text:
    No. 11,998.
    Succession of R. H. Allen.
    The executor who is a legatee has the right to appeal from a judgment against him in his official capacity. He has the right also to appeal from a judgment ordering a distribution of the funds in a manner different from that exhibited by his account. Representing all parties he has the right to appeal for the common benefit of all, as it is his duty to see that the funds are distributed among those whom the testator intended should be beneficiaries.
    The intent of the testator is to be determined from the whole will. Every word shall have effect if it can be done without defeating the general purpose of the-will which is to be carried into effect in every reasonable method.
    When the reading of a whole will, will produce aconviction that the testator must necessarily have intended an interest to be given, which is not bequeathed by express or formal words, the court will supply the defect by implication and so mould the language of the testator as to carry into effect, as far as possible* the intention which it is of opinion, that he has on the whole sufficiently declared. Punctuation must give way whenever it interferes with the proper and reasonable construction of a will. The testator made the following disposition: “The other half of Rienzi and a claim I hold against the government of the United States for army supplies, I think is about one hundred thousand dol lars. These two amounts, or halfs, I intend to give to the families of my brother Thomas H. Allen’s four children * * * And to the five children of my sister Cynthia A. Smith * * *. Held, that the testator intended the children of his sister to participate in the legacy, and that he grouped the legatees, into families, and they took per stirpes.

      The general description of property or the classes or kind in a will, preceded or followed by words'of narrower import, if the bequest is not residuary, will be confined to species of property of some kind with those previously described. The adoption of the more comprehensive meaning would have the effect of rendering the superadded expression nugatory; and make the testator employ additional language without any additional meaning.
    In order to give effect to the general as against the restricted words in the will, there must be some expression in the will to show that the testator intended to pass the residue of his estate.
    The will speaks from the death of tbe testator, unless the language used, such as the word now, or a verb in the present tense which requires it to be taken at the time it is used. The testator speaking by and through liis will, instructed his executors to sell hisRienzi plantation and gave them a designated time in which to act, and directed that until the sale, the wife should receive the proceeds of the plantation, if worked, until sold. JBeld, that the wife was entitled to the net proceeds as long as the plantation remained in the hands of the executor, and the proceeds of the crop growing on the place at the time of his death, passed to the wife.
    Coal on the plantation for the service of the sugar houseis immovable by destination. If the coal and other immovable things by destination are consumed in the cultivation of the place and the manufacture of the crop for market, the legal heirs have no claims for reimbursement.
    The légacy of an English education to two small boys, at the expense of the estate, is not void for uncertainty.
    A sum of money bequeathed to neices, with the expression, “and have no interest in any other claim,” and the remainder of the estste is the only fund upon which they could assert any. claim, they can not participate in the residuum of the estate.
    APPEAL from the Eighteenth Judicial Disrict Court for the Parish of Lafourche. Gaillouet, J.

    Fenner, Henderson & Fenner, and Thomas A. Badeaitx for R. H. Allen, Jr., Harry Allen, Mrs. J. C. Allen, Mrs. J. O. Latham and Thomas H. Allen, Appellants.

      Beattie & Beattie for Bettie Allen, and Wm. F. Collins, Executors, Appellants.

      Clay Knobboeh & Son for Ogden Smith, Co-executor, Appellee.
    E. D. LeBreton and L. DePoorfor for Mrs. Jennie Boyle, Mrs. Bettie DeBerny and Mrs. Allen B. Baker, Legatees, Appellees.

      Henry Ohiapella for the Turner heirs, Opponents, Appellees.

      C. H. Osterberger and L. F. Suthon for Gaston Smith and others Opponents, Appellees.
    Argued and submitted February 14, 1896.
    Opinion handed down March 9, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

McEnery, J.

The deceased left the following will: “ I give to my Dear wife Bettie Allen all my corporal movables such as furnature, bedding Linin silver plate, China ware &c. all my stock of cattle all my horses and Carriages she is to oeupy The Homestead without reservation or distinction till the plantation is disposed of I authorize her to take immediate possession of the same for her own use without Inventory or Controle of any kind. My debts are small I have no children nor forced heirs. I wish the tribunals of La to have nothing to do with my Estate unless somting arises that that can not be avoided I do this for econimy.

In addition to the above gifts I give to my dier wife Bettie Allen four thousand Dollars worth of City of New Orleans Bonds four per cent, interest Bearing Bonds, with Coupunds. I give her also two thousand Three hundred and fifty Pounds Sterling in the hands of Bearing Bro &c limited more or less (see their ac. currents in chst) .

“This will be ovr fourteen thousand Dollars for a house I gave her at our marriage not recorded but good. I give to my Wife Bettie Allen one-half of my Rienzi Plantation and one-half of all tools mules &c the names of my Executors &c will be named hereafter. My Executors shall have from one to five years to Sell and clos up the estate as I fear property will be verry low and dull. They can sell part cash part on time 8 per cent. Interest with Vendors lean I will that my wife do have one-half of everry thing belongin to Rienzi, Except the Claim due me by the U. States that and other Property I will speak of further on.

“ I appoint as my Executors Ogden Smith and W F Collins residing on Rienzi plantation I also appoint Mrs Bettie Allen Executrix. I give them ful power to sell Rienzi plantation When Ever they find a good offer all the property there belonging. When it is sold half of all the proeed Cash Notes &e is to belong to my wife Bettie Allen The other hafe will be spoken of hereafter As I fear property will be very low I give my Executors five years to work for a good price in the Meantime That they are waiting to sell, the place can be rented or worked so as to pay all Taxes and other Charges, any over that go to Mrs Bettie Allen’s credit. The other half of Rienzi and and a claim I hold against the Government of the United States for army supplies I think is about one hundred thousand dollars These two amounts or halfs I intend to give to the famlies of my Brother Thomas H. Allen’s four children R. H. Allen Jr for his famly’s use Thomas H Allen Jr for his wife and children Harry Allen for his wife and children Mrs. Mary Louis wife of J. O. Leatham of New York city.

“ And to the five children of my Sister Oynthia A. Smith Gaston Smith, Fred W. Smith Jr. Mrs. Nellie Houchens, Ogden Smith & Thomas A. Smith. My three neiees Mrs. Jennie Boyle, Mrs. Bettie De Berny, Mrs. Ellen B. Baker have Received Each five hundred Dollars I will that they receive five hundred dollars more in Gash and have no interest in any other Claim, my Brothrs firm in Memphis Tenn owes me $17,369 Dollars Seventeen thousand three hundred and Sixty nin dollars loaned them he having surrendered all his Estate to his Credited Which he thinks will pay all he ows. I thirefore Give this sum $17,369 to The wife of of my Brother for her self and all the dividends on that amount.

“To Mrs Sallie Cragin I give five hundred dollars to Walter Collins I give two hundred dollars. To my faithful servants Lizzie Harrison and Mat Dickerson I give one hundred and fifty dollars Each.

“To my sister Myra Turner’s two sons John B and William Turner I give John B His note for three hundred dollars deducting Interest, to Will I have given as much as I intend in Cash.

“I hold Fred W. Smith note for five hundred dollars this note Can be given him without counting Interest as part of his share heretofore given him.' My gold Watch and chain I give to my namsake R. H. Allen, son of Thomas H. Allen Jr of Memphis Tenn to be given him when of age.

“Codicil No. 1 I will that Mrs Cragin’s two small boys shall be given an English Education at Expense of the Estate I will that my Executors shal not give bond as I think them honest men I prefer they pay off the cash donations as soon as posible.”

A motion has been filed by the executor, Ogden Smith, who is one of the heirs, to dismiss the appeal from the judgment adverse to the Allen heirs, taken by them.

In the Succession of Ames, 33 An. 1318, this court had occasion to notice the distinction between the functions of an administrator and an executor, giving to the latter, when a creditor, the right of appeal from a judgment adverse to his interest. The reasons assigned for the judgment in that case are conclusive. The executor is the mandatory of the deceased, and a mediator between the parties having an interest in the succession. He represents creditors and heirs, and it is his duty to see that the will is executed according to the wishes and desires of the testator. He is interested in the proper distribution of the funds, and it is sacred duty to see that they are distributed among those whom the testator intended should be beneficiaries. Representing all parties, he has an undoubted right to appeal for the common benefit of all the parties.'

The Succession of Nicholson, 5 An. 359, is directly applicable to this case. In that case the testator left a sum of money for “the support of asylums in the faith of the Protestant religion especially devoted to the care of aged persons.” There was no institution in the city of New Orleans where the bequest was to be expended, answering to the description in the testament. The St. Anna Asylum devoted to the relief of destitute and helpless children claimed the legacy, as the only institution in the city of New Orleans coming near the terms and conditions of the will. The judgment of the lower court was in favor of the St. Anna Asylum. On appeal by the executor the judgment was reversed. In this case the court said: “ The will is his (executor’s) mandate. He has no power and is subject to no duty except within its terms and conditions.” The executor, therefore, has the right to appeal from a judgment interpreting the will, which he thinks is contrary to the intentions of the testator. In oppositions to the distributions of a fund there are as many adjudications — separate judgments as there are oppositions and the party aggrieved must appeal for relief, and unless he does so this court will not amend the judgment as between the appellees made so by the operation of the appeal, except so far as the judgment between immediate parties to the appeal may affect indirectly their interests. By the appeal of the executor from a judgment adverse to his professed distribution of funds as he interprets the will, all the beneficiaries, legatees and heirs are necessarily immediate appellees.

The motion to dismiss is therefore denied.

The executors could not agree on an interpretation of the will, and there were controversies between .the legatees and heirs among themselves and with the executors.

