jurisdiction in such cases.' Act 89,1877, Sec. 3; Constitution of 1879, Art. 246.
    2. The fact that plaintiff’s son was a deaf mute can not militate against him, because the gross negligence and carelessness of defendants were the immediate and direct cause of his death.
    3. Had the proper signals of the approach of the train to the crossing or station by the engineer been-given, the other persons who were near would have heard the same.
    4. Railroad companies are z’equired to use cautionary signals on the approach of their train to a crossing or station, and failure to do so is negligence on their part.

      Howe & Prentiss and L. De Poorter Attorneys for Defendant and Appellee:
    1. The court below erred in refusing to remove the case to the United States Circuit Court; in proceeding after due proceedings taken for z*emoval and after refusal of Federal court to remand. 115 U. S. 10; 25 Fed. Rep. 513.
    2. In order to recover damages in an action against a railroad company for personal injuries, the burden of proof is upon plaintiff to show that the accident complained of was caused by the negligence of the employes of the company, and also that the party injured did not, by his neglect, contribute to the same ^ 40 An. 792, 802.
    3. It is the duty of a person approaching a railroad track to use his senses and to look and listen before attempting to cross. 31 An. 490; 40 An. 800; 39 An. 797; Wood’s Railroad Law, Vol. 2, pp. 1312,1313.
    4. In this case, Louis Schexnaydre being deaf, it was his duty to look and use greater precaution in approaching the railway track. The fact of his being deaf was no excuse and did not call for greater care on the part of the employes of defendant. Beach Cont. Neg., p. 256, See. 197; p. 509, Sec. 396; 80hio St. 570 ; 84 Penn. St. 226; 38 N\ J. Law, 147; IS N\Y. 422; 10 Allen, 532; 19111.508; 74 111. 399; 54 Penn. St. 396; 115 Mass. 190.
    5. An engineer is not bound to check the speed of his train on seeing a man walking on the track at a considerable distance ahead of his train; and he has a right to presume that the man is'possessed of his right senses, and will act upon the principles of common sense, and the motive of self-preservation common to mankind in general, and that he will, therefore, get out of the way, Beach Oont. Neg., pp. 506 and 507, Pec. 394.

      6. Railroad companies have a right to run trains at all times; a traveler is not exempted from care and vigilance because the trains are irregular, or because extra trains are run; lie is bound to know that these trains may be delayed, or that the company has a right to run special or extra trains. Wood’s Railway Law, Sec. 323, pp. 1304, 1305 and 1327; 75 N. Y. 273; Brown Case, 42 An. 354.
    7.' It is contributory negligence on the part oí a deaf mute to enter upon and travel on a railroad track and fail to use his sense of sight to detect whether a train is in sight or not. Loieher vs. R. R., 28 An. 320.
    8. Speed is not negligencejicr se. Houston vs.V. S. &1\ Ry. Co., 39 An. 79G.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sued the defendant company for $28,300 damages for the death of his son, who was killed on the track of said company by one of its trains on the 15th December, 1890. The ease was put at issue by a general denial. There was judgment for plaintiff for $20,000, and the defendant appealed.

In this case the facts are few, and the law well settled applicable to the same.

. The plaintiff’s son was a deaf mute and was walking on the railroad track, his back toward an approaching train, which was a special train, running at a high rate of speed. The engineer of the train gave the usual signal for the crossing, about one-half mile above Duke Station, near which the plaintiff’s son was killed.

When about a quarter of a mile from Duke Station another signal of four whistles was sounded. These signals could be heard two miles on a still day. The day was clear and bright. When the last crossing signal was sounded, the engineer saw a man valking on the track. This man was the deceased son of plaintiff. The engineer did not know of his infirmity. The man paid no attention to the signal,, and when within one hundred yards the engineer blew the danger signal rapidly, “very vicious and quick for anumber of times.” When within thirty or forty feet of the man, the engineer reversed the engine and applied the air brakes. But this last effort to avert the accident was too late and the deceased was run over.

