author: Todd, J.

text:
    No. 8216.
    E. S. Eskridge and Husband vs. E. D. Farrar, Agent. Mary E. Ogden et al. vs. Heirs of John Perkins. (Consodidated.)
    Under a decree remanding a causa to bo tried anew, without limitation as to the scope of the new trial, the Judge a quo did not err in ruling that the case was open on all issues, whether original or supplemental.
    Where a donor has imposed a charge on the donee in favor of third persons who have accepted the same, the donor cannot revoke the donation, as far as such third persons are concerned.
    Executors may prosecute to final judgment an action brought by the testator to annul a donation inter vivos made by him.
    A qualified acceptance of property received as a datio en paiement, and subsequent acts amounting to a judicial revocation of such acceptance, prevent one from afterwards claiming title under such datio en paiement.

    Without proof of fraud exercised, or violence used towards them, by their agent, major heirs are hound by his acts, when within the scope of the authority conferred upon him.
    Where a testator bequeathes as a legacy a certaira sum of money, or a certain estate, the legatee, upon his acceptance of the latter, is bound to pay all legacies which were imposed as charges upon said estate by the testator.

      In the ease at bar, tbe legacies imposed as charges on said estate, by the evident intention of the testator, are to be paid ouly out of the revenues of said estate after tbe maintenance of the forced heirs has been secured out of such revenues.
    Therefore, the liability of the forced heirs, to whom the estate was left, for the special legacies, imposed as charges on s ú l e-date, is not personal, but is confined to the revenues of said estate; in other respects, tbe opinion delivered in this case, reported in 30 An. 718, approved and reaffirmed.
    APPEAL' from tlie Eighth Judicial District Court, Parish of Madison. Déloney, J.

      JE. II. Farrar, for Plaintiffs and Appellants:

      First — -Where a succession is accepted for minors nnder benefit of inventory by operation of law, and those minors, after mgov ty, take possession of tbe estate, assume the quality of heir in judicial proceedings, and mortgage its property for their own debts, they forfeit the benefit of invent >ry, and become heirs purely and simply.. Sevier vs. Gordon, 29 A. 440.

      Second — An action to recover a legacy of money is barred only by the prescription of ten years. 13 A. 100.

      Tim'd — A notarial act of acceptance, by an heir, of tlie delivery of the succession property, from an executor, before the payment of the legacies, under the condition that the heir shall pay the legacies, is an interruption of prescription. 30 A. 726.

      Fourth — In determining whether the legacies exceed the disposable portion, the value of tlio estate only at the date of tbe testator’s death is to be considered. O. C. Art. 1492 ; Miller vs. Andreas, 1 A. 237; Grover vs. Clark, 7. A. 176; Marcadé, vol. 3, sec 591.

      Fifth — When heirs allow, the payment of executors’ commissions on tbe basis of a valuation in an inventory taken at the time of the testator’s death, and also pay a succession tax to the United States Government, on the basis of the same valuation, they cannot, with- • out any allegations whatever of wrongful or excessive valuation of property mentioned in the inventory, adduce parol evidence to show that the valuation set in the inventory on specific pieces of property, was excessive.

      Sixth — Whore an appellant appears in the Supreme Court and consents to a motion made to dismiss his appeal, filed by the appellee, the judgment rendered below becomes irrevocable, as between himself and that appellee. Oriol vs. His Creditors, 22 A. 32.

      Seventh — An action to revoke a donation of immovables for non-compliance with its conditions, begun by a donor in his lifetime, may be continued by his executor mí/¿ seizin, where there are debts and legacies, without making the heirs of the donor parties. 30. A. 719; 6 E. 99.

      Eighth — Such an action is not a real action. Agen, 20 Eanv. 1868; Peyronny, J. du P. 1868. p. 221, and authorities there cited.

      Ninth — Art. 123, C. P., refers to cases where a succession is defendant in a real action, originally instituted agaiust it. The converse of that article is not true. It is tlie duty of an executor to administer upon all the property of the succession. 7 E. 32. He represents all the parties in interest. 2 Hob. 353; 12 A. 222; 5 A. 642; 13 A. 582.

      Tenth — Where a donation is made upon conditions and charges, both in favor of the donor, and also in favor of a third person, who accepts the same, such third persou is not it necessary party to a suit to revoke the donation only as between the donor and donee. Demolombe, Yol. 24, Secs. 257-9.
    Eleventh— Where a will extends to an heir, an option as to whether he will accept the quality of heir, or whether he will take a certain sum from the succession in settlement of his rights, the option can only be exercised nnder the terms and conditions imposed in the testament, and contradictorily with the representatives of the succession.

      Twelfth — A transaction between the heir and a third person, by which the heir takes from the third person a title to the succession property, adverse to and subversive of the title of the succession, is not an exercise of the option offered him under the will. On the contrary, it is a repudiation of the whole will.

      Thirteenth — A giving in payment can be made only of property which is in the actual or constructive possession of the giver, for the reason that delivery is of the essence of the contract. G. G. Article 2655 ; Enrnford vs. Bi ooks, 3 M. 226.

      Fourteenth — Therefore, a giving in payment of real estate, which at the time of the act is in the adverse possession of the executors of an estate under claim of title, is an absolute nullity.

      Fifteenth — Persons claiming as legatees under a will, who have accepted the succession purely and simply, and taken possession of the estate by judicial proceedings against the executors, aud accepted delivery from the executors by notai ial act, of certain property which is averred in the will to be the property of the testator, and which they admit in the act of delivery to be the property of the estate, are estopped from setting up that there was an anterior title to said property in themselves. Gronnx vs. Abat, 7 L. p. 33; Herman’s Law of Estoppel, Secs. 467, 469; Broom’s Legal Max. p. [*682J; Smith vs. Guild, 34 Me. 443 ; Martin vs Ives, 17 S. and B. (Pa.) 364 ; Hyde vs. Baldwin, 17 Pick. 308; Smith vs. Smith, 14 Gray, 533.

      Sixteenth — A confusion takes place between the qualities of special and of general legatee where they unite in the same person under the same will. C. C. Arts. 1611, 2217 ; Black. Com. IÍ. p. 177.

      Seventeenth — Where a testator directs his executors to keep his estate together, and to pay all money legacies devised by him out of the rents and revenues of the estate, without selling property, such directions are not dispositive, and do not constitute the legacies either usufructs or quasi-usufiucts. G. C. Art. 607; How Orleans vs. Baltimore, 3 A. pp. 1G8-17C.

      Eighteenth — Therefore, where the pure and simple heirs have divested the seizin of the executors under such a will, with the promise to assume and pay all legacies, and have mingled the patrimony, they can no longer restrict the legatees in obtaining payment of their legacies to the revenues of the property received by the heirs from the succession. Addita hereditas non est hereditus sed patrimonium heredis.

      yineteenth — One who files a special defense thereby waives the general issue and is to be heard alone on his special defense. Burbank vs. Haas, 9 A. 528.

      Twentieth — A defendantcannnot “mend his hold.” He cannot, by an amended answer, retract, without the consent of plaintiff, admissions made in a previous answer not averred to have been made in error; nor can he reinstate the general issue when it has been once waived by a special defense. Vavaseur vs. Bayon, 11 M. 639; Mason vs. Mason, 12 L. 589; Estill vs. Holmes, 3 B. 134.

      Twenty-first — An amended answer which shifts the ground of defense and changes the issue, should be stricken out on motion. C. P. Arts. 419, 420; Abat vs Bayon, 4 H. S. 516; Bawle vs. Skipwith, 8 H. S. 411-12; Landry vs. Garnet, 1 B. 362; Stilley vs. Stilley. 20 A. 55 • Williams vs. Gay, 21 A. 110; Angomar vs. H. O. Insurance Company, 10 A. 178; Calvert vs. Tunstall, 2 L. 207; Babcock vs. Shirley, 11 L. 75; Avegno vs. Fosclick, 28 A. 109.

      Twenty-second — In a suit against heirs by part of the legatees under a will to recover the legacies, the heirs cannot, in their answer, attack, on the ground of fraud and error, their acceptance of the succession of their ancestor which was made in execution of a judgment rendered in judicial proceedings, provoked by themselves, contradictorily with the executor.

      Twenty-third — The annulment of the acceptance of a succession, on the ground of fraud, being like the acceptance of a succession an indivisible thing, being necessarily in rem, and binding upon all parties in interest, cannot take place judicially, except in a direct proceeding, to which all persons interested in maintaining the acceptance are made parties. G. O. Act. 1009; Code H. Art. 783; Demolombe, vol. 14, secs. 538, 539; Marcado, vol. 3, sec. 216.

      Twenty-fourth — The acceptance of a succession made, as stated in Ho. 22, cannot be annulled for fraud, unless the action is brought within one year of the discovery of the fraud. (■• P. Art. 613; Stafford vs. Smith, 6 L. 94, 7 R. 92, 94.

      Twenty-fifth — The acceptance of a succession cannot be annulled or rescinded for any ignorance or error of fact or law, except those mentioned in Arts. 981 and 982, C. C.; Art. 3009 is restrictive in its language. Marcado, Art. 783, Ho. V.; Demolombe, vol. 14. Ho. 335 : C. C. Arts. 983, 1009.

