author: Nicholls, O. J. Watkins, J".

text:
    No. 12,887.
    Succession of Mrs. Honoria Burke, Widow of William B. Ringrose.
    Syllabus.
    (1) A clause in a will by which the testatrix, after making a number of legacies, declared: “After these bequests have been made, the remainder of my estate I desire my executors to use for any charitable institution they may select or think of benefiting to perpetuate my memory,” does not fall under the provisions of Act 124 of 1882, and has, as to its validity, to be tested by the general rules of the Civil Code touching testamentary dispositions. So tested it cannot stand.
    (2) The testatrix did not designate who should be her residuary legatee, but intended that the residuum of her estate should remain in her “Succession” until her executors should select some existing charitable institution (not one to be formed) who on such choice being made, would become her residuary legatee, entitled to demand at once the whole of the residuum, and thereafter to administer in right of ownership, not trusteeship. The testatrix did not intend to confer upon the executors a continuing power of administration of the residuum, either before or after they should have made a choice of the object of the testatrix’s bounty, but intended that they should make a selection, and on making the same their power should be exhausted. The power and duty of selection was personal to the three particular persons appointed as executors, and could not be delegated by them to others, nor exercised by others to be substituted in their place. There would be no legal means of forcing the executors to make the selection in the event they should be unwilling to make a choice or unable to agree upon one. The bequest was not broad enough to cause it to be classed as a bequest for general charitable purposes ,and at the same time it was not specific enough to make it to be made to apply to any particular person or corporation.
    ON APPEAL from the Civil District Court for the Parish of' Orleans. King, J.

      Oeo. W. Flynn for Petitioners, Legal Heirs and Appellees.

      Rice & Montgomery for Executors, Appellants.
    Argued and submitted February 10, 1899.
    Opinion handed down February 20, 1899.
    Rehearing refused (Reasons assigned), March 7, 1899.
   Opinion on rehearing by Watkins, J.

The opinion of the court was delivered by

Nicholls, O. J.

Mrs. Honoria Burke, widow of William B. Ring-rose, died in the city of New York, on the 19th of October, 189 Y, leaving a last will and testament in olographic form, which was probated, in the Civil District Court for the parish of Orleans, in which parish the deceased had her domicile. Robert L. Strong, John H. Conniff' and M. D. Lagan were appointed as her testamentary executors, with full seizin. The testatrix, after making a number of bequests, closed her will with the following clause: “Now, after these bequests have-been made, the remainder of my estate I desire my executors to use for any charitable institution they may select or think of benefiting to perpetuate my memory.”

On November 15th, 189Y, Thomas Henry Burke, William J. Cline, Jennie Cline, wife of Eli Barnet, and Patrick Calkin united in a petition in which they declared that they, together with the children, of Margaret Cavanaugh and William Martin and her sister, Mrs. Mary Martin, were nearest of kin and the sole surviving and living heirs at law of the deceased.

That the said clause of her will was absolutely null and void,- uncertain, vague, and meaningless, as well as in direct and positive violation of the prohibitory provisions contained in Articles 1519, 1520 and 1521 of the Revised Civil Code, which articles expressly prohibit substitutions and fidei commissa. That said clause should'be reputed not written; that if allowed to stand it would not be carrying out the last wishes of the deceased, but instead, would be substituting the will and judgment of the executors, all of which was contrary to good morals and the provisions of the Civil Code governing' last wills and testaments.

That after payment and distribution of all the legacies provided for, and particularly set forth in said last will, the residue of the property left by the deceased belonged to them as the nearest of kin and' heirs at law of said deceased, and they were entitled to the same in the proportions fixed by law. In view of the premises they prayed that the said clause delegating to the executors the disposal of the residue, be declared to be absolutely null, void and of no effect, as well as in positive, express violation of the provisions of the Revised Civil Code prohibiting substitutions and fidei commissa, and that said last will be ordered executed as if said clause were not written therein;that they be adjudged and decreed to be the sole living and only heirs at law, and as such, entitled to inherit in the proportions fixed bylaw the residue of the estate of the deceased and to the exclusion of all others; that after the payment of the legacies named in the will, they, as such heirs, be put in possession of the estate of their said •deceased relative.

On January 4th, 1898, the same parties, joined by William Martin ••and his sister, Mary Martin, wife of John Thornton, filed a supplemental petition, in which they reiterated the allegations and prayer of the original petition, and set forth certain parties as being with themselves legal heirs of Mrs. Honoria Burke. They alleged that the will of the deceased, if not void on the grounds of vagueness and indefiniteness, was null and void, as being in direct violation of the prohibitory provisions of Articles 1519, 1520 and 1521 of the Civil Code, and especially upon the ground that the said clause failed to make any distribution of the residue of the estate of the deceased.

Service of this petition was accepted 'by the executors on December •31st, 1897.

On January 10th, 1897, on motion of G. W. Elynn, attorney of the petitioners, suggesting that he had withdrawn as counsel for Miss Louisiana Oline, Mrs. Eli A. Barnett, W. J. Cline, William Martin .and Mrs. Mary Thornton, it was ordered that the suit for the annulment of the claim of the will bequeathing the residue so far as the •same applied to above named parties, be discontinued, leaving the petition to stand in the name of Thomas H. Burke and Patrick Calkin.

On January 12th, 1898, the executors answered, pleading, first, the .general issue. They .specially denied that petitioners were the heirs at law of the deceased, and that, as such, would be entitled to the residue of the estate of Mrs. Honoria Burke, even if said will was null -and void, as alleged, but they denied that said will was null and void •as alleged, or for any of the reasons alleged.

On May 23rd, 1898, Mark Calkin, John Burke, Mrs. Honoria Burke, widow of Patrick Dooley, Margaret Burke, wife of John F. Begley, Mrs. Mary Burke, wife of P. J. Costello, intervened in the •suit, alleging themselves to be legal heirs of Mrs. Honoria Burke. They prayed to be so decreed, and that the last clause of her will be •decreed null and void on the same grounds which had been set up by the original parties, and that they be decreed to be entitled to the residue of her estate in the proportion fixed by law.