The plaintiff’s contention from these facts is that the company was guilty of negligence in running a special train at a furious speed; that proper signalsjhad not been given before reaching Duke’s Station, and that he failed to give notice to the deceased son of plaintiff of the proximity of the train.

'The defendant company has the exclusive use and control of its tracks and road-bed, and it is within its discretion to run on said tracks as-many trains, regular or special, as its interests demand. There is no law regulating the speed of trains except in cities, whose crowded thoroughfares render this necessary. In the country, passing places where it is known that persons are in the habit of crossing the track in necessarily going from one place to another greater caution is required of a railroad company in running its trains than in unfrequented and scantily populated sections. In the absence of statutory regulations, common prudence requires this.'It is a necessity in many places, in fact, along the entire road, for it to be crossed at certain points by persons whose business or pleasure takes them across it. In these instances the party attempting to cross the road, before going on the tracks, has to exercise prudence and care, and to look and listen for an approaching train. If he does this, it is not negligence on his part to go on the track when no train is seen approaching. But where the party goes on the track for the purpose of using it as a highway, he, to a certain extent, assumes all risks, and it would require very gross negligence, amounting to malice, to make the railroad company liable for an injury to him. And this rule is particularly applicable when the deceased or party injured has a safer mode of travel by a public highway, as in the instant case.

' The deceased was a deaf mute. Greater care, caution and prudence were required from him than from one in full possession of all his senses. Knowing his infirmity, his use of the road as a highway, upon which trains at any time must pass, was in itself negligence.

The defendant company exercised all due diligence in running the train which killed the deceased. The usual and customary signals were given at the crossing, within the hearing of one not afflicted with deafness, and on the approach of the train to deceased he was given ample time, by signals, to get off the track. It was his unfortunate infirmity which caused the accident, and he was to blame for placing himself in a situation where hearing was one of the essentials of his safety.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided' and reversed, and it is now ordered that there be judgment for the defendant and plaintiff’s sui dismissed, with all costs.


author: Watkins, J. Breaux, J.

text:
    No. 11,241.
    Succession of Myra Clark Gaines.
    The power of courts to order the remission of funds belonging to a foreign succession to the representatives of the succession authorized to receive them, by the courts of the domicil of the deceased, we consider undoubted. Its exercise is necessarily a matter of discretion, depending on the circumstances of each case, and is a consequence of that comity which prevails between nations in amity witlveach other.
    The interests of commerce and civilization require that this comity should be carried into effect by our tribunals.
    It is done in England and in other States of the Union, in analagous and similar • cases; and whenever the rights of our citizens are not affected by the act to be done, it is the duty of this court to act on a principle which is impressed on us equally by an enlightened policy and a certainty that it will tend to the great purposes of justice.
    The court having recognized the validity of the judgment probating the will of Myra Clark Gaines, pronounced in New York, in which was the domicil of the testator;
    The legatees and creditors being before the court and applying to be paid here;
    The assets of the succession are ordered to be distributed here, and legacies, creditors and all charges are ordered paid from the funds on hand.
    The case is remanded for the disposition of the property, and for the passing upon questions at issue in accordance with views expressed.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      Thomas J. Semmes and Bouse & Grant Attorneys for the Heirs, Appellees:
    1. The transfer of assets to Now York is a matter of judicial discretion. 95 N. Y. R. 59; 13 La. 298 ; 6 An. 151.
    2. A11 administrations of successions in Louisiana are principal, not ancillary, so far as distribution of assets is concerned. C. C. 1220; 15 An. 405.
    3. The registry of a foreign will does not entitle the foreign executor to exercis e authority in this State. Succession of Butler, 30 An. 890.
    4. The heirs arc entitled to bo put in possession here. C. C. 1671; 34 An. 26; 3G An. 48.

