author: Fenner, J. McEnery, J.

text:
    NO. 10,720.
    Louisiana Ice Manufacturing Company vs. City of New Orleans et al.
    X There are cases, and especially those in which the public interests represented by a municipal corporation are concerned, in which, under Article 906, C. P., the court may remand causes to the District Court in order that additional testimony may be received and considered; but it is a condition precedent to the exercise of such authority that we should be satisfied that “ in the state in which it is” the cause can not be decided according to the requirements of justice.
    2. Such an order, when granted, involves the reversal of the judgment appealed from, which can not bo done in advance of hearing and submission.
    3. The motion to remand in advance of hearing and submission is premature, and the subject matter thereof is referred to the merits to be considered and determined when the latter shall be tried and submitted.
    X From the provisions of Act 883 of 1853, now Section 318, R. S., the riparian owner of any property entitled to the right of accretion can not reduce the batture to private occupation without leaving for public use, without compensation, such portions thereof as may be needed for commerce, public highways and streets.
    2. The accretions are enjoyed by the riparian owner subject to the right of the corporationto reserve and use a sufficient portion thereof for public uses, such as levees, highways and streets. To this portion he has no title, and therefore it is unnecessary to expropriate the same.
    If more than enough is taken than is required for public uses, the riparian owner can sue for a reduction.
    8. The regulation of the dimensions of squares and the width of streets is amatter within municipal discretion, which will not be interfered with without a flagrant abuse of this discretion.
    4.When a street is laid out by the city, it is not essential for its continued existence that the city shall immediately grade and improve the street. It is discretionary when further improvement shall be necessary. A failure to improve can not be construed as to abandonment of the street, so as to justify private ownership thereof.
    5. The dedication to the public of Water street on the map and plan of the City of Jefferson is sufficient to determine the nature and character of the dedication, and the reservation of that part of the batture for public use. If there were any doubt, the rule is to construe it in favor of the public.
    •6. Ho one can acquire by prescription a right against the public to levees, streets and highways over the batture.
    7. Where a party in describing his property for the purposes of assessment included a street, and pays for years the taxes assessed against the property, he acquires thereby no title to the street which divides his property.
    APPEAL from the Oivil District Coui’t for the Parish of Orleans. King, J. _

      Wm. Grant and J. Ward Gurley, Jr., for Plaintiffs and Appellees:
    After the levee is advanced toward the river, and the batture brought within the dominion of private property by the extinguishment of the public use, and it is taxed and subjected as to possession and use to the will of the owner, a street can not be opened thereon without compensation being paid to the owner. 7 An. 78.
    The Act of 80th April, 1858, Acts of 1883, p. 298, does not require the riparian owner to sue for possession of batture, but gives him the right to sue the municipality if it is withholding from him more of the batture than is necessary for the public use, and to compel the corporation to permit him to enjoy the use and full ownership of such portion-of said batture. 13 An. 350.
    Water street never was reserved or withheld by the municipal authority upon plaintiffs’ property, and it can not now be opened upon that property without compensation being paid therefor, and due proceedings taken according to law. Art. 5, Amendments Constitution United States; Arts. 6,155 and 156, Constitution Louisiana, 1879.

      Howe & Prentiss and Carleton Hunt, City Attorney, for Intervenor and Defendant, Appellants:
    1. Acts of sale between third parties of aecretionary property can not affect public right to what is necessary for public use. Such right can only be limited by suit under batture law. 12 An. 500; 18 An. 349.
    2. The plaintiffs could not acquire or prescribe against the public by fencing or building On batture. 4 Martin 2.
    8. Assessment of plaintiffs’ property, en bloc, from Tchoupitoulas street to river, could not alienate the public right and confer it on plaintiffs.
    4. Map of Surveyor Williams of 1860 important and valid evidence in matter of public concern. Greenleaf 1, Chap. 6,14 Ed.
    5. Map of Brown of 1867, made by order of Council and adopted by it, is.plain and conclusive assertion that Water street, as part of batture, had been reserved for public use, and this action was had before plaintiffs bought.
    6. The lower judge erred in finding no “public necessity ” for'the ordinance. The Council has decided the question, and as early as 1867, at least* reserved the street, and plaintiffs have never sued to reduce ttíe reservation.
    7. No expropriation by the City of Jefferson was necessary, nor is any by New Orleans needful. It is not a question of taking, but of withholding.
    8. Jefferson City made compensation for streets laid on in rear of Tchoupitoulas street, but declined to pay for any part of batture.
    9. The intervenor made defendant by order of court is entitled to damages in re-convention. Act 50 of 1886.
   On Motion to Remand.

The opinion of the court was delivered by

Fenner, J.

The defendant appellants, in advance- of fixing or hearing on the merits, present this motion to remand the cause to the court a qua for the purpose of receiving and considering certain additional evidence which has been discovered since the date of the decision below, and which is alleged to have a material bearing om the issues.

We have maturely considered the points and authorities adduced in support of the motion, but can not avoid the conclusion that the, motion at this time is premature.

Our authority for such action is found in Article 906 of the Code-of Practice, which provides: “But if the court shall think it, not-possible to pronounce definitively on the cause, in the state in which' it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refused to receive it or otherwise, it may, according to circumstances, remand the cause to-the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.”

We consider it a condition precedent to the exercise of such authority that we should first determine that it is “ not possible to pronounce definitively on the cause, in the state in which it is,” meaning of course, by “ definitively,” a judgment according to conscience and the requirements of justice. It is plain that we can not determine this question without first examining into the merits of the cause, a necessity illustrated by the fact that a considerable portion of the argument on this motion was quite inaptly devoted to the merits.

It is not pretended that the evidence now produced raises any new issue or eliminates any existing issue in the cause. It is admitted to be merely additional and cumulative to evidence already submitted.

It might well be that we may conclude, on examining the merits» that the evidence already submitted was sufficient, or that the evidence now suggested, even if admitted, could not affect our conclusion, or that, for some other reason, we could decide the cause to our satisfaction, “in the state in which it is.” In such case, of course the remanding would be unnecessary and improper. The. most pertinent precedents cited by movers are the following: Culliver vs. Garric, 13 La. 137; Millaudon vs. Mun., 71 An. 215; Schneider vs. Ins. Co., 30 An. 1198.

In the first two cases the remanding order was made under submission on the merits and after examination thereof. While this, does not so clearly appear in the last case, it is inferable from the facts that the court reviews the merits and reverses the judgment-appealed from before remanding.

It would be necessary for us to pursue the same course, if we should grant the order prayed for, and it would be most irregular for us to reverse a judgment appealed from, on a motion like this, before the case has been set for trial, and when the merits of the judgment have never been submitted for our decision.

It is therefore ordered that the motion be, at the present time, denied, and that the subject matter thereof be referred to the merits of the cause, to be considered and determined when the latter shall foe tried and submitted.

On the Merits.

McEnery, J.

The plaintiff company alleges that it is the owner of a certain tract of land, between and extending from Tchoupitoulas street and the Mississippi river and a line in the center of the prolongation of Foucher street to about 115 feet beyond a line in the center of the prolongation of Aline street, with the improvements thereon and rights and privileges and advantages thereunto appertaining, including the right of batture and accretion.

That plaintiff acquired title to said property by purchase in March, 1868, and by subsequent purchases.

For more than twenty years said tract has been inclosed with a fence, and the company has occupied the same with a building for the manufacture of ice, brick vaults, store houses, stable, etc.

For more than thirty years the plaintiff company and its authors have held continuous, undisputed and uninterrupted possession of said tract of land, occupied the same and exercised the rights of full ownership thereof.

That twenty years ago the levee was made by the city of Jefferson, or under its authority, from near the Tchoupitoulas street line of said property, and extended and placed on the front portion of said land was the bank of the river, so as to place said tract of land within the levee. Since which time the property has been assessed and taxed by the cities of Jefferson and Orleans. That no part of said property has ever been opened and subjected to the use of the public, except the immediate river bank. Nor has any right of way, passage, roadway or street been granted or permitted through said property by petitioner, or any of the former owners of said land.

That the Oity of New Orleans threatens to extend Water street through said property, and to furnish the lines and levels in order to permit the construction and putting down of a railway track of the standard gauge through said property, against petitioners’ protest and without compensation.

That the permission to construct said railway through said street is in the aid of a private enterprise, and that there is no public de. mand or necessity for the said extension or opening of said Water street.

That the line where Water street would run through petitioners’ property is only ninety to ninety-six feet from Tchoupitoulas street running parallel thereto.

That in front of petitioners’ property there is a wide, extending batture, upon which there is an open public road.

That petitioners’ ice works, factory, vaults and stables were built with reference to the road on the river front and Tchoupitoulas street, and that if said Water street is extended and the railroad built thereon, said street will run through a brick vault and storehouse, rendering it necessary to move said vaults and storehouse, and the division of the property will require additional fencing.

That said Oity Ordinance No. 3941, O. S., authorizing the extension of said street, is ultra vires, null and void, being in violation of Article 5 of the amendment to the Constitution of the United States, and Articles 6, 155, 156 of the Constitution of the State of Louisiana.

An injunction issued as prayed for restrain the execution of said ordinance.

The City of New Orleans answers and alleges that in the year 1866 the property in question between Delachaise and Amelia street, from Magazine to the river, was in one track, undivided by streets, and on the front of said tract Tchoupitoulas or the old river road ran. All the land in front of Tchoupitoulas was batture, across which needful streets for public use could be laid out without expropriatian or payment for the right of way.