      Twenty-sixth — The testimony of a witness — no matter of what character and standing — as to conversations had with a person dead at the time of the giving of the testimony, is the weakest kind of evidence and scarcely worthy of belief. Sue. of Fox, 2 B. 299} Sue. of Second, 7 B. Ill; Morgan vs. LeBanc, 16 Á. 113; Dupré vs. McCreight 2 lb. 146; "Wilder vs. Franklin, 10 A. 279 ; Bringier vs. Gordon, 14 A. 274 ; Pavgoud vs. Anderson. 10 L. 355 : Bland vs. Lloyd, 24 A. 604.

      T. J. Setmnes & Payne, for Defendants and Appellees:
    1. An unconditional acceptance of a succession made through error, may be rescinded when the error is induced by the executors of the succession, and the rights of creditors are not affected thereby.
    2. The executors of a deceased donor cannot, after his death, prosecute a suit commenced by him to revoke the donation for non-fulfilment of conditions, unless the donor’s heirs are made parties to the suit. 30 A. 1119; 6 La. 98, overruling the dictum in 30 A. 719. announced in these cases.
    3. The delivery of sums of money must be demanded by suit. C. C. 1631; 13 A. 87; 28 A. 603; there is no other mode of demand where the executor or heir does not pay such legacies.
    4. The forced heir, when sued by legatees of sums of money, can by way of defense, set up the right to reserve to himself from the effects of the succession the portion secured to him by law, although he he unconditional heir and although an action for the reduction of legacies, may be prescribed. C. C. 1465, 1466; 19 Demolombe, Hos. 233 and 234; 14 Id. 525; Coin Deslisle, Art. 921, Ho. 4; 2 Mourlon, Ho. 622; 1 R 378; 12 R. 198; 14 A. 818; 12 A. 64.
    5. The declarations of the testator in his will as to the amount or value of the legitime, are conclusive on legatees of sums of money, and fix the amount of the right of reserve of the forced heir. 2 R. 292; 25 A. 371.
    6. When a party, having an option or right of election to take one of two things, once determines, he has no further option to change his mind. Domat, Art. 3606; 19 Demolombe, Ho. 464; 102 E. C. L. R. 857; 116 Idem, 354; Broom’s Maxims, p. 296.
    7. A donation to a forced heir in payment of his legitime and rights in the community of his mother, is a renumerative donation, and its amount cannot be questioned by legatees. C. C. 1635, 1504; 2 A. 767 ; 2 R. 292; 25 A. 371.
    8. Until final decree rendered in a suit to revoke a donation for non-performance of conditions, the donee’s title is not divested, and his right to receive the fruits, is unimpaired. C. O. 1566; 23 A. 355; 25 Demolombe, Hos. 514, 515, 540, 541 and 542; 2 Mourlon, Ho. 722.
    9. When a donor imposes a charge on a donee, in favor of a third person, who has accepted it, the donation cannot be revoked unless the third person he made a party to the suit C. P. Art. 35; 16 A. 19 and 338.
    10. An estoppel operates only in favor of the party misled. 6 Otto, 666 and 716.

      J. W. Montgomery, on same side:
    1. When A makes a donation to his son B of property with charges on it, first an annuity to himself; second a sum of money to his other son C, no condition being annexed, the donation to C is irrevocable for any cause whatever. C. C.
    2. Hor can A impair the right of C by rescinding the donation to B, on aocount of the no n payment of some of the annuities.

      3. And, if C signifies his acceptance of the charge in his favor, a personal obligation to him, on the part of B arises, and the donation can not be avoided by A, without making O a party to the suit C. C. 1890.
    4. If A institutes suit to rescind the donation to B, on account of the unpaid annuities, but before it is decided, makes his last will and testament, * wherein he confirms the donation to C of such sum of money, the execution of the will is virtually a waiver of his
    5. The confirmation in the will of the donation to 0, incorporates the donation into the will, and the executors are bound to carry out the intentions of the testator in this respect, and therefore have no authority to prosecute such suit after the death of the testator. It'is their duty to see that such sum of money be paid over to C.
    6. The executor is incompetent to stand in judgment in a suit to revendiente real property, unless the heir be joined in the suit. The prosecution of such a suit necessarily involves the light of alienation, to which the heir is alone competent. C. P. 123; 30 An. 1119.
    7. Where the executor, íd carrying out the intention of the testator obtains horn B a conveyance of property to C, in payment of the sum donated to him, C •will acquire the ownership and get a good title to the proporty, although it may be the same property sought to be revindicated by the executor j in such a case, after the conveyance to C there is nothing left to be revendicated from B.
    8. Title once acquired cannot be re-acquired. So, where C, having thus acquired through the aid of the executor, title from B of certain property, afterwards accepts the testator’s will, which bequeaths him also this property, such acceptance confers upon him no title, nor ownership. The acceptance of a will or succession is one of the modes of acquiring ownership, like a conveyance, and will be of no avail if the party accepting already owns the property accepted. C. C. 495.
    9. Where A having donated to B a property, which is charged with a donation of a sum to C, afterwards institutes 0 a particular legatee to the major portion of that pr< per;y, with the option either to take the donation as a charge on it, or to accept the legacy, the election ” by 0 to enforce the collection of the sum of money, exhausts his rights quoad that property, and he will not be permitted afterwards to accept it as legatee. Domat, Art. 3606, Cushing's Ed.; 19 Demolombe, No. 464. <
    10. Where A donates to C a specified sum of money, to be in lieu and satisfaction of his rights as a forced heir, he fixes the limit of C’s legitime thereby, which cannot be questioned by anyone claiming through or under the donor, except by another forced heir. C. C. 1635, 1504 ; 2 A. 767 ; 2 R 292,- 25 A. 371.
    11. A legacy of a sum of money, coupled with conditions which render its collection impracticable, or postpones it to an indefinite future, which rqay never arrive, is void for uncertainty.
    12. So, when the legacy is made dependent upon the existence of future revenues, if such revenues are not realized within a reasonable time, or if the property from which they are expected to arise, ceases to belong to the testator, in either case the legacy falls.
    13. A consent fouoded in error or fraud is no consent at all. So the acceptance of a will, or the performance of any other act is void, if produced by error or fraud.
    14. The heirs can dispossess the executor at any time, and take possession of the property, In such a case the law permits them to execute the will. C. C. 1671. So if the will directs the payment of legacies upon conditions, or at stated periods, they, like the executor, must follow the terms of the will, and cannot make payments in a manner differently from what is prescribed.
    15. An estoppel can be plead only by one who has been misled. 6th Otto, 666 and 716.
    16. As to the legitime, the forced heir stands in the attitude of a creditor, and must be paid before legatees, and if in getting payment he takes property, the legatees cannot complain, nor can he, as such creditor, bind himself to the terms of the will and its legacies. An acceptance by a creditor does not bind him as heir. 12 A. 759,
   The opinion of the Court was delivered by

Todd, J.

These consolidated suits were instituted in the District Court of the Parish of Tensas, against the defendants, as universal legatees of John Perkins, Sr., deceased, to recover certain special legacies, devised in tire last will and testament of said deceased, to the plaintiffs in the two cases, respectively.

The clauses in saidlast will, relating to these legacies, are as follows :

“XIII. I do hereby give and bequeath to my relatives, Elizabeth Scott Eskridge and Mrs. Anna Buck, wife of Capt. J. H. Buck, the sum of $5,000 each, and also to Miss Mary E. Ogden and to Mrs. Eliza Ogden, and to Miss Julia Ogden, daughters of Judge A. N. Ogden, of New Orleans, I give and bequeath to each of them the sum of $5,000 ; these $5,000 each, to be paid when practicable.”
“XIV. I do hereby order, and it is my will, that the indebtedness of Miss Elizabeth Scott Eskridge and Benj. B. Eskridge, to Mrs. Murdock’and Mrs. Ellen M. Perkins, say the amount of $10,000 principal, together with the interest accrued thereon, be bequeathed out of the proceeds of the rental of the Somerset Estate, and if it cannot be immediately liquidated, by reason of funds not having accrued, then it is my desire and will that the mortgage or lien be transferred from the property of the said Eskridges, and be a charge on my Somerset Estate, to be paid in preference to others, as soon as practicable.”
“ XVIII. I ■ give, devise and bequeath to my grandchildren, the children of my deceased son, William Perkins, and his wife, Ellen M. Perkins, all that body of land situated partly in the Parish of Madison and partly in the Parish of .Tensas, known as the ‘ Somerset Estate,’ (except, the ‘Hapaka Place,’ hereinbefore bequeathed and devised to Mrs. Evelyn Perkins and Miss Evelyn Bailey), being the same lands estimated with the Hapaka Place at 17,500 acres, more or less, and before the change of the parish lines situated partly in both of said parishes, and which property I made over by act of donation, on the 17th day of April, 1857j to my son, John Perkins, Jr., and which reverted to me, and I have sued for the recovery of, on the ground of the non-fulfilment by him of the conditions of the donation — there being a large amount of arrearages due and unpaid of the annuities which were stipulated to be paid to me, as one of the conditions of said donation. And my said son, John Perkins, Jr., having received from me, in money and other property, and revenues derived from the Somerset Estate, more than the portion which, by the laws of Louisiana, he would have a right to claim as forced heir, I institute my said grandchildren my universal heirs and legatees of all my property, real and'personal, unappropriated by this will, subject to the legacies herein made, I confirm to my said grandchildren the donation to them of Eighty Thousand dollars each, contained in the aforesaid act of donation, made by me to said John Perkins, Jr., and which has been accepted for them by their mother as their tutrix. But, as the property devised to them by this, my last will, will be more than sufficient in value, to meet their claims under said act of donation, and the payment of the special legacies herein provided for, and [as] I desire that the property itself should be kept by them as a better investment of their means than any other that could be made, I express to them my strong wish and desire that they should accept the provisions of this will in their favor and not seek to have the property sold at my death, but let their claims be merged in the property given to them by this will. And I desire that the property should be kept together by my executors for their benefit and for the payment of said legacies, and that no division should be made between my grandchildren as long as the law will permit; that it should be kept together and undivided for tire purposes aforesaid. And all the monied legacies specified in my will are to be paid out of funds and revenues accruing from the rents and revenues of the Louisiana property, at such times and periods as it can be done without requiring property to be sold, and after taxes past due and debts are paid, and without depriving my grandchildren of the funds they may require from the revenues for their necessary expenses and means of education. And all of said legacies are to be a charge on the Somerset Estate, and nothing charged on my residence, the Oaks, save and except doctors’ bills and funeral expenses; and charges imposed in the special devise of the Oaks.”