      B. De Gray and Brown & Choate Attorneys for Legatees, Appellants :
    1. Personal property has no situs but that of the owner; and its transmission by contract, inheritance or will is controlled by the law of the domicil of tho owner. Succession of Packwood, 9R. 443; Succession of MeCandless, 3 An. 581; Peale vs. White, 7 An. 449; Atkinson vs. Rogers, 14 An. 633; Perin vs. McMicken, 15 An. 155; Thomas vs. Morrisat, 76 Ga. 384; 2 Kent’s Com. 429 ; 4 Kent’s Com. 513; Wilkin vs. Ellett, 9 Wall. 740. There is nothing in the statutes of Louisiana to the contrary. Article 491, 0. C., has no reference to the disposition of personal-property situated in Louisiana and owned by parties domiciled in other States* or foreign countries. Perin vs. McMicken, 15 An., p. 155; Succession of MoCandless, 3 An. 581; Succession of Franklin, 7 An. 395.
    2. The proceedings of the probate of a will in any State is a judieiál proceeding under Article IV, Sec. 1, of the Constitution of the United States, and when duly authenticated under act of Congress of the 26th May, 1790 — now Sec. 905, U. S. Rev. Stat. — is entitled to full faith and credit in every other State to which it may be brought. Succession of Thomas IS. Bowles, 3 Rob. 34; Johnson vs. Runnels, 6 Mart., N. S.,p. 622; Balfour vs. Chew, 5 Mart., N. S.,p. 519; Bright vs, Whit 8Missouri, 426; Robertson vs. Barton, 6 Monroe’s Ky. Reports; Ilaile vs. Hill, 13 Missouri, 618; Thomas vs. Morrisat, 76 Ga. 384; Dalrymple vs. Gamble, 68 Md. 523; Green vs. Sarmiento, 3 Wash. C. C. 21; and is to have the same force and effect in the State to which it may be brought, even though such judgment could not be there rendered, as it has in the State whence it is taken. Hampton vs. McConnell, 3 Wheaton, 234; Renaud vs. Abbott, 116 U. S. 277; Carpenter vs. Strange, 141U. S. 87; and the refusal to give said judicial proceedings such precise force and effect is a denial of a right secured under the Constitution and laws of the United States. Christmas vs. Russell, 5 Wall. 290; Green vs. VanBuskirk, 5 Wall. 307, and 7 Wall. 139; Insurance Co. vs. Harris, 97 U. S. 331, 336; Crescent City Co. vs. Butchers’ Union, 120 U. S. 141, 146, 147; Carpenter vs. Strange, 141U. S. 87; Huntington vs. Attrill, 146 U. S. 657.
    3. Any statute or law or decision denying this effect is unconstitutional and void. Christmas vs. Russell, 5 Wall. 290.
    4. And when a will has been duly proved before a competent judge of the place where it was received, the order of execution in Louisiana should be granted without any other form. Civil Code, Art. 1639; Succession of Bowles, 3 Roh. 34.
    5. The succession at the place of domicil of the deceased is the home or primary succession, and that at the place where property may he situated outside of the State of the home or primary succession is the ancillary succession. Story’s Conflict of Laws, Sec. 513; Stevens vs. Gaylord, 11 Mass. 262, 263; Succession of Milton Taylor, 28 An. 367, 372; Borer vs. Chapman, 119 U, S. 599.
    6. And it makes no difference which succession was oponed first. Stevens vs. Gaylord, 11 Mass. 262, 263.
    7. After the payment of creditors, costs and charges at the place of the ancillary succession, the residuum of the estate should he sent to the place of the primary or home succession for the payment of costs and charges there incurred, debts there due, and for distribution of the balance in accordance with the directions of the will, or according to law. Story’s Conflict of Laws, Sec. 513; Grave-Ion vs. Richards, 13 La. ¿98, 299; Mourain vs. Poydras, 6 An. 152; Wilkins vs. Ellett, 9 Wall. 741; Freeman on Judgments, Sec. 605a.