By ordinance of January 29, 1867, the Council of the City of Jefferson instructed the surveyor, Henry C. Brown, to make a map of said city, and a book of plans for each square, and to fix the grades of the streets by actual survey. The City Surveyor performed this work, made the official map and book of plans, and Water street, from Delachaise to Amelia, and from Louisiana avenue to Upper Line was thereon laid out across said batture, and the map and plans were approved and accepted by said Council of the City of Jefferson on September 2, 1867; other streets were laid out at the same time on the batture; Water street from Louisiana avenue to Upper Line street was lawfully laid out and opened many years ago; that any and all obstructions placed thereon by plaintiffs are unlawful, and that in no event can plaintiffs claim compensation for needful streets laid out by the City of Jefferson, or its successor, the City of New Orleans.

The defendant, the City of New Orleans, prays for a dissolution of the injunction, specially reserving the right to sue for damages.

The “Independent Cotton Oil Company, Limited,” which is interested in the extension of said street, and to which was given the privilege of operating the railroad to be conducted along said street, filed a petition of intervention, joining the City of New Orleans, the defendant, and urging the same defences.

There was judgment for the plaintiffs, perpetuating the injunction, dismissing the intervention of the Independent Cotton Oil Company, and its reconventional demand. The defendant and intervenor have appealed.

The property through which Water street runs is an increasing batture. Tehoupitoulas street was originally the front street. The increase of the batture has made it necessary for the convenience of the public, and in the interest of commerce, to lay out several streets between Tehoupitoulas and the river, some parallel and others perpendicular to the river. Squares have been laid out. They are small — less than the ordinary square, from ninety to ninety-six feet front. These squares are, however, not exceptional. In other portions of the city on the river front there are squares of like dimensions. The peculiar conditions, the geographical location of the city, and the accretion and losses from the Mississippi river render the size of these squares a necessity.

There is the same necessity to divide these squares by streets as to separate the larger ones, located in other portions of the city. There is no i*eason then, because there is a less distance between streets, that they should not exist.

But the regulation of the size of streets and squares is a matter within the discretion of the City Council, and it would only be in case of flagrant abuse of this discretion, by which the vested rights of the citizen would be disturbed, that courts would interfere with that discretion. It is not a question then as to the width of the street or the size of the square that can determine the right of the city to open a street on batture property. This part of the plaintiffs’ petition may then be dismissed without further consideration.

In 1860 the batture had so increased that Water street was laid out. This is clearly shown by the map and plan of Oity Surveyor Williams, found in the record. In 1867 the ’City Council of Jefferson City ordered the actual survey of the batture property by the City Surveyor, Henry C. Brown.

The resolutions ordering the survey were adopted on the 29th of January, 1867. That Water street then existed as shown on the Williams plan of Jefferson City is evident from the first resolution of the Council, as follows: “A general plan of the city, showing the squares, as already denoted, and those properties not now divided Into squares; said squares to be numbered. No. 100 to be the square bounded by Toledano, Levee, Water streets and Louisiana avenue. Said numbers to run up and down the river alternately, and running from one hundred and upwards. Said plan shall show the exact dimensions of each square, banquette and street to be thereon subscribed, and to be given from an actual survey to be made by him.”

In pursuance of this resolution, the survey and the plan were made. The indicated squares were divided and the streets located. The plan, which was adopted by the City Council, shows Water street, located and well defined from Louisiana avenue to Upper Line street. The plaintiff acquired the property through which this street runs one year after the above survey and plan was adopted by the Council, and eight years after the location of the street by Williams, the City Surveyor.

The street had an'existence, which was recognized by the Council of Jefferson City in 1867, when said street was fnade one of the boundaries of the new square No. 100. Buildings had been erected fronting on said street, and it had been in part graded, and banquettes had been made on portions of it. But in the vicinity of plaintiffs’ property it seems it had not been graded, nor had banquettes been made.

For the purpose of erecting their buildings for the ice factory, lines had been furnished the company with reference to the existence of Water street. The company therefore knew of the existence and location of the street.

The location of the street and its dedication to the public in part is not denied, but opposition is made to its extension — that is to the improvement of the street, which will interfere with plaintiffs’ buildings located in part in said street, and the dividing of its property.

The street having been reserved from.the batture for public use, located and partially improved, it was discretionary with the city to determine when its further improvement should be necessary.

In the case of Shea vs. Oity of Ottawa, 67 Iowa 39, the court said:

But it is urged that there was no acceptance of the dedication by the -public or by the city for the public for more than thirty years after the dedication when the street was graded. It is shown that the street remained uninclosed; that the land was rough and hilly, and for that reason it was but little used by the public. It appears that when the wants of the public demanded it, the city proceeded to grade the street at the point in dispute.
“ It would not do to hold that the only streets dedicated to the public over hilly, rough land would revert to the dedicator if they were ■ not improved and used by the public until the wants of the public travel demanded it. In some of the cities of this State there are streets in some portions thereof over which no vehicle .or horse has - passed, and yet they were dedicated more than thirty years ago. They have not been used because until graded they are incapable of use. The dedication will be presumed by the law to have contemplated this state of things and imposed no condition upon the public ■ to use the street until the public wants demanded and secured this. improvement.” Meier vs. Portland*, 19 Pacific Railroad 610; Elliott on Roads and Streets, p. 89, note.

The dedication of Water street was statutory, and imposed no conditions, and was made in reference to the future development of the Oity of Jefferson.

The reservation of a part of the batture property for streets, and' the location of Water street, was not an expropriation of private* property for public uses.

Act 333 of 1853, now Section 318, R. S., provides that:

“Whenever the riparian proprietor of any property in the incorporated towns or cities in the State is entitled to the right of accretion, and batture has been formed in front of his land more than is. necessary for public use, which the corporation withholds from him, he shall have a right to institute suit against the corporation for so - much of the batture as may not be necessary for public use; and if it be determined by the court that any portion of it be not necessary,for public use, ib shall decree that the owner is entitled to the property, and shall compel the corporation to permit him to enjoy the use and ownership of such portion of it.”

As stated in Remy vs. Second Municipality, 11 An. 161, the several acts of the Legislature giving the city police powers over the batture were not intended to change or disturb the rights of property.

The City of Jefferson, when the batture was formed, had a right to determine to what extent the riparian proprietors might take possession of the batture. Remy vs. Second Municipality, 12 An. 500.

From the terms of Act 338 of 1853 (R. S., Sec. 318), the riparian •owner of any property entitled to the right of accretion can not reduce the batture to private occupation without leaving, for public (use without compensation, such portions thereof as may be needed •for commerce, public highways and streets. Sarpy vs. City of N. O., 13 An. 349.

The accretions are enjoyed by the riparian owner subject to the right of the corporation to reserve and use a sufficient portion thereof for public uses such as levees and streets. To this portion he has no right or title, and therefore to expropriate would be unnecessary.

The sale of the property to plaintiffs by the original riparian proprietor could not convey to the company any greater rights than the vendor possessed. The City of Jefferson, by statutory dedication, •owned that part of. the batture necessary for public uses, and the vendor of plaintiffs could not convey title to it. Before the purchase •by plaintiffs the City of Jefferson had designated that part of the batture that was needed for Water street. The plaintiffs could not defeat the city’s right to that portion of the batture by sale to a third party.

The dedication of the street by the City of Jefferson on the map and plans in evidence does not render it difficult to determine the extent of the street. It is marked its entire length. If there were any doubts the rule is to construe the dedication so as to benefit the public. Elliott on Roads and Streets, p. 111.

The plaintiff built the vaults and fences on the street. These acts were in themselves unlawful, and he therefore can not make them the basis for a plea of prescription, as he can not take advantage of his own wrong.

The plaintiff, even though he was ignorant of the rights of the city to said street, can not, by.placing buildings and fences thereon,, prescribe against the public right to passage, ways, streets and highways over the batture.

It is urged that the assessment and collection of taxes by the cities; of Jefferson and New Orleans on said property operates as an estoppel to the right of the City of New Orleans to open said street.

The law requires the owner of property to hand in a description: of the property to the Assessors.

The property was described as extending to the river from Tchoupitoulas street. Water street divided the property, and was. used by the public.

The property owned by plaintiffs was assessed as described by him, and because he described it including the street that divided the property certainly can give him no title to the street. There was no separate valuation to the part of the street which was included in the description of the assessed property.

No part of plaintiffs’ property is reserved for public use upon. Avhich he has paid taxes.

The street in question was never owned by him. The property OAvned by plaintiffs only has been assessed and taxes collected, thereon.

The street having been located by the City of Jefferson, to whose rights the City of New Orleans succeeds, Avhen the cities were consolidated the latter city had a right to authorize the construction of a railroad through the street.

The intervenor is not entitled to damages on the reconventional demand.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it isnoAV ordered that there be judgment in favor of defendant and Ínterveno1.’; refusing the demand of plaintiff, and the injunction issued herein be dissolved. It is further ordered that the reconventional demand of the intervenor be rejected, appellees to pay costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,710.
    W. W. Washburn vs. City of New Orleans et als.
    Shooks are boxes knocked down. They are pieces of wood which are cut or sawed into sizes and shapes by moans of machinery, and packed in bundles, either for shipment or manufacture into boxes. They are such “ articles of Avood” as are contemplated in Article 207 of the Constitution.