Two of the executors, Mrs. Allen and Oollins, filed a provisional account, proposing to settle the bulk of the estate and distribute the funds on hand, and await a . further realizing of assets and to make a future and final distribution. The executor Smith filed a final account.

Oppositions were filed by the executors to the accounts of each, and there were numerous other oppositions by the heirs.

Oollins and Mrs. Allen, executors, propose to turn over to the latter, the residuum of the estate. The heirs, including the executor, Ogden Smith, oppose the account, on the ground that as to the residuum the testator died intestate, and it should be distributed among those to whom the law gives it. Mrs. Allen, claiming the residue, opposed the account. The division of the plantation is contested between the children of Thomas H. Allen, and the children of Mrs. Smith, brother and sister of the deceased. There were four Allen and five Smith heirs. Hence the contention of the former, that one-half of the plantation absolutely should go to them, as they deny the bequest to the Smith heirs; and that if they are entitled'to a part of the plantation as legal heirs, that the half of the plantation should be divided per stirpes and not per capita.

The executors concur that each of said heirs should receive one-ninth of the half of the plantation. Oollins and Mrs. Allen, executors, propose to pay Mrs. Cragin for her boys, a sum sufficient to educate them. Smith, the executor, and one of the heirs, opposes this item in the will, because of its uncertainty. The executor, Smith, differs with the other executors as to the disposition of the crop of 1894, the former contending that the proceeds should be turned over to the heirs as a part of the estate undisposed of by the testator, and the three nieces named in the will claim a part of the residuum as heirs. Their quality as legal heirs is denied by the executors. Two of them agree that they are entitled each to five hundred dollars; the others that this sum must be distributed among them.

The Turner heirs oppose the claim of the three neices, and, as a consequence of the rejection of their claim, they allege they are entitled to interest, as part of the residuum, to the extent of one undivided third jointly. They oppose the classification of the old iron, coal, corn and hay, as immovable by destination, and there are many other items in the account of the executor Smith objected to-by them.

The District Judge consolidated the two accounts and the oppositions filed, and treated them as one proceeding.

The judgment of the District Court was that the bequest to Mistress Bettie Allen of all testator’s corporal movables did not entitle her to the money found in his house at his death, nor to the money in bank, nor to the sugar on plantation at testator’s death, after the payment of the special legacies and debts of the estate, and that-these amounts formed an unwilled portion of the estate to be distributed to the heirs-at-law of the deceased, leaving out the heirs-that were disinherited, the court deciding that the testator’s three nieces were disinherited, with the exception of a legacy of five hundred dollars left to each of them.

The lower court further sustained the legacy to give Mrs. Oragin’s two small boys an English education, fixing the amount to be paid her; and that the Rienzi plantation was devised one-half to Mistress Bettie Allen, and the other half was to be divided into ninths, one-ninth going to each of the Allen heirs, and to each of the Smith-heirs.

It further holds that the crop of sugar and molasses made on the Rienzi plantation in the year 1894, which Ogden Smith proposed to-account for (though unsold), could not be accounted for till sold, but that, as the question of its distribution was raised, it should be divided among the devisees of the plantation in the proportion they took said plantation, and not to Mistress Bettie Allen, as she contended for in her opposition.

The lower court upheld the payment of attorney’s fees, as proposed by Ogden Smith, executor.

And, finally, it decided that the account of Ogden Smith, executor, was not a final account, but that the final account must be recast, and that the question of the distribution of the bounty money due by the United States Goverment for the sugar made during the year 1894, should be left open for decision when the money was collected and proposed to be distributed by the executors.

From this judgment the executors, W. F. Collins and Mrs. Bettie Allen, the Allen heirs and Mrs. Bettie Allen, personally obtained orders of appeal.

The first question presented is, is Mrs. Allen appointed residuary legatee under the will?

Where general expressions stand immediately associated with less comprehensive words, they have been sometimes restricted to articles ejusdem generis; the specific effects being considered as denoting the species of property which the larger term was intended to comprise. Jarman on Wills, p. 362, Vol. 2.

The circumstance of a specific or pecuniary legacy being given to the one legatee, or of the general bequest being followed by particular portions of the personal property to other persons has been considered to favor the supposition that such bequest was not to comprise the general residue. Id., p. 354.

And it has been often, we may say invariabiy held, that a general description of property, or description of the class or kind, preceded or followed by words of narrower import, if the bequest is not residuary, will be confined to species of property of same kind with those previously described. The adoption of the more comprehensive meaning would have the effect of rendering the superadded expression nugatory, and make the testator employ additional language, without any additional meaning. Jarman on Wills, 356; 15 Ind. 326; 2 Bl. Comm. 384; Lartigue et al. vs. Duhamel’s Executor, 4 N. S. 665.

The confection of the will shows that the testator was ignorant of grammar and orthography, and the most elementary rules of com - position. His uncouth language, inapt and confused expressions must be overlooked and construed into logical conclusions and consistent expressions in the effort to ascertain his intention, which must govern, unless the thing to be done is opposed to some inflexible rule of law.

The rules for the intepretation of testaments are: (1) The technical import of words is not to prevail over the obvious intent of the testator; (2) when technical words are used by the testator, or words of art, they are to have their technical import, unless it is apparent that they were not intended to be used in that sense; (3) the intent of the testator is tobe determined from the whole will; (4) every word shall have effect if it can be done withoht defeating the general purpose of the will, which is to be carried into effect in every reasonable method. C. C. 1712. Succession of Blakemore, 43 An. 850; State of Louisiana, etc. vs. Executors of McDonogh, 8 An. 171; Williams vs. Western Star Lodge, 38 An. 620; Succession of Bobb, 41 An. 250; City vs. Hardie, 43 An. 253; 16 Ind. 479; 11 Pick. 257-378; 13 Ind. 413; 2 Met. (Mass.) 191-194; 12 Johns 389; 8 Ind. 3, 306; 5 Mass. 500; 5 Denio, 646; 3 Pick. 362; 2 Md. 82; 1 Jarman Wills, 404-412.

In the will he gives to his wife all hie corporeal movables, and follows this general disposition by a specific enumeration of the immovables, such as furniture, bedding, linen, silver plate, chinaware, etc. All of his stock of cattle, horses and carriages. It will be noticed that after the designation of furniture, etc., the sentence stops, and then in another sentence he disposes of a different species of corporeal movables. There is no ambiguity in this part of the will. No construction can be put upon the language than that the testator intended to limit the corporeal movables to those designated. The words reviewing the general description of the property seem to have been used advisedly by the testator. That he did not intend that his entire personal estate should pass by the general description of corporeal movables, is evident from his limiting its application in the words descriptive of particular species of property, and the further fact that large portions of his personal estate are devised to particular legatees. And again to the wife he gives other corporeal movables, such as one-half of all tools, mules, etc. He speaks of the legacy to his wife of one-half of the Rienzi plantation a second time, and uses the expression that she should have one-half of everything belonging to Rienzi, except a claim of one hundred thousand dollars due, as alleged by the Federal government, and the other property he says he will dispose of further on. He had disposed of the Rienzi plantation — all the-immovable property he possessed. His other property then was movable, a part of which he had given to his wife, and the other property he proposed to dispose of thereafter.- The other property could only have been that which he had not disposed of. It may have been his intention, as is usual in wills, to make his wife the residuary legatee at the closing of his will. But unfortunately for her he failed to do so, and as to this part of his estate he died intestate. The presumption is that the testator intends to dispose of his entire estate and not to die partially intestate. Sometimes slight expressions, if they can be construed as his intention to do so, are seized upon as the means of carrying out the supposed intention of the testator.

We have carefully studied the expressions in the will to ascertain if anything could be gleaned by which the testator’s intention could be inferred as to the disposition of the residuum of his estate.

We are able to find none, except we are to adopt the construction of the wife’s counsel and presume that the testator, who-had lived so long on the Rienzi place that he had identified it with-his entire fortune and considered everything which had been made upon it as a part of Rienzi. But even then the whole general estate would not go to the wife, as he says: “I will that my wife do have one-half of everything belonging to Rienzi. In case a favorable opportunity is not afforded for the sale of the place, he says his wife shall be credited with the proceeds. But this expression, unexplained by others and standing alone, will not justify the interpretation that she was intended as the residuary legatee. It is an evidence, however, of the intention of the testator that his wife was to receive the net proceeds of the crop until the plantation finally passed from the control of the executors.

No particular form of words, it is true, is requisite to constitute one a residuary legatee. It must appear, however, to be the intention of the testator that the residuary legatee shall take the residue of the estate after payment of debts, and meeting all the appointments of the will. Williams, Executors, 1310, et seq.

Jarman, Vol. 3, p. 2, says: “In some instances, however, in favor of the restricted construction, founded on subsequent expression, description of a particular species of property, has not been allowed to prevail against the force of the previous general words.” In the cases cited for this textual declaration, there was some expression as to the disposition which showed that it was the intention to pass the residue of the estate.

Thus in Benet vs. Bachelor, 1 Ves. Jr: 63, there was after the previous general words, the expressions “and other, not before bequeathed poods and chattels that he should be in possession at the day of his decease.”

In Campbell vs. Prescott, 16 Ves. 505, the testator gave to his two sons all his sugar-house, cupola and merchandise, stocks,with jewels, plate, household goods, furniture and all effects whatsoever.

In Michel vs. Michel, 5 Madd., 69, after a bequest of linen, china, household goods and furniture, the words were followed by “and effects he shall die possessed of.”