The executors answered this petition under pleadings identical with . those in the original answer.

The District Court rendered judgment against the executors in favor of Thomas II. Burke, Patrick Calkin, Mark Calkin, Mrs. Mary Burke, widow of P. J. Costello, Mrs. Honoria Burke, widow of Patrick Dooley, Mrs. Margaret Burke, wife of John F. Begley, and John Burke, decreeing null and void and of no effect, and reputed as not. written, the concluding clause of the last will and testament of MrsHonoria Burke, and recognizing and decreeing the said parties in favor of whom judgment was rendered to be the nearest of kin and. the sole living representatives of the deceased, entitled to inherit the residue of the estate of the deceased in the proportions fixed by law to. the exclusion of all other relatives.

The executors appealed.

Opinion.

The executors maintain in this court that the will of the deceased is valid, independently of the provisions of the Act No. 124 of 1882,. but that it is saved by the provisions of that act, if otherwise, it would be open to successful attack. The act in question makes it lawful for-any one to make a donation inter vivos or mortis causa of any description of property and to any amount to trustees for educational, charitable, or literary institutions,, whether already existing at the time of the donation, or thereafter to be founded. It provides that the donor of said property shall have the right to prescribe the number of trustees, the causes for which any trustee should cease to be such, the manner in which vacancies, however happening, should be filled, and the manner and formalities, according to which the trustees should meet and transact business. It provides that the donor shall have the right to prescribe the manner in which the property donated shall be administered and the objects to which it or any part thereof or the revenues thereof should be applied, provided that the property donated could not be made inalienable, but the donor thereof shall have the right to provide in what manner and under what circumstances the trustees should be empowered to sell the same, or any portion thereof, or to change any investment once made. It provides that the trustees named in the act of donation and their successors and substitutes, or such of them as are willing and may accept the trust, shall, upon complying with the laws of the State relative to the organization of •corporations for literary, scientific, religions and charitable purposes, ■ constitute a body corporate, with the power of continuous succession and unlimited duration, and with all the powers conferred upon corporations by said laws, or by custom, provided, however, that the re- ■ quirement of said laws as to the number of persons necessary for the formation of a corporation shall not apply- to such trustees, and provided further that if any of the trustees will not or cannot accept the trust, then such of those named as are willing, may accept, and in the manner prescribed in the act of donation, proceed to fill the vacancies up to the required number. It provides further, that whenever there is an entire failure of the trustees to accept, then the Governor of the State may name a number of persons equal to the number named by the donor and who shall fill the places of and be vested with all the powers conferred upon the trustees by said donor. It further provides that said Board of Trustees shall administer the property entrusted to them in conformity with the directions contained in the act of donation and should have all the powers needed in such administration, but cannot mortgage, nor encumber the donated property except as might be prescribed in the ,act of donation, and that the trustees shall be entitled to no remuneration for their services, unless expressly granted in the act of donation.

It provides that the Board of Trustees shall have the power to accept and administer other donations mortis causa or inter vivos from •the same and other donors, and to apply the same as might be prescribed in the subsequent act of donation. The administration of ■such subsequent act of donations to be governed by the directions contained in the subsequent act of donations.

It provides that the provisions contained in the Revised Civil Code or other laws of this State relative to substitutions fidei commissa or trust depositions shall not be deemed to apply to or in any manner ■affect donations made for the purposes and in the manner provided by the act, and that all laws or parts of laws conflicting with the provisions of this act are repealed in so far as regards the purposes of the ■act, but not otherwise.

The District Court was of opinion that the act of 1882 was not applicable to this case. That the testatrix did not make a donation to trustees for a charitable association to be by them administered as a body corporate in accordance with her directions; that the donation •was made to executors whose duties were defined by law, and who, while performing such duties, were officers of court. That in no sense were they trustees as named in the act, or in the will of the deceased. That they had no property to administer as a body corporate for a charitable association. That the only mandate or direction which they received from the will of the testatrix was to deliver the remainder of her estate to an unknown third person, a charitable association whom they might select.

Referring to the terms of the will, the court said: “The plain ■common sense interpretation of the-clause in question and of the intention of the testatrix, is that she bequeaths the remainder of her estate to her executors, with an order or mandate to them to give it to any charitable institution they might select or think of benefiting. It is clear that the testatrix did not bequeath her estate to any charitable institution by name, in any city, State or country, nor did she give it -to trustees named by her, or to the trustees of any known charitable institution, or one to be. founded. The testatrix bequeathed her property to her executors to be by them held until they selected any charitable institution, then to deliver it to such institution so selected. The will is not valid because of uncertainty. The test to be applied is, could any. court or any charitable institution compel the execution, or execute the mandate of the testatrix, if the executors chosen by her 'refused to select or refused to think of benefiting- any charitable institution, or one or all of them were to die before they made the selection? No court could compel the executors, on its own motion, to execute the trust, and no charitable organization has any interest to invoke the process of the court, and if any one of the executors, with the uncertainty of lifé hanging over all, should die before the three should agree, the mandate could never be executed. The bequest is uncertain and indefinite.

If the will is to be considered made to any charitable institution by the testatrix and is not invalid by reason of uncertainty, it is still invalid, because the choice of the charitable institution was left to three executors, third persons. Our law prohibits 'The custom of willing by testament by the intervention of a commissary or attorney in fact,’ and declares that the institution of heir and all other testamentary dispositions committed to the choice of a third person are null, even should that choice have been limited to a certain number of persons designated by the testator. (Civil Code, Article 1573; Fink vs. Fink, 12th Ann. 301.)”