This last will is dated the 11th June, 1866, and the testator died in the latter part of November of the same year.

On the 7th of April, 1857, John Perkins, Sr., made a donation inter vivos, to his son, John Perkins, Jr., which embraced all the property mentioned and devised in his last will. In the act, the donor imposed on the donee certain charges, among which were an annuity of $15,000 in favor of himself, (the donor) and $240,000 to be paid on the death of the donor to the children of his son Wliliam Perkins, (then deceased), the defendants in these suits. This sum was stated in the act to be in satisfaction and discharge of their rights as forced heirs of one-fourth of the donor’s estate, and also of any claim under the will of their father, to a share in the community which had existed between the donor and his deceased wife.

On the 2d of December, 1865, this provision in favor of the defendants was accepted by their mother and tutrix.

In the same month, (December, 1865) John Perkins, Sr., brought suit against his son, John Perkins, Jr., to revoke the donation, on account of the non-payment of tlie annuities, the latter being absent from the State, and represented in the suit by a curator ad hoc.

A judgment was rendered by the District Court a few days before the death of the donor, revoking the donation.

An appeal was taken from this judgment by the curator of the absent defendant, and his creditors, who had intervened in the suit, to the Supreme Court, and by this Court the judgment was reversed, and the cause remanded for a new trial. After the remanding of the cause, the executors of thelastwill of John Perkins, Sr., added by amendmentto the causes of revocation of the donation, the non-payment of the $240,000, to the children of William Perkins. Shortly after this action of the executors, on the 9th of August, 1869, John Perkins, Jr., by an act of dation cn paiement transferred to the defendants all of the Somerset Estate described in the last will mentioned, except the I-Iapaka Plantation,’ which had been devised by the will to the wife and stepdaughter of John Perkins, Jr.

Tho transfer was made in discharge of the sum of $240,000 imposed on the donee in the act of donation from John Perkins, Sr., to John Perkins, Jr., referred to. The transfer was accepted by pne of the defendants, then of age, and by the mother and tutrix of the other two.

Subsequently, after the claims of the creditors of John Perkins had been compromised and assumed by tho defendants in these suits, the children of William Perkins, a second and final judgment was rendered .by the District Court, revoking the donation from John Perkins, Sr., to John Perkins, Jr.

On the death of John Perkins, Sr., all the property mentioned, both in the act of donation inter vivos, and in his last will was inventoried as comprising his estate, and was taken possession of, and administered by Abner N. Ogden and Josiah Stansborough, executors of his last will. On the 24th of April, 1874, the whole of it, except the Hapaka Plantation, which had been previously delivered to the legatees, to whom it was devised by the will, was turned over to these defendants, who accented it through their agent, Judge E. D. Farrar, This delivery was preceded by an account of the executors.

The application for the rendition of this account was made by these defendants through an attorney; and in this application and all the proceedings relating to the account, and in the power of attorney given by the defendants authorizing their agent or attorney to demand the account and receive possession of the estate, the defendants were styled the heirs and universal legatees of John Perkins, Sr., deceased.

The present suits were instituted, one in 1876, and the other in 1877, against the defendants as the heirs and universal legatees of said deceased, to enforce the payment of the legacies stipulated in the will in favor of the plaintiffs, respectively.

The main defenses to the suit, embraced in the original answer filed, were :

1. That the legacies exceeded the disposable portion.

2. That they were payable out of certain revenues which had never existed, and were, therefore, not binding on the defendants,

3. That the defendants held the Somerset Estate, not under the will of John Perkins. Sr., but under the sale or giving in payment from John Perkins, Jr., of the 9th December, 1869.

On the 27th of November, 1877, judgment was rendered by the District Court in favor of the plaintiffs for the amount of the legacies claimed, but directing and restricting their payment out of the revenues of the Somerset Estate. From this judgment the plaintiffs appealed, and the decision rendered on this appeal will be found reported in 30 A. p. 718.

In the opinion delivered by Mr. Justice DeBlanc, the organ of the Court, all the issues and facts to which we have referred are set forth, and sueh previous recital might seem to render unnecessary any repetition of them by ourselves, but that we deem it important to the full understanding of our decision that a history of the case should' be again presented, especially in view of the additional issues and facts developed on the last trial of the case in the District Court, and which will be fully stated hereafter.

Our predecessors, without rendering any decree save the remanding of the case, expressed in the body of their opinion their views on the several points of the controversy, as follows :

1. That the executors of the estate of John Perkins, Sr., had authority to prosecute the-suit for the revocation of the donation after the death of the donor. A proposition asserted on the former trial and on the appeal by the plaintiffs, and denied by the defendants.

2. That the elation en peuement of the Somerset Estate by John Perkins, Jr., to the defendants, in December, 1869, did not invest them with a valid title to the property, in view of the judicial revocation of the donation subsequently made.

3. That the defendants received a title to the Somerset Estate under the last will of John Perkins, Sr.

4. That under their judicial admissions and promises, the defendants bound themselves for the payment of the legacies.

5. That the plaintiffs were not limited to the revenues of the Somerset Estate for the payment of their legacies, but that the defendants were personally bound for them, subject to their right of abandoning the property after the payment of the debts, and the reserve of their legitime.

In the course of the opinion, the Court used the following language :

“It is not alleged that their acceptance was the consequence of any error of fact, of any fraud practiced, or violence exercised against them, and they cannot now dispute its validity. They have, in judicial proceedings, and in an authentic act, assumed the quality of heirs and universal legatees, etc.”

And again, in speaking of the act under which the defendants acknowledged delivery of the property by the executors, the following language is used:

“ And as against that act, its recitals and stipulations, they plead neither error nor fraud, etc.”

In conclusion, it was stated that sufficient evidence was not before the Court to determine the plea of prescription filed by plaintiffs to the demand for the reduction of the legacies, nor to fix the reduction, should any be allowed, and the cause was remanded for a new trial: but the Court expressly announced that the scoi>eof that trial was not limited.

Upon the case being remanded, an amended answer was allowed to be filed, though opposed, as changing the issues presented by the original answer.

The amended answer is a long one, but its material averments are, in substance, that the defendants never accepted, or intended to accept, the succession of John Perkins, Sr., as universal legatees; that the alleged acts of acceptance set up against them were founded in error, and a misconception of their legal rights; that they were led into this error by the advice and representations of one of the executors, who was their legal adviser, and also the adviser of their mother and tutrix; that this executor had an adverse interest to theirs, which rvas specifically sot forth; that they were absent from the country during the entire proceedings, and were minors during most of the time the same ■were being conducted; that by the advice given them, and representations made, they wore deceived and defrauded, etc.

With these now issues added, the ease was again tried. Under the ruling of the Judge a quo, this last trial embraced all the issues, original and supplemental, raised by the pleadings in the case.

In view of the fact that our predecessors, on the trial of the first appeal, rendered no decree upon any single issue in the case, and remanded the case for another trial, accompanied by the declaration that they did not limit the scope of inquiry, evidently made with reference to such future trial, and as directory thereof, we are not prepared to say that the Judge a quo was in error in holding that the ease was open for trial on all the issues, original and supplemental.

These conditions of the case remove it from the scope of the authority of the case of Boisse vs. Dickson, 32 A. 1150.

In fact, it was not claimed by plaintiffs’ counsel, in their argument before this Court, that the dicta of Court on the former appeal constituted res adjudieata.

On the 16th of April, 1880, after a second trial, judgment was rendered in every respect similar to the previous one. From this judgment the plaintiffs have appealed, and defendants have asked an amendment rejecting the entire demand.

We.have carefully examined the voluminous record, swelled as it is by the additional pleadings and evidence of the last trial, and which we consider properly allowed and admitted, and with the thorough knowledge afforded by this examination, have closely reviewed the opinion of- our predecessors in the former appeal, and reviewed the several questions of law and fact therein discussed, and with one exception, to be hereafter mentioned, concur in the views and conclusions they announced. We refer to that decision and to their reasoning on the propositions involved; and with this reference, and without repeating them, or seeking to elaborate them more fully, announce our approval of the same, and our concurrence therewith.

' • We have also closely canvassed the evidence and the law bearing on thenew issues presented by this amended answer, filed after the remanding of the case, but find nothing therein to influence our decision, or alter our conclusions, with respect to the vital issues involved.

The evidence does not, in our opinion, establish the charges of fraud and error alleged.