      ■2. When capital, machinery and other property are employed partly in themanufacture of articles of wood which are exempt, and partly of those which are not, the court may apportion the amount of each.
    3. Capital, machinery and other property .which are employed in the manufacture of paper boxes are not exempt from property taxation under Article 207 of the Constitution.
    APPEAL frozo the Civil District Court for the Parish of Orleans» Voorhies, J. _

      Horace E. Upton for Plaintiff and Appellee:
    1.Under Article 207 of the Constitution, the capital, machinery and other property employed in the manufacture of articles of wood is exempt from taxation, although the same be used as well for purposes which would not entitle the owner to exemption if he exclusively thus used it. In such case such property is partly taxable and partly not, in proportion to its relative value as employed or used in each business. Principle applied to a saw mill and appurtenances-employed to manufacture raw materials and articles of wood. Martin vs. New ' Orleans et als., 38 An. 397 and 398.
    2.In the instant ease the relative value of the property employed in the saw mill business proper is 25 per cent., while that used in the manufacture of articles of wood is 75 per cent. Only 25 per cent, of said property is liable to taxation under Article 207 of the Constitution. Martin vs. New Orleans et ah, 88 An. 397" and 398. The making of wooden and paper boxes, like the making of newspapers, to use the language of this court, “ is a business, the process of making them employs machinery, and extensive manual labor and large quantities of physical raw material which are placed in new combinations, and that the newspaper when made (like wooden and paper boxes) isa new and distinct article of commerce sold by the makers thereof directly to dealers and consumers; considering that such business falls within the reason and motive of the Constitution, which was to encourage enterprises, furnishing employment to home labor in the making of things which the people use and require, and which, if not made at home, would be bought from abroad; considering that the Constitution in Article 207 uses the term ‘manufacture5 in a broader sense than that attached to it in common parlance, embracing under that term such business as boat building, stationers and makers of chocolate, etc., and considering that the Legislature obviously considered this business as well as that of book publishers to be exempt by expressly enumerating among businesses taxed, editors and agencies for publications, and making no mention of home publishers of either newspapers or books. Held, that newspaper publishers are exempt from license taxation under Article 206 of the Constitution.55 12 An. p. —, not yet reported. Opinion read April 7, 1890, final May 22,1890. Recorded book 63, folio 510, No. 10,530, State vs. Dupré & Hearsey.
    3.An application of the principles recognized and maintained in the foregoing authorities entitles plaintiff absolutely and unconditionally to the exemptions claimed herein. I-Iis paper box manufactory is exempt from license and taxation in its entirety. His saw mill and appurtenances are exempt from license and taxation according to the relative value of the property used and employed for manufacturing purposes, for the manufacture of articles of wood, which is shown to be 75 per cent., while that employed in the saw mill business proper is 25 per cent. Three-fourths of said property is therefore exempt from license and taxation under the Constitution and authorities cited.

      W. B. Sommerville, Assistant Oity Attorney, and Carleton Hunt, City Attorney, for Defendants and Appellants:
    1. Where a party claims that an assessment includes property exempt from taxation, he must make liis ease certain. Carré vs. City oí New Orleans, 42 An.
    2. Shooks are not manufactured articles oí wood, and entitled to exemption from taxation under Article 207 of the Constitution. Worcester, vide: sliooks; Be Blanc vs. Beck, 24 An. o9G;-Martin vs. N. O., 38 An. 399; Curré vs. N. O., 41 An. 99G; G So. R.
    3. A real tender is one made to the creditor in current money oí the United States for the amount due, with interest, and in the presence of two witnesses. O. 1’ 408, 407.
   The opinion of the court was delivered by

Watkins, J.

This is an injunction suit, seeking to restrain the City of New Orleans ana the State from selling plaintiff’s property for the delinquent property taxes of 1887 and 1888, on the ground that the same is exempt from taxation under the 207th article of the •Oonstitution, which declares that there shall be exempt from taxation and license for a period of ten years from the adoption of this Oonstitution, the capital, machinery, and other property employed in ■the manufacture of textile fabrics, leather, shoes, harness, saddlery, hats, flour, machinery, agricultural implements and furniture, and other articles of wood, marble or stone; soap, stationery, ink and paper,” etc.

His representations are that during those years he was the owner •of a saw and planing mill situated in the sixth district of the Oity •of New Orleans, which was assessed at the aggregate valuation of $17,300; and that he was the owner of a box factory situated in the first district of said city, which was in those years assessed at the aggregate valuation of $2200.

With regard to the former plaintiff alleges “that more than three-fourths of the material which is sawed, resawed and received in said mill is planed, edged and dressed; and that when it leaves said mill it is ready for immediate use by the consumer or manufacturer.

“ That the greater portion of said planed and dressed lumber and material was, during the years 1887 and 1888, used by petitioner in his box manufactory and otherwise; and that the remainder thereof was used by other parties in the manufacture of articles of wood;” and not more than “ one-fourth of the lumber and material which leaves •said mill, and whiqh is sawed therein, leaves it in a rough, undressed, unfinished condition, not ready '■for immediate use by the manufacturer or consumer.” Brief, p. 8.

He therefore avers that three-fourths of the property, movable and immovable, that is employed and used in said mill is exempt from taxation.

With regard to the latter, he alleges that it was during those years exclusively engaged in the manufacture of wooden and paper boxes, and that the whole was exempt from taxation and license.

He alleges a previous legal tender, made to the legal representatives of the State and city, of the amount of State and city taxes due on the one-fourth interest in the saw mill and planing mill and appurtenances, namely, on one-fourth of $17,800, and that same was refused and a seizure made of the real estate, which was assessed.

The District Judge decreed the assessment of the box factory null to the extent of one-half of its assessed value, and reduced it to $1100, and to that extent declared it exempt from State and city license and taxation; and he decreed the assessment of the saw and planing mill null to the extent of three-fourths of its assessed value, and reduced it to $4825, and to that extent declared it exempt from State and city license and taxation.

From this judgment the City of New Orleans alone appeals, and in this court plaintiff and appellee filed an answer, requesting an amendment of the judgment in his favor, so as to exempt from license and taxation his box factory in its entirety.

I.

The assessments of plaintiff’s saw. and planing mill are as follows, to-wit:

The assessment is just the same for each of the years — 1887 and 1888.

From the evidence it appears that the saw mill cuts lumber from saw logs, and then a portion of it is cut into suitable shapes and sizes for boxes and put into bundles. These are called shoots. Of these a large portion is sent to the plaintiff’s box factory on Magazine street, where these pieces are put together and made into boxes. Many of the shooks are shipped in car load lots for sale. . Shooks are boxes knocked down, not nailed up. About three-fourths of the property of the saw and planing mill is devoted to this business exclusively. A statement of the whole business for the years 1887 and 1888 are in evidence, and they are as follows, to-wit:

The statement for 1887 shows that of the sum total of business done by the saw and planing mill, only $14,558 was realized from the sale of lumber in its crude state, and for sawing logs sent to the mill by othei;, people. The correctness of this statement is fully borne out by the testimony of witnesses.

The contention of the City Attorney is that this property of the plaintiff was not employed in the manufacture of “articles of wood ” in the sense of the 207th article of the Constitution; in other words, that “ shooks” are not such articles of wood as the framers of the constitutional article intended to exempt from taxation.

The District Judge was of opinion that “ shooks are articles of wood ready for use by the consumer, who has but to put them in boxes. They need no further 'manipulation or labor on them as shooks, precisely as is the ease of sashes, windows and blinds, which also require as such no further manipulation or labor, but must nevertheless be put up for use.”

He arrived at this conclusion from what was said by us in Carre vs. City, 41 An. 996, in the determination of a similar question, and which was predicated on Martin vs. New Orleans, 38 An. 398, in which sashes, doors and blinds were declared exempt, as being within constitutional intendment.

In the Carre case we said: “The articles of wood mentioned in the article of the Constitution are, therefore, those which like furniture were intended for separate use, and are ready for use by the purchaser without further manipulation or labor on them, namely, which are complete in themselves.”

The great similarity between shooks and sashes, doors and blinds, that the District Judge suggests is apparent. True, shooks are not wooden boxes; but they are “articles of wood;” articles cut by machinery from sawed planks, and fashioned into shapes and sizes ¡suitable for making boxes, by the simple process of nailing them together.

We think the view he entertained was correct. But as the testimony shows that of the total output one-fourth of the material was in its crude form, and therefore not ai-tieles of wood, which are exempt, the judge correctly apportioned the exempt property at three-fourths of the value assessed, and reduced the assessment of the saw and planing mill to one-fourth. The proof satisfies us that fully three-fourths of “ the capital, machinery and other property ” of plaintiff’s saw and planing mill was employed in 1887 and 1888 in the manufacture of articles of wood within the meaning of the Constitution, and to that extent same is and was exempt from property taxation for and during those years.

II.

Plaintiff’s box factory was assessed for the years 1887 and 1888 as follows, viz:

This factory was exclusively engaged in the manufacture of paper boxes, wooden boxes and cigar boxes during those years.

The statements in the record show that there were manufactured at this establishment each year paper boxes of the aggregate value ol $8000. The District Judge entertained the opinion and held that as this establishment did npt manufacture paper, but out of paper-manufactured by others paper boxes were manufactured, said articles do not come within the terms of the constitutional exemption relative to paper. On this hypothesis he reduced the assessment of the box factory one-half, namely, to $1100, considering that 50 per cent, in amount of the capital, machinery and other property in this factory was thus employed in those years.

The Constitution declares that “ the capital, machinery and other property employed in the manufacture of * * * furniture and other articles of wood, * * * ink and paper," etc., shall be exempt from taxation. Surely the manufacture of paper boxes is not the manufacture of “paper."

In Cohn & Feibleman vs. Tax Collector, 41 An. 894, we had under consideration and decided this identical question as appertaining to the term textile fabrics, which is used in Article 207 of the Constitution. In that case the contention of the plaintiffs was that their property was exempt from taxation for the reason that it was employed in “ manufactwing jeans clothing out of raw materials." ~We said that the article of the Constitution does not in terms exempt from taxation property engaged “in the manufacture of coats and pants, or jeans clothing.

“ And to say that it exempts (property engaged in) the manufacture of coats and pants out of jeans already manufactured by another would be to read into the article an additional exemption not contained in it. Or to say that the making of coats and pants out of a textile fabric already manufactured is ‘ the manufacture of textile fabrics,’ in the sense of the Constitution, would be to confound its terms completely; for the making of the coats and pants presupposes the previous existence of the fabric out of which they are cut and made; and the manufacture of the fabric presupposes the subsequent cutting and making of the coats and pants. Hence it is quite clear that one can not be taken for the other.”