      Farrar, Jonas & Kruttschnitt Attorneys for New York Administrator, asking judgment transferring residuum of assets to Probate Court,. Kings county, New York, Appellant:
    1. After a Louisiana court has administered upon the estate of anon-resident dying in Louisiana, after it has satisfied the claims of home creditors, the whole estate will he transmitted to the home administrator for distribution at the domicil of the deceased and under the order of the courts located there. Mourain vs. Poydras, 6 An. 152; Succession of, Milton Taylor, 25 An. 446; 28 An 367.

      2. The action of the heirs for the residuum of a succession, after it has been administered upon and all debts and charges paid, is not an immovable under Art. 471, C. C.
    3. That the succession itself is not an immovable unless composed of immovables.
    4. That the action brought by the administrator of a foreign State for a residuum, is not an immovable.

      Thos. J. Semmes-and Bouse & Grant Attorneys for Heirs on Application for Rehearing cite:
    95 N. Y., p. 55; Harvey vs. Richards, 1 Mason, p. 414; 18 How. 100.

      B. DeGray and Brown & Choate Attorneys for Legatees:
    i. When all parties in interest are before the court and admit the validity of the legacies, there is no longer any reason for their transmission; there is every reason for their payment where the fund is and when parties in interest are willing to receive the same, and no creditor or other person is to be injured thereby.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is the recovery, by the New York administrator of the primary succession of the deceased in that State, of the residuum of assets of the ancillary succession in the State of Louisiana, from the administrator appointed under the laws thereof; and for their removal to the probate court of Kings county, New York, for the purposes of administration and distribution under and in pursuance of the laws of that State, and of the provisions of the will of the deceased therein admitted to probate.

The demand of the New York administrator, as well as that of certain legatees under the probated will, is resisted mainly on two grounds, viz.:

1. That the allowance of such an application is within the discretion of the courts of this State, and this is not a proper case for its exercise.

2. That our Civil Code requires a complete administration, within this State, of the successions of non-residents, and that the courts of this State should deal with them as if they were domestic estates.

The facts necessary to be stated as pertinent to the issues involved, and in order to a clear understanding of same, are as follows, viz.:

On the 5th of January, 1885, Mrs. Gaines made her will in the city of New Orleans, and died in this city on the ninth of that month; though she was at that time a citizen and resident of the State of New York, and temporarily absent therefrom.

Soon afterward the persons named in said will as joint testamentary executors thereof presented same to the Civil District Court for the parish of Orleans (in Louisiana) for probate, but its probate was refused on the ground that it was informal and not entitled to probate tinder the laws of Louisiana, though reserving proponents’ right to present said will in Washington, D. C., the supposed residence of the deceased at the time of her demise.

On appeal to this court of another branch of the case, the judgment of the lower court was affirmed (38 An. 123), the proponents of this particular will having acquiesced in the judgment rendered in the court below.

There subsequently arose a controversy in the courts of this State in 1889 between one of the Christmas grandchildren and one of the Whitney grandchildren, over the administration of the Louisiana succession of deceased, and it was decided in favor of the latter, who was duly qualified (42 An. 699) — the sole asset thereof being a judgment against the city of New Orleans for the sum of $923,788.

Contemporaneously with these proceedings in Louisiana, others were inaugurated in the Surrogate’s Court of Kings county, New York, for the purpose of obtaining therein the probate of the aforesaid will of Mrs. Gaines, and which resulted in a judgment of the latter court, on the 24th of June, 1891, probating it; and thereunder William B. Davenport, of New York, was appointed temporary administrator of decedent’s estate in pursuance of the laws of that State.

Subsequently the administrator of the Louisiana succession of deceased filed an account, wherein are exhibited sundry large amounts as having been paid and disbursed, and certain others as of doubtful validity, the payment whereof ought to be refused, showing a large cash surplus to his credit unexpended.

The recognized legal heirs of the deceased appeared therein and preferred claim to this surplus, and their demands are resisted by five different alleged legatees of the deceased under the will that was probated by the New York court — the aggregate of whose claims are about $55,000 — and also by the New York administrator.