The defendants may have committed a grievous mistake in not accepting the gift of money made in the donation inter vivos, and confirmed by the will of the donor. This mistake may have appeared plainer by the light of subsequent events.

The donation inter vivos could nothave been revoked to the prejudice of the defendants. In fact, it wab not revoked as to them by the donor, but, on the contrary, confirmed by his will. They had only to claim the money given, and renounce other rights and benefits proffered by the will, to be entitled to receive the money, and with it acquire all the rights and immunities of special legatees.

There is evidence that they were advised to this course, and that the representative of the defendants, then minors, declared to the executors that such was her choice, but there is no evidence that any such claim was preferred, or any such character assumed, in any single act or proceeding, judicial or extrajudicial, contained in the record. On the contrary, in the very instruments under which they set up title to the property outside of the will, and upon which they solely rely as showing such title, (we refer to the act of giving in payment, executed by John Perkins, Jr.) so far from showing an exclusive claim under that act, to the specific gift or legacy, and a renunciation as heirs or universal legatees, there is an express declaration in the act that nothing therein is intended or is to be construed as a waiver, or as in any manner impairing the rights of any of the parties as universal or special legatees in the will of the late John Perkins, Sr., all of which rights are reserved.”

On the 25th of March, 1874, all of the defendants joined in a notarial act of procuration to Judge E. D. Farrar, two of them at that time having attained their majority, and the other emancipated, under and by authority of which act, all the proceedings were conducted, touching the account rendered by the executors, and the delivery of the estate* to their agent, Judge Farrar, of which they now complain as misrepresenting them, and putting them in a false light.

In this power of attorney they assumed distinctly the capacities of universal and special legatees under the will, and acknowledged a liability for the legacies, and authorized their agent to settle or compromise with the legatees. This may have been an unfortunate instrument for them, but it was their own act, and in legal contemplation every expression therein was thus made by them for the purposes declared.

It is possible that they did Hot know or understand the contents of that act, and very probable that the agent and attorney who instituted the proceedings and carried out the act, was never directed in those* proceedings by the defendants or those authorized to speak for them, and they may even have been ignorant of the fact that they were being conducted in their name, but the proceedings are, nevertheless, binding upon them.

They were bound to know and appreciate the legal effect of their own personal act. At the time they gave the procuration to Judge* Farrar and made the declarations referred to in the act .conferring it, the defendants were under no incapacity, and there is no ground or cause to excuse or exempt them from the legal effect and consequences following the execution of the mandate they had conferred. All that their agent did, he was directed to do by the terms of the mandate. They may have been induced to execute this power of attorney by bad advice, and the act may have been prepared and its terms dictated by such advice, but to construe this as a fraud practiced upon them by the executor, if he did so advise, would be to justify a similar charge* against the testator himself, who, though the property comprising his estate,-when he penned his will, was in the same condition as when delivered to the defendants, not only advised, but urged them to take the property, burdened as it was by the legacies, in preference to the sum of money given them in the act of donation, and confirmed by the will. Such advice from the executor, as from the testator, might have proceeded from an honest error of judgment.

The heir who is of age cannot dispute the validity of his acceptance, whether it be express or tacit, unless such acceptance has been the consequence of fraud practiced or violence exercised against him.” C. C. 1009.

Such is the law, and the evidence does not enable us to declare their acceptance invalid for either of the causes therein expressed.

We do not, however, attach all the consequences to this acceptance, which our predecessors seem to have attributed to it, and this difference forms the exception, we mentioned above, to our concurrence in the conclusions reached by them on the previous appeal.

Our view of the law and the facts bearing on the point, forced us to the same conclusion arrived at by the two District Judges who have rendered judgment in the case, however obnoxious to criticism that conclusion may seem in the estimation of the plaintiffs’ learned counsel.

The effect of an acceptance of an intestate succession by the heir, binds him to pay all the charges against the succession, even out of his own property. C. C. 1013.

The engagement of the heir in a testamentary succession, who has accepted unconditionally, with respect to the legacies, is different. Ib.

Universal legatees are not always bound for the payment of special legacies beyond the value of the succession, and if they be forced heirs, can discharge their liability to special legatees, by abandoning to them what may be left of their property, after paying the debts and retaining their legitime. C. C. 1465, 1466.

In this case, had the testator made the special legacies in question, to the plaintiffs, without terms or conditions as to their payment, and the defendants been instituted his universal legatees for the residue of his estate, and accepted, they would have come under the provisions of the law just referred to. Such, however, are not the facts.

The defendants, like the plaintiffs, were special or particular legatees under the will. They had a right under it to receive $240,000, as a confirmation of a remunerative donation, to satisfy their claims as forced heirs, and the claim inherited from their father in the community interest of his mother. This imposed a charge upon the estate, which could have been enforced against its entire property, to the exclusion of the plaintiffs’ legacies.

In lieu of this sum of money, they had the option to take, as particular legatees, the Somerset Estate, (less the Hapaka Plantation, devised.' to others) charged with the payment, out of its revenues, of the legacies in favor of the plaintiffs, and this property, thus burdened, they chose and did receive. In receiving it, they must be considered as doing so under the explicit terms of the will, as particular legatees of this property. The universal legacy, if we may so call it, did not comprise this property, but, as expressly declared in the will, only extended to, or embraced, such-as was not otherwise appropriated thereby, that is, such as the particular legacies had not exhausted. The defendants, by their acceptance, did not deprive themselves of their rights under the special legacy to them of the Somerset Estate. They accepted the will. Nothing more, nothing less.

The will, and the terms therein prescribed, constitute the title under which defendants hold Somerset, and those terms are just as imperative and binding on the plaintiffs as upon the defendants, touching their respective rights.

The defendants are not the debtors of the plaintiffs, except in so far as they are the owners of an estate whose revenues are devoted, under certain conditions, to the payment of their moneyed claims. The restrictions touching their payment are a material requirement of the will, which could not bo dispensed with or relaxed without doing violence to the declarod wishes of the testator, and granting, rights to these special legatees that would be destructive to the main and manifest purposes of the will. They demand a judgment that would entitle them to sell out the estate, and out of the proceeds, pay their legacies immediately. The will declared that they were to be paid when practicable, and further explains what is meant by the qualification or condition thus used, by prescribing, in the language of the testator, that all the moneyed legacies specified in my will are to be paid out of funds accruing from the rents and revenues of the Louisiana property, at such times and periods as it can be done, without requiring property lo be sold.

And again : I desire that the property stiould be kept together by my executors for the payment of said legacies, and that no division should be made between my grandchildren as long as the law will permit it should be kept together and undivided, for the purposes aforesaid.”

In the face of this plain language, manifesting an earnest desire paramount to every other consideration, that his vast estate should remain undivided and intact, in the possession of his descendants for generations, if possible, we know that the testator could not have conceived the thought of giving to these legatees the power, under any circumstances, to sell out, and, if necessary, sacrifice his lands, to pay their legacies. Not can we regard the terms and conditions of the will respecting the payment of the legacies, and the manner of their payment, as mere directions, intended for the executors, and tobe observed only during the period of their administration. The language of the will forbids such a conclusion, and shows that the thoughts and wishes of the testator were more far-seeing and far-reaching, and were contemplating results far beyond the limits of an executor’s tenure and administration, and were evidently specially directed to his most favored legatees, and designed for their guidance, and at the same time to measure the rights of those in whose favor he had established a charge against those who were to possess his estate.

The will of the testator must and should be the law to the parties and to the Court.

One of the most distinguished of civilians and law writers has likened a last will and testament and the engagements of a legatee or testamentary heir under it to a contract between the testator and such legatee or heir.

Thus it is said : “ The engagement in the quality of heir ought to have the. same effect as if the heir had treated with the deceased to whom he succeeds, and it is the same thing in effect as if it had been agreed between them, that if the heir would accept that quality, he should have all the. goods of the succession, and should likewise be bound to acquit all the charges.”

This kind of a treaty between the deceased and his heir, is made on the part of the deceased in his testament, and on the heir’s part in the moment he accepts the succession. Eor the testator explains in his testament his intention to leave his goods to his heir on condition he shall satisfy all the charges. Domat, Folio Ed. p. 383, verbo Title iii, Sec. 1.

The act that makes him heir is, as it were, a contract between him and the persons to whom this quality may oblige him, by which he takes the goods on condition to acquit the charges. Ib.

And again : The conditional dispositions of testators and others which may oblige the legatee to have security or precaution, are executed according as the intention of the testator and the circumstances may seem to demand. And provision is made in this matter different ways, either according to what the testator himself has ordained, if he has explained himself about it, or in the mafaner which may best suit with the interest, of the persons who may be concerned in the said bequests.” Ib.; 7 A. 416; 13 A. 122.

The proposition that the acceptance of an estate or a legacy, burdened with charges in favor of other persons, abrogates all the terms and conditions stipulated and imposed, by the testator, and makes tlio charges immediately exigible against the legatee who assumes the charges, by taking possession of the estate thus burthened, or otherwise, might have great force if, upon discharge of the executor, and the entering on the estate of the legatee, the beneficiaries of the charges imposed were left without security for their claims. But such is not the case. The law imposes a mortgage on the estate or immovables entered upon by the testamentary heir or legatee, as security for the payment of the special legacies which can be enforced according to the conditions and terms of the charge imposed to which it is accessory. C. C. 1633.