It is equally clear that property which is employed in the manufacture of paper boxes can not be said, at one and the same time, to be employed in the manufacture of paper. True it is that the boxes are made or manufactured of paper; but in the process of making the boxes the paper must be cut and otherwise manipulated. Paper boxes are not among the articles which are exempted by this article eo nomine'.

In this connection our attention is attracted to what was said upon, a germane subject in our opinion of the recent case of State vs. Dupre, 42 An., as exercising control over the question we have here. But in that case the question was whether the defendants were or not exempt from the payment of “a license tax under the exemption provided in the 206th article of the Constitution, which declares that “ ail persons * * pursuing any trade, profession, etc. * * except clerks, laborers, etc. * * and those engaged in mechanical and mining pursuits and manufacturers other than those of distilled alcoholic or malt liquors,” etc., shall pay a license tax.

It will be observed that all manufacturers are in terms excepted, unless they are included within the express reservation of that article. That article relates exclusively to the persons who are liable for the payment of licenses, while Article 207 relates to the capital, machinery and other property employed in the manufacture ” of certain articles. Hence, the burthen of our opinion in that case was the determination of “the legal definition of the term manufacturer,” as it is read in Article 206; and it had no reference to the exemption of property employed in manufacture, as specified in Article 207.

While it is true that the defendants in that ease were held to be manufacturers in the sense of Article 206, and were relieved from the payment of the licenses which were exacted of them personally, and that, therefore, they were necessarily considered to be the manufacturers of a newspaper, it does not follow that plaintiff’s property, which is employed in the manufacture of paper boxes, njust be exempt from property taxation, even though the plaintiff be considered to be a manufacturer of paper boxes. This constitutional provision exempts property which is employed in the manufacture of “ articles of wood,” and it also exempts property which is employed in the manufacture of “ paper,” not property employed in the manufacture of articles of paper.

Our conclusion is that the judge a quo decided this question correctly.

III.

In the lower court there was some controversy as to the admissibility of evidence touching the value of the plaintiff’s property. This is a suit to have declared exempt a certain proportion of the property which was assessed, on the ground that same was exempt from taxation. The assessment is not otherwise questioned. The correctness of the assessment is not raised. The judge correctly ruled, however, that the objection went to the effect of the evidence only.

The proof of tender fails for the reason that it only shows an offer of one-fourth of the taxes which were claimed against the saw and planing mill.

Judgment affirmed.


text:
    No. 10,768.
    Pedro Landreaux et al. vs. Norbert Louque.
    1. Tlio interest o£ a deceased wife’s lieirs in community property is only residuary, and their inheritance is subordinated to the payment o£ the debts o£ the community.

      2. A surviving husband is personally and individually responsible for the payment of the debts of the community, while thewife is only contingently liable therefor; and the latter may relieve herself by making a renunciation of her interest in the community property, and after her death her heirs may relieve themselves either by renouncing her succession or accepting it with the benefit of an inventory.
    8. In case the claim of a community creditor is secured by a special mortgage, which is evidenced by an authentic act, importing a confession of judgment, and containing the non-alienation clause, he may foreclose the property mortgaged in executory proceedings taken against the surviving husband alone, and a judicial sale thereunder will convey a valid title to a purchaser.
    APPEAL from the Twenty-sixth District Court for the Parish of St. Charles. Host, J.

      Chas. F. Claiborne, for Plaintiffs and Appellees, cited: 17 La. 238; 24 An. 530; 36 An. 157; 33 An. 467; 35 An. 297; 38 An. 759; 42 An. 411; 42 An. 432.

      Chas. Louque, for Defendant aiid Appellant, cited: 38 An. 584; .32 An. 898; 5 An. 737; 15 An. 636.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs commenced executory proceedings in the foreclosure of a mortgage on property of the late matrimonial community of Norbert Louque and wife by citation to the surviving husband alone; and the beneficiary heirs of the deceased wife filed a third opposition to the sale on the ground that the community was dissolved by the death of their' mother; that their father from that moment ceased to be head and master of the community; that as legal heirs of their mother, all of her rights and obligations passed to them as an inheritance, and therefore no valid sale could be made of the one-half interest in the property mortgaged, which was owned by their mother and inherited by them, unless they were duly notified thereof.

The plaintiffs in execution concede the claim made by the opponents as a. general proposition, but allege that although the legal community be dissolved by the demise of one of the spouses as matter of fact, yet it has subsequently a fictitious existence for the purpose of liquidating and discharging community debts, and that the right of possession by the heirs is held in suspense so long as there are community debts remaining unpaid.

In this case they allege that the heirs of Mrs. Louque are without interest to make complaint of their proceedings, because the Louque community is insolvent, and no residuum will remain after its debts are paid. ,s

On the trial judgment was rendered in favor of the plaintiffs in execution, rejecting the demands of the opponents, and they have .appealed.

The record discloses the following facts, viz:

That plaintiffs sold the property in controversy to Norbert Louque in December, 1877, for $32,000, of which $4500 was paid in cash, and for the balance of the price said vendee executed his several notes, payable at future dates with interest.

That in order to secure same, a spécial mortgage and vendor’s lien were stipulated in the public act of conveyance, and also the pact de non alienando. Some of the notes first maturing were paid, and the remainder were'subsequently acknowledged, andthetime of their payment extended. In June, 1886, Mrs. Odile Louque died, leaving •as her surviving heirs the opponents,, who accepted her succession with the benefit of inventory, and another son who renounced her succession. Notice'of the order of seizure and sale was given to Norbert Louque, surviving husband, alone. The sale having been opposed without resorting to an injunction, the property was adjudicated to the seizing creditors for the sum of $20,000, same being more than two-thirds of the appraisement, and less than half of the debt and interest due. It is a fact admitted in this court that the property in question constituted the sole asset of the legal community.

Under this state of facts, the question for decision is whether the •opponents were entitled to notification of the executory proceedings, and could a valid sale of their one-half undivided interest in •the common property be made without it.

It is elementary that the interest of the wife’s heirs in fhe community is only a residuary one, and their inheritance is subordinated to the payment of community debts. Succession of Dumestre, 49 An. 411; Factors and Traders Insurance Co. vs. Levi, 42 An. 432; 33 An. 467, 585; 35 An. 297; 36 An. 157; 38 An. 759; Hen. Dig., p. 1496; Louque’s Dig., p. 416.

In addition to the fact that the heirs can not take possession' of the undivided interest in the community property, which they have inherited from the deceased wife, until community debts are paid, is the binding force of the authentic mortgage, which imports a confession of «judgment, and contains the clause of non-alienation, one of the effects of which is to entitle the mortgage creditor to proceed in the foreclosure of the property mortgaged, on giving notice to the original debtor, and without paying any attention to any transferee of same.

It is settled that executory proceedings against a deceased mortgagor can be taken on giving notice to the administrator of his estate alone, and the surviving husband is personally and individually responsible for the payment of community debts, whether they are ordinary or secured by mortgage, while the heirs of the wife are only contingently liable, and may relieve themselves from personal responsibility by renouncing her succession, or accepting it with the benefit of inventory — as Mrs. Odile Louque’s heirs have done.

It is not easily perceived what reason there can be, under the cir■cumstances of this case, for making the beneficiary heirs of the deceased member of the insolvent community parties to the executory proceedings, which were taken against the surviving husband alone.

It is the accepted jurisprudence of this court that such proceedings can be conducted against the surviving husband alone. This principle has been decided specifically in several cases. For instance, it was said by our early predecessors, in Lawson vs. Ripley, 17La. 238, that, after dissolution of a community “ by the death of the husband, it is uniformly understood that his estate is bound to pay the debts contracted during the marriage; if it be dissolved by the death of the wife, the survivor is generally alone applied to for the satisfaction of the community debts; and the wife or her representatives, “although their distinct interest to the community attaches at the dissolution of the marriage, subject to their right to renounce and be exonerated from the payment of the community debts, have nothing to claim out of the acquets and gains until such debts are paid or liquidated.”

This opinion was followed by and quoted as authority for many subsequent cases, and notably in Baird vs. Lemee, 23 An. 424.

In Hawley, Adminisrator, vs. Crescent City Bank, 26 An. 230, the court expressed its unqualified approval of this doctrine, and said:

“ Upon the dissolution of the community by the death of the wife, the responsibility of the husband in regard to the community debts is not changed. He is absolutely and personally bound .for their payment, and his separate property may be seized and sold for their acquittal. This being his position, he has under his control the community property, which by law is expressly subjected to the payment of the community debts; and he has, so far as the final-settlement and liquidation of the conjmunity after its dissolution is concerned, the same rights he had during its existence, because he is, after the dissolution, under the same responsibilities for the community debts that be was before the dissolution. It is but just that he should have those powers. The community property continues under his control until the debts are paid. Until their final settlement and discharge the heirs have no absolute rights to the property of the community that can be'legally recognized. Their interest in it continues contingent and uncertain until, by the result of the final discharge of all the obligations of the community, it is known whether there are assets remaining for partition between the suryiw r and the heirs of the deceased spouse.”

The individual liability of the husband for community debts after the death of the wife was recognized and enforced in Bienvenue vs. Fournet, 28 An. 623; also in 26 An. 290.

The doctrine announced in the quoted cases was in substance re-announced by this court with approval in Succession of Cason, 32 An. 792, and the court added:

“If, as in this case, the community be admittedly insolvent,” the heirs of the deceased wife “have no interest, and consequently no right, to provoke its liquidation. As to the community creditors, they are under no necessity to provoke its liquidation through the medium of the wife’s succession, because it is settled they may disregard the wife’s interest and proceed directly against the community property in possession of the husband eontradietorily with him alone. 26 An. 230, 391, 294.”