These various parties appeared, by way of oppositions to the account, and the demands of the heirs to be placed in possession, and substantially claimed “that the balance of the funds or assets here remaining, after the payment of all debts here proved, should be paid over to said Davenport, temporary administrator, for distribution by the surrogate’s court aforesaid,” coupling with their demand the prayer that, in the alternative said relief should be refused, the court should order the Louisiana administrator to pay same out of the funds in his hands.

The special averments of Davenport’s opposition are to the effect that there are large legacies that were created by said will, and debts due, and others contested, which must necessarily be adjusted, paid or rejected by the New York administrator, after same have been passed upon by said probate court, and for that purpose he prayed “ that the said residue of the estate here remaining, after the payment of all the debts here established, be paid over to him for administration in Kings county, New York.”

Its further averment is that, under the laws of New York, he, as temporary administrator, has all the powers of am administrator with a will annexed, or dative testamentary executor under the law of Louisiana, and that there are large legacies created by said will, and debts due by persons domiciled in the State of New York; and, also, amounts claimed to be due to persons there domiciled, which claims and debts must necessarily be adjusted and paid, or rejected by the administrator under the will of the deceased, in said county of Kings, in the State of New York.

Its further averment is that large amounts are also due for attorney’s fees, costs and disbursements in the matter of the probate of said will, and in the matter of the defeat of another so-called will, commonly known as the Evans will; and that all of said claims should be passed upon by the said court of probates of the domicil of said deceased. . .

It is further alleged therein, that the administration of the deceased’s estate in Louisiana has been purely auxiliary, and for the purpose of paying debts due creditors of the deceased residing in this State, or those who had obtained judgments in the courts sitting in Louisiana.

After these recitals, comes the opponents’ prayer for the surrender and delivery to him of the surplus of funds remaining in the administrator’s hands, after all demands against the Louisiana estate have been paid and fully satisfied.

The foregoing summary of established facts, and the truth of opponents’ averments of fact, are conceded, leaving for discussion and decision only the two questions of law heretofore propounded.

On the trial all of said oppositions were dismissed, and the administrator’s demand was rejected; the judgment reserving the rights 'of the legatees to make claim for their legacies from the Louisiana administrator, or heirs, in case the court should order the registry and execution of the decedent’s will.

In a different proceeding in the same succession in Louisiana, reported in 45 An. 1237, the lower court rejected and disallowed the will which had been probated in New York, and from that judgment an appeal was prosecuted to this court, and same has this day been decided, and the .judgment appealed from reversed.

In so deciding,- the purport of our opinion is, that the probate of said will in New York is recognized “ to the extent necessary to make it the basis of claims predicated upon it as such” — the will of deceased.

It is further to the effect that the administrator of the estate of Mrs. Gaines in Louisiana is ancillary, merely, and that the administration thereof in Kings county, New York, is the primary administration of her estate; same having been inaugurated at the place of the decedent’s domicil, and predicated upon her will. It further held that these recognized and established facts must be given effect in the courts of Louisiana, as established facts.

It necessarily follows from that judgment, that the opponents can not make claim for their legacies, either from the Louisiana administrator or heirs, inasmuch as the will of deceased has not been ordered to be registered and executed here. And, just here, it must be observed and borne in mind, that this controversy contemplates no further act of administration in Louisiana, but on the contrary, it proceeds upon the opposite hypothesis that the ancillary succession here has been closed, and terminated by the payment of all the claims proved, or provable here, only contemplating the removal of the residue of assets afterward.

Hence, the question arises whether opponents have made out, under the law, a proper case for a transfer of the residuum of the ancillary succession in Louisiana to the Probate Court in Kings county, New York, for administration there, according to law and the provisions of the will.