And in other eáses cited, there are expressions such as: “ and all his other effects; or whatever else I may then be possessed of at my decease,” “his wines and property in England.” In all these cases “ the mere enumeration of particular articles, followed by a general bequest, did not of necessity restrict the general bequest, because a testator often threw in such specific words, and then wound up the catalogue with some comprehensive expression for the very purpose of preventing the bequest from being so restricted.” Jarman, Wills, 362.

Mr. Jarman says, p. 344: “These cases indicate the disposition of the judges of the present day to adhere to the sound rule, which gives to words of a comprehensive import their full extent of operation, unless some very distinct ground can be collected from the context for considering them as used in a special and restricted •sense.”

“Itis to be observed, however, that in all the preceding cases there was no other bequest capable of operating on the general residue of the testator’s personal estate, if the clause in question did not. Where there is such a bequest, it supplies an argument of no inconsiderable weight in favor of the restricted construction, which is then recommended by the anxiety always felt to give to a will such construction as will render every part of it sensible, consistent .and effective.”

Thqre was no expression in the will following the particular description of the property after the general description of “all corporeal” movables to indicate that the wife was to have the residuum of his personal estate; nor is there any indications of any intent to make any other legatee the recipient of this residuum. We are forced to the conclusion from a consideration of the entire instrument that he intended the balance of his personal estate to go to his legal heirs, a disposition, in doubtful meaning, which the law favors.

The will speaks from the death of the testator that being the point of time at which it becomes operative, 21 Conn. 550-516; unless the language used, such as the word now, or a verb in the present tense which requires it to be taken at the time it is used. 1 Jarman, Wills, 318.

But it will receive the former interpretation if it can reasonably be made to bear it. 2 Cox Ch. 384. It is plain from the terms of the will that the testator intended that the plantation should be sold, and the proceeds distributed as directed by him. Speaking from the time of his death for the future sale of the property, he said to his executors that they should sell the Rienzi plantation and distribute the proceeds; and until they did sell it, the proceeds should go to the wife. The legatees could not sue immediately after the death of the testator, fora partition in kind, as this would have been contrary to the positive mandate of the testator. The plantation was directed to be sold in the most positive language. The legatees then were only interested in the proceeds of the sale. The net proceeds belong to the wife from the time of the death of the testator until the sale of the place. No other reasonable interpretation can be given to the language of the testator. If the plantation should have been sold with the growing crop, it would have passed with the place and increased the proceeds.

So long as the plantation remained in the hands of the executors, Mrs. Allen was entitled to the proceeds of the crops. If not sold in accordance with the directions of the testator it is only at the moment of delivery to the legatees if they choose to hold it in indivisión that the growing crops pass to them as part of the immovable.

The testator says that “I will that my wife to have a one-half of everything belonging to Rienzi.” This declaration is explanative of the desire that his wife should have one-half of the plantation, mules, tools, etc. The wife under this declaration is entitled to one-half of everything on the plantation, attached to the same, immovable by nature or by destination, or by the object to which they are applied. C. C. 462, et seq.

Everything on the plantation, placed there for its service, is immovable by destination if it is essential for the gathering of the crop, preparing the same for market, or for the improvement of the quality of the land, or to feed the stock and cattle necessary for working the same.

The manufacture of sugar is the preparing of the crop of cane for market. Coal is an essential thing for the running of the machinery of the sugar house. Although not mentioned in the Code, it is to be classed, if destined during the grinding season for the service of the mill, as immovable by destination. The hay, corn, fodder and coal were placed on the plantation for the use of the place and con - sumed in the cultivation of the plantation, in working the crop and preparing the same for market. The legal heirs are not entitled to the value of the same. The timber and the old iron were not essential for the use of the plantation and were not employed for the cultivation of the same. They therefore fall into the residuum.

Immediately after the legacy of the one-half of the plantation and a claim the testator held against the Federal government is the language: “And to the five children of my sister Oynthi A. Smith, Gaston Smith, Fred. W. Smith, Jr., Mrs. Nellie Huchens, Ogden Smith and Thomas A. Smith.” There is no period after the bequest to the Allen heirs, but this as a distinct sentence follows. We know that the testator was not familiar with the English language; that he-was deficient in the use of words, used capitals indifferently, and was not proficient in composition. That he intended that his sister’s children should participate in this bequest, is evident from the subsequent language in the will bequeathing to Fred. W. Smith his note for five hundred dollars as “'part of his share heretofore given him.” He had given no “ share” except in the bequest to the Allen and the Smith heirs. He evidently had in his mind a bequest to his sister’s children.

Following immediately the bequest to the families of his brother, Thomas H. Allen’s four children, is the legacy to the children of his sister, and the testator intended to make a continuous sentence and to provide for his sister’s children as liberally as he had done for those of his brother.

We are satisfied from the entire context of the will that the testator intended that his sister’s children should participate in the legacy of half of the plantation, and the claim against the government of the United States.

When the reading of a whole will will produce a conviction that the testator must necessarily have intended an interest to be given, which is not bequeathed by express and formal words, the court will supply the defect by implication, and so mould the language of the testator as to carry into effect, as far as possible the intention which it is of opinion that he has on the whole sufficiently declared. Metcalf vs. Farmington Parish, 128 Mass. 375; Boston Safe Deposit & Trust Company vs. Coffin et als., 8 Lawyers’ Reports, p. 748; 25 N. E., 30; Post vs. Huger, 38 N. Y. 599.

Punctuation must give way whenever it interferes with the proper and reasonable construction of a will. 8 Lawyers’ Reports, p. 744, notes; 25 N. E. 30.

The devise to his brother’s children should be connected with the devise to his sister as one continuous sentence.

He gives to the families of his brother’s four children. They do not take therefore per capita, but per stirpes. The number or the names or the children are not mentioned. In the bequest to the sister’s children there is no language used which would justify the inference that the testator intended that they should receive differently from the families of his brother’s children. The legacy is to the five children of his sister, and construing this in connection with the bequest to his brother’s children’s families, it is clear to our minds that the testator intended that these five children should be grouped as a family, and take per stirpes as the children of his brother’s families. Each set of children is therefore entitled to one-fifth. Hyatt vs. Pugsley, 23 Barbour, 299.

To the three nieces named in the will, it says that they are to receive five hundred dollars more in cash, and have no interest in any other claim. They had received five hundred dollars each, and the legacy to them is plain in its meaning, that each was to receive five hundred dollars in addition to that already given to them by the testator in his lifetime. They are to have no interest in any other claim. As to the residuum of the estate, the testator died intestate. They could have no interest in any claim given to other legatees. They could possibly lay claim to nothing else than the residuum of the estate. The testator must have referred to this, for there is no other fund upon which the legatees could assert any right. They are therefore excluded from any participation in the residuum of the estate.

Although opposition was made, for uncertainty of that part of the-, will which directs that a good education should be bestowed upon,, the two boys of Mrs. Cragin; we do not find the matter discussed im the briefs of counsel. We presume, therefore, that it has been, abandoned. But as the account of the executors are not final, and! the question may hereafter be raised, we will pass upon this part of the will.

The rule in regard to the inadmissibility of parol evidence, to vary, contradict or to render intelligible the words of a will, is not essentially different from that which obtains in regard to contracts. It may be received to show the state of the testator, the nature and condition of his property, his relations to the contestants, and all the surrounding circumstances. But this is done to place the court in the condition of the testator, in order, as far as practicable, to make them the more fully to understand the sense in which he used the language found in his will. 1 Greenleaf Ev. Par. 287-289; Jarman, Wills, 349, notes.

But parol evidence is not admissible to supply any words or defects in the will. Id. 28 Barb. 285; 27 Ala. 489.

In this case there is no reason to supply any words or defects in the will. There is no doubt as to the intention of the testator or to the subject matter of the bequest.

The testator has defined his object with reasonable certainty, and the court can, from the data furnished by him, ascertain the amount necessary to carry into effect his intention. The judge heard evidence as to the amount necessary to educate the two boys of Mrs. Cragin, and in thus acting he did not vary or avoid the intention of the testator, or in any way contradict any part of the will. McCorn vs. McCorn, 100 N. Y. 511; 13 West Rep. 614; 12 West Rep. 857; 144 Mass. 164; 18 How. 385.

We find no reason to disturb the rulings of the District Judge on this issue, nor do we find any error in his ruling as to the attorney’s fees and the commissions of the executors. The succession is in no condition for final settlement. The crop of 1894 has not been disposed of and the sugar bounty claim uncollected. Succession of Gardere, ante p. 289.

The judgment appealed from is amended so as to give to Mrs. Bettie Alien the net proceeds of the crop on Rienzi plantation for the year 1894, and to one-half of the plantation, one-fifth interests in same to each of the families of R. H. Allen, Jr., T. H. Allen, Jr., Harry Allen; one-fifth to Mrs. Latham, and one-fifth to the children of Mrs. Cynthia Smith.

In all other respects the judgment is affirmed, the succession to pay costs of appeal.

ON APPICATION POR REHEARING.

The applicants for a rehearing have misinterpreted our decree. It does not say, nor was it intended to convey the impression that the funds ready for distribution should be withheld from those entitled to the same under the will. ' The succession is to be continued in its administration until the payment of the bounty, when it will be distributed according to law.

All funds ready for distribution must reach their destination without unnecessary delay.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 12,012.
    Mrs. Ann Martin vs. Southern Athletic Club.
    when property has been seized and sold in a . suit to which the owner was not a party, and the purchaser sells the same to another, and it is assessed in the name of the latter and sold at tax sale, the .assessment and sale are null and void.
    It is not essential that property should be assessed in the name of one possessing both the equitable and legal title in order that the assessment may be legal and valid. But there must be aprima facie title to serve as the foundation of a valid tax sale. The evidence must be on record to show that the owner was divested apparently of title by proceedings against him.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      William Winans Wall, for Plaintiff, Appellee.