Holding that the clause of the will of the deceased did not fall under the provisions of Act No. 124 of 1882, the District Oourt proceeded to test its validity by the application to it of the general rules of the-Civil Code, and having done so, reached the conclusion that under, such a test it was not valid. It was of the opinion that it was violative of the prohibitory provisions of the code touching substitutions- and fidei commissaj that it was void for uncertainty and void for having left the selection of the beneficiary of the testatrix’s bounty to. a third person, in violation of Article 1573 of the Civil Code.

While the executors repudiate the idea that by the bequest in question they have had cast upon them either the ownership of or an interest in the residue of Mrs. Burke’s succession, and deny that the attack made upon it on the ground that it is violative of the provisions-of the Civil Code, prohibiting substitutions and fidei commissa,, is well founded, we are not certain that we understand with precision the-construction which they place ppon the will and upon their rights and duties under it.

We understand them to contend that the disputed clause of the will is, in reality, a bequest for charitable purposes; that while it does-not directly order that a corporation should be founded to carry out the wishes of the testator and it does not appoint them as trustees-thereof, or trustees at all by name, yet it is the evident intent that they should be trustees, and they are authorized under the Act of 1882' to have themselves organized into a corporation and administer the property left; that while they were not directed and would not be authorized under such administration to deal directly with the ascertainment of individual cases calling for charitable assistance and go themselves to their immediate relief, yet they were charged with a continuing power and duty to turn portions of the fund in their hands over from time to time, to different charitable institutions, which they would select, to be by the latter applied to charitable purposes, and that the persons to be so relieved by them were intended to be and' were the objects of the bounty of the testatrix; that they would not be authorized or warranted under the will in selecting some particular charitable institution and turning over to it at once all the residue of" the succession in their hands, and on obtaining a receipt therefor, ba discharged on the strength of such receipt; from all further responsibility under their trust; that were they to attempt to do so, legal remedies would be at hand to undo such action and to cause a proper- and legal execution of the wishes of the testatrix; that as under a-bequest so written as to be unquestionably a bequest for charitabieuses, uncertainty as to the particular individuals who, under it would-obtain relief, would not militate against the validity of the bequest^ nor would the power and duty of making the selection of such persons-do so; so in the present case, the uncertainty as to what particular-persons would be ultimately benefited by the will of the testatrix and the selection of the particular institution which should be charged-with the duty of directly ascertaining and selecting proper objects for' charitable relief, and actually distributing the funds, would not detract from the legality of the clause attacked.

Under this construction (if we correctly apprehend it) a double administration would be needed before the poor and needy could or would be reached; first, an administration by the executors, and next, an administration by the governing boards of the different charitable-institutions selected by the executors.

An excroination of the will shows that the declared object of the-bequest was “to perpetuate the memory of the deceased,” but in a direction indicated by her; that she did not direct the creation of any corporation to carry out her wishes, nor refer to her executors at all as trustees; that she did not make any allusion at all to individuals- ■ requiring assistance. That they would only be reached and afforded aid consequentially as the result of funds furnished by the executors - to some charitable institution which would undertake itself t'o dis- - pense it to particular individuals and not by virtue of direct bequest ’ to the parties themselves. We do not understand the will to have cast ■ upon the executors the ownership of the residue of her estate or any' interest in it with the ownership to shift afterwards to some other' person by the force of the bequest. We understand her intention to1 have been to leave the residue of her estate in her “succession” until the executors should have made choice of some particular existing charitable institution (not one to be thereafter formed), which institution upon such choice being made, would become her residuary legatee and entitled to demand at once possession of and control over the whole fund.

We do not think the testatrix intended that her executors," either acting individually or as a corporation, should have a continuing power of administration of this residuum after their selection of a; legatee.

We think, on the contrary, the testatrix intended to charge her executors with the single specific duty of making the selection of a residuary legatee, and that upon the performance of this precise duty their power over the whole matter would be exhausted. We are of the opinion that the disposition and control of this fund by this selected institution, after it would be placed in its hands, would be in virtue of ownership, not trusteeship. . , ■

''The testatrix did not make a legacy of the residuum of her estate rto persons needing and entitled to receive charity, although, as said ..by this court in City vs. Hardie, 43rd, Ann. 255, (in commenting upon .-.a bequest of Colin J. Nicholson), “they were surely to be benefited by .it” if carried out. The bequest was to some existing charitable insti- . tution, which was to be selected by the executors.

.We do not think the bequest in question falls under -the provisions '•of Act No. 124 of 1382. Its validity or invalidity has to be tested by ‘■the application to it of the general rules of our law touching testamentary dispositions. So tested we do not think it can stand. The Request is so specific as to withdraw it from being classed as a bequest for general charitable uses and at the same time so general as not to permit it to be made to apply to any particular person or corporation as the legatee of the deceased. The testatrix did not designate any one as her residuary legatee, but left the selection of the legatee to the choice of her executors. This she could not validly do.

The right and duty of making this choice was evidently personal to the three particular persons named. Not only could this not be (delegated by them to others nor exercised by parties to be substituted •in their place should they refuse to perform the duty, but there would be no legal means of forcing them into making a selection in the event they were unwilling to do so, or were unable to agree upon a •choice.

We are of the opinion that the deceased died without leaving a residuary legatee, and that the residuum of her succession passed at her death to her legal heirs. (C. C. 886, 1709). We understand the executors to concede that the parties in whose favor the District Court rendered judgment are, in fact, legal heirs of the deceased, and will ■not, therefore deal with that question; but it is evident from the pleadings that there are .other legal heirs who are not before the court. Who and how many they are we do not know, nor do we know the proportion in the succession the different heirs would be entitled ^ re-ceive. In view of that fact, we think that portion of the judgment which recognized the parties to be the only legal heirs of the deceased, to the exclusion of all others, and which fixed the proportion which those parties W'ere to receive in the succession should be, and the .same is' hereby set aside, leaving the rights of the heirs to be here- ' after settled and determined, and that as so altered and amended the judgment of the District Court be, and the same is- hereby affirmed. ■Costs of both courts to be borne by the succession.