The question presently under consideration was raised and decided in Killelea vs. Barrett, 87 An. 865. In that case suit was brought by the heirs of a deceased wife for the revocation of a judicial sale of community real estate, which had been made in executory proceedings against their surviving father alone, and not against them nor against their mother’s succession. '

We said that it was unnecessary that the deceased wife’s succession or heirs should have been made parties thereto. “ As before stated, the debt was a community debt, to enforce which the proceeding was instituted. The sole debtor was Killelea, the husband, and the community property was subject to the debt, and it was sufficient to make the debtor, if alive, or his legal representatives, if dead, parties to a proceeding to coerce its payment. This is settled by the latest authorities, which we follow. 26 An. 230.”

Oriol, Tutor, vs. Herndon, 38 An. 759, was a similar case, and we maintained the same principle and cited as authority therefor, Durham vs. Williams, 32 An. 162; Succession of Cason, 32 An. 792; Succession of Boyer, 36 An. 515; Killelea vs. Barrett, 37 An. 865; Succession of Bright, 38 An. 141; Succession of McLean, 42 An. 222.

Our opinion in Succession of Lomm, 40 An. 312, is predicated on this line of,authority. From these numerous adjudications -it appears that this court stands thoroughly committed to the doctrine of Lawson vs. Ripley and Succession of McLean. Indeed this construction of the community law has ripened into a rule of property, and should not be changed, except for the weightiest and most serious considerations. And surely none have been suggested in this case.

But it is intimated that this line of authority is antagonized by our opinions in Tugwell vs. Tugwell, 32 An. 848, and Glasscock vs. Clark, 33 An. 584.

In these opinions we held that the judgment of the lower court erroneously rejected the demands of the plaintiffs therein, on the ground that heirs of a deceased wife and partner in community disclosed in themselves no cause of action for the recovery of her ■undivided interest in the property of the community until it was shown that the affairs of the community had been liquidated and settled. While we maintained the right of the plaintiffs in those cases to sue and stand in judgment, we distinctly placed it upon the ground that there was a specific averment in their petitions that the communities respectively owed no debts. And in Tugwell vs. Tug-well, we distinctly held “that when the community acquets and gains is dissolved by the death of the wife, the respective interests of the wife attach at the moment of its. dissolution, to the property of the community, subject to the payment of community debts." [Italics ours.]

The enunciation of this doctrine would be plainly inconsistent with the maintenance of plaintiff’s cause of action in that case, except upon the theory that all community debts had been paid, or that plaintiff’s petitory action for the recovery of their mother’s interest in the community property, though charged with debts of the community, was a simple acceptance of her succession, and rendered them personally responsible therefor to the extent of their shares thereof.

It will be observed further that there is a clear distinction between those two cases and those we have herein previously cited. The latter appertain to the right of community creditors to proceed against the surviving husband alone, in the collection of their claims against it, and sanction the validity of judicial sales made in pursuance thereof. The former relate to the illegality of private sales of community property, made by surviving husbands after the demise of their wives, and for other consideration than satisfaction of the debts of the community.

Those cases are predicated upon Burnett vs. Fuller, 29 An. 663, in which it was held that “ after the dissolution of the community, the husband, as its former head, has no power to sell, and can convey title to no greater part of the community property than his undivided interest.”

Conceding the full force and correctness of those opinions, and this we do unreservedly, and, in our opinion, nothing is gained by the opponents. For, notwithstanding the legal inhibition which is placed upon the surviving husband, and which prevents his making a divestiture' of the title of his deceased wife in the community property, to the prejudice of his simple heirs, it is a non seguiter that same may not be done, legally and effectually, by means of executory or probate proceedings and judicial sale, taken and made contradictorily with the surviving husband alone.

Judgment affirmed.


text:
    NO. 10,777.
    Henry Tenney vs. Simon Abraham.
    1. In an injunction suit against a seizure and sale of mortgaged property no evidence of an agreement to grant time of date prior to that of the note and mortgage sought to be foreclosed is admissible, to vary or contradict the same, in the absence of allegation of fraud or error.
    2. Conversations between the parties explanatory of the purpose and object of the acts arc likewise inadmissible.
    8. Evidence as t.o a promise or agreement on the part of the mortgagee, since the execution of the act of mortgage, to grant time, is inadmissible in the absence of any averment to that effect in the plaintiff’s petition.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      E. A. O’Sullivan for Plaintiff and Appellant:
    It is not necessary to use in civil pleadings the words “ fraud,” “ error.”
    If the allegations of thepetilion tend to show fraud and error, evidence in support of the allegations will be admitted to prove them as though the words “ fraud,” “error,” were used. Moak’s Van Santvoord’s Pleadings; Bliss, Pleadings, Sec. 811.

      L. P. Caillouetj for Defendant and Appellee, cited C. C. 2276, 2236; 38 An. 593; 37 An, 203; 7 An, 75; 16 An. 307; 42 An. 522.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff’s case is an injunction without bond, obtained under the provisions of Article 739 of the Code of Practice, against the defendant’s executory proceedings in the foreclosure of a special mortgage on plaintiff’s one-eighth interest in the Ravenswoodplantation.

The defendant’s counsel obtained an order, under the provisions of Article 741 of the Code of Practice, requiring plaintiff to prove the truth of his averments, else his injunction would be dissolved; and he filed contemporaneously therewith a peremptory exception to plaintiff’s suit, on the ground that it is not therein stated that the time alleged to have been granted him was subsequent to tjie date of execution of the note and mortgage on which his seizure and sale are based, and that such an averment is essential to such a suit.

The rule and exception were tried at the same time and sustained, and the rule was made absolute, and from the judgment dissolving plaintiff’s injunction he has appealed.

The note and mortgage sought to be' foreclosed bear date June 14, 1889, and the note was made payable on the 1st of January, 1890.

From the general tenor of the act it appears to be a liquidation and settlement of plaintiff’s outstanding indebtedness to the defendant, the consolidation of all previous indebtedness into one obligation to which is given a future date .of maturity, and its security evidenced by a new mortgage.

The grounds of plaintiff’s injunction are that Abraham, the defendant, entered into a written agreement with him and other co-owners of the Ravenswood plantation on the 12th of September, 1888, in which he bound and obligated himself not to enforce any■ of the indebtedness of said parties for a term of three years. That plaintiff at that time owed the defendant two notes, namely, one for $1369.54, dated 28th of March, 1888, and the other for $5625, dated 9th May, 1888; both antedating said agreement. That those notes were given for advances on his interest in the Ravenswood plantation. That those-were the notes which evidenced the indebtedness, which is made mention of in the agreement of the 12th of September, 1888, and that same was not therefore increased, but was on the contrary diminished: That, for the purpose of liquidating-plaintiff’s indebtedness to Abraham, and to carry into effect the terms of the contract of September 12, 1888, he acknowledged himself indebted in the sum of $3094.43, in full of all dues and demands, upon the two above mentioned collateral obligations for crop advances, and gave a note payable on the 1st of January, 1890.

That by entering into this contract, and the execution of said note, and mortgage, it was not his intention to waive and renounce, and that he did not, as matter of fact, waive or renounce the agreement, of September 12, 1888; but that, on the contrary, “the acknowledgment was made with the express purpose and intent of facilitating the sale of said plantation, of enabling the said Abraham to buy in the whole thereof, of reselling to (him) your petitioner his interest therein at the price acknowledged to be due by him, all according to the agreement of the 12th of September, 1888. That no part of said note is due or exigible, payment thereof being extended to one,, two and' three years after his share of said plantation had been bought in by Abraham and resold to your petitioner.” Plaintiff’s brief, p. 4. He avers that this agreement has not been kept by Abraham,, ánd that he has failed and refused to carry out same.

It may be well to premise here that the agreement of September 12, 1888, is the same one that was involved in the suit of Penouilh vs. Abraham, 42 An. 326, in which the principal question was, whether plaintiffs, one of whom is the plaintiff here, were entitled to the time therein stipulated. The contention of the defendant, Abraham, in that suit, was that the principal object of all parties to that agreement was the elimination of Mrs. Broussard’s undivided interest in the Ravenswood plantation, and its acquisition by (him) Abraham. That in order to accomplish that object, a partition suit was deemed expedient and advisable, and as the parties, Penouilh, tutor, and the plaintiff herein, were necessary parties to such a suit, he consented to purchase at partition sale the whole plantation at a price to be agreed upon, and to immediately sell back to the said parties their 11 respective interests for a price equal to (their) respective indebtedness, * * * said price to be payable in three equal Instalments, maturing respectively at one, two and three years, with interest at 8 per cent, from date.”

That because he had, in fact, purchased the interest of Mrs. Broussard at execution sale in his own executory proceedings against her, the terms of said agreement were not in force, and he was entitled to foreclose the plaintiff herein, and other signers thereof. We held that his contention was erroneous, and maintained the agreement on the ground that the signers of the agreement joined Abraham in the proposed partition suit, in which a final judgment was rendered, under which the defendant could have purchased; and the fact that he had really expropriated the interest of Mrs. Broussard under his executory proceedings made no practical difference, as the same object was attained and the relative positions of the parties maintained. It was on this theory that we perpetuated the plaintiff’s injunction. In that suit there was no reference made to the acts herein enjoined.

Having stated the ground of contention in the former case, and the grounds of plaintiff’s injunction in this, we are called upon to consider the rulings of the judge below in rejecting certain evidence offered by the plaintiff for the purpose of identifying the two transactions, and which are set out in three bills of exception reserved by plaintiff’s counsel — the result of which rulings was the rejection of plaintiff’s demands and the dissolution of his injunction.