      J. Zach. Spearing, J. J. MeLoughlin and Lloyd Posey for Defendant, Appellant.
    Argued and submitted March 13, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

McEnery, J.

This is a petitory action instituted by plaintiff to recover certain immovable property in the possession of defendant. The plaintiff sued in the capacity of widow of James Martin, alleging that the property belonged to the community and that she is the owner of one undivided half, and usufructuary of the other half.

There was judgment for plaintiff, from which the defendant appealed.

The defendant claims title through a quit-claim deed from J. A. O. Wadsworth, who obtained a like title from Van Norden. Van Nor-den acquired title from one Delano, who purchased the same at judicial sale November 4, 1875. The property was assessed to Van Norden and was adjudicated to the State for taxes, and subsequently the State Auditor sold the property to John Spansel, who sold to defendant. The quit-claim deed alluded to was intended to perfect defendant’s title. It will be unnecessary to follow the discussion of the parties relative to the effect of the tax sales further than to inquire, was there such an assessment of the property as to conclude the plaintiff from contesting the same for the purpose of showing that her deceased husband, James Martin, was never divested of title to the property, and the assessment of the same in the name of another party was null and void and could be the basis of no valid tax sale.

Jonas Pickles sold the property in controversy to James Martin in 1852. On November 5, 1875, afi.fa. issued from the Superior District Court, in the parish of Orleans, in the suit of Drainage Company vs. Jonas Pickles, and the property was seized, and sold and adjudicated to Delano. Martin was not made a party to the suit in which the f,. fa. issued. There could be no divestiture of Martin’s title by a sale under said judgment. Delano, therefore, acquired no title whatever to the property, and he could convey none to any purchaser from him. Van Norden, who purchased from him, acquired no title, and the assessment of the property to him and the sale under the assessment were null and void. There were two titles on record : one in the name of James Martin, and there was no evidence of record that by any act of his, or through any proceedings instituted against him, that he had ever parted with title to the property. The-other title in the name of Delano, transferred to Van Norden, was an absolute nullity, and the tracing of it but for a short period would have informed the assessor that no proceedings had been instituted against Martin by which he was divested of title. There was no connection whatever between the titles of Van Norden and James Martin. They were distinct and independent, the former showing that the title was derived from a proceeding to which James Martin was a stranger, and the sale to Van Nprden of the property of another — of James Martin, who could not be divested of his property without due process of law. The facts presented bring this case directly within the ruling of Lockhart vs. Smith, 47 An. 124.

We have held that ordinarily it is not essential that property should be assessed in the name of one possessing both the legal and equitable title in order that the assessment be legal and valid. Prescott vs. Payne, 44 An. 650.

But there must be a prima facie title to serve as the foundation of a valid tas sale. Id.

There must be on record some evidence to show that the original owner voluntarily parted with title, or that there were proceedings against him which apparently divested his title, such as were in evidence in the case cited, and the authorities, therein referred to.

The assessment was not in the name of the owner of the property as shown by the records, and was therefore absolutely null and void. No vested tax sale can be predicated upon an absolutely null and void assessment.

Judgment affirmed.


author: Miller, J.

text:
    No. 12,106.
    J. B. B. Lay vs. His Creditors.
    When there is no substantial compliance with the law requiring the debtor seeking a respite from his creditors, to file a schedule of his assets sworn to by him, and instead of promptly supplying the deficiencies when called on by his creditors, he fails io comply with the call, the order for the respite should be set aside. Civil Code, Arts. 3087 et seg.; Pecquet ys. Golis, 1 Martin, N. S. 438; Phillips vs. Her Creditors, 38 An. 904.
    A PPEAL from the Oivil District Oourfc for the Parish of Orleans. Bightor, J.

      Lloyd Posey for Defendant in Rule, Appellee.

      W. S. Benedict for John B. Henry, Mortgage and Privilege Creditor, Plaintiff in Rule, Appellant.

      Submitted on briefs April 24, 1896.
    Opinion handed down May 4, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

The appeal is by a creditor of the insolvent from the judgment maintaining the respite proceedings sought to be set aside by the creditor.

The law requires that the debtor seeking a respite shall file correct and full schedules of his property and liabilities; and the order for the meeting of creditors and the other requisites to obtain the respite demand that attention from the debtor which the litigant seeking relief usually bestows on his suit. Civil Code, Arts. 3084, 3087 et seq. The schedule of assets in this case states the amounts of bills receivable, open accounts, and money loaned, with no specification of the debtors or other details of interest to the creditors of the insolvent. This imperfect statement called for the rule of the creditor on the debtor for a better statement of assets, but produced no result. Nor were any steps taken by the debtor to carry into effect the order for the respite, and since September, 1895, he has enjoyed all the advantage from the restraint the order imposed on his creditors. The record, in our view, exhibits the disregard by the debtor of the conditions of a full and correct statement of his affairs and diligence in prosecuting his application, the law exacts for the relief it extends to insolvents.

The rule of the creditor to compel a proper statement of his affairs proving ineffective, the creditors supplemented it, by the demand in the form of an exception, that the respite order be annulled. On the issues made by the creditor, he produced a mass of testimony tending to show that the debtor had not accounted for all his property. On this branch of the case we do not find it necessary to express any opinion. The remedy of the creditor against an order for the respite obtained by the debtor under the circumstances shown by the record is to set it aside. A schedule utterly deficient as this is in the informations it should convey is no basis for a respite or a cession. This ground is strengthened, if assistance is needed, of no attempt to supply what the law requires though called for by the creditor’s rule, and by the additional fact that for over a year the debtor has been enabled to tie the hands of his creditors by the order to which he was not entitled, without fulfilling the conditions exacted by the Code. Pecquet vs. Golis, 1 N. S., p. 438. Phillips vs. Her Creditors, 36 An. 904.

The copy of the petition filed in this court of the debtor and the order made on it of date the 22d April, 1896, accepting his cession, the petition referring to the respite proceedings reviewed in this decision, and which seems to be the basis of the order accepting the cesión, can exert no influence on our determination, or affect that relief sought by this appeal.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, and it is now ordered and decreed that the order for the respite obtained by the debtor, and all proceedings based on it, be avoided and annulled, and that the appellee pay all costs.


text:
    No. 12,058.
    Grace F. Chamberlain et als. vs. The City of New Orleans.
    The order of court, recognizing plaintiffs as heirs of the deceased, and placing them in possession of his property, is not evidence of his title in a suit by the heirs asserting the ownership of their ancestor brought against the party claiming title.
    A PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Kernan & Wall for Plaintiffs, Appellants.
    • E. A. O’ Sullivan, City Attorney, Geo. W. Flynn and Henry Benshaw, Assistant City Attorneys, for Defendant, Appellee.
    Argued and submitted March 28, 1896.
    Opinion handed down May 4, 1896.
    Opinion on rehearing handed down June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, alleging themselves heirs of Charles M. and Edward Chamberlain, appeal from the judgment, dismissing their suit to annul an adjudication to the city of the property they claim; to have annulled the taxes on the property for the years 1880 to 1889, and to cancel the inscriptions of the tax assessments for these years, and for the years 1893 and 1894.

The grounds set forth in the petition are, that the taxes for the years 1880 to 1889 are assessed in the names of C. and E. Chamberlaiu and that Charles M. Chamberlain, intended by the assessment O. Chamberlain, was dead when the assessments were made; that the assessments for 1893 and 1894 were respectively in the names of Vidou and Baltz, never owners; that the taxes are prescribed and the adjudication to the city is void, because of the illegal assessment, and the absence of notice to plaintiffs, the owners, and other grounds are urged. The answer is the general issue, and an affirmance of the validity of the taxes and the adjudication.

The plaintiffs suing as the heirs of Charles M. and Edward Chamberlain, it was indispensable to prove their ownership of the property, the subject of this suit. The petition avers that Charles M. and Edward Chamberlain acquired part of the property by purchase and another part by inheritance. These averments have not been supported by any proof of title. We have in the record the judgment of the Civil District Court, recognizing the plaintiffs as •the heirs of Charles M. and Edward Chamberlain, and in the body of the judgment there is the description of the property plaintiffs •claim in this suit and a decree putting the plaintiffs in possession. To this judgment, as proving ownership, the city objected, and in our opinion the objection was well founded. The title the city asserts and the assessments for taxes the city'maintains can not be disturbed by a judgment in an ex parte proceeding, decreeing the plaintiffs’ ownership. If the judgment is áccepted to prove heirship It has no tendency to prove that plaintiffs or those under whom they claim were or are owners of property assessed as that of E. and C. Chamberlain. Glover and Others, Heirs, etc., vs. Doty, 1 Rob. 130.

The judgment of the lower court should have been one of non-suit.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that plaintiffs’ suit be dismissed as in case of non-suit, and that defendant pay costs of appeal, plaintiffs those of the lower court.

On Application por Rehearing.

We will modify orn* decree so as to remand the case for further proof. It is therefore ordered, adjudged and decreed that our former judgment be set aside and the case is remanded to the lower court to enable the parties to offer additional testimony and for another trial.


author: Breaux, J.

text:
    No. 12,178.
    D. A. Bland and Wife vs. Shreveport Belt Railway Company.
    The lineman of the defendant company in the discharge of his duty was ordered to take down a guy wire from an electric pole and guy tree. The pole had not been securely planted. It fell on the lineman, inflicting injuries of which he died. The vice of construction was latent and concealed. The officers of a preceding board of management had been notified of the defect. The company is not relieved under the plea of want of notice, although the present general manager had not been notified, but the preceding manager or superintendent.
    The lineman did not voluntarily place himself in a dangerous position.
    The employee is not bound to know latent, büt only patent defects.
    The master must provide suitable appliances.
    APPEAL from the First Judicial Disrict Oourt for the Parish of Oaddo. Land, J.