On Application for Rehearing.

Watkins, J".

This is a controversy respecting the validity of one ■clause in the last will and testament of the deceased which is expressed in the following words, viz.:

“Now, after these bequests have bepn made, the remainder of my •estate I desire my executors to use for any charitable institution they may select or think of benefiting, to perpetuate my memory.”

It was contested upon the ground (1), that it was merely a direction to the executors named in the will to use the remainder of the estate for some unknown and indefinite object or person; (2), that same was not a bequest within the meaning of the law under which the executors -could claim title to the property; (8), that it was meaningless, and in -direct contravention of the prohibitory provisions of the law, and must be reputed not written

After a careful examination and study of the will, and making an -application thereto of the authorities, we were unanimously of the opinion that the aforesaid disposition was illegal and void, and -that the deceased died without leaving any residuary legatee, and that, consequently, the residuum of her succession passed, at her death, to Tier legal, heirs.

It is now contended that the aforesaid disposition bequeathed the -remainder of her estate "to her executors, with an order or mandate to -them to give to any charitable institution they may select, within the meaning of Act 124 of 1882; and that such a disposition should receive a liberal interpretation because it was a legacy destined to pious uses, -and can be executed.”

State of Louisiana, State of Maryland intervening, vs. Executors of McDonogh & City of New Orleans, 8th Ann. 216.

But, the difficulty is, that the will does not designate any charitable institution as donee, but leaves that selection to the executors named.

Under its terms, they are given the power to act, or to refuse to act altogether. Under this view, a perfectly unavoidable one, there is nodonee named at all in whom a title could or did vest; and the irresistable conclusion is, that the said disposition is null, and that tha residuum must go to the legal heirs of the deceased.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J. Blanchard, J.

license: Public Domain

text:
    No. 12,658.
    Joseph Byrne vs. Amedee N. Hebert.
    Syllabus.
    1. To plaintiff’s petitory action defendant answered he held the land under lease from the heirs of Bogart, but did not disclose their names or domicile. The heirs were not made parties. There was judgment awarding plaintiff, on his showing of title, possession as against the lessee, but rejecting his demand “in all other respects.” Having prayed to be declared the owner this judgment disallowed his demand of ownership.
    Held : As he sued for the ownership of the land and for possession thereof as an accessory to such ownership, there is error in the judgment which while awarding him possession, rejects his claim of ownership.
    2. The rejection of his plea of ownership left nothing to predicate the decree-of possession upon.
    3. The court will, in the exercise of a sound discretion, remand a case, when, in its judgment, the ends of justice require it.
    ON APPEAL from the Fourteenth Judicial District Court for the-Parish of Iberville. Talbot, J. ’

      Hebert & Hebert for Plaintiff and Appellee.

      R. N. Sims, Fenner, Henderson & Fenner (of Counsel), for Defendant- and Appellant.
    Argued and submitted February 10, 1898.
    Opinon handed down March 21, 1898.
    Rehearing granted May 16, 1898.
    Argued and submitted on Rehearing December 20, 1898.
    Opinion handed down March 7th, 1899.
   The opinion of the court on Rehearing was delivered by BlanchAUDj J.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff in his petition filed March 4th, 1897, .alleged that he was the owner of lots 3, 4, 5 and 6 of Section 4, in township 9, South of Range 1, E. S. D. E. Miss. River,' containing •one hundred'and forty-nine 64-100 acres, by virtue of an entry on said lots made under Section No. £290, Revised Statutes of the United States, on August 14th, 1894, as would appear by the receiver’s certificate of said entry annexed to and made part of his petition.

That immediately after his said entry he went upon the lands ■entered and began to cultivate and improve them; that on the 15th ■day of June, 1895, in the suit of Edward Bryant, agent of the Heirs of Wilhelmus Bogarts vs. Joseph Byrne, et al., an injunction issued to him, commanding and restraining and prohibiting him from any further use or cultivation of said lands; that on the 3rd of August, 1895, the said injunction was dissolved by a judgment of the District ■Court for Iberville Parish, as would appear from the proceedings in said suit, annexed to and made part of the petition.

That from the date of the injunction above mentioned (June 15th, 1895), up to the date of the filing of his petition, notwithstanding the dissolution of said injunction, defendant claiming to be the lessee of the heirs of Bogarts had been in constant possession of his said property; that he had made demand for the possession of the same in vain. That he desired to be put in possession of his property by judgment of the court by the sheriff of the parish of Iberville, and to that end he brought suit against the defendant, the lessee aforesaid.

That the possession of defendant of his property had been in bad faith and without color of authority or title; that he should be condemned to pay petitioner rent at the rate of five dollars an acre per ■annum, for his property from June 15th, 1895, until the termination of the suit, with legal interest from the date of judgment. The prayer of his petition was that there be judgment in his favor against defendant, decreeing him to be the owner of lots Nos. 3, 4, 5 and 6, aforesaid, and commanding the sheriff of the parish of Iberville to put petitioner in possession of said property; that he have further judgment against defendant for rent due him as alleged in the petition.

Defendant filed several exceptions. One was that the allegations of plaintiff’s petition did not disclose any cause of action against defendant; a second, that plaintiff was absolutely without right to prosecute-this suit or stand in judgment for this, that the pretended certificate of entry declared on by plaintiff was the subject of contest and controversy in the land department of the United States and said pretended entry had been suspended and was inoperative. That said contest was being prosecuted by the State of Louisiana and plaintiff was a party thereto.

Both of these exceptions were overruled.

Defendant prayed oyer of the receiver’s certificate of entry declared upon by plaintiff, alleging that it had not been filed, although averred to have been annexed to the petition.

The certificate was produced and filed. It was as follows:

“Receiver’s Receipt No. 15,864 — Application No. 15,864.