The will of the testator being the law to the Court as well as to the parties, it is the province and duty of the Court to endeavor to ascertain its true intent and meaning, the wishes, intentions and purposes of the testator, and to provide, as far as lies in its power, under the law, that these wishes be faithfully carried out, and that the objects of his beneficence may receive, and in the manner he may have designated, and according to the terms he has prescribed, all that his bounty intended to bestow upon them.

No one can read the evidence in this record, in fact, he need read only the will itself, to be satisfied that the defendants — his fatherless grandchildren — girls of tender age — were the special objects of the solicitude and affection of the testator. Por their maintenance and well-being it was his chief aim to provide, and notwithstanding the ruin and desolation caused by the calamities of war, that had swept over his beautiful home, and surrounded him on every side, when he penned this last depository of his wishes, he did make ample provision for these objects of his love, for their comfort and happiness. And whilst we are deprived of the power, by their own unfortunate acts, to restore to them the facility of making that provision as ample and effective as their generous benefactor designed it to be, we can, at least, by a just and reasonable construction of the law and the evidence bearing on the issues in the case, and in entire consonance with the authorities on the subject, give such effect to the dispositions of the testator, as not to defeat his manifest purpose, and strip the main objects of 1ns bounty of all they have thus far received, and perhaps reduce them to poverty, for the benefit of those to whom he was comparatively indifferent, and to some of whom he was a stranger.

The judgmentof the lower court directed the payment of the amounts of the legacies be made out of the revenues of the Somerset Estate, commencing from the date of the decree. In this it is erroneous. These amounts are entitled to be acquitted out of the net revenues from the time that the defendants took possession and commenced the administration of that estate, and the plaintiffs have a right to require that a full and correct account of such administration be rendered them.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by striking from the concluding portion ■thereof, the words, “ this decree,” which are the 66th and 67th words therein, and substituting therefor the words: “the actual taking

possession of said estate by the defendantsand that thus amended, the said judgment be affirmed at the cost of the appellees.

On Rehearing.

A rehearing was granted in this case upon the application of the defendants. In granting it, we restricted the rehearing to the question solely as to the right of the defendants to reserve out of the revenues of the Somerset Estate, besides “ the necessary and proper expenses of the property ” allowed in the decree, also in addition thereto, the amounts mentioned in the will of the deceased, and claimed as allowed by the terms thereof, for the maintenance and support of the defendants and their mother, Mrs. Ellen M. Perkins. And notwithstanding the wide range that the discussion has taken, involving every material point of our previous decree, including those which were finally adjudicated upon, we shall confine ourselves in this opinion exclusively to that single question thus left open. Upon all other points that decree is, and was, a finality.

We have given this question a careful consideration, and made it the subject of a close and exhaustive review. In our previous opinion we announced as a fundamental principle relating to testamentary dispositions, that the will of the testator, as declared therein, was the law to the Court and to the parties. That when that will was ascertained, it was the duty and province of the Court to carry it out, if lawful, according to its true intent and meaning. Taking this rule for our guidance, after the maturest deliberation, we conceive that the logic ■of the conclusions heretofore readied by us, as declared in our previous opinion, and the propositions therein announced, force us to the further conclusion, that a strict and liberal adherence to the terms of that instrument, whieh we must follow, require that effect must be given also to the following explicit and mandatory declaration of the testator, which we quote:

All the moneyed legacies specified in my will are to be paid out of funds accruing from the rents and revenues of the Louisiana property, at such times and periods as it can be done without requiring property to be sold, and after taxes, past due, and debts are paid, and without depriving my grandchildren of the funds they may require from the revenues for their necessary expenses and means of education.”

There is no mistaking, from this unequivocal language, that 'it was the purpose of the testator that the special legacies in question should be secondary, subordinate and contingent upon this imperative provision of the will, and the paramount and superior right and claim of the defendants under it. Their maintenance must first be provided for out of these revenues, before tho other benefactions could be demanded and become executory.

Nor is the amount of this provision left to inference, or to be supplied by proof aliunde, for the will again prescribes :

“ Prom the rents and revenues of the estate, it is my will, and I direct that my executors should pay over annually, for the support of my daughter-in-law, Mrs. Ellen M. Perkins, and the support and education of my said grandchildren, the sum of $6,000; and in case of the marriage of my said grandchildren, when one of them is married, she is to receive $3,000 a year, and the mother and her two daughters to receive $4,000 ayear; when another oneof tho daughters is married, she is to receive $3,000 a year, and the mother and her remaining daughter $4,000 ayear, and when the last daughter is married she is to receive $3000 a year, and her mother also to receive $3,000 a year.”

Prom this clause iu the will, we deduce that the allowance for each of the defendants was, before marriage, one thousand dollars, and after marriage, three thousand dollars ; and this view of the matter relieves it of any complication or uncertainty, as suggested by the plaintiffs' counsel, involving the expenses of their education, as it was the manifest intention of the testator that they should receive, whilst single, so much, and after marriage so much, and this regardless of any particular expense, as for education or the like, that might be incident to either state. We arrive at the amounts designed for them before marriage by the provision of $6,000 per annum to them and their mother, whilst they are all single, and that of $3,000 for their mother after they are all married.

Mrs. Ellen M. Perkins, the mother, is not a party to this suit, and is not before us claiming the provision in her favor, and is not affected by this decree, and we must, therefore, dismiss from consideration tlubequest to her, and separate the allowances of the mother and daughters, so as to estimate and deal alone with the latter. And we think this estimate, thus fixed, is sufficiently accurate to dispense with the necessity of remanding the case, suggested by counsel, to ascertain, by evidence, the proper expense for maintenance, designed by this clause of the will.

It may not be as large, under oxxr estimate, as was intended by the testator, but it is as much as tlie will makes clear, and the difficulty of arriving at tlie exact amount arises from the provision in the same clause for the defendants and their mother, jointly. It must also be understood that the annuity allowed for each year must be charged against, and payable out of, the revenues of suclx year, exclusively.

' We think this disposition of the case carries out fully the true intentions of the testator, and at the same time enforces strictly the obligations assumed by the defendants in their acceptance of the'will, and the testamentary bequests therein, in exact accordance with the conditions and terms prescribed by the testator.

Nor do we anticipate all the difficulties, suggested by counsel, as resulting from this disposition of the matter, relating to contracts made with other parties by these defendants, and encumbrances placed on the property since their possession of the same. The restrictions and conditions imposed by the will are a part of the defendants’ title to the property, and all subsequent engagements made by them with other parties, must yield to these prior a„d imperative conditions, and can never antagonize the just claims of plaintiffs under the will, as special legatees, and their qualified rights on the property and its revenues devoted to their payment.

It is, therefore, ordered, adjudged and decreed, that our former decree be amended, and it is now ordered, adjudged and decreed, that the judgment of the District Court be further amended by decreeing that the special legacies in favor of the plaintiffs, together with the legal interest thereon, shall be paid, satisfied and acquitted out of the annual revenues arising from the Somerset Estate, commencing from the date of the actual taking possession of said estate by the defendants, after deducting from said revenues the necessary and proper expenses of said property, and the expenses for the support and maintenance of the defendants, at the rate of one thousand dollars for each of them, per annum, whilst unmarried, and three thousand dollars per annum each, from the date of their respective marriages, according to the terms and conditions of the will. The said annuities to be charged against, and deducted exclusively from the revenues, respectively, of the corresponding years. And as thus amended, the said judgment appealed from is affirmed, reserving to Mrs. Ellen M. Perkins any rights she may have under the will; the costs of the lower court to be paid by the defendants and appellants, and of this Court, by the plaintiffs and appellees.

Levy, J., absent.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8568.
    Succession of John Burnside. On the Application of the Public Administrator.

      A contest involving tlie removal of an executor or administrator of a succession, and the appointment of another, is a mere incident in the settlement of the succession, and not a distinct and separate suit; neither does it fall in the designation of cases at law or iu equity between parties of different States, of which the Federal courts have concurrent jurisdiction with tbo State courts.
    Hence, an application by a party residing in another State for the removal of such a contest to the Federal court will not be granted.
    The Public Administrator for the Parish of Orleans has no authority in law to provoke the removal of an executor or administrator of a succession.
    This right is restricted by law to an heir, a creditor or a legatee.
    The right of the Public Administrator to claim the administration of a succession accrue» only in case of an existing vacancy in said administration:
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      ■Breaux & Mall, for Public Administrator, Appellant:
    1. The exception that a petition for the removal of the application of the Administrator for appointment as Dative Testamentary Executor, to the Circuit Court of the United States, cannot he maintained, because:
    (a) It was decided in a rule to show cause why the removal should not he made, against the present exceptor, and is conclusive herein.
    (Z>) There is no law authorizing the removal of an application for the appointment of an executor to a succession pending in a State Court:
    2. The Public Administrator is entitled to the appointment of Dative Testamentary Executor of all estates wherein the executor from any cause cannot discharge the duties of the office.

      (a) The heir or widow, or surviving husband, can only exclude him, when present in the State, and actively claiming the right to assume the duties of the office. Sec. 3d, Act. 1877, p. 111.