      Leonard & Randolph for Plaintiffs, Appellees.

      Wise & Herndon for Defendants, Appellants.
    Argued and submitted June 4, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs claimed damages for the death of their son, Charles M. Bland, aged about twenty-two years and unmarried. He was electrician and lineman; the witnesses state, of the defendant company.

The latter operates a belt line, electric railway, in the city of Shreveport. The electricity is supplied through a trolley wire hanging over the roadbed, by means of suspension wires fastened to poles standing on each side of the road. The height of these poles is about twenty-five or thirty feet and their diameter eight or ten inches. On a straight line these poles are planted at a depth of about five feet, on curves about five feet and a half.

It became necessary to take down a guy wire attached to one of these poles, on a curve.

The superintendent of the company with the lineman, the late Charles Bland, went to the pole to remove the wire. The former suggested to the latter to cut the wire from the tree. “No,” was the latter’s reply for the reason that “the wire will remain attached to the pole and will be in the way.”

The superintendent also offered to climb the pole and himself do-the work required. The lineman being more active and nimble went up after the soundness of the pole had been tested. Reaching the point at which the.guy wire was attached to the pole he clipped the wire with his pliers; immediately after, the pole commenced to give way with the young man and fell on him.

He died about seven hours afterward from the effects of the fall.

It is in evidence that the pole was two feet in the ground; that the ground was wet at the time as it had rained the previous day.

The defendant pleads that the accident was caused by the lineman’s want of care and caution; that he was aware of the danger of the employment.

The jury found a verdict for the plaintiffs in the sum of twenty-five hundred dollars. ,After an ineffeeual attempt to obtain a new trial from the verdict, the defendant appeals from the judgment.

Before the guy wire was removed the offending pole was safe; it remains, none the less, that without this wire it was entirely unsafe. We have seen that moving the wire was a necessity, rendered so by the fact that the guy tree was on the right of way of another railroad. The removal was ordered by the defendant company, under whose order the two, its superintendent and lineman, acted. The company’s order was to take down the wire and take it out of the way.

It is well settled in order to support an action for personal injuries two things must concur, the want of proper care and caution on the part of the defendant and no fault on the part of the plaintiff.

If the defendant was notified of the vice of construction at the place the accident occurred and failed to make needful repairs within a reasonable time, it became responsible for injuries resulting from the fall of the pole.

It is but fair to the present management to state that it does not appear of record that they had any knowledge of the defect. It is in evidence, however, that in 1893 the one who was lineman of the company, reported to the superintendent that this pole was weak, threatening and that it ueeded resetting.

These employees are no longer in the service of the company.

The corporation itself has not changed,, and it is bound by the knowledge of its employees, at the time, had. Notice to the agent was notice to the principal. We are informed by the testimony of the witness Huddleston, that the superintendent’s reply was (when he was notified) that the pole would be reset later, in dry weather; it was in wet weather that he gave the information and was directed to attach the guy wire. If this witness stated correctly, and we have no reason to think that he has not, the resetting should not have been indefinitely postponed as it was.

Having reached this conclusion in regard to the defendant, we are brought to the plea of contributory negligence urged by the defendant against any right of plaintiffs to recover damages.

The inquiry here is whether the danger was concealed or the surrounding condition of things such, as to warn the lineman who was injured?

The proposition does not admit of discussion; that while it is the general duty of a master to exercise needful care and caution to pre - vent the exposure of his employee to great risks, the employee on the other hand must exercise ordinary diligence in guarding against injuries.

The guy wire was one hundred and twenty feet in length from the top of the pole, where it was attached to the trunk of the guy tree.

Had he cut the guy wire at the china tree that served as a guy post he would have been out of all danger. At the same time it is evident that the work would have been only half done. It would not have been workmanlike to leave that many feet of wire hanging from the pole. Moreover, there were leaks in the electric wires. The pole was marked as one of the “ leaky ” poles. The plaintiffs assert that in wet weather the wire might become charged and be dangerous to any one coming in contact with it, and that it was prudent and proper to cut off the electric fluid.

Be this as it may, it was most assuredly not unreasonable on the part of the lineman to lessen the work by cutting the guy wire at the pole as he did, instead of cutting it at the guy tree.

In the second place (having concluded to cut the wire from the pole), it is urged by the defendant that there was negligence in not having used the appliances in his possession and under his control belonging to the compauy. These appliances, we are informed, were a “block and fall ” and “ come alongs.” The evidence as to the use of these appliances is conflicting as to whether they are intended for removing wires. Several of the witnesses confine their use principally to pulling up the slack in the wire or letting off the slack gradually. Be all that as it may, not one of the witnesses has sought to prove that it was at all unnsual or unreasonable to climb the pole and cut the wire as was done. Knowledge of the danger is not shown, nor is it evident that there was a want of ordinary care and prudence to avoid the usual dangers to which linemen are exposed. It is in the line of their duty to climb these poles to attach or detach wires and in performing such work as is needful in keeping up the system of which they in part have charge. They are provided with spurs for the purpose and have other appliances to enable them to climb and dispatch the work.

A lineman is not unreasonable or imprudent who takes it for granted that a pole was planted at the usual depth. The evidence that the accident could not have occurred if the pole had been planted at the usual depth, is uncontradieted. The fact that after the accident it was planted some five feet and a half in depth and that all guy wires are since dispensed with is significant and leads to the unavoidable conclusion, that if it had been properly put up in the first place the accident would not have occurred.

Generally the office of the guy wires, we are informed, is to steady the post and prevent its movement or vibration. If the post bends or gives away in a curve, particularly, the trolley wires no longer remain plumb and the trolley wheel leaves the wire. We think in this case the guy wires performed double duty: to support the pole, also to lessen its vibration. It became evident after the fall that it was a support of the pole, but this support was not apparent before the accident, for the reason that nothing indicated that the planting was too shallow for it to be secure without the gay wires.

The post stood at a point of the curve upon which there was great strain, it is true. The force, however, was not greater than an ordinary post could withstand.

The sufferer was not guilty of contributory negligence as the act of climbing such poles is not unusual with linemen. The employee assumes the ordinary risks of the employment which are apparent and which he has the opportunity to detect.” Buswell, Sec. 204.

Here the risks of the employment were not apparent and the employee had no opportunity to detect the vice of construction. The superintendent who was present, and the victim of the accident did not, in the least, suspect the unsafe condition of the pole in question.

There are two items of damages claimed:

1. The alleged pain and suffering.

2. Compensation for the loss of the support and assistance to plaintiffs, if he had not been fatally injured. As to the first there is no moneyed standard of measurement. In a possible view of such eases no amount would be excessive and sufficient compensation.

But in fixing the amount the ability to pay and precedents applying must be considered.

As to the second, one of the plaintiff is between seventy-five and eighty years of age, and the other about sixty.

The deceased was getting sixty dollars a month wages. There is uncertainty as to the amount of 'contribution that a young man may make to the support of his parents. It may be considerable, or it may be very little, without violating the demand of duty.

The damages are fixed at eighteen hundred dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed from two thousand five hundred dollars and interest to eighteen hundred dollars and interest thereon from March 17, 1896.

As amended, the judgment is affirmed at appellee’s costs.


text:
    No. 11,961.
    Board of Control vs. M. C. Royes et als.
    A deduction may be drawn from the statement oí a witness, (such as the amount of a fee or charge on a vessel of itself shows the tonnage of the vessel) without any statement by the witness in regard to the number of the tonnage.
    The evidence was brought out in chief and no attempt was made to show that it was erroneous.
    Accounts must be proven by reference to the respective items and not by average of other items of debts of another date and for different fees or charges.

      A verified copy of a report is admissible in evidence and makes proof on the testimony of a witness wlio knew that it was duly verified.
    The claims, sustained by sufficient evidence, are allowed. A non-suit is entered as to those not thus sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      M. J. Cunningham, Attorney General, for Plaintiffs, Appellants.

      George L. Bright for Succession of Royes and José Fednandez, Surety, Defendants, Appellees.
    Argued and submitted May 9, 1896.
    Opinion handed down May 18, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff brought this suit against the late superintendent of the “ New Basin Canal and Shell Road” and sureties on his official bond, for amounts collected, and for which, it was charged, no account had been rendered.

The defendants interposed exceptions; they were overruled.'

In their answer they plead a general denial, and especially set forth that they are not indebted for any sums of money the treasurer of the company failed to pay or account for, as he was not a subordinate of the superintendent, for whom the latter could be held responsible.

The amount claimed by the plaintiff was six thousand three hundred and twenty-five dollars and ninety-eight cents. In support of this clarm plaintiffs annexed statements to their petition.

The first statement is based upon a numbor of “ permits” or “passes” collected from different persons to whom they were issued for tonnage or towage.

The statement gives a correct account of the “ passes” or “permit;” dates, who issued them, the number, the amount of tonnage of the schooner, the tonnage paid and the towage paid.

Section 16 of the Statutes of 1888 requires that the superintendent shall cause to be kept a registry of all arrivals in the canal and of all travel on the shell road. It is also made his duty to record ■on this registry a description of all cargoes brought in. He is also commanded by the statute to furnish to the State Treasurer a certified list of all amounts received, and to exhibit to that officer a certified statement of the bank showing the deposits made to the credit of plaintiff’s fund, for his examination and comparison with the superintendent’s account of receipts and deposits. The statute further orders that the superintendent shall at the same time exhibit to the State Treasurer, a sworn statement of all expenditures made.