"Homestead.

“Receiver’s Office, New Orleans, August 14th, 1894.

“Received of Joseph Byrne the sum of thirteen dollars, seventy-five cents, being the amount of fee and compensation of register and receiver for the entry of lots 3, 4, 5 and 6 of section 4, in township 9,. South of Range 1, E. S. D. E. Mississippi River, under Section No, 2290, Revised Statutes of the United States.

(Signed) Charles P. Joi-inston,

“$13.75. 149 64-100 acres. Receiver.”'

“Note.

“It is required of the homestead settler that he shall reside upon and cultivate the land embraced in his homestead entry for a period of five years from the time of filing the affidavit, being also the date-of entry. An abandonment of the land for more than six months-works a forfeiture of the claim. Further, within two years from the-expiration of the said five years, he must file proof of his actual settlement and cultivation, failing to do which his entry will be cancelled. If the settler does not wish to remain five years on his tract he can at any time after fourteen months, pay for it with cash or land warrants, upon making proof of settlement and of residence and cultivation from date of filing affidavit to the time of payment.”

Defendant filed an answer under reservation of his exceptions. Ha-first pleaded the general issue. Further answering, he denied that plaintiff was the owner of the lands described in the petition — he averred that plaintiff had no title thereto of any kind whatsoever, and that the alleged certificate of entry was a mere receipt for fees and commissions under Section 2290 of the Revised Statutes of the United States.

He denied that plaintiff was ever the tona fide possessor of said lands which form and have since fifty years or more, formed a part of the plantation now owned by the Bogart Heirs from whom respondent holds under a lease — he averred that said lands were and had been since fifty years or more, within the enclosures and well established-boundaries of said plantation and in the quiet, peaceable and uninterrupted possession of respondent’s lessees and their authors as owners; that more than a year prior to the attempt of plaintiff to take unlawful possession of said lands, respondent had been in the quiet, peaceable and uninterrupted possession thereof as lessee of said plantation, and that plaintiff’s attempt to cross said boundaries and enclosures-was an act of wilful and malicious trespass. That the pretended receipt was not a “muniment of title,” and conveyed no title sufficient to support a petitory action; that said pretended receipt issued in violation of law and that the same was obtained by plaintiff by means-of false representations in his application for a homestead entry; that plaintiff was absolutely without any legal right or capacity to prosecute or maintain this suit and that respondent was entitled to be quieted in his possession of said lands forming part of said plantation as lessee of the same. That the land in controversy was worth more than two thousand dollars.

He prayed that plaintiff’s demand be rejected and that there be judgment quieting him in his possession as lessee of said owners, with costs.

The District Court rendered judgment “in favor of the plaintiff and against the defendant, giving the plaintiff, Byrne, as against the defendant, Hebert, possession of lots 3, 4, 5 and 6, of Section 4, in township 9, South of Range 1, E. S. D. E. Mississippi River, and commnading that he be placed in possession of said property by the sheriff of this parish.” It was further ordered that “in all other re-spects, the demand of plaintiff be rejected.”

Defendant appealed.

In the Supreme Court defendant pleaded as an exception, the pre-scription of one year in bar of the action of the plaintiff for the possession of the property. He also contingently prayed for the remand-- . ing of the case. Plaintiff answered the appeal praying that the judgment be amended so as to allow him the rents as prayed for in his .petition; he prayed that in all other respects the judgment be : affirmed.

The plaintiff asks to be recognized and decreed to be the owner of the property described in his petition and to be placed in possession of the same.

The evidence in this case shows that the property involved in this litigation has been continuously in the possession of the authors •of the heirs of Bogart and of the heirs of Bogart, and of their lessees ior over forty years, a period long antedating the homestead certificate of entry on which the plaintiff has declared with the exception of a slight disturbance of their possession by the plaintiff in this suit just after he received the certificate mentioned. As soon as this act of ■disturbance occurred one Edward Bryant, claiming to be the agent of the heirs of Bogart, applied for and on the 10th of June, 1895, obtained an order for an injunction, which injunction issued on the 15th of that month, “commanding plaintiff to cease disturbing the heirs of Bogart in their real and actual possession of the land.” This injunction was dissolved on the 31st of August, 1895, on motion of -defendant in injunction, but solely on the ground that the agency of Bryant had not been established. Notwithstanding this dissolution, Byrne never attempted either to take or to claim possession of the ■property until the present suit was instituted on March 4h, 1897.

The only evidence introduced by the plaintiff was the homestead certificate of date of the 14th August, 1894, testimony going to show the entering upon the property by plaintiff shortly after he had obtained the same, which action wa3 enjoined by Bryant and the injunction proceedings themselves.

The evidence shows that the defendant, Hebert, was in possession -of the property as lessee of the heirs of Bogart at that time, and that 'he had been in possession as such, anterior to the date of the homestead certificate.

The court thought itself authorized under this evidence in decreeing -that plaintiff should be placed in possession of the property, but -though sustaining his demand to that effect, it, “in other respects rejected it." Plaintiff denies that by this decree his ownership of the •property was negatived and insists that the only reason why the judg•ment was framed as it was, was because the defendant had been shown to be the lessee of the heirs of Bogart, and by reason of that fact, the court was of opinion that the question of title could not be passed upon contradictorily with the defendant, but that the question of possession could under the decisions of this court, in Plummer vs. Schlatre, 4th Rob., 29; Dreux vs. Kennedy et al., 12th Rob., 489; King vs. Fish, 4th N. S. 391; Fuselier vs. Hennen, 5 N. S. 71; and Bayoujon’s Heirs vs. Criswell, 5th N. S., 232, and Young vs. Chamberlin, 15th Ann. 454. He contends that the judgment of the court on the ■question of the possession was correct, asserting that the evidence established that the defendant and his lessor were trespassers upon the public lands of the United States and that as against either the lessor or the lessee, plaintiff had the “right of possession” at any time, under his homestead certificate.