The first bill of exceptions relates to the rejection of the agreement of September 12, 1888, to the introduction of which in evidence defendant’s counsel objected, on the grounds (1) that no evidence of an agreement to grant time of date prior to the date of the note and mortgage sought to be foreclosed is admissible to vary ■or contradict the same in the absence of allegation of fraud or error in the execution thereof; (2) that an agreement relied upon to support an injunction granted without bond can not be admitted in eVi.■denee if it is anterior in date to the act enjoined.

Primarily, the act of mortgage imparts complete verity, it being, ¡authentic in form. Its object, apparently, was bo secure the payment of the note which is therein described as maturing on the “first day of January, 1S90, unconditionally.” The paraphed note, "which is annexed to the executory proceedings, is pf the same tenor and effect. The date of the note and mortgage is June 14, 1889, and the notary’s paraph is of same date — more than nine months subsequent to the date of the agreement. In the absence of any allegation that this note and mortgage, which confessedly represent the balance then due by the plaintiff to Abraham, were executed in error ■on the part of plaintiff, or procured to be executed through the fraud ■of the defendant, and to the injury of the plaintiff, it is impossible ■to discover the admissibility of the rejected evidence, or what value ■could be given to it if it were admitted and considered as evidence.

The very gist of plaintiff’s injunction is that Abraham is proceeding to foreclose his mortgage in the face of his agreement to give him one, two and three years’ time; or, in other words, before the maturity of plaintiff’s indebtedness. In effect the plaintiff’s position is that the note and mortgage were to carry out and not to novate or extinguish the agreement of the 12th of September, 1888. .He affirms this to have been his purpose and intention in executing the note and mortgage. If that be true, he was unfortunate in making himself a party to an act which so utterly failed to express ■such an intention and purpose. The plaintiff’s petition fails to aver that the defendant was a ware of such being his intention, or that he knew of such being his intention, and fraudulently procured its suppression or concealment.

On this ground alone we are of opinion the judge below should have rested his rejection of plaintiff’s evidence. For on the second .ground his ruling was erroneous, because the paper offered in evidence was the identical one that is referred to in plaintiff’s petition. If the allegation of the petition stated a cause of action, the proof corresponded therewith.

Whether the suit could be sustained on proof of the grounds alleged is a different question.

The second bill of exceptions relates to the rejection of certain conversations alleged to have taken place between plaintiff and defendant as to what was the purpose and object of the transaction and settlement between them, and which took the shape of the note and mortgage under consideration.

Prom what has just been said in passing on the first bill of exceptions, and our conclusion in reference thereto, it is clear that the proffered evidence was properly refused.

The third bill of exceptions relates to certain testimony in reference to defendant having granted time to the plaintiff subsequently to the execution of the note and mortgage. This testimony was objected to on two grounds: (1) That there was no allegation to that effect in the petition; and (2) the agreement of the 12th of September, 1888, having been rejected and not allowed to be introduced in evidence, no parol evidence relating to it, or the same subject matter, was admissible. These objections were correctly sustained on elementary principles of evidence.

In the absence of all evidence showing or tending to show that the act of mortgage and note were intended to consummate and carry out the agreement of September 12, 1888, and this object not appearing from an inspection of the acts themselves, it is manifest that the judge a quo had no other alternative than to make defendant’s rule absolute and dissolve plaintiff’s injunction.

In this court the defendant and appellee has filed an answer to the plaintiff’s appeal and prayed for an allowance in his favor, as damages for a frivolous appeal. Inasmuch as the suit was not decided on evidence adduced, but judgment went in favor of defendant because of the rejection and disallowance of plaintiff’s evidence, as to the correctness of which the plaintiff’s counsel may have entertained, doubts, we are of opinion that no damages should be awarded. The act of mortgage'stipulates 5 per cent, attorney’s fees, and the note bears 8 per cent, interest. That will suffice in this case.

Judgment affirmed.


author: Watkins, J. Bermudez, O. J.

text:
    No. 10,688.
    Peter Labouisse vs. Orleans Cotton Rope and Manufacturing Company.
    1. A privilege is a right which the nature of a debt gives to a creditor, and entitles him to be paid in preference to others from the proceeds of the thing affected with the lien.
    2. Privileges can be claimed only for those debts to which it is expressly granted in the Civil Code.
    3. He who has sold to another any real or personal property, which is not paid for, has a preference on the price of his property, for the payment of the amount due thereon.
    One who loans to another money with which to purchase property, or pays for the property for another, lias no vendor’s lien or privilege thereon.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Bayne, Denegre & Bayne for Plaintiff and Appellee.

      W. 8. Benedict, for the Syndic, Appellant.
   The opinion of the court was delivered by

Watkins, J.

On the 5th of May, 1890, plaintiff obtained judgment against the defendant for $12,500, with interest, and thereunder issued execution, and by seizure and sale of property realized the sum of $19,500.

On the 5th of June, 1890, Eugene Soniat, syndic of the creditors of J. B. Lallande, filed a petition of intervention and third opposition, claiming a vendor’s lien on the property and its proceeds, whereby the said insolvent succession is alleged to be1 entitled to be paid the amount of certain judgments, and in preference to the plaintiff in execution, and other creditors of defendant.

To this petition the plaintiff in execution filed an exception of no cause of action. This exception was regularly set down for trial, and due notice thereof was given to the syndic. On. the day fixe'd, the exception was tried_ and sustained, and the intervention dismissed. . From this judgment the syndic appealed suspensively.

The ground on which the intervenor and third opponent claimed a vendor’s lien is “that each and every part of the property of said company was purchased and paid for with the funds of” the insolvent.

Wherefore its averment is that it is entitled to be paid in preference'to plaintiff as seizing creditor.

It is manifest that on this showing intervenor and third opponent has no vendor’s lien whatever. The fact alleged that the company’s property was purchased and paid for, albeit, with the funds of the insolvent, is a conclusive admission that there was no vendor’s lien upon it. If the insolvent purchased the property for the defendant, he surely was not the vendor; and if he paid for it, there was no lien upon it. Succession of Benjamin, 39 An. 612.

This ground of the intervention failing the third opponent, it is useless to consider others.

The appellee answered, and claimed damages for a frivolous appeal.

Dealing, as we are, with an insolvent’s estate, we are not disposed, to allow his demand, while it may be that the right of appeal has been abused. The funds have not been tied up for more than six months, and the record discloses that other creditors were contesting, at the same time, and successfully, plaintiff’s right to payment in full from the funds by preference.

Judgment affirmed.

On Application por Rehearing.

Bermudez, O. J.

The third opponent complains that his case was not sufficiently stated by the court; that besides claiming the vendor’s privilege, which was considered and denied him, he had asserted other rights to the proceeds of sale under certain judgments.

A new reference to the third opposition shows that such is the fact, but that there is no specification of what those judgments were.

The dates of the judgments, their amounts, the numbers of the cases on which rendered, are all in blank, and no copy of the judgments is attached-to the opposition.

Not the slightest reason is assigned for which any mortgage right is claimed. It is not even alleged that the judgments have been recorded and affected the property at the time of sale.

Such loose preferments are not entitled to notice.

Although the judgment sets at rest the pretensions to preference by reason of the alleged vendor’s privilege, it does not debar recovery on the judgments in subsequent proceedings if under them, in consequence of justifying registry, the insolvency has any rights.

Rehearing refused.


author: HcEnery, J.

text:
    No. 10,770.

    Succession of Caliste Bourgeois.
    The tutor of minor heirs, in the absence of a demand for administration by creditors, or heirs of age, has a right to take possession of succession property and administer their interest therein.
    If the creditor was present and made no opposition to the administration of the tutor, in order to administer himself and take the property from the possession of the tutor, he must assign some reason therefor, such as maladministration, or some other facts that show that his debt is imperiled.
    He must be a creditor in fact, and not one who holds a doubtful claim, the existence of which mnst be established by parol testimony and expensive litigation, to avoid which he seeks to be appointed administrator.
    APPEAL from the Nineteenth District Court for the Parish of Terrebonne. A lien, J.

      Winchester & Briant for the Applicant, Appellant:
    The rule is that when some of the heirs are beneficiary, and there are debts, and the creditors or heirs of age demand an administration, it should be ordered* 80 An. 807, Succession of Olar..; 30 An. 93, and authorities cited therein.
    Natural tutors of minor children may, as such, take possession of and administer the estate of the deceased parents of such children, unless and until creditors, or heirs of age demand the appointment of an administrator. 30 An. 389, Blake vs. The Minors Kerney and Lake; 14 An. 567, Saloy vs. Chexnaidre; 32 An. 17, Leman vs. Truxillo; 19 An. 528, Vincent, Administrator, vs. L’Aubigne, and authorities therein.
    The creditors of a succession have a twofold remedy — to proceed against the tutor in the ordinary way, orto provoke the appointment of an administrator. The latter is the usual way of settling estates encumbered with debts. 16 An. 420,. Succession of Mrs. J. G-. "Webre.
    The law provides the mode for this settlement and liquidation of the community; and when the heirs or creditors require it, the succession must be administered. 7 Southern Reporter, p. 460, "Webre vs. Lorio, Shexñff, et al.
    The rights of possession and dominion of community property remain in suspense so long as there are community debts unpaid. And notwithstanding the actual dissolution of a community of acquets and gains by the demise of one of the spouses, it has a fictitious existence thereafter for the purpose of liquidating and discharging community debts. 7 Southern Reporter, 626, Factors and Traders’ Instirance Oo. vs. Levi; Ibid, p. 624.

      L. F. Southon for Defendant and Appellee:
    The succession becomes open by death. O. 0.'934.
    The succession is closed or terminated when the seizin, i. e., the right of possession and the fact of possession, concur in the heir as such, whether he be simple heir or beneficiary heir. O. O. 942, 945, 1056; O. P.996; 30 An. 93; 36 An* 744, 278; 35 An. 826; 38 An. 716; 36 An. 46; 34 An. 39; 35 An. 826.