It was suspected at the time there were irregularities, it seems; a ■copy of these reports of the superintendent for stated months was obtained.

After examination it was found that amounts.collected were not properly returned. Receipts of amounts paid to the company’s treasurer, were not mentioned in the report of the superintendent. In other words the report to the State Treasurer was not a true report of the company’s business. ■

In addition to these receipts found with the customers of the canal,' who held them for a complete consideration, plaintiff claims to have ¡shown an indebtedness by proving that a permit book, containing blank permits numbered serially was stolen. The number of permits having been fixed, the plaintiff seeks to recover the amount by reference to the average price of permits.

Another claim is headed: “Statement of sundry collections made for account of New Basin Canal and Shell Road by A. P. Williams, ■secretary, and not accounted for.” They consist of collections from Poitevant & Favre, Pelican mills: rents and other claims, and lastly, there is a statement annexed to the petition numbered four, of an amount of three hundred and five dollars due for “the investigation of the defalcation of the past administration” of the board of control.

The defendants, after having conclusively shown that the superintendent was not guilty of embezzlement of any part of the funds, •sought to sustain the defence that plaintiffs had not made a case by proof sufficient to enable them to recover a judgment against either the superintendent or the sureties on his bond.

The judgment of the District Court condemned the defendants to pay to plaintiffs the sum of twenty-one hundred and eighty-five dollars and five cents with legal interest from judicial demand.

From the judgment the plaintiff prosecutes this appeal.

The superintendent was authorized to appoint a book-keeper and secretary of the board with approval of the board of control. He-was given the power of requiring this employee to furnish a bond. If he chose to entrust him with the additional duty of handling the fund as treasurer, without bond, he, by showing that this officer was-unfaithful and diverted the funds, is not relieved from responsibility.. To the superintendent was given control and management. The-condition of his bond was “the faithful performance of his duties and of the duties of all” the officers and employees subordinate to-him in the management of the affairs of the company. The superintendent unquestionably was responsible for the amounts received by the secretary whom he chose to trust as treasurer, without even requiring the usual bond.

The record does not disclose that the board of control opposed the appointment by the superintendent of this book-keeper and secretary ; nor does the record show that the superintendent made, at any time, any attempt to remove his subordinate who finally proved himself entirely unworthy of confidence.

This being the responsibility of the superintendent, we will take up, in their order, the bills of exceptions to which counsel has directed our attention in the argument. The board of control, while investigating the affairs of the basin, procured from shippers, owners of schooners and others, who carried on business on the basin, two hundred and twenty-eight permits.

A statement setting forth these permits, and the permits also, were offered as evidence and admitted.

The objection to their admissibility was that they were not sustained by proof and were not sufficiently identified; a condition precedent, it was urged, to their admissibility.

The gravamen of the complaint is that at the time they were offered it had not been shown by.whom the statement offered had been made, and the data upon which it was based.

It is in proof that the statement was made by the seeretary of the board, who succeeded the former secretary; they were made after the irregularities charged; or some of them, at any rate, had come to light. The data, which are the basis of the statement, were in his office and in his possession.

He testifies that the statement is a correct account of the “passes” or “permits;” that it is a true transcript. This statement was really a part of the evidence of the witness, and was prepared to assist the court in referring to the different items, and as such, it was properly admitted in evidence.

The “ permits ” or “ passes issued by the secretary were also properly admitted. Found as they were, in the possession of those who paid for them, they are direct evidence of amounts received for the canal company. It devolved upon the defendant, the receipt having been shown, to prove thatit was deposited in bank as required.

It is urged, as to a number of these “ permits,” the evidence is incomplete, for the reason that on their part face they do not show the tonnage of the vessel.

The amount of dues of the vessel is determined by its tonnage. It was a question of sufficiency of proof and not of admissibility; the ruling admitting these “permits” in evidence was not an improper ruling.

This brings us to the “permits” issued by Williams, the secretary, and not found. The statement objected to as evidence, on this point, is headed “statement of two hundred and seventy-one ‘permits’ issued by A. P. Williams, secretary, and not found.” These permits were numbererd serially. There were numbers missing. We do not, at this time, pass upon the sufficiency of the evidence.

The evidence was admissible and was properly admitted, at least as a commencement of proof.

The reasons assigned in another bill of exceptions against the admission of a copy of the superintendent’s report are that it was not signed; that it was not duly verified.

It was the monthly report of the superintendent who can not be heard to urge his own omission, in not having signed it as required by the statute.

It was regularly deposited as required in the office of the State-Treasurer. The evidence was admissible in the form presented - The copy admitted had been verified by a clerk employed by plaintiff and an employee in the office of the State Treasury, as shown by the former’s testimony on the trial. Although it is not shown that the State Treasurer is especially appointed by law to furnish copies of these reports; we incline to think that he is authorized. Greenleaf, par. 485, 12 Ed. A copy, however, without that certificate, duly verified and supported by ample corroborative testimony is also admissible.

The points in other bills are not expressly passed upon by us for they do not present grounds that would justify us in changing our conclusion on the merits of the case.

MERITS.

With reference to the sufficiency of the proof it is evident that eight hundred and fifty-three dollars and twenty-seven cents are due.

The remainder of this claim is proven by the testimony of the present secretary. The permits making up the amount are in evidence, showing the amounts collected. While-the tonnage was not stated by the witness the amount charged fixes the tonnage.

In the absence of all attempt to show error by cross-examination or by rebutting testimony of some sort, we will not assume that the witness testified in error.

Having stated the amount due, although the amount was not carried on the stub, the inference is unavoidable; that he, the witness, was aware of the tonnage of the-vessels by reference to other data in his possession. The vessels are all named in these “ permits,” and presumably their tonnage is well known. An examination of the report of the superintendent and comparing it with the “ permits ” and “ passes” in possession of plaintiff discloses that no return was ever made of the amounts represented by these “permits.”

The whole sum sustained by the “ permits” in evidence is due by the defendant.

We pass from these “ permits ” in possession to those said to have been issued and not found.

There were books abstracted from the office. The irregulariiy of the business was, to say the least, confusing. The safest check was the blank “permits” serially numbered, for which some one should have been held responsible. It does not appear that any account was taken and kept of the number placed in the hands of the officer to be issued when called for by the captains of schooners and others to whom they were to be issued upon the payment of the fee. There was general neglect and indifference about the stubs of the “ permits ” or “passes.”

We are informed by the evidence that a mistake arose because of the error of the printer in printing the blank “ permits,” with numbers on the margin, we understand, to save labor of writing and noting them as they should have been.

That some of the blanks were soiled and were for that reason destroyed.

That the secretary was not careful in copying the numbers, and at times omitted them in his report.

There is lacking another element of certainty. After having collected the omitted numbers, the witness made an average based upon the amount shown to be due on the “ permits” of the company in its possession — i. e., a given number of “permits” in regard to which there was no question as to the amount, having footed a stated sum; another number of “ permits ” was supplied with amounts by adopting an average based upon the first number. The average is not supported by other proof of any kind. We do not think that the evidence sustains this claim. The evidence does not relate to the claims.

We come to the last items charged: Statement 3, of sundry collections said to have been made for the canal and for which it is charged, no account has been rendered, and statement 4 of expenses incurred by the company in investigating the irregularities existing.

We take up the last item first, and as to it determine that the company must examine into the mismanagement of its officers and consequent irregularities at its expense and not at the cost of the superintendent, who is responsible for the shortcoming of his subordinate, although not guilty himself of embezzlement.

The other claims on these statements are not supported by. sufficient proof. A small amount is claimed for rent of property, whether it was collected or not is not stated in evidence, and other comparatively small claims are made we think should not be allowed without further proof.

It is therefore ordered, aojudged and decreed that the judgment is affirmed, with the following amendment: to the plaintiff is reserved the right to sue, and the part of the demand not allowed is dismissed as in case of non-suit.

The appellant is condemned to pay costs of appeal.


author: Nicholls, C. J.

text:
    No. 12,117.
    State of Louisiana vs. Fleming Robertson.
    On an indictment for shooting at with intent to kill and murder, a request that the court instruct the jury that it could, under the indictment, find the defendant “ guilty of assault and battery,” or “guilty of an assault,” was properly refuse d.

      APPEAL from the Nineteenth Judicial District Court for the Parish' of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and B. F. Broussard, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. & Charles Fontelieu for Defendant, Appellant.
    Submitted on briefs May 9, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant, indicted for having, with a dangerous* weapon, to-wit, a pistol, commonly called a revolver, wilfully, feloniously and of malice aforethought, shot one Charles Duval, with intent to kill and murder, requested on the trial of the cause that the court instruct the jury that it could, under the indictment, find the defendant “ guilty of assault and battery,” or “ guilty of an assault.” The court refused to so instruct the jury and, defendant excepted and reserved a bill of exceptions. The jury found the-accused “ guilty of shooting with intent to kill.” On appeal defendant assigns the action of the District Court as error and asks that the verdict and sentence be set aside.

The Attorney General contends that the accused was not prejudiced by the ruling. He says: “ The indictment charged shooting, with intent to kill and murder. The verdict was ‘guilty of shooting with intent to kill.’ Taking the indictment and the verdict and construing them together, we are led irresistibly to the conclusion that the defendant was not affected by the refusal of the judge tO' grant the requested charges.”