This question arose and was decided in the case of Gravillon vs. Richards, Executor, 18 La„ 298, in which Judge Eustis, as the organ of thé court, expressed the following opinion:

“ The power of courts to order the remission of the funds belonging to a foreign succession, to the representatives of the succession authorized to receive them by the courts of the domicil of the deceased, we consider undoubted. Its exercise is necessarily a matter of discretion, depending on the circumstances of each ease, and is a consequence of that comity which prevails between nations in amity with each other. The interests of commerce and civilization require that this comity should be carried into effect by our tribunals. It is done in England and in other States of the Union, in analogous and similar cases; and whenever the rights of our citizens are not affected by the act to be done, we shall feel ourselves bound to act on a principle which is impressed upon us equally by an enlightened policy, and a certainty that it will tend to the great purposes of justice. * * *

“We therefore determine as the interests of no one will be injured thereby, that the Oourt of Probates ought to have placed the funds of the estate at the disposal of the syndics and curator of the vacant estate, for the purpose of their being transmitted to the place of domicil of the deceased for distribution.”

The same principle was recognized and reannounced in Mourain vs. Poydras, 6 An. 151, and again in Succession of Taylor, 28 An. 867 —and we are aware of no decision of this court to the contrary.

The cases cited by counsel for the Louisiana administrator and heirs — Heirs of Henderson vs. Rost, 15 An. 465, and Succession of Butler, SO An. 890, are dissimilar to this case, in that the demands of foreign administrators were rejected, on the ground that they exhibited no legal title to interfere with existing administrations under the local law, before same had been concluded by the payment of debts and charges against the ancillary successions.

Nor are the provisions of Art. 1220 of the Oivil Oode opposed to the principle we have quoted from the cases cited — the evident intention of that article being to require the administration of the successions of persons domiciled out of the State, only to the extent of paying debts by them. The legislative act of 1842 simply requires a foreign executor to furnish bond and security before he can undertake the administration of an estate in Louisiana.

On this question the New York jurisprudence conforms to our •own. See Despard vs. Churchill, 53 N. Y. 192, and Parsons vs. Lyman, 20 N. Y. 103.

The Supreme Court has likewise held in Wilkins vs. Elliott, Administrator, 9 Wall., 740.

In the brief of opponent’s counsel the following pertinent questions are propounded, viz.:

“ If the power of the foreign executor to receive the assets belonging to an estate, and which are beyond the territory of the State in which he is appointed, is denied, and he has no right to ask the administrator of the ancillary estate to turn the residuum over to him, how, we ask, is the residuum ever to get to the parent or primary administration for distribution? If the foreign executor must apply and qualify here, and become an officer of this court, how is he to get the fund in this court, to the court under which the parent succession is being administered? Must he, as an officer of this court, settle with himself as an officer of the other court? And if yes, does he then do anything more than he is asking to have done now, to-wit: to have an officer of this court turn over the remaining residuum to the officer of that other court? If his right to receive is only (in a case like the present, where under the law of New York he is vested with title) coextensive with the territorial limits of the State of his appointment, how is he, when made an officer of this court, with a grant of power which can only be — on the same theory, coextensive with the limits of this State — to get the personal property here beyond the limits of this State?

“If such was the law, the personal property here could never be gotten beyond the limits of the State where the same may be found, to pay the debts and legacies that might be due at the testator’s domicil.”

In our opinion these questions find a correct answer and solution in the decisions above quoted; and, on the authority of the sound principles of jurisprudence therein formulated, we hold that the New York administrator is legally and rightfully entitled to have the residuum of the assets of the succession of the deceased remaining in the hands of the Louisiana administrator after all debts and charges therein have been fully paid and discharged, removed into Surrogate’s Court of Kings county, State of New York, there to be administered and distributed according to law, and in conformity to. the will of the deceased.

We further hold and decide that the oppositions were incorrectly overruled and dismissed, and that same should be reinstated and sustained to the extent of authorizing the transfer of the residuum of assets to the surrogate’s court in Kings county, New York — the rights of the opposing legatees to there assert their claims being fully reserved.

We further hold and decide that the demand of the legal heirs to be put into possession of said residuum of assets as an inheritance-was improperly sustained and must be rejected and disallowed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed in the following particulars, viz.:

First — By rejecting and disallowing the demands of the legal heirs of Mrs. Gaines to be placed in possession of the residuum of the assets of her ancillary successor after debts and charges have been paid.