      A party claiming to be a creditor of an estate must •within a reasonable time after it is opened enforce liis right to have it administered, if he desires an administration.
   The opinion of the court was delivered by

HcEnery, J.

Oaliste Bourgeois died in the parish of Terrebonne, "20th day of February, 1889. He left property estimated at more than $2000, and a surviving widow and several minor children. The property was community property. The widow qualified as tutrix of her minor children, took possession of the community property, and as tutrix administered the same.

Francois Bourgeois, the father of the deceased Caliste Bourgeois, some eight months after the widow had qualified as natural tutrix, alleging himself to be a creditor of the succession for a large amount, applied for the administration of said succession.

The natural tutrix opposed his application upon the following grounds:

1. Because . there was no necessity for an administration other than the administration carried on by her as tutrix.

2. Because Francois Bourgeois is not a creditor of said succession.

3. Because Francois Bourgeois had applied to opponent for a recognition of his claim, thereby recognizing opponent’s right to administer the succession, and, further, that said Francois Bourgeois is ■estopped thereby from questioning her right to administer.

4. Because a regular administration would be expensive and damaging to opponent and her minor children, and productive of no good to said Bourgeois; but that, should the court think otherwise, opponent, as natural tutrix, has a better right to the administration than said Bourgeois.

On these issues said opposition was tried, resulting in a judgment rejecting the demand of Francois Bourgeois on the grounds that the natural tutrix had the right to administer the succession, and having gone into the possession of its effects, the succession was closed, and the only remedy of the creditors was to sue the minors to the extent of their respective inheritances.

The tutor of minor heirs, in the absence of a demand for administration by creditors or heirs of age, has a right to take possession of the succession property and administer their interest therein. Saye vs. Price, 30 An. 93; Blake vs. Kearney, 30 An. 388; Suc. DeLerod 34 An. 39; Suc. Saddler & Henderson, 35 An. 826; Lemon vs. Clarke, 36 An. 744.

In Lemon vs. Clarke we said: “As representative of the beneficiary heirs in possession, creditors of the succession had the right to sue them through her, and to recover judgment, restricted, of course, in its operation to the property inherited by them. Whatever she has received and appropriated of that property is, quoad ■creditors, a reception and appropriation by the heirs. If she has wronged the latter, they must look to her personally and to her bond; but as against creditors, her acts are their acts as far as they are within her lawful powers as tutrix.”

If the succession owes debts, she can, on application to the court for an order for a family meeting, and on its advice, borrow money by granting a mortgage on property, or to sell the same to pay debts •of the succession. Succession of Saddler, 35 An. 826; Suc.DeLerod, 34 An. 39; Suc. of Webre, 16 An. 420.

The applicant for the administration of this succession made no opposition to the administration of the succession by the natural tutrix. He lived in the same parish, and was the father of the deceased Oaliste Bourgeois. Recognizing the administration and approving of the same, and knowing the law as above stated, he participated in a family meeting, of which he was a member, and advised the sale of certain property to pay the debts of the succession. In the proceedings of the family meeting and the proees verbal thereof, it is recited that the natural tutrix is administering said succession, and that “ there are a few debts due by the estate of her late husband, such as funeral expenses and charges, law charges and other small charges, which should be paid, and petitioner is desirous of providing for and paying the same.”

Francois Bourgeois, the applicant to be appointed administrator, ■signed the proees verbal, reciting the above facts. The family meeting was convoked and finally deliberated on April 20, 1889, and in August following, Bourgeois says in his testimony, he presented his alleged claim to the tutrix for settlement. The tutrix, in view of the above facts, was prudent in not recognizing the claim.

The applicant for the administration, relying upon the case of Blake vs. Kearney, 30 An. 388, in which this court said, ip commenting on case of Saye vs. Price: “ The Code directs therefore that an administrator shall be appointed to estates in which there are minor heirs concurring with majors who accept unconditionally. The only exception to this rule we have had occasion lately to review in the case of Saye vs. Price. It is to the effect that the natural tutors of minor children may, as such, take possession of and administer the estates of the deceased parents of such children, unless and until creditors or heirs of age demand the appointment.”

Conceding that the creditor has the right to demand that an au ministrator be appointed after the property has gone into the possession of the tutrix who administers the same, it is not a right that can be exercised without assigning some reason therefor. If the creditor was present and made no opposition to the administration of the tutor, in' order to obtain the administration he must show maladministration or some facts that exist that imperil his debt. The mere allegation that one is a creditor of a succession is not a sufficient basis for his application. He must be a creditor in fact. In the instant case the debt was disputed. Instead of being a creditor, the tutrix alleged that he was a debtor to the succession. He presented his claim for payment. He could have followed it by suit, and if a just claim, it would have been liquidated by judgment. Code of Practice, 996.

The family meeting advised the sale of certain property to pay the debts of the succession, which the proceedings of said meeting show were not numerous, and small in amount.

The property was sold as advised, and it is presumed the debts, were paid.

The existence of the Bourgeois debt had not then been made known. The record does not show that there are, except the disputed claim of Bourgeois, any debts against the succcession.

It would be an unwarranted and an unprecedented proceeding to-take property of a succession which owes no acknowledged indebtedness and which is in possession of the heirs from the tutor who is administering for them, in order to put it into the hands of a party whose sole object in applying for the administration is to lessen the scrutiny which his claim must undergo when suit shall be brought to-establish its verity.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,706.
    City of New Orleans vs. John T. Hardie. The German Protestant Home for the Aged and Infirm vs. John T. Hardie.
    . (Consolidated.)
    In the interpretation of wills the intention of the testator is the polar star by which courts must be guided. It is their duty to realize such intention from quod voluit by ascertaining quod dixit.

    Construction must not be placed upon wills so as to put in the mouth of a testator that which never entered his mind.
    A legacy to asylums described as in being, is not to be considered as made to asylums to be created.
    A municipal corporation has no capacity to demand a legacy not made to unrepresented beneficiaries.
    A bequest to the support of asylums described is not made to the persons relieved by the institution, although these be the objects of the bounty.
    If, at the opening of the succession of the testator, there exists no such asylums as are mentioned in the will, the legacy fails or lapses.
    An institution for the aged and infirm created after the opening of the succession of the testator, not being in esse at that time, has no standing to claim a legacy designed for the support of asylums believed to be in existence at the date of the will, or eventually at the opening of the succession.
    A legacy which fails or lapses must be dealt with as a portion of the succession remaining undisposed of. It devolves upon and accrues to the residuary oi; universal legatee.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Francis B. Lee, Assistant City Attorney, and Oarleton Hunt, City-Attorney, for Plaintiff and Appellant:
    1. The following clause appears in the will of the late Colin J. Nicholson:
    “ To the support of asylums in the faith of the Protestant religion, specially devoted to the care of aged persons, $5000. This, or these, as the case may be, to be located in the city or parish of Orleans, La., and I leave to my executor the selection of such institution or institutions.”
    2. In tlie absence of an asylum in the City of New Orleans, of the character de scribed by the testator at the date of his death, the legacy does not lapse and accrue to the residuary legatee, but the City of New Orleans can claim, receive and administer it for the benefit of those persons contemplated by the deceased. Einlr vs. Kink, 12 An. 301; Sue. of Eliza Vance, 39 An. 371.

      Jos. H. & I. Zach. Spearing, for -the German Protestant Home, Plaintiff and Appellee:
    1.If the legacy is absolute and unconditional, the legatee must exist at the time ' of opening the succession; if any conditions are attached to the legacy, it is only necessary for the legatee to exist at the time of the fulfilment of the condition. R. O. 0.1474 (1460); Milne vs. Milne, 17 L. 46, ei seq.; Henderson vs. Rost, 5 An. 460; Sue. of Franklin, 7 An. 415; Fink vs. Fink, 12 An. 319, et seq.

      Singleton, Browne & Choate for Defendant and Appellant:
    1. Notice by publication in the manner required by law of the filing of á tableau by an executor, operates as a citation to legatees as well as creditors, and the homologation of the tableau bars all further inquiries as to airmatters included in thetableau. O. 0.1064,1065; 10 R. 118; 11 An. 264; 1 R. 385; 3 An. 664; 27 An. 329; 29 An. 381.
    2. When a will is written in plain; unequivocal terms, it must be enforced as written.
    A legacy “ to the support of asylums in the faith of the Protestant religion, especially devoted to the care of aged persons, $5000. This, or these, as the case may be, to be located in the city or parish of New Orleans, La., and I leave my executor the selection of such institution or institutions,” is a legacy to the asylums described, and not to the aged persons.
    The City of New Orleans has no right to recover such a legacy, on the ground that it is a legacy to the poor of New Orleans, under C. O. 1549. O. 0.1712; 7L. 230; 7 R. 481; 7 An. 416; 2 Homat by Strahan, p. 374, Sec. 3216, pp. 373, 376, Secs. 3215, 3221; 3 An. 662.
    3. To enable a legatee to take by will he must be in existence at the opening of the estate, and have the capacity to receive at that time. 17 An. 54; O. C. 433, 950, 953,1473,1482, 1494, 1697; 22 An. 333; 7 An. 415; 4 Wheaton 27.
    4. A legacy of the residue of the testator's property is a universal legacy. Particular legacies which have lapsed fall into the residuum and go to the universal legatee, and he takes everything that has not been validly given away. O. C. 1704; 35 An. 708; 10R. 518; 7 An. 51; 10 An. 164; 18 An. 404; 24 An. 375; 30 An. 268; 33 An. 277; 3 An. 707; 12 R. 67; 2 So. Rep. 56.
   The opinion of the court was delivered by

Bermudez, C. J.

