1 La. 179 | La. | 1830
delivered the opinion of the court. This action is brought to annul and set aside the proceedings had in the court of probates in relation to the succession of the plaintiffs’ father. They allege that their mother, who was their tutrix, made a false and fraudulent inventory of the property: that a house and lot was inserted in it as community property, when in truth it belonged to the husband: and that the other property was appraised below its real value.
Since the opening of the succession, three slaves, making a part thereof, have been sold
He pleaded to the jurisdiction of the court, and the judge sustained the plea. In doing so, we are of opinion no error was commit- ’ r ted. If property belonging to the succession has passed into the hands of third persons, the courts of ordinary jurisdiction, not those of probate, must be resorted to for relief.
The defendant, as mother of the plaintiffs, caused an adjudication of the property in community to be made to her at the price of estimation. The plaintiffs contend that this proceeding, as well as others predicated on the fraudulent inventory must be set aside. The judge of probates was of opinion the evidence established not only that a house and lot which had been considered common property, belonged to the father of the petitioners, but that other effects had been concealed by the defendant to the amount of $6131. He refused however to set aside the adjudication, on the ground that the father having declared in his last will that the. real estate belonged to
We think the judge erred: by the ninth law of the sixth title of the sixth Partida, the heir who made a fraudulent inventory, was obliged to pay double the amount he had concealed, to those entitled to any part of the succession. On this law the better, and more generally received opinion of the commentator was, that the inventory and proceedings growing out of it were not null and void, because the statute had affixed a penalty and did not declare that nullity should be a consequence of the fraudulent conduct of the heir. Whether it was on the provisions of this law (which were in force at the time the inventory, was made) the judge of probates came to the conclusion announced in his judgment, the record does not inform us. We do not however, think they sustain it. The law of the Partidas inflicts a severe penalty, and accord-to the ordinary rules of construction cannot be extended to other persons than those named in it, viz. heirs. The mother of the defendants in the instance before us, acted either as
It is on this consideration probably, the petition does not ask for it. But if the mother is not liable to the penalties indicted on the heir who makes a false inventory; neither can she claim any of the consequences which might follow, were she subject to them. Her conduct must be examined in relation tooth-er rules than those growing out of the particular enactment. Tried by these rules, we have no doubt the whole proceedings were null and void. The inventory was fraudulent and false, and being the foundation on which all the proceedings were had, it follows the adjudication to the mother must be set aside. Febrero p. 2, lib. 3, cap. 1, sec. 14, No. 500, Curia Phillippica verbo sentencia, no. 12, p. 74.
The next question is, the correctness of the judge’s opinion, that the declaration in the testament, of the house and lot being common property, amounted to a donation to the wife,
The petition contains a prayer for interest on the money retained in the hands of the defendant, and for the rent of the house and lot, which has remained in her possession since the death of their father; but there is no evidence on record to show the value of the rent, nor any in relation to the expenses of the minors, nor whether they have been supported by their mother. The cause must be remanded for proof on these matters.
It is therefore ordered, adjudged and decreed, that the judgment of the probate court be annulled,avoided and reversed: and it is further ordered, adjudged and decreed, that the cause be remanded,to be proceeded in according to law, the appellees paying the costs of the appeal.