Second — So as to reinstate the oppositions of the legatees and of the New York administrator; and to recognize and specially reserve the rights of said legatees to present their demands in the New York court conformably to law, and to have same therein judicially determined contradictorily with said New York administrator.

Third — So as to sustain the demands of the opponents, requiring the residuum of assets in the hands of the administrator of the ancillary succession in Louisiana to be transferred to the Surrogate’s Court of Kings county, State of New York.

And it is further ordered and decreed that the demands of the legal heirs to be placed in possession of the residuum of the succession be rejected and disallowed; that the rights of the opposing legatees be reserved to present and have their claims determined in the New York court without prejudice; and that the administrator of the ancillary succession in Louisiana be ordered and required to transmit, in proper form of law, to the Surrogate’s Court, Kings county, New York, the residuum of assets remaining in his hands after all debts and charges against said ancillary succession have been paid and discharged.

It is further and finally ordered and decreed that in the foregoing particulars the account of the administrator be amended, and in all other respects approved; and that as amended the judgment appealed from be affirmed, costs of oppositions and appeal to be taxed against administrator and appellees.

Mr. Justice Parlange takes no part.

On the Matter oe Rehearing.

Breaux, J.

The appellees applied for a rehearing and for a modification of the decree, so as to allow payment here to the legatees under the will.

. In their application the legatees represent that all the legatees are before the court.

They allege that the records do not disclose that Mrs. Gaines was ; indebted in New York and that there is no legal necessity to send the legatees to that city to get their money.

That no creditor from New York has asked a transfer of the funds , to that State, and that the transfer of the funds is a matter of discre- ' tion, depending upon the circumstances of each case.

This court having decreed that the domicil of Mrs. Gaines was in New York, attention is directed to the fact that though the decedent was domiciled in New York and the administration was auxiliary only in this State, the legatees, distributees and creditors may recover amounts due them out of the assets here.

In support of the application the following cases are cited: In re Hughes, 95 New York, p. 55; Harvey vs. Richards, 1 Mason, 881.

Speaking for the court Judge Story, regarding the lex rei sitse in the last case, says:

“ Why should not legatees and distributees be entitled to recover out of the assets here as well as creditors? It is true that legatees claim by the bounty of the testator, but it is a legal right as fixed and vested as the right of a creditor. And as to distributees the case is still stronger, for that rests not on the bounty of the intestate, but on the law of the land, which at the same time enables the creditor to receive his debt out of the assets and the next of kin to claim the residue.”

Upon the authority of the decision from which we have just quoted appellees principally relied in their application for a rehearing.

The appellants also filed a brief on the application for a rehearing, from which we quote:

The validity of the will of Mrs. Gaines being fully established, first by the decision of the Surrogate’s Court of Kings county, New York, declaring it to be the last will of the testatrix and a valid will of real and personal estate; second, by the recognition thereof as such last will by decree of this court, in No. 11,193, and third, by the admission of all parties in interest, now before the court, in their application for the modification of the decree herein, the titles of the-legatees to the respective amounts therein named is beyond dispute, for they are settled by both the judgment of the court and the admission of all parties in interest.

“ This being the case, it can make no difference where the legacies provided for in the will are paid, whether in the home or the ancillary succession.”

The court ordered that the parties in interest be heard regarding the modification of our decree, so as to avoid as much as possible the incurring of further costs and expenses at the home succession, where there are no assets.

At this hearing all the parties in interest were present and consented to a modification of our former decree, in order that the respective claims represented be paid here, except the counsel for the administrator of the home succession in New York, who, though not a party to the agreement, interposed no special objection, but asked, if modification of the decree as applied for be granted, that the rights of his client, the temporary administrator, and of all creditors who might recover through his administration of the home succession in New York, be reserved; that the validity of these claims and charges may be established before the court contradictorily with the other parties in interest in the settlement in so far as relates to the succession funds here.

Under the circumstances payment can be ordered by the court of all funds in this State.