We understand the argument to be that the jury having, in point of fact, with the whole evidence before them, found the accused guilty of shooting with intent to kill, we are bound to presume that their verdict is justified by the law and the evidence, and therefore we must assume, even .had the requested charge been given, it would have and could have brought about legally no change in the-result. We understand it to be argued that even were the particular verdicts asked for legally possible under some special state of facts, yet they were not possible under the actual facts of the case before the court, as is demonstrated by the verdict found. Therefore, even if there were error in refusing to inform the jury that a. verdict of guilty of assault and battery or one of guilty of assault ■could be returned under an indictment of shooting with a dangerous weapon with intent to kill and murder, we would have before us a ■ease of error without injury.

It is intimated that the verdict actually brought in is utterly irreconcilable with the idea that a mere knowledge on the part of the jury that under an indictment of shooting with intent to kill and murder ” a verdict could be brought in of “ guilty of an assault,” or * guilty of assault and battery,” could or would have changed the situation. That to assume otherwise would be to assume that the jury had improperly, in order not to acquit the accused, been willing to punish the accused, and to bring in a verdict not justified by the law and the evidence, and this we can not do. We do not know what effect the refusal to charge may have had upon the jury, or what verdict the jury would have rendered had the requested charge been given. It may be that a verdict other than the one actually rendered would have been contrary to the law and the evidence, and the accused would have been called to receive a lighter punishment than he deserved under the law and the evidence, but had such a verdict been returned we would have been forced to accept it as correct. We are of the opinion that if the accused had the legal right to claim that the court should have charged as he requested, the mere fact that through that charge the jury might have been induced to unwarrantably and unjustifiably return a lighter verdict than the evidence would have justified would not warrant us in denying him the right of having the charge given, let the result before the jury be what it might.

We are called on, therefore, to examine whether the court was justified in refusing to give the charges asked. No reasons are assigned for the refusal.

Our attention is called by defendant to State vs. Ford, 80 An. 313. Cheep Justice Manning in that case said arguendo that ‘'upon an indictment for an assault with a dangerous weapon or with intent to kill there may be a conviction for an assault. The reason is that these offences belong to the same class; the same kind of evidence is applicable to the one as to the other. They differ in degree and not in kind. If the evidence is insufficient to warrant a conviction for the offence of greater magnitude it may support a conviction for that of lesser magnitude, and judgment upon such a verdict has long been allowed under the modern criminal law.”

In State vs. Price, 45 An. 1431, defendant was prosecuted for the “ crime of striking a person with a dangerous weapon, to-wit: a club, while lying in wait with intent to kill and murder.” Accused asked the judge to charge, among other requested charges, that a verdict might be found under Sec. 796 of the Revised Statutes. Section 796 declared “that whoever shall be guilty of assaulting and beating, wounding short of maiming, or of falsely imprisoning any person, shall, on conviction thereof, suffer a fine or imprisonment, or both, at the discretion of the court.” The District Oourt refused this charge, and on this point this court said: “As to Sec. 796 the indictment includes and sufficiently charges an assault and battery, and the defendant was entitled to have the jury charged that they could return a verdict under that section.”

In Bishop’s Criminal Law, Vol. 1, par. 895, we find it laid down as supported by authority that “ one under an indictment for an assault with an intent to commit murder may be convicted of a simple assault or a compound assault of a less degree than that alleged.”

In Bryant vs. State, 41 Ark. 359, it was held that under an indictment for an assault with a deadly weapon with intent to commit upon the person of another a bodily injury, etc., the accused might be convicted of a-simple assault.

In the American and English Encyclopedia of Law, verbo “Assault,” p. 782 (Note), we find that “ on an indictment for an assault occasioning actual bodily harm and charging in other counts an unlawful wounding and the infliction of grievous bodily harm, a conviction may be had for a common assault. R. vs. Yeadon, 1 L. & C. 85.” “And this, notwithstanding the word ‘ assault ’ does not occur in the indictment. “ R. vs. Taylor, L. R. 1, C. C. 194; 38 L. J. M. C. 106.”

In the case at bar the word “ assault ” does not “ occur ” but the word “ shoot” does. Had the accused been found guilty of shooting a particular person with a dangerous weapon, a pistol, commonly called a revolver, with intent to kill and murder him, there would have been embodied in that conviction a finding that he had been guilty of “an assault,” and also guilty of “an assault and battery,” for a battery is not necessarily a forcible striking with the hand or stick or the like, but includes every touching or laying hold (however trifling) of another person or his clothes in an angr/, revengeful, rude, insolent or hostile manner. A man, for instance, throwing a bottle or a stone at another, and hitting him, is guilty of battery. (Am. and English Encyclopedia of Law, verbo “Battery,” p. 783); Hill vs. State, 63 Georgia, 578.

The defendant’s contention is that if this be the case then it follows (under the doctrine laid down in the law writers) that “where one is indicted for any offence he may be convicted of one of less magnitude, provided it be of the generic class,” that the District Court erred in not charging as requested.

This does not necessarily follow, for in dealing with this question we have to keep steadily in view the precise indictment under which the accused was charged; the specific crime which was set out, and the language in which the charge was couched. If the indictment be for a statutory crime, the essential element of which consists, under the terms of the statute, in doing an injury in a particular way, that essential fact will have to be found necessarily present in any verdict which the ‘jury may return for a subordinate or minor crime under the indictment, in order to justify the verdict. Section 791 of the Revised Statutes declares that “ whoever shall shoot, stab or thrust any person with a dangerous weapon, with intent to commit murder, shall, on conviction, suffer imprisonment at hard labor or otherwise for not less than one nor more than twenty-one years.”

Now a person may either “shoot” another with a dangerous weapon, with intent to murder, or, he may “ stab” him with a dangerous weapon with intent to murder, or he may “thrust” him with a dangerous weapon with intent to murder. If he “shoots” a person with a dangerous weapon with intent to murder and an indictment were brought against him, so laying the crime, evidence would not be allowable on the trial to show that the party accused had “stabbed” aperson with a dangerous weapon, or that he.had “thrust” a person with a dangerous weapon with intent to murder. The District Attorney would have to make his proof conform to the allegations. The question of “ shooting,” of “ stabbing ” or of “ thrusting ” would not be here “ mere matter of evidence ” going only to show the partieular manner in which the injury was brought about, or giving details of the same to the jury, but they would be questions entering into the very essence under the statute of the crime charged, and a failure by the State to prove the fact of “shooting” or “ shooting at” (if the charge was “shooting”) or “stabbing” (if it was “stabbing”), or “thrusting” (if it was “ thrusting”), would be fatal to the- prosecution. A verdict of guilty of “assault,” or guilty of “ assault and battery ” under an indictment for “shooting a person with a dangerous weapon with intent to murder,” under evidence that the person charged had struck another with a stick, would be clearly illegal, and if such a verdict under such circumstances would be illegal the possibility of such a verdict having been rendered under such circumstances would make such a verdict an improper one.

If we had a statute making the “shooting” of a person by another with a dangerous weapon without further details a crime, and one making the “ shooting at ” one person by another with a dangerous weapon, a crime without further details, the “ shooting ” of the person would be unquestionably án “ assault and battery ” and the “ shooting at,” an assault, and a jury would, under an indictment of “ shooting with a dangerous weapon with intent to murder ” be permitted to find a verdict of “ shooting with a dangerous weapon,” which would be an “ assault and battery ” or “shooting at” with a dangerous weapon, which would be an “assault,” but it would not be permitted to return a general verdict of “ guilty of an assault and battery,”, or “ guilty of an assault,” for the verdict would then enter into the regions of uncertainty as to what the “ assault and battery ” or the “ assault ” consisted in, and whether the accused was guilty of the specific crime charged or any of the specific minor offences under it which would be justifiable under the law.

The views we here express are, substantially those announced in State vs. Murdock, 35 An. 729, and State vs. Pratt, 10 An. 191. We .are of the opinion that the court properly refused to give the charges asked.

The judgment being, in our opinion, correct, it is hereby affirmed.


text:
    No. 12,181.
    Stewart Bros. & Co. vs. G. H. Sutton.
    When a party sells the homestead for an existing debt as the price, and immediately the purchaser transfers it back to the vendor and takes a mortgage and vendor’s lien on the property, the transaction will be viewed as one of mortgage to secure the debt, and in violation of Art. 222 of the Constitution.
    APPEAL from the Seventh Judicial District Court for the Parish of East Carroll. Montgomery, J.

      Jos. E. Bansdell for Plaintiffs, Appellants.

      Clifton E. Davis and Thorpe & Barber for Defendant, Appellee.
    Argued and submitted June-2, 1898.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

McEnery, J.

This suit was instituted to subject certain immovable property of defendant to sale, to satisfy a mortgage debt. The defendant sets up a homestead claim on the property. There was judgment, recognizing the homestead right of defendant on part of the property, and a personal judgment against him for the amount of the debt, subjecting the property, not allowed as a homestead, to the mortgage.

Plaintiffs have appealed.

The facts are that the defendant was a member of the firm of Sutton & McNeilj which firm owed plaintiffs the sum of one thousand six hundred and eighty-one dollars and ninety-two cents. The defendant wanted additional advances. The plaintiffs refused to advance unless the defendant would first settle the Sutton & McNeil debt. He offered to mortgage the homestead. This proposition was declined by plaintiffs. A sale was agreed upon and it was executed, the price being the Sutton & McNeil debt. The plaintiffs then resold the property to defendant, retaining a mortgage and vendor’s lien for the price, which was divided into instalments. The plaintiffs are pursuing the defendant on these mortgage notes.

The case is different from that of Henkel vs. Mix, 38 An. 271, relied upon by plaintiffs. In that case the sale was not intended to operate as a mortgage to secure a debt, but it was a sale with delivery and a faculty of redemption.