Article JfS of the Code of Practice declares that “the petitory action or one by which real property or any immovable right to which such property may be subjected, is claimed, must be brought against the person who is in the actual possession of the immovable, even if the person having the possession be only the farmer or lessee. But if the farmer or lessee of a real estate be sued for that cause of action he must declare to the plaintiff the name and the residence of his lessor, who shall be made a party to the suit if he reside in the State or is represented therein, and who must defend it in the place of the tenant who shall be discharged from the suit.”

Article 2704 of the Civil Code, referring to acts by which the possession of a lessee is disturbed, says: “If the persons by whom those acts of disturbance have been committed pretend to have a right to the thing leased, or if the lessee be cited to appear before a court of justice to answer to the complaint of the person thus claiming the whole or a part of the thing leased or claiming some servitude on the same, he shall call the lessor in warranty and shall be dismissed from this suit if he wishes it by naming the person under whose rights he possesses.”

Plaintiff maintains that although the defendant mentioned the '“Bogart Heirs” as being his lessors, he did not give their names nor residences, and did not ask that they be cited in warranty or made parties to the suit — that under such circumstances defendant in the actual possession of the property, was not entitled to be dismissed from the suit, but that plaintiff was entitled to carry it oil to judgment contradictorily with him, certainly, at least, as to the issue of the right of possession.

Defendant did not mention the names of the different heirs of Bogart, nor did he give the places of their residences. Whether he knew' himself who they were or where they lived, does not appear. He certainly must have known the name or names of the person or persons who acted for the lessors with respect to the lease. Plaintiff himself in his petition refers to lessors as “heirs of Wilhemus Bogart.”

Defendant did not ask to have his lessors made parties or cited in. warranty; nor did he ask to be dismissed from the suit.

We do not understand him to claim that the suit should be abated, by reason of the present situation of affairs, but to contend that no judgment should or could be rendered against him as matters now stand and that should he be wrong in that respect the judgment as rendered was not warranted.

Plaintiff claims to be the owner of the property described in his-petition and to be placed in possession thereof. The right of possession asserted is simply that which is the incident and accomplishment of a right or a claimed right, of ownership. Plaintiff’s pleadings contain none of the allegations which would authorize the right of possession to be taken up and disposed of as a substantive issue independently of the question of title. The petition viewed from the standpoint of the action being a possessory action proper under the Code of Practice could not be made the basis of a judgment in a suit of that character and would fall under an attack made upon it through an exception of no cause of action.

The syllabus in Plummer vs. Schlatre, 4th Rob. 29, cited by plaintiff, declares that Article 43 of the Code of Practice “applies only when the lessor or owner of the property sued for resides in the State, or being absent, is represented therein; if the lessor reside out of the-State and is not represented therein the lessee must defend the suit in his absence.”

There is nothing to show in the case at bar that the heirs of Bogart are absentees from the State. The particular state of facts under which a lessee is declared by that decision authorized to defend a petitory action on behalf of bis lessor does not appear. In Plummer vs. Schlatre defendant’s -pleadings were of the vaguest character. Made defendant in a petitory action in which a decree for the ownership and possession of a slave in his possession was demanded,. Sehlatre in his answer declared that “he was not her owner, but held-her as the property of one Wilkinson who was an absentee, and that-he had her in trust for him. That Wilkinson' was bound to defend-him in the peaceable possession of the property; that it was necessary that an attorney be appointed to represent him in the defense of the-suit. He prayed that Wilkinson be called in warranty; that an attorney be appointed to represent him,'and should a judgment be rendered against defendant for any damages or costs, that the same judgment be rendered in his favor against Wilkinson, etc.” Plaintiff excepted to the call in warranty'on the ground that defendant did not show himself entitled to it and that such a call could not be made after a judgment by default had been taken.

The court said that the only question before it resulted from plaintiff’s exception to defendant's attempt to call in warranty the person whom he declared to be the owner of the slave sued for — that he did’ not show in his answer how or under what precarious title the slave-was put in his possession, nor did he inform the court whether he held the slave as the lessee, or as the agent of the owner. That that was undoubtedly insufficient. That were the provisions of Article 43 of the Code of Practice, and Article 2674 of the Civil Code to be held: applicable to the lessee of a slave entitling him to be dismissed from-the suit, if he wished it, by naming the person under whose right he possessed, the looseness of defendant’s allegations unsupported by his oath or, any other evidence, would deprive him of the right of calling" the owner in warranty.

We think it evident that the court did not consider that the defense was made in good faith, or that defendant was not, as the party actually in possession, really the one against whom plaintiff could" rightfully have directed his proceedings. It is true that the court in the course of its opinion stated that by reason of the terms of the law-having declared that if the lessor resided in the State, or be represented therein, he should be made a party to the suit, it resulted by implication that if the lessor resided out of the State and was not'represented therein, the lessee should take upon himself to defend" the suit in the absence of the owner, but that statement was not called’ for by the necessities of the ease and was an obiter dictum which has not since been followed. The court affirmed the judgment rendered in the case which was for plaintiff, decreeing him to be the owner of the property. In Young vs. Chamberlin, 15th Ann., 454, cited by plaintiff, in which, the defendant was the lessee of one Hollister, who was a resident of the State of Michigan, the case was tried as between the plaintiff and the lessee alone, and the court expressly declared that the lessee was without capacity to stand in judgment as to the question of title.

As a matter of course a lessee may so frame his pleadings and so control the evidence advanced under them when called into a suit as defendant in a petitory action, as to warrant in the particular case a judgment for the property, but that is the result of a matter of fact, not of law.

