No. 1002 | La. | Jun 15, 1881
The opinion of the Court was delivered by
This is an action óf partition among the grandchildren óf Sanders Neely and wife. They constitute three branches, one suing, two defending. No difference exists between them, as to the proportion in which the inheritance is to accrue to them. The contention
Brunot, the other defendant, who represents a branch by himself,, claims that the plaintiffs should be made to collate three sums, which aggregate $16,650, alleged to have been received by their mother, from Widow Neely (at the time Mrs. Garrett), and that his co-defendants, the minors Orossgrove, who together represent a branch, should bring back $4650, which their mother had likewise received.
In bar to this demand for collation, the correctness of which is denied, many defenses are set up.
The plaintiffs and the minors Orossgrove plead res judicata. The-latter claim, that the estate of Mrs. Garrett is indebted to them in the sum of $2156, with legal interest for twenty years, which they eventually set up in compensation. The defense of res judicata is predicated on a judgment rendered in 1860, in a partition suit brought by Mrs. 'Calhoun, plaintiffs’ mother, against Mrs. Garrett and against her co-heirs. The claim for the $2156 is based upon a judgment rendered in 1859, homologating an account presented by Mrs. Garret as Neely’s executrix. The minors Crossgrove further claim the rents and revenues of the property from 1859, the date of the account, up to the death of Mrs. Garrett, which occurred some two years since.
The lower court rejected those several demands and ordered a partition in kind. From this judgment Brunot, alone, has appealed. The minors Orossgrove have asked no amendment.
In this Court, both the plaintiffs and the minors Crossgrove, through their tutor, have pleaded the prescription of five, ten and twenty years.
The facts disclosed by the record are : Sanders Neely and Sarah A. Neely were husband and wife. As the only issue of their marriage, they had four daughters, who were minors at their father’s death, in 1847. Neely left considerable property, and a will, appointing his wife the executrix thereof. She qualified, both as executrix and as tutrix. In 1848 Mrs. ■Neely became Mrs. Garrett.
It appears that subsequently, Mrs. Garrett became desirous of purchasing the interest of Mrs. Calhoun in her father’s estate, and accordingly, a notarial act was executed. Several receipts were offered in evidence to prove, not only the receipt of the price of sale, but other amounts.
We are satisfied that those receipts have been shown to represent one and the same thing, the price of the hereditary rights and that of a slave. We do not understand that it is now insisted that they prove anything else.
There is also in evidence a receipt, purporting to be for the price of sale of Mrs. Crossgrove’s interest in her father’s succession, but the
It is claimed that, as the sale by Mrs. Calhoun to Mrs. Garrett was judicially annulled, the price of sale should, under the terms of the judgment, which reserves the rights of Mrs. Garrett to claim it, be collated by the plaintiffs, as a debt of their mother, whom they represent.
We have thought proper briefly to state our views, touching the character of those claims, not because we considered the statement material for the determination of the controversy, but merely because we deemed it proper to place the parties in their rightful positions, for a better understanding of the case. .
Considering, from the conclusion which we have reached from a different standpoint for the decision of the differences of the parties, that it is unnecessary to pass upon the pleas of res judicata, prescription and compensation, set up in this matter, we will simply eliminate them.
Conceding that it is true that both Mrs. Crossgrove and Mrs. Calhoun have received from their mother the amounts charged against them, — we do not find that they were given to them en avancement ■d’hoirie. The utmost that we could And would be, that those ladies re-received those amounts and that'they died indebted for the same to their mother, Mrs. Garrett.
It is important to bear in mind, not only that Mrs. Crossgrove and Mrs. Calhoun died before their mother, whose heirs they never were, but also, that their successions were accepted by mere operation of law, under benefit of inventory, on behalf of their minor children.
Such being the case, those children, coming in their own right to the succession of their grandmother, Mrs. Garrett, are not bound to collate debts due her by their respective mothers.
The maxim: qui jure alterius utiiur, eodem jure debet, receives no application to a case of the nature of that now under consideration.
Although it may be true, as a proposition of law, that, if Mrs. Crossgrove and Mrs. .Calhoun had survived their mother they would have had to collate, not only advances and gifts, but also debts, it is not the ease when, having died before their mother, they leave heirs or representatives who are called to the inheritance and come to it in their. own right.
Article 1240 of the R. C. C. provides that “ the grandchild, when inheriting, in his own right, from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession; but if the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced the inheritance.”
It has already been twice judicially expounded, and extended to debts due by the heir to the ancestor, however those debts may have originated.
In the case of Destrehan, 4 N. S. 557, in which two opinions were rendered, one by Judge Mathews and another, on rehearing, by Judge Porter, the question now before us, presented under this article, was most elaborately, maturely and ably considered. The Court there distinctly held, that grandchildren, coming to the partition of their grandfather’s estate with uncles and aunts, are not bound to collate an onerous obligation due by their father. In the exhaustive opinion on the rehearing, the Court finally said ; “ If the father should die after the succession was opened, and his children came forward to represent him in the partition of their grandfather’s estate, they could take neither more nor less than he could. But when the father dies before the grandfather, the grandchildren do not take their right from their father ; they receive it from the law, independent of his acts or his will, and even when he should have manifested a contrary intention.”
In the succession of the Misses Morgan, 23 An., 290, in which the question was again presented and ably considered, the ruling in the Destrehan case was formally affirmed. 8 L. 228.
Those decisions are fully supported by all the French authorities bearing on the question. Rolland de Villargues, Rap. de Suc. § 2, n. 29; Malpel, n. 263; Chabot, v. 3, on Art. 848; Toullier 4, n. 458, 186, 187; Delvincourt, Notes et Expl. 28; Paillet, Leg. and Juris des Suc., 2, 600; Manuel des Audiences, 177; Manuel de droit Français, Art. 744—note; Laurent, vol 2, p. 138, No. 175, on Art. 848 (Cours élém. de dr. civ.)
Concluding, therefore, that the Calhoun and Crossgrove heirs are not bound to collate, we find no error in the judgment appealed from, which is, therefore, affirmed with costs.