      (b) The act only settles as between these parties who shall be privileged to assume the. duties — when urging their several claims before the Courts.
    3. Where the office is vacant thé law imposes upon the Public Administrator the responsibility for the proper administration of the estate: and, therefore, the co-relative right to the appointment.
    4. The executor, must not only commence, hut in a reasonable delay, complete his qualification as executor; which, for one domiciled out of the State, is:

      (a) Taking the necessary oath.
    (b) Causing an inventory to be taken, and giving bond as an administrator is requited to give. Rev. Stat. 1460; C. C. 1679 ; Watson vs. Bondurant, 30 An. 4.
    5. The penalty for failing or refusing to do which, is forfeiture of the right to the office. Rev. Stat. 1648; C. C. 1666. Sue. of Feray, 31 An. 727.
    6. Departure from the State of non-resident executor forfeits title to the office, even if he leaves power of attorney. C. C. 1145; Rev. Stat. 1741; Act 1847, p: 115, as interpreted by Y erkes, Guardian, vs. Broom, Executor, 10 An. 359; Dobb’s Succession, 9 An. 354: Watson vs. Bondurant, 30 An. 6.

      T. Gilmore & Sons, for Defendant and Appellee:
    i.
    On the First Ground op Exception.
    1. This is an original suit between citizens of different States, where the matter in dispute exceeds the value of five hundred dollars, and was, on proper petition and bond, lemoved to the Circuit Court of the United States for the Eastern District of Louisiana. After such removal, all proceedings therein in the State Court are ooram non judice and void. Dillon on Removal of Causes, and authorities there cited.
    2. It was a proper case for removal. Gaiues vs. Fuentes, 2 Otto, 20 ; Craigie vs. McArthur, 4 Dillon, 474; Bonduraut vs. Watson, 13 Otto. 386; Washington Improvement Co. vs. Kansas Pacific Railway Co., 5 Dillon, 490.
    On the Second Ground op Excettion.
    1. Where an executor, who is a beneficiary finder the will, has complied with the order of the court fixing his bond, and has received his letters, and is in the exercise of his functions, or has completed thorn by the payment of the debts, legacies and expenses incidental to the succession, and claims to hold as universal legatee, ho cannot be destituted of bis -seizin on the petition of the Public Administrator, to enable that officer to make a com» mission. Such a case does not fall withing the provisions of Sec. 3, Act 74, p. Ill, of 1877. The executor is not in the position of one who cannot discharge the duties of his office.
    2. Tiie Public Administrator is a stranger to the succession. Be has no right to initiate proceedings to create a vacancy for his own emolument.
    3. Until an executor is removed at the suit of a party in iuterest, the interference of the Public Administrator is officious. Succession of Winn, 26 A. 162; Succession of Poret, 26 A. 157; Succession of Bougere, 30 A. 425; Succession of Dietrich, 32 A. 127; Succession of Henry ; 31 A. 555; Succession of Miller, 28 A. 573-4; Buston and Wife vs. Brugier, 30 A. 482; Succession of Jennie Walker, 32 A. 321; State Bank vs. Evans, 32 A. 466.
   The opinion of the Court was delivered by

Poché, J.

The object of this proceeding is the removal of Oliver Beirne, as testamentary executor of the succession of John Burnside, and the appointment of the Public Administrator as dative testamentary executor of said succession, on the following grounds, substantially:

That immediately after Oliver Beirne had qualified as testamentary executor, by taking the oath and furnishing the bond required by the Court, he left the State permanently, after appointing an agent and attorney in fact to represent him in the administration ; without causing an inventory to be begun, as the law requires, and without furnishing- the bond, required by law to be one-fourth in excess of the value of the prox>ert.y of the succession, alleged to exceed one hundred thousand dollars ; and on the ground that the will of the testator should he executed without delay in the interest of the legatees and heirs of the decedent, who are judicially asserting their rights as such heirs.

Beirne, the testamentary executor, who resides in Virginia, thereupon filed a petition supported hy his affidavit and accompanied by the required bond, for the removal of the cause to the Circuit Court of the United States for the Eastern District of Louisiana, on which the order of removal was refused by the Court, a qua.

I-Ie then filed an exception, urging :

1. His application to remove the cause to the Federal Court, and the illegality of the Court’s refusal of the order of removal.

2. That the Public Administrator’s petition disclosed no cause of action.

His first ground of exception was overruled, and the second ground was maintained, whereupon the Public Administrator has appealed.

1. The action of the District Judge, in refusing the order of removal and overruling' the first ground of exception, is eminently proj>er, and meets with our unreserved sanction.

Appellee’s position, that thisai>pIication of the Public Administrator is a distinct and separato suit, not essentially connected with the settlement of tho Burnside succession, is too glaringly erroneous to require any argument or authority for its completo demolition.

The appointment of an executor or administrator, his removal for any cause, and the appointment of another in his stead, are all incidents of the settlement or administration of a succession ; and the jurisdiction of the Court which has legal cognizance and control of the succession, cannot be affected by the residence of any of the parties who may urge conflicting claims to the right of administering such succession, and the removal of the administrator must be ordered by the Court which had made the appointment. C. P. 1013.

The substantial issue presented for adjudication in this proceeding, involves the legality of the testamentary executor’s administration of the Burnside, succession, the question of his removal, and the right of the Public Administrator to be appointed dative testamentary executor.

The relief asked depends exclusively upon the probate jurisdiction of the Court, and cannot be considered by a Court which has no such jurisdiction.

It is well settled that the Federal courts have no probate jurisdiction, a conclusion flowing from the existing legislation of Congress.

This doctrine is recognized and favorably commented on by the U. S. Supreme Court in one of the cases quoted by appellee in support of his own opposite theory. Gaines vs. Fuentes, 2 Otto 18.

The following language, which we quote from that opinion, supports the conclusion which we have reached on this question : “ The reason lies in the nature of tho proceeding to probate a will as one in rem, which does not necessarily involve any controversy between parties, indeed, in the majority of instances no such controversy exists. In its initiation all persons are cited to appear. * * * From its nature and from the want of parties, or the fact that all the world are parties, the proceeding is not within tlie designation of cases at law or in equity between {parties of different States, of which the Federal courts have concurrent jurisdiction with the State courts under the Judiciary Act.”

It. is clear that this reasoning applies with equal force, to all. proceedings in the settlement, of successions, and it is elementary that all conflicts between heirs, legatees, or creditors of a succession, as well as between parties claiming contradictorily the right of administering a succession, are mere incidents of the settlement of the estate, and as such fall exclusively within the jurisdiction of a court having probate jurisdiction, and in which the succession was opened.

2. From the petition of the Public Administrator, it appears that the testamentary executor is sought, to be removed, for the main reasons that he has failed to malee an inventory within the time required by law, or to qualify according to law, and because he has left the State permanently; and the question presented is whether, assuming these averments to be true, the Public Administrator has any authority to urge these derelictions, and to claim the removal of the testamentary executor.

The office of Public Administrator is not an institution of the civil lawq and was unknown to our law's previous to the legislation of 1870, which introduced this new.element into our system for the settlement of successions.

It follows, therefore, that .such a functionary can claim only the rights which are clearly conferred on him by the legislation which created his office; and that none of the provisions of our laws regulating the mode of settling successions, and of appointing and removing curators, administrators, or executors of successions, are applicable to 1ns office, unless .so made by the law which created and governs that particular office.

Now, the only law under which thePublic Administrator can rest his right of action in his present application, is Section 3 of Act No. 7A, approved April 17, 1877, which reads as follows :

“ That in all testate successions in the Parish of Orleans, when from aiiy cause the executor cannot discharge the duties of his office, the Judge, shall appoint the Public Administrator dative testamentary executor, when there is no surviving husband or wife, or heir present or represented in the State, who is qualified to assume, and who claims to assume the duties of said office.”

It does not appear from the Public Administrator’s petition that Oliver Beirne cannot or does not discharge the duties of testamentary executor of the Burnside succession, and that, such being the case, the decedent has left no wife or heir preseiit or represented in the State who is qualified to assume, and who claims to assume, the duties of said office.

If it he true that Oliver Beirnc has not qualified according- to law, lias failed, oris evon opposed, to have a proper inventory made, ho may be summoned on proper showing- by parties in interest, such as heirs, creditors or legatees. But no complaint is made by any sncli parties, and if they are satisfied with Beirne’s qualification or administration, of what concern is that to the Public Administrator ? He has no authority in law to supervise the administration or settlement of successions, or the legality of tho appointment of administrators, executors or curators.

His powor to act arises only in the oases provided by the law which created his office. The utility of liis office arises according to law, and his services are required only -when a testate succession is not bein',) administered at all. His office was intended to fill a vacancy, but be has no power to provoke a vacancy. We know of no law, and wo have been referred to none, authorizing the Public Administrator to judicially seek to remove an executor or administrator.

These conclusions are supported not only by reason and law, but are sanctioned by authority, as shown by a decision of this Court, in tlie case of Succession of Winn, 26 A. 102, where it was distinctly held that a Public Administrator could not provoke the removal of an executor, and that this right could bo exercised only by lieirs, legatees or creditors, and are in keeping with the textual provisions of our Code, which confers the right of praying for the removal of testamentary executors or other administrators of successions, to the heirs, creditors, or other persons concerned. C. P. Art. 1018.

We, therefore, conclude, that the Public Administrator’s petition discloses no right in him to ask the removal of Oliver Beirne as testamentary executor of the Burnside succession.

'The judgment appealed from, is, therefore, affirmed’with costs.

;Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 8624.
    City of New Orleans vs. B. D. Wood & Bro.
    •The provisions of the Constitution of 1879, in regard to the method of collecting municipal taxes without suit, are not self-operative, and never having been vivified by legislative action, the former .jpode pf collecting such taxes has been neither modified nor repealed; and all laws on that subject, preyiously in force, continue in operation, if not otherwise abrogated,
    APPEAL from the Civil District JCourt for the Parish of Orleans. Lazarus, J.

      J. Ward Gurley, Jr., Assistant City Attorney, for Plaintiff and Appellant: -
    1. The right of the City to sue for any tax, license, claim, or debt, exists independent of any express law. Art. II Constitution of 1879: C. C. 427 et seq.; 13 An. 497; 13 Iowa, 61; 1 Oill & 0. 499 ; 9 An. 561; 13 Peters, 493 ; 19 Wallaoe, 227. And the authority is speoially granted by Act No. 88, of 1877.
    2. Article 210 of the Constitution of 1879, docs not prohibit suits for taxes. The remedy therein indicated applies to proceedings against the property only, not the personal action, and is merely cumulative. 13 An. 497; 20 An. 416 ; 33 An. 99 and 260; 13 Peters 493 ; 19 Wallace, 227; and see Section 40, of Act No. 77, of 1880.
    3. Articles 210 and 211 of the Constitution of 1879, are not self-acting. 24 An. 214; 15 Peters, 449 ; 33 An. 833; 32 An. 1200. Nor does Act No. -77, of 1880, enable Art. 210, relative to the collection of City taxes. (See title of Act and 53d Section thereof) It was not the intention of the Constitution to disturb the City Charter and laws relative to the govern* nient of the City. See Articles 253, 254, 259 and 203.

      Miller, Finney & Miller, same side, for Board of Liquidation.

      Chas. 8. Hice, for Defendants and Appellees:
    1. Article 211 of the State Constitution, which declares that tax on movable property shall be collected iu the year in which the assessment is made, means that, from the date of the adoption of the Constitution, no lawful levy of a tax on such property can bo made, except in the year iu which the same is assessed.
    2. The fact that the legislature has or has not provided for the lawfxcl levy of a tax, does not render a levy made in violation of the provision lawful.' 1 Nev. 611.
    3. The provision invoked is self-acting, so far, at least, to invalidate any levy of taxes made in violation of it. No legislation is necessary to give effect to the withdrawal of authority indicated by the provision. 6 Bob. 118; 24 A. 214.
    4. The protended assessment on which this suit is founded is made under a law not consistent with the Article 211, relied on by defendants, and is for that specific reason unlawful. Article 258, Constitution.
   The opinion of the Court was delivered by

Bermudez, C. J.

The City appeals from a judgment on an exception of no right of action, which declares, that the provisions of the Constitution in force prohibit the judicial collection of taxes due the corporation.

The Articles relied upon by tlie defense arc Articles 210 and 218, which road:

There shall be no forfeiture of property for the non-payment of taxes, State, levee, parochial or municipal •, but, at the expiration of the year in which they are due, the collector shall, without suit, and after giving notice to the delinquent, in the manner to he provided hy law, (which shall not be by publication, except in case of unknown owner) advertise for sale tlie property on which the taxes are due, in the manner provided for judicial sales,” etc.
All the Articles and provisions of this Constitution regulating and relating to the collection of State taxes and tax sales, shall also apply to and regulate the collection of parish, district, and municipal taxes.”

It is manifest that, but for those Articles, the defense lierein set up would not have been raised, as it cannot be disputed that previous to the adoption of the present Constitution, the City of New Orleans had ample right and full power to enforce, by judicial process, the collection of taxes assessed by and due to her.

The inquiry is, therefore, how far the Constitutional provisions invoked have affected that right and power.

An attentive and intelligent reading of the text at once satisfies the legal and conservative mind that, if it be true that it was designed by the organic law to alter the mode of collection of municipal taxes in the City of New Orleans, the convention never proposed to annihilate at once pre-existing methods, but intended to destroy such only after adequate enabling legislation would have been adopted, to carry out the otherwise inoperative constitutional provisions relied upon.

Tlie words: “In the manner to be provided by law,” are clearly prospective and suspensive.

The objects in view were the prohibition of the forfeiture of property for non-payment of taxes, and the substitution thereof, of summary expropriation without suit, to enforce such payment; but such expropriation was to take place only after notice to the delinquent, given in the manner to he provided by law. No sale was contemplated to take place in the absence of such notice, touching which the law was silent and was to prescribe. As the Legislature was commissioned to legislate on that subject, in order to appily the theory, or carry out the system, and it has not done so, concerning City taxes, the consequence is that the extra-judicial collection of such taxes cannot presently be coerced. In the meantime, as the laws providing for the collection of such taxes by judicial processhave neither been modified nor repealed, as regards the City of New Orleans, it was and is legitimate for it to invoke and to execute them in all their efficacy, such as they stood before the adoption of the Constitution.

A different construction would induce the violent, unreasonable and repulsive inference that the convention deliberately eontempilated mischievously to suspend any and all collection of municipal dues, owing to the City of New Orleans, until the passage of such legislation. This would create a most lamentable interred man or hiatus, fruitful of unmeasurable injury, destructive of tlie actual existence of tlie corporation.

That Article 210 is not self-operative, was formally recognized by the Legislature of 1880, by which Act No. 77 was adopted. That legislation does not, however, refer to tlie City of New Orleans, in the least degree.

It is wisely settled, that where a constitutional provision is not self-operative, and requires legislative action to be put in motion, laws previously in force and not otherwise abrogated, continue in operation until the adoption of the enabling statute. 24 A. 214; 32 A. 1200; 33 A. 873; 34 A. 337; 15 Pet. 449.

In the printed and written briefs, submitted by counsel for defendants, since the argument, the reasons which are supposed to have induced the convention to prohibit the collection of all taxes by judicial proceedings, are forcibly advanced, and the argument is made that the omission of the Legislature to carry out the constitutional provisions, does not render lawful a levy of taxes made in violation of Article 211, which declares that the tax on movable property shall be collected in. the year in which the assessment is made. The counsel further insist, that no lawful levy of such tax on such property can be made from the date of the adoption of the Constitution, unless it be in the year in which the. property is assessed.

The answer to those objections is, that whatever the motives of the convention may have been, the laws providing for the levy and collection of taxes have not been abrogated by the Article in question, which merely directs, that the tax shall bo designated by the year in which it is collectible, and that- the tax on movable property shall be collected in the year in which the assessment is made. The second phrase of the Article is directory. It is intended rather for the benefit of the public treasury than for the relief of taxpayers. The previous laws continue in force until the Legislature shall have passed, as regards the City of New Orleans, appropriate' .legislation for the collection of taxes, both on movable and immovable property, in furtherance of Article 210, touching notice to delinquents.

We have read with some interest the very elaborate, opinion of the District Judge, which displays considerable research. We, however, deem it unnecessary to review the reasoning and the array of authorities, derived from other systems, which it embodies, as we consider that they bear upon issues not necessarily submitted in the present controversy.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be reversed, and it is now ordered and adjudged that the exception herein be overruled, and that the defendants answer to the merits. It is further ordered, that this case be remanded to the lower court for further proceedings, according to law; appellees to pay costs in both Courts, from the filing of the exception.

Levy, J., absent.


text:
    No. 8319.
    William H. Jack vs. J. P. Harrison, Jr. & Co.
    When one has been subrogated by the plaintiff in a pending suit to his right of action therein, and has had the subrogation entered upon the minutes of the court where the suit is pending, but before notice of the same is served on the debtor of the right, it is seized uuder a judgmont rendered agaiust the original plaintiff, in a parish other than where the right is being prosecuted, and is advertised for sale, the party claiming under his transfer and subrogation, can enjoin the sale and assert his claim before a court of the p irish where the seizure is made, aud can allege and prove that the judgment is a nullity, because a pure simulation, rendered on a false confession aud for no consideration.
    In such case he is not honnd to bring an action of nullity before the court that rendered the judgment, and hot bound to cite the defendant in the pretended judgment. Such an action is not like the action of nullity, which must be brought by a party to the judgment, but . 'more in the nature of a revocatory action.
    A creditor may for his own protection and benefit, assert and enforce a right of bis debtor, which the debtor will not and sometimes cannot assert.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. 8. Benedict, for Plaintiff and Appellant.

      8. S. Carlisle, for Defendant and Appellee:

      First — Where an issue lias been made and determined adversely to a party litigant, no matter in what form presented, it becomes “ res adjudicata- ” as to any subsequent action on his part to revive it iu an other form. 24 An. 104 \ 23 An. 893; 29 An. 291.

      Second — Where plaintiff in injunction seeks to restrain the execution of a judgment on the ground that the property seized does not belong to the judgment debtor, butto plaintiff in injunction, no other issue can be made but that of ownership. 12 An. 181 j 33 An. 435.

      Third — A plaintiff styling himself agent must disclose in his petition for whom he is suing as agent. 24 An. 18. The mandate must be special, C. C. 2997, aud evidence thereof produced to the court, by affidavit or otherwise, before a conservatory writ can be issued, 17 An. 8 5 11 Hob. 504; and a copy of the power of attorney must be annexed to the petition. C. P. Art. 320.

      Fourth — The execution of a judgment can he enjoined by no other court than that from which the writ issued, O. P. Arts. 617, 629, save only in cases where it is necessary to ward off immediate and manifest injury. 4 H. S. 390; 7 N S. 659 ; 2 An. 323 ; 4 An. 84 ; J3 An. 253.