A final settlement may be made of the succession so far as relates to these funds.

The consent of the legatees and of the creditors of the succession support the application to pay the funds on hand to the legatees, distributees and creditors.

It would serve no useful purpose to compel the interested parties and all claimants to abandon their pleas here in a court of competent jurisdiction to renew them in another tribunal.

The funds being within the court’s jurisdiction may be paid here, and included in the settlement of the ancillary succession in this State.

The question of the judicial agency through which the settlement shall now be made arises.

Shall the present administrator continue in the discharge of his trust, or shall an executor qualify under the will? It devolves upon us to determine.

The last will and testament of Myra Clark Gaines appoints two executors.

One of the two survives and is a resident of the city of New Orleans.

This will has been probated and recognition has been given by this court to the authority of a judgment pronounced in a sister State probating the will and ordering the execution of its terms. The judgment having been rendered by the court having jurisdiction of the domicil of the testatrix, a validity now exists not previously recognized.

It follows that the payments should be made by the executor named by the testatrix and that these funds should be under his administration.

The present administrator will have to account to the executor appointed under the will.

It was stated in argument for a rehearing that certain payments had been made by the administrator here in certain legacies, and it was said on behalf of the appellants that these payments should be ignored, and that the assets should be accounted for by the administrator to the executor without reference to these payments.

That issue not being before the court it is not decided, but left to be first passed upon by the court of the first instance.

All rights are reserved to the administrator, contradictorily with the executor who may be appointed, to prove the legality and correctness of these payments on legacies and advances to the heirs, if any have been made.

It is therefore ordered, adjudged and decreed that this case be remanded to the court a qua to' be proceeded with in accordance with law and the views herein expressed.

That the legacies, debts and charges be paid here and complete settlement made with legatees, distributees and creditors to the extent of the funds on hand; that a final accounting be,given and final account filed by the executor of his administration of these funds and of the ancillary succession in this State.

After all legal claims and charges on the part of legatees, distributees and creditors shall have been paid and all entitled to any part of these funds settled with, if there be a residuum as per final account of the executor, that the residuum be transferred to the legal representative of the estate authorized to receive it in the Surrogate’s Court of Kings county, New York.

That upon proper application an executor be appointed to execute the will of Myra Clark Gaines, of January 5, 1885, probated in the Surrogate’s Court of Kings county, New York, on 24th June, 1891; that he execute the will after having qualified, and that he account as herein ordered.

That the administrator of the succession in this State shall account to the executor thus appointed for all amounts received by him and for all disbursements, and render full account of his gestión.

That all questions of the validity and the effect of payments made by the administrator are left to be, in the first instance, passed upon by the court of original jurisdiction, with all needful rights to protect their respective interests reserved.

That all the rights of the temporary administrator, appointed by the Surrogate’s Court of Kings county, New York, be reserved in order that he may recover all amounts due him and that all creditors with valid claims be paid in the rank due and to the extent the funds will pay them; this includes all valid claims and charges, whether presented through the temporary administrator or independently of his trust, all to be proved up and recovered contradictorily with all parties in interest.

Our former decree is set aside in so far as it may be necessary to make it conform to our decree at this time. That portion which reads: “ First, by rejecting and disallowing the demands of the legal heirs of Mrs. Gaines to be placed in possession of the residuum of the assets of her ancillary succession after debts and charges have been paid. Second, so as to reinstate the opposition of the legatees and of the New York administrator, and to recognize and specially reserve the rights of said legatees to present their demands in the New York court, conformably to the law, and to have the same judicially determined contradictorily with said New York administrator.”

That this copied portion and all of the original decree is only ■changed, amended and annulled to the extent and in those respects necessary to make it conform with the decree now rendered.

This amending and annulling as made has become necessary in order to carry out the agreement of the interested parties.

In all other respects than that before provided our original decision remains.

The case having been argued and the agreement made by counsel, considered, our decree is changed as above without further hearing. Without the necessity of a rehearing the modification is made and rehearing, is therefore, refused.