In this case the vendor remained in possession of the property, and it was resold to him and a mortgage retained for the price: the debt due by Sutton & McNeil to the plaintiffs. The sale to plaintiffs and the resale to defendant were for the purpose of subjecting the property to mortage to secure the debt. It was done for the purpose of evading Article 222 of the Constitution, which prohibits the mortgage of the homestead; except for certain purposes mentioned in the article. “The right to sell any property which shall be recorded as a homstead shall be preserved.” This means a bonafide sale, not one resorted to for the purpose of securing an existing indebtedness. The language in the opinion in the case referred to is applicable here:

“ If it were true that the parties intended the contract to be one of mortgage, but they or one of them put it in form of a sale to evade the prohibition of mortgaging the homestead,we would give effect to the intention and let the party who tried to evade the law take the consequences.”

The entire transaction was to secure the debt due by Sutton & McNeil, and was hypothecal in character. Colvin vs. Woodward, 41 An. 630.

There was a stipulation in the act of mortgage for ten per cent, as attorney’s fees. The mortgage in the judgment appealed from, operates on the property, not covered by the homstead act. The judgment is amended so as to allow ten per cent, attorney’s fees, as stipulated in the act of mortgage.

The judgment as thus amended is affirmed, applicants to pay the costs of appeal.


text:
    No. 12,194.
    State ex rel. C. V. Thibaut vs. Robert Hingle, Judge of the Twenty-second Judicial District Court.
    Act 129 of 1877 was repealed by Act No. 40 of 1880. The latter act does not authorize a judge to enter an order of recusation in chambers.
    QN APPLICATION for Writs of Mandamus and Prohibition.

      James Wilkinson for Relator.

      E. H. McCaleb and John Dymond, Jr., for Respondents.
    Submitted on briefs June 6, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

McEnery, J.

This is an application for a mandamus to compel the respondent judge to recuse himself.

The grounds alleged are that James Wilkinson has contested the election of the respondent judge, and that said suit is pending; that the relator has filed a suit against Frank O. Meyers, contesting his title and right to the office of sheriff of the parish of Plaquemines, and that the respondent judge’s “mind would be certainly warped and biased in said cause in favor of the said Meyers too much to give plaintiff a fair trial in said cause.”

He further alleges that at the time of making said application for the recusation of respondent he overlooked the provisions of Act 129 of E. S. of 1877, which applies to the transfer of contested election cases.

The respondent judge answers that: (1) Act 72 of 1884 grants to all courts a delay of thirty days within which to pass upon any case submitted to the courts for action; (2) there is no law authorizing the court to grant the order of recusation in chambers, and that Act 40 of 1880 repeals the Act 129 of 1877, and the former act is the only one regulating the mode and manner of recusation.

Act 129 of 1877 was enacted to carry out the provision of the Constitution of 1868, which says that when the judge is personally interested in the suit he shall call upon the parish or district judge, as the ease may be, to try the case.

The preamble to the act is that there is no provision by legislative enactment made for the trial of cases where the judge is personally interested, and the judge to whom the case is referred is recused. The act provides for the trial of contested election cases in which a person claims to have been elected to, or contests the right of any person to hold an office. Under the act the District Judge must be interested in the case, and this is a condition precedent to its transfer to the nearest District Judge. But we are of the opinion that • Act 129 of 1877 can not stand and be enforced, and it is repealed by Act 40 of 1880.

The Constitution of 1879 replaced that of 1868, and not a vestige of it was left as a part of the organic law. A new judiciary system was adopted. Courts were abolished, others established, and jurisdiction territorially and in amounts were different from what they had been under the Constitution of 1868. Article 112 of the Constitution made a change in the law relating to the’ recusation of judges and the trial of recused eases. It says “ the General Assembly shall provide by law for the trial of recused eases in the district courts by the selection of licensed attorneys at law, by an interchange of judges, or otherwise.”

The Act 129 of 1877 was repealed by Act 40 of 1880. In the reorganization of the judicial system, by the Constitution of 1879, Art. 112 says the General Assembly shall provide by law for the trial of recused cases in the district courts by the selection of licensed attorneys at law, by interchange of judges, or otherwise.” By every rule of construction, when the Legislature passed an act to carry out this provision of the Constitution it was exclusive of any other mode of recusation by former laws, unless they should be continued in force and in no way conflicting with the same.

There is no exception as to any particular class of recused cases and they must be tried by licensed attorneys or an interchange of judges, or otherwise.

Act No. 40 of 1880 was passed to carry out this article.

Section 3 of the act says in cases in which the district-judge is recused for cause of interest, he shall for the trial thereof appoint some district judge of an adjoining district, which order shall be entered upon the minutes of the court. No provision is made for the issuing of the order of recusation in chambers. It must therefore be made in open court, as the order has to be entered upon the minutes, after which it is made the duty of the clerk to make a certified copy of the order from the minutes, under seal of the court, and forward them to the sheriff of the judge’s residence, or to the place in which the judge may be, to be served on him. An inspection of the two acts will at once convince that they are inconsistent and can not stand together.

Act 72 of 1884 does not apply to orders of recusation. Its purpose is to compel the decision of a case within thirty days in order to avoid delay. The general purport of the act to have cases specially tried would be defeated in recused cases if the judge were allowed thirty days to deliberate whether or not he should recuse himself. The order of recusation should be issued as early as practicable.

We understand from the answer of the respondent judge that he has not refused to recuse himself, but has declined to do so in chambers.

The relief prayed for is denied and the orders herein issued revoked and the rule discharged.


text:
    No. 12,105.
    Mrs. M. M. Fisher vs. Board of School Directors.
    Paragraph 4, Sec. 1 of Act No. 186,1894, is null and void, being in conflict with constitutional amendment proposed by joint resolution 110 of 1890, and Act 86 of same session, enacted to carry out the provisions of the amendment.
    The amendment gave the Legislature authority to dispose of the surplus of the one per cent, tax allowed by said amendment, and Act 86 having disposed of a part of it for the support and maintenance of the public schools of New Orleans, it became a vested right in the Board of School Directors, which can not be disturbed by subsequent legislation.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Lauque & Pomés for Plaintiff, Appellant.

      Horaee L. Dufour, Assistant City Attorney, for Defendant, Appellee.

      Branch K. Miller for Intervenor, Board of Liquidation of the City Debt, Appellee.
    Argued and submitted April 25, 1896. '
    Opinion handed down May 4, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff alieges that she is the owner of school certificates aggregating in value the sum of seven thousand five hundred and forty-seven dollars and eighty-one cents, and prays that the Board of Directors of the city schools of the city of New Orleans be condemned to pay her said amount out of the school tax levied by the city of New Orleans prior to 1879, and out of the surplus bond fund levied by the city of New Orleans under Act 136 of 1894. The Board of Liquidation of the city of New Orleans intervened in the suit, but its intervention was dismissed. There was judgment rendered in behalf of plaintiff for the sum of five thousand one hundred and forty dollars and thirty-one cents, with legal interest from judicial demand, payable in due course, out of the school tax levied by the city of New Orleans prior to the year 1879. In all other respects the demand of the plaintiff was rejected.

There was no demand made against the city of New Orleans, and the city is in no way liable for the amount sued for by plaintiff; the intervention was therefore properly dismissed.

The certificates owned by plaintiff were issued subsequent to the year 1872, and prior to January, 1879. Their status has been fixed by the decrees of this court. Labatt vs. City of New Orleans, 38 An. 283; Fisher vs. School Board, 44 An. 184; Gasquet vs. School Directors, 45 An. 342.

“They are payable only out of the revenues of the years for which they were issued, and only when said revenues are collected and in the manner therein provided.”

The plaintiff contends that by Act 136 of 1894, she is entitled to be paid out of the surplus bond taxes levied by the city of New Orleans. We do not think that said act, in any way, changed the status of plaintiff’s claims, as fixed by the decrees in the cases heretofore referred to.

Joint Resolution No. 110, of session 1890, proposing an amendment to the Constitution, which was adopted, provides that after paying annual interest on constitutional bonds, and bonds not retired, and the payment of the allotment of premium bonds and premiums extant in the fund at such time and of such amount as the Legislature prescribes, the surplus of the one per cent, tax employed' for the above purpose shall be disposed of as prescribed by the Legislature.

Act No. 36 in the same year was passed to carry out the amendment, if adopted, and in the amendment Act 36 is approved and confirmed, in all its parts, as a contract between the city of New Orleans and the holders of bonds. There is no right of any bondholder involved in this controversy, bat the act was to follow the amendment and become a part of it, so far as the subject matter referred to in the amendment is to be explained or interpreted, or rights acquired under it are affected. Section 8 of the act, referring to the surplus of the one mill tax, devotes one-half of it to a permanent public improvement fund; the other half of said surplus shall be paid over to the school board of the city of New Orleans, to be used in the maintenance and support of the public schools in said city.

The amendment gave the power to the Legislature to dispose of the surplus of the one per cent. tax. Under the power thus given and simultaneously with the adoption of the amendment, it disposed, of the one-half one per cent, tax to the school directors of the city of New Orleans, for the support and maintenance of the public schools of New Orleans. This disposition of the surplus tax can not be diverted from its destination by subsequent legislation. Paragraph 4, of Sec. 1, Act 136 of 1894, is in conflict with Act 36 of 1890, which, so far as the disposition of the one-half of the surplus one per cent, tax is involved, is, in fact, a part of the amendment proposed by joint resolution 110 of 1894, and adopted.

Judgment affirmed.

Miller, J., recused.