      Fifth — The court which rendered the judgment has alone jurisdiction of an action to annul it, 2 An. 493 j 15 An. 279; 21 An. 105; aud all the parties to tlie judgment sought to be annulled must be cited. 23 An. 569 j 26 An. 156.

      Sixth — A judgment by consent can only bo attacked by third persons when they show that it occasions them real injury and deprives them of their rights and property without affording them an opportunity of a hearing. 30 An. 522, and cases there cited.
   The opinion of tlie Court was delivered by

Todd, J.

The defendant, under a judgment obtained against one M. F. McDonald, in the District Court of the Parish of Natchitoches, caused to be seized under a writ of ft. fa. directed to the sheriff of the Parish of Orleans, a certain claim in a suit pending in one of the courts of the latter parish, entitled M. F. McDonald vs. The Mechanics’ & Traders’ Insurance Company, and the sheriff advertised it for sale under the writ.

The plaintiff, as the owner, by transfer of the claim from McDonald, for the benefit of certain of his creditors, and holding it. for their use, enjoined the sale. The grounds of his injunction being substantially as follows: •

1. That J. P. Harrison, Jr. & Co. had no legal or valid judgment against McDonald; that the pretended judgment was a consent judgment, rendered on the confession of McDonald, and further, that the judgment was based on no valid claim, and was entirely without consideration, the said McDonald not being indebted to said J. P. Harrison, Jr. & Co. in that sum or any other, at the time of his confession.

2. That the writ under which the seizure wa.s made was null and void and without effect, because it had expired, and no copy of the writ had been retained, and the original returned to the court from which it emanated, as required by law.

The defendant excepted on several grounds, which, condensed, are substantially these: <

1. That the names of plaintiff’s principals were not set forth in the petition, nor his power of attorney filed.

2. That the suit should have been brought in the District Court of Natchitoches, and that the Civil District Court of Orleans was without jurisdiction, both as t.o the matter of suit and the persons sued.

3. That the plaintiff was without right to contest the judgment under which the seizure was made, and was confined to the issue of his alleged ownership of the claim.

4. That the matter of the suit was res adjudieata.

Upon trial of the exception, the transcript of appeal, in suit 7,648 in this Court, was offered in evidence.

In that record we find the transfer to the plaintiff, under authority of which he acted in this suit, and also the names of the creditors whom he represented under that transfer.

It was also offered to establish the plea of res adjudieata. Testimony was likewise introduced to establish the simulation and want of consideration of the judgment, under which the seizure was made, it being that of McDonald, the defendant, in the judgment of the agent of J. P. Harrison, Jr. & Co., who procured the confession.

There, was judgment sustaining the exception and dismissing the suit, from which judgment plaintiff has appealed.

1. The evidence afforded by the record mentioned, of the authority of the plaintiff, and of the names of the creditors he represents, is sufficient to meet the first point of the exception.

2. The claim seized being in the Parish of Orleans, and being there advertised for sale, the suit to be declared the owner of the claim and to prevent the sale of it was proporly brought in the District Court of that Parish. 2 A. 323, 492 ; 5 A. 648; 16 A. 11; 19 A. 206; 21 A. 199.

3. The questions presented in the 3d and 4th points of the exception, and which are the most serious questions involved in the case, we will consider together, and reversing the order in which they are presented, commencing with the plea of res adjuclicata, urged in bar of this suit. To understand this, it is necessary to refer to the previous proceedings upon which the plea is founded.

On the 3d of December, 1878, J. P. Harrison, Jr. & Co. obtained a judgment against M. F. McDonald for $1,710, in the District Court of Natchitoches.

Under an execution-issued on this judgment, they caused tobe seized the claim mentioned above, embraced in a pending suit before the 5th District Court of the Parish of Orleans, entitled M. F. McDonald vs. Mechanics’ and Traders’ Insurance Company, ffm. H. Jack, plaintiff in the present suit, filed a rule in that suit, pending in the 5th District ‘Court of the Parish of Orleans, mentioned, in which he asserted ownership of the claim prosecuted in the suit, and moved to quash the writ of fi.fa. issued under the judgment in favor of J. P. Harrison, Jr. & Co. against McDonald, referred to, and for the release of the seizure. In that proceeding, it was held on appeal to this Court, that inasmuch as the seizure under the fi. fa. was made before notice of the transfer and subrogation to Jack, of the claim in question, was served on the dobtor, the Insurance Company, that the transfer'and subrogation was inoperative against the seizure, and the rule was discharged. See case McDonald vs. Mechanics’ &. Traders’ Insurance Company, 32 A. 594.

Thereupon the present injunction suit was instituted by Jack, in which he charges that the judgment of J. P. Harrison, Jr. & Co. and the writ ai fi.fa. were nullities, for the reasons heretofore given.

It will thus be seen that the issues involved in the two proceedings are not the same. There was no question raised in the first proceeding as to the existence or non-existence of any real judgment against McFarland, no charge of its simulation, as in this case, was there preferred, and no issue raised as to the legality of the writ, but the simple and sole question involved in that proceeding, (the validity of the judgment and suit, and the transfer to Jack of the claim not being questioned) was whether the transfer or seizure had precedence. Wo do not think, under this state of facts, that the plea of res judicata was tenable. The issues in the two cases are not the same, and to sustain the plea they must be identical. Had the first proceeding been an injunction, instead of a rule, and liad that injunction been dissolved, it might be true that the plaintiff would be preeluded from resorting to another injunction, setting up different or additional grounds, but that question, though suggested in counsel’s brief, is not before us.

The next and last question for consideration is, whether plaintiff lias the right to set up the nullity of the judgment and writ opposed to him in this proceeding, or whether he is confined to an action of nullity against the judgment to be brought in the Court which rendered the judgment, and to which the defendant in that judgment must be made a party.

It is undoubtedly true, as a general rule, that where a third person claims to be owner of a thing, or of property seized as belonging to the judgment debtor, that the sole issue to be tried is that of ownership, and such third person cannot attack the regularity of the proceedings under which the seizure is made.

This rule, however, presupposes that there is a real judgment and real writ under which the seizure has been effected. In deciding the point raised by the pleadings in this case, we must take as true the allegations of the plaintiff’s petition and base our decision on the state of facts there presented. And what are the facts presented according to the allegations ? That plaintiff, as the representative of creditors of McDonald, took a bona fide transfer from him to a certain claim tlien in suit. That he succeeded in compromising the claim, but before he could receive payment of it, he was met by what purported to be a seizure of the claim under a judgment against his transferror. This presented an obstacle to the realization, of the fruits of his transfer, and he finds that his claim is about being sold under this seizure. It, therefore, became necessary, in order to reach the end in view and get his money, that the obstacle interposed must be brushed out of his .way. He ascertains that there is no real .or valid judgment against McDonald, in favor of the parties seeking to enforce it, and.that none ever existed; that what purported to be a judgment was a mere fiction, rendered upon no debt, and evidencing none, and that the writ of execution was, therefore, illegal and null. He resorts to an injunction against the seizure, and substantially makes allegations in the nature and to the effect of the foregoing.

We think he has a right to be heard on them. If the allegations be true, then the defendants, Harrison & Co. had not and could not have the shadow of a right to interpose, and prevent plaintiff from enforcing his rights under his transfer from McDonald. They had, under his averments, neither a judgment nor a writ, and what purported to be such were nullities — absolute nullities. Nor vras it necessary to institute a formal suit to liave that fact declared in the court that rendered the judgment, and make McDonald a party to it, it could be shown whenever and wherever opposed to him.

It is true that the Code of Practice prescribes that the action for the nullity of a judgment must be brought before the court that rendered it.. But that refers exclusively to the action of nullity proper, brought by a party to the judgment to have its nullity declared for some of the causes set forth. C. P. 604, et seq. But it has been, expressly and repeatedly held that this rule does not apply, where the judgment is attacked by one not a party to it, but that in such case, the action is not really one of nullity, but is in the nature of a revocatory action, and is not confined to the court that rendered the judgment. Clark vs. Christine, 12 L. 394; Trichel vs. Bardelon, 9 R. 191.

Nor is there anything in these views that conflicts with the ruling in the case of the State ex rel. Keiffer Bros. vs. Judge of the Civil District Court, recently decided by us, and not reported. In that case no property of the Relator had been seized under the judgment complained of, and no execution had even issued under it, but notwithstanding this he brought a suit in the District. Court of New Orleans to annul a judgment rendered in the Parish of St. Landry.

In this case, however, although McDonald was not made party, he was heard as a witness, and whilst it might be premature to consider the weight and effect of his testimony,- we may say that there could be no issue between him and the plaintiff on the question involved.

The right in plaintiff to raise this issue, may be likened to the right of a person holding a title to property, and in seeking to enforce it is opposed by one asserting an adverse title to show that such title is a mere simulation and sham, and this he could do without citing the vendor to such pretended sale.

The plaintiff, too, could exercise the right in question, under a principle of frequent adjudication, and in fact universally conceded. And that is, that a creditor may assert and enforce a right of his debtor for his own benefit or protection, which the debtor will not, and sometimes even cannot assert. Spencer vs. Goodman & Bradfield, 33 A. 898.

We think the exception was improperly sustained.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed ; that the exception be overruled, and the ease remanded, to be proceeded with according to law and the views herein expressed.

Levy, J., absent.