9 La. Ann. 288 | La. | 1854
This suit was instituted for the recovery of the amount of four notes for $5000 each, executed by the late Thomas JD. Purnell in part payment for the undivided five-twelfths of a plantation, known as the Forest plantation, which was adjudicated to him at the probate sale of the property of the succession of Mary O. Culberson, deceased.
The respondents admit that the notes were executed by T. B. Purnell, but aver that they were given in error and are without consideration; that at the time of the adjudication to him of the undivided five-twelfths of the Forest plantation, he was himself the owner of three-fourths of the whole plantation and the slaves thereon, and that in purchasing he was ignorant of his legal rights, and erroneously supposed that the legal title to five-twelfths of said plantation was in the succession of his sister, Mary C. Culberson, while in fact, she was only entitled to one-fourth thereof.
The respondents further aver that Levi Purnell, the father of Thomas B. Purnell, who died in 1835, devised to the said Thomas one undivided half of said plantation and slaves. That after the death of his said father, and in ignorance of his rights under the will, and erroneously supposing that the children of his sister, Marry Culberson, then deceased, were equal owners with himself, of the plantation and slaves, partition thereof was made accordingly, whereby the children of his sister received one-fourth more than their legal share.
Respondents averring that two of the notes given as the price of adjudication, amounting together to ten thousand dollars, have been paid, claim to recover back the amount from the plaintiff, as tutor of the minor heirs of his sister, and also to recover tho share of the negroes belonging to T. B. Purnell, erroneously given in the partition, with hire for their services. They claim that the notes sued on be reduced to one-half of their amount, and that they be credited with one-half of the amount of the two notes already paid and with the value of the hire of the negroes.
This will was probated in Mississippi, but not registered in Louisiana until 1851, when upon presentation of an authenticated copy of it to the Probate Court of Concordia, it was, upon defendants’ petition, ordered to be executed.
Mrs. Purnell, the wife of the testator, Levi, died intestate. Besides the children Thomas and Mary, she left a daughter named Eliza Paris, issue of a former marriage.
On the 2Gth January, 1841, Thomas Purnell and his sister, Marry Gulberson, present a petition praying for an inventory of the succession of their father and mother, that they be recognized as their heirs and placed in possession. On the 27th, they accepted the succession purely and simply as the forced heirs of their father and mother, and expressly stipulated a reservation to each of them respectively, of all rights under any will which may be produced.
In August, 1842, Eliza Danis, the half-sister of Thomas and Mary, accepts the succession of her mother, and in the same act, sells to Thomas Purnell and to Gulberson, tutor, for $10,000, her interest in her mother’s succession, situated in the parish of Concordia.
On the 28th December, 1843, Purnell and Gulberson, as tutor of his minor children, made a partition in kind of the slaves attached to the Forest plantation, and making part of the succession of Levi and Mary Purnell, and also of the slaves purchased from Eliza Davis.
On the 6th April, 1844, Gulberson sold to Purnell the interest acquired by him in the Louisiana property, from Eliza Danis.
On the 6th April, 1844, the interest of the minor heirs of Mary Gulberson to the Forest plantation, amounting, as is expressed, to an undivided five-twelfths of the whole, was adjudicated to Purnell and as has been seen, this suit has been brought on four of the notes given for the price.
The error assigned is, that the ancestor of defendants, being the owner in indi-visión of three-fourths of the estate, in purchasing five-twelfths of it, purchased a part of what already belonged to him.
To ascertain the effect to be given to this defence, it is necessary to inquire what was the interest of Thomas Purnell in the property, at the time of the purchase.
Levi Purnell, having but two children at the time of his decease, had the right to dispose of one half of his property. C. O., 1480. This disposition, as has been seen, was made by him in express terms, in favor of his son Thomas. But
Under this erroneous belief, he devised one-half of the estate to his son, alleging as his reason for doing so his belief that his wife would give to the daughter the other half of the same estate, evidently intending thereby that the two should inherit equally.
The intention of the testator is his testament. This is the first rule, and all others which concern the interpretation of testaments are reduced to it. Domat, Part 11, B. 3, Tit. 1, sec. 6, Art. 5.
The same jurist in a paragraph 3178 (Cushing’s edition) of the same book and title, in treating of the rules for interpreting difficulties in testaments, even when the terms of the disposition are unequivocal, states that some of them are occasioned by an error the testator was under in a matter of fact that Tivas unknown to him, and when it appears clearly enough, by his dispositions what he would have ordered, if the truth which he was ignorant of had bees'known to him, and if his will be thus ascertained, that “ we are to decide the matter, by adjusting the difficulty in the manner that we judge the testator hifnself would have done it, according to the views and sentiments which his disposition (and we may add, his declarations) show him to have had.
Being satisfied, therefore, that the intention of the testator was not to give preference to his son over his daughter, but on the contrary, that it was his desire that they might inherit equally, the property in Louisiana; and that the disposition in his favor resulted from ignorance of a material fact and in error, ' and would, if carried into effect, defeat his manifest intention, we cannot enforce it.
The children of Levi Purnell seem to have placed the same interpretation upon the will of their father which we give to it, and actually consented to carry it out, by the stipulations of the act of acceptance of the 27th May, 1841. It is true that they reserve their rights to attack any will which may be presented; but it further appears that Purnell, who alone had an interest in enforcing the
Idiomas D. Purnell was mi juris at the time of the partition of the slaves of the Eorest plantation estate, and of the purchase of the interest of his sister’s succession in the land. Although these acts may not come up to the technical definition of “ acts recognitive and confirmatory,” yet they clearly amount to a voluntary execution of the will of his father, according to the interpretation we have given it. As such, they are conclusive of his rights in the premises. 0. 0., 2252, 2254. Touillier, vol. 5, Nos. 175,180.
Being of opinion that the arrangement entered into between the parties, carries out substantially the intention of the testator, we are unwilling to disturb it.
It is therefore 'adjuged and decreed that the judgment of the District Court be affirmed, with costs in both courts.