The argument a contrario is not a very safe one to be followed. Wo know of no law authorizing a lessee as such to stand in judgment ■ on a question of title on behalf of his lessor, whether the latter be a resident of the State or an absentee; in either case he should be made a party to the suit — if present or represented he should be made a party either personally or through his authorized representative — if absent, by a curator ad hoc, under Articles 116 and 963 of the Code of Practice.

Plaintiff contends that although the court in Young vs. Chamberlin (15 Ann. 454) declares that the lessee cannot stand in judgment for his lessor on a question of title, it holds that the “right of possession” of the property can be passed on and determined between them — and that is all that is needed for the purposes of the present suit. The plaintiff in Young vs. Chamberlin was non-suited, so that that decision throws little light upon this subject. There may be cases so circumstanced as to facts as to authorize a decree as to the right of possession, but they should he exceptional. Viewed exclusively from the standpoint of matters between the plaintiff and a lessee there might be no particular objection to be urged against the parties going to trial on that issue, if they thought proper so to do, but when we come to consider the effect of such a course upon the rights of the "lessor, things take on an entirely different form. A change of the possession of the property from a lessee to a plaintiff in such a suit, operated through the execution of a judgment, to which the lessor was no party, carrying with it as a result the necessity of the lessor’s being forced to resort to a petitory action to regain possession, would open wide the door to collusion, fraud and injury. A lessor who had been in possession of property for years, as owner, and who would be entitled as against any one advancing adverse claims to force and exact the clearest proof of the rightfulness of such claims, would find him-sell’ suddenly, without any fault of his, called upon to take the position of plaintiff instead of a defendant in a petitory action and the-whole burden of proof required in such an action shifted on to him.. On the other hand, a plaintiff claiming a legal right, is entitled to find a defendant against whom he should proceed and a defendant by obstinately refusing to disclose the name or residence of his lessor,, might place him at defiance or throw unnecessary and unjustifiable, obstacles and delays in the way of the enforcement of rights.

Discussing the question of possession even simply as between a. plaintiff and a lessee, the court in Young vs. Chamberlin, said:

“The possesion of a lessee is the possession of his lessor and before his possession can be disturbed in a petitory action, plaintiff must, show a good and perfect title in himself as required by Article 44 of the Code of Practice, for if the lessor had been made a party to the suit he might have shown a title in himself paramount to any title-exhibited by the plaintiff short of a good and perfect title against the whole world and thereby have protected his possession through his-lessee. * * * The plaintiff in a petitory action is bound even against a naked possessor to produce a title anterior in date to the possession of the defendant, in order to establish ownership in himself' and to repel the ownership in the defendant resulting from his possession. (C. P. 44, 8 La. 246.) If the defendants be regarded as naked possessors the plaintiff has failed in his evidence to make out his case against them because the allegations of his petition which as judicial admissions conclude him, establish the fact that his title was not anterior in date, but subsequent, to the possession of the defendants, because at .the date of her title the defendants were in possession of the-land, and there is no evidence of his vendor’s title prior to that date-which can be considered as affecting the lessor’s right of possession through his lessee.”

Applying the rule here announced, how does this case stand as between plaintiff and defendant?

Plaintiff starts out with the assumption that defendant and his lessor are naked trespassers upon the property, though the defendant himself was in possession long anterior to the date of the homestead entry relied on by the plaintiff, and the lessors of the defendant and their authors are shown by evidence to have been in the open possession of the property as owners, as part of their plantation, for over .thirty years before that date. Granting that plaintiff would have been -entitled, under a homestead entry, to have taken possession of the property entered even as against parties holding possession at that time and long before, the allegations of his petition show that he has not been in possession, nor has he claimed to have the right of possession, nor has he sought to be placed in possession since August 31st, 1895, though he was perfectly free to act, and the very certificate on which .he declares, states that “an abandonment of the land for more than .six months works a forfeiture of the claim.”

Independently of this, we are by no means prepared to accept as true the proposition that the mere permission given by ministerial •officers of the land department to some particular person to make a .homestead entry of certain lands, carries with it, as' a consequence, that parties who are at the date of the entry in possession of that property, as owners, and had been in possession of the same for years before, should be held by that fact to be trespassers. It was stated in .argument in this case, and we can make use of the statement by way of illustration, though not for action, that the lands which form the .subject of this litigation were entered many years ago by the owners of the front' or first concession under the law authorizing them so to do; that subsequent to this entry the same was cancelled, not absolutely, but because it was supposed to conflict with the Iloumas grant —that plaintiff finding the entry cancelled, applied to the ministerial •officers of the Government to have the land entered under the homestead laws of the United States, and was permitted to do so. That plaintiff found himself confronted with a claim made on the part of •the State of Louisiana and the Pontehartrain Levee District holding under the State, that the latter had become the owner of the property •under the “swamp land” act; that thereupon, plaintiff instituted proceedings before the local land officers in New Orleans to have the land declared, contradictorily with the State and the Land District, to have been properly entered by him under the homestead law — that being unsuccessful before them, he appealed to the commissioner of the Land Office at Washington, by whom the decision appealed from was reversed; that from the decision the State and the Land District appealed to the Secretary of the Interior, arid that the whole matter rests in suspense in the Interior Department at the present time. That throughout all this priod the front owners who entered the land originally, and their assigns, have remained constantly in possession. Under this condition of affairs can it be said that either as to the United States or as to the plaintiff, or as to the State, the parties in possession are to be considered as naked trespassers. We think not. 'In the first place, it by no means follows that, because an entry of public land was cancelled by reason of its supposed conflict with some particular grant, the entry was to stand cancelled absolutely and generally as to the world. It might well be that the entry should stand cancelled in so far as it really conflicted with the grant, and .yet hold good if it did not so conflict. The cancellation might be held to extend no further than for the benefit of the parties holding the Iioumas grant and the permission granted to homestead entrymen by reason of the cancellation might be wholly unauthorized and illegal. Marsh vs. Gonsoulin, 16th La., 84, Beridon vs. Barbin, 13th A. 458. If, in point of fact, the cancellation of the entry caused the property to fall legally into the ownership of the State under the .swamp land act, the United States and its officials would have had no power to permit the land to be homesteaded to the prejudice of the rights of the State, and plaintiff would take nothing by his entry. That being true, defendant’s possession might be subject to attack from the State, but not from the plaintiff. Again in a suit between ■the State and the Heirs of Bogart, the latter might be able tc successfully hold that their original entry would stand good as against all parties other than the Iioumas grantees, under whom the State does not pretend to hold. We mention these various pretensions simply to show that it by no manner of means follows that because the plaintiff was authorized by ministerial officers of the government to enter upon certain property for the purpose of ultimate acquisition of the same, the parties who were in actual possession of the property at that time should be taken to be trespassers, either as against the Government or as against the homestead entryman or the State.