The question presented in this controversy consists in determining whether a legacy of $5000 accrues to either of the three litigants, to the exclusion of the others.

The appeal is taken by the city and by the defendant from á judgment awarding it to the German Protestant Home.

It appears that on May 31, 1873, Oolin J. Nicholson, made "his olographic last will, which contains among others, a bequest: “ To the support of asylums, in the faith of the Protestant religion, especially devoted to-care of aged persons, five thousand ($5000) dollars. This, or these, as the case may be, to be located in the city and parish of Orleans, and I leave to my executor the selection of such in.stitution or institutions.

“ The residue I leave to John T. Hardie, and I appoint him my executor, without security,” etc.

Nicholson having departed this life in the early part of 1879, his succession was duly opened, Hardie qualifying as executor;

In the course of time, September. 1882, a final account was filed, in which, after stating the active and passive and striking a balance of $26,361.49, which included the legacy of $5000, the executor said that he had not paid the legacy for the reason that there are no asylums of the kind indicated in the city and parish of Orleans.

It belongs to the judicial history of this legacy that it was once claimed by the St. Anna’s Asylum; but not allowed, as the claimant was not an asylum especially devoted to the care of aged persons, but to the relief of destitute females and helpless children. 37 An. 346.-

In the present controversy the City of New Orleans, charging that there was no asylum within the limits designated, of the character described by the testator; but that there were and are persons in existence within the same, who entered in the testator’s contemplation at the making of his will, and who are unrepresented, for whose benefit it can claim, receive and administer the legacy which has not lapsed, prays that it be decreed entitled to the s'ame.

On the other hand the German Protestant Home,” which is established in the parish of Orleans, claiming to be an asylum for the aged and infirm, asserts title to the legacy, in preference to the City of New Orleans.

Finally, the defendant pleads res judicata, resulting from the homologation, without opposition, of the final account designating the residue of the estate, and denies any right, on the part of the city or of the German Protestant Home, averring that the legacy having failed or lapsed, there being no legatee in esse at the opening of the succession, it has accrued to him as universal legatee.

In order to arrive at a correct conclusion in this matter, it is of all importance to ascertain what the intention of the testator was when he drew up his last behests.

It has been well said that, in interpreting or construing a will, the intention of the testator is the polar star by which the court is to be guided, and that it is the duty of those who have to expound a will to ascertain the quod voluit by realizing the quod dixit.

A thoughtful reading of the testament in this case impresses the inind irresistibly that the testator first determined to relieve aged persons in the faith of the Protestant religion; that he next considered that it would not be practical to make a bequest to such persons; but that his purpose could only be subserved properly by conferring the benefit on asylums in that faith which would have, as a special object, the care of such persons.

He further thought that it would not do to make the legacy to all such asylums in the world; but that some good could be accomplished if it accrued to those of a particular locality, which he conceived should be the place of his residence, the Oity of New Orleans and parish of Orleans, intimating further that the legacy need not accrue to all such asylums within those limits, but that it might accrue to one asylum only, the choice or selection of such institution to be left to his executor.

Finally he concluded that the amount of the liberality should be fixed at five thousand ($5000) dollars.

So -that the disposition contained in the will can be said to mean so as to read as follows:

To asylums in the faith of the Protestant religion, especially devoted to the care of aged persons, to support themselves, $5000, the asylum or asylums to whom this legacy shall accrue being located in the city and parish of Orleans, and to be selected by the executor.

The City of New Orleans, in a laudable spirit, conceiving that the legacy was designed for the relief of unrepresented aged persons in the faith of the Protestant religion, and. not to any asylum; and further that at the opening of the succession there was no asylum in that faith especially devoted to the care of aged persons, assumed that the legacy had not lapsed, and that it had the right to claim, receive and administer it for the benefit of the persons contemplated by the deceased.

In support of that pretension the city relies almost exclusively on the ruling in the Fink case, 12 An. 301, to which reference was made approvingly in the Vance case, 39 An. 371.

In order to illustrate the kindred relations between these cases and the instant one, the zealous and acute assistant counsel of the city dissects the two testamentary dispositions in the Fink ease, and in the one under consideration, reducing that in the previous one to the following:

‘ That the whole of my estate shall go to the maintenance and support of an asylum in this city devoted solely to the care of Protestant widows and orphans;” and that in the present case as follows: That $5000 shall be applied to the support of a Protestant ■asylum in the City of New Orleans devoted to the care of aged persons.”

The paraphrase in the Fink case is incorrect and unfortunate.

The testator there did not leave his estate to an asylum in the City of New Orleans, but directed that, afterpayment of his debts and of the legacies, the proceeds of his estate be applied to the erection, maintenance and support of a suitable asylum in the city, to be used solely as an asylum for Protestant widows and orphans, to be called Fink’s Asylum.

He also directed that his executor should nominate trustees, in whom should vest the superintendence of the erection of the asylum and the administration of the charity, without any further authority than that derived from the will.

In an exhaustive opinion the court reached the conclusion that the legacy had been made,' not to the prospective asylum, but to the widows and orphans, the beneficiaries, for whom an asylum, that is suitable buildings, would be erected. It pronounced the delegation of power to the executor to nominate trustees a nullity, under Act 1566 (R. C. C. 1573), and treated it as unwritten, under another provision of the Code. Art. 1506 (R. C. C. 1519).

Hence, under the circumstances, the widows and orphans being the beneficiaries, and there being no one in esse to whom the proceeds could be paid, the court held that the city had the right to claim, receive and administer the bounty, in furtherance of the charitable ends of the testator. C. C. 1536; R. C. C. 1549.

The two cases are dissimilar.

In the instant one the testator did not make the legacy to the aged persons mentioned in the will, although surely they were to be benefited by it. He made the legacy to an asylum or to asylums in the Protestant faith, which he supposed to be in existence at the date of his will, or would exist at the time of his death, to support said asylum or asylums, especially devoted to the care of aged persons, the same located in the city and parish of Orleans.

We therefore conclude, on this branch of the ease, that the city has no standing to claim the legacy.

The pretensions of the “ German Protestant Home for the aged and infirm ” to'the legacy do not appear to have a solid foundation, upon which to rest.

It is conceded that, if the legacy was absolute and unconditional, the legatee must exist at the time of the opening of the succession,. R. O. O. 1473; but it is pressed that, as it is not such, because conditions are attached to it, it is only necessary that the legatee exist at the time of the fulfilment of the condition. R. O. O. 1474.

A fresh reading and renewed consideration of the testamentary disposition in question does not reveal the important circumstance invoked, that conditions have been attached to it within the intent and meaning of the last article.

On the contrary, it is in itself an absolute and unconditional disposition of $5000 to an asylum or to asylums in the faith of the Protestant religion,, located in the city and parish of Orleans, and especial^ devoted to the care of aged persons.

The conditions, if any, attached to the legacy, do not form part of' the class of those within the purview of Article 1474; but are simply such as describe the asylum which is to be the beneficiary of the testator’s generosity. Strictly they are no conditions at all.

The foundation sine qua non, upon which the testamentary disposition rests, and without which it can not receive execution, is that the legatee must exist at the opening of the succession, in the absence of any declaration to the contrary, which is totally wanting in the present instance.

It is claimed by the “ Home ” that the condition attached to the legacy is that the executor shall select the asylum or asylums to be benefited.

This is not a condition within the purport of the article.

The testator never meant that the legacy would accrue only if the asylum was selected by the executor. He described the asylum and required its selection.

The legacy was absolute and unconditional to the asylum, or asylums, to be thus selected; but the executor, conceding that the delegation of the power of selection was legal, has declared and the fact is, that there did not exist at the opening of the succession any asylum whatever answering the description of that or those mentioned in the will.

The “Home” was created in 1885. The succession was opened in 1879. It was not therefore then in existence.

There is a further contention that the asylum or asylums which the testator intended to benefit was or were not required by him to be in existence at the date of the opening of his succession; that his liberality was to accrue to an asylum “to be located ” in the city and parish of Orleans, in the very words of the will, which refer to the future and not to the present.

We do not consider the will thus to mean. We are of opinion, as already said, that the testator, when he undertook to pen his last intentions, believed, or took it for granted, that there must have existed then some asylum of the kind which he had in his mind, or that there would exist such at his death. Had he designed otherwise, he would have said so, as did Eink, and he has not done so.

Independent of all these considerations, it is apparent that the “Home” is not entitled to receive the legacy, for the obvious and palpable reason that it is made to an asylum “ especially devoted to the care of aged persons,” and that, although it may have been proved that the “ Home ” cares for some of such persons, there is nothing to show that it is “ especially devoted to the care of such persons.”

We are not to be understood, however, to mean that, had this been shown, the “Home” would have been entitled to the legacy.

A will should not be so constructed as to place in the testator’s mouth that which never entered his mind.

The adverse determination of the merits of the applications of the City and. Home for payment of the legacy to either of them dispenses the court from passing upon the plea of res judicata, set iip by the defendant, mentioned in the early part of this opinion.

It now only remains for the court to say that, as the legacy has failedror lapsed, it must be considered as a portion of the succession remaining undisposed of, and devolves upon and goes to the benefit of the defendant, or residuary or universal legatee. R. C. C. 1704, 1709; Suc. of Burnside, 35 An. 708, et seq.; Prevost vs. Martel, 10 R. 512; Suc. of Foucher, 18 An. 409; Hoover vs. York, 24 An. 375; Suc. of Dougart, 30 An. 268; Suc. of Dupuy, 33 An. 277; Sterpes Lescot, No. 1314.

It is therefore ordered and decreed, that the judgment appealed from be reversed, and it is now adjudged that the-demands of the plaintiffs be rejected with judgment in favor of the defendant, with costs in both courts.