We do not understand that the United States transfers property ipso facto, by and through a mere homestead entry. The entry is merely, as we understand, permissive of occupancy of unappropriated land, under a pledge or promise to convey the property on the later fulfillment of certain fixed conditions. We do not feel called on to discuss its character or the results flowing from the same at the present time. As matters stand, we do not think defendant was called upon to ascertain or advance the title of his lessors under penalty of ■ eviction, but that he is authorized, under the state of facts disclosed by the pleadings and the evidence, to stand, for the time being, upon his possession and that of his lessor. We do not think the evidence in the case justifies the judgment appealed from. Matters should be-made to appear more certain and definite.

We find ourselves in presence of a case where there is reason to believe, or, where at least we are compelled to assume, that the lessors-of the defendant have a claim of some kind upon the property not inferior to that which the plaintiff advances, and where a decision adverse to the defendant would seriously and vitally affect the rights of parties not before the court, and whose rights should be protected. (Bludworth vs. Hunter, 9 Rob. 257, 262.) We think, besides, that-the defendant has an independent right of self protection to maintain him in his acquired possession.

We are of the opinion that the judgment appealed from should be,, and it is hereby annulled, avoided and reversed, and it is now ordered,, adjudged and decreed that the cause be remanded to the District Court and reinstated on its docket and proceeded with according to-law, with leave to the plaintiff to make the heirs of Wilhelmus Bogart, parties defendants.

Mr. Justice Breaux concurs in the decree.

Justices Miller and Blanchard dissent.

On Rehearing.

Blanchard, J.

The judgment appealed from decreed to plaintiff the right of possession of the premises sued for, as against defendant lessee, who alone was cited, and directed that he be placed in possession.

As to all of the other demands of plaintiff, the same were rejected.

These other demands were, to be decreed the owner of the property, and to recover rent for the land at the rate of five dollars per acre per annum from June 15th, 1895, until given possession.

In the view we take of the case as the same is now before us, we pass no opinion upon the sufficiency or insufficiency of the showing of title made by plaintiff. But even upon the hypothesis of the sufficiency of this showing, the judgment of the lower court cannot stand.

How can plaintiff, suing for the ownership of land and for possession thereof, as an accessory to such ownership ,be awarded the possession while, in the same decree, his demand of ownership is rejected outright? He is not entitled, to possession unless his claim of ownership be recognized, and since the judgment under consideration rejected his plea of ownership, nothing was left to predicate the decree-of possession upon.

Had the judgment, upon the assumption that plaintiff had mad© out his title, decreed him the ownership of the land so far as it could be done as against the lessee, who alone is a party defendant, and followed this up by decreeing him the right of possession as against such lessee, with reservation of the rights of the lessors and owners whose names had not been disclosed, and who were not parties to the suits, . a different case would be presented, as to which plaintiff would, at least, be on firmer ground than he now is.

Plaintiff did not appeal from the judgment rejecting his demand of ownership. Neither has he seasonably filed in this court an answer to .the appeal of defendant, praying amendment of the judgment in that respect. The only answer seasonably filed here was one praying that the judgment appealed from be so amended as to allow him the rents, claimed in his petition, and this answer concludes with the prayer that “in all other respects the judgment of the lower court be affirmed' with costs.”

We thus find plaintiff in the attitude of asking that the judgment-of the court a qua, rejecting his demand of ownership, be affirmed, and' were we to grant this prayer it must necessarily and logically carry with it the reversal of that part of the judgment decreeing him the possession.

Rejecting his claim of ownership and withdrawing the possession .awarded him by the court below, would be the loss of the case, as it now stands, entirely to him, and surely this is not what he would have us do.

It is, thus, apparent he is in no position to resist, as he has done on this rehearing, the reversal of the judgment appealed from and the¡, Tern anting of the case.

This court will, in the exercise of a sound discretion, remand a case when, in its judgment, the ends of justice require it.

We think this such a case..

Op behalf of defendant it should be remanded to enable the heirs of Bogart to be made parties defendant and contradictorily with whom plaintiff may litigate the questions herein raised.

On behalf of plaintiff it needs to be remanded on the grounds hereinbefore pointed out.

If the heirs of Bogart are present or legally represented in the State, they should, by supplemental petition, be made parties defend- ■ ant and cited to answer plaintiff’s demand. If they be non-residents ■of the State and.not properly represented here, then-they should he ■cited through a curator ad hoc.

If the records of the Parish of Iberville do not disclose who these heirs are and their places of residence, and do not disclose whether they are represented in the State or not, and- if represented, by whom, and plaintiff has not this information otherwise, it would be competent for him to rule defendant to declare the names and places of residence of those under whom he claims to hold, and should this proceeding fail to obtain the information necessary to make the Bogart heirs parties, then plaintiff would be in a much better position to litigate with defendant lessee the question of ownership resulting from his showing of title as determinative vel non of his right of possession as against the said lessee, than he is now.

It is, therefore, ordered that the former decree of this court remain undisturbed, costs of this appeal to be borne by plaintiff and appellee, those of the lower court to abide the final result o.f the suit.