86 So. 778 | La. | 1920
Plaintiff alleges that she was married to T. P. Haynes November 29, 1879, who died on January 6, 1885, leaving' one child only surviving issue of said marriage, and that said child died while still a minor, during the month of April, 1895; that the said T. P. Haynes was the son of Dr. John Haynes, and that the latter died on the 28th of August, 1887, owning both personal and real property, and leaving Miss Bythellow Haynes, a daughter, and Eugenia Haynes, a granddaughter, issue of petitioner’s marriage with the said T. P. Haynes, as his sole heirs; that the succession of Dr. John Haynes was never opened, but that the said Miss Bythellow Haynes took possession and control thereof, and collected the revenues, all without the consent of petitioner and over her protest. Petitioner further alleges that prior to his death the said Dr. John Haynes attempted to donate all of his property and effects to his said daughter, Miss Bythellow Haynes, to the detriment of petitioner’s said husband and daughter; that said act was utterly null and void on its face, because of the failure to perform the conditions named therein; that one of the conditions was that the donee should support her said father for the rest of his life, but that she failed to ‘do so, and petitioner’s said husband furnished the said donor a home and support from the date of said donation, January 2, 1883, to January 6, 1885, at which latter date petitioner’s said husband died. Further alleges that said act is utterly null and void for the reason that it is not notarial in form, and in no wise conforms to the law with reference to donations.
Plaintiff made the administrator of the estate of Bythellow Haynes (she having died) party defendant, asked that a curator ad hoc be appointed to represent absent heirs, and prayed that the attempted donation be decreed null and ordered canceled ;■ that petitioner be recognized as the owner of an undivided one-half of the real property formerly belonging to Dr. John Haynes; that it be sold to effect a partition; and that petitioner have judgment for the value of certain real and personal property disposed of by the said Bythellow Haynes, and for one-half the rental value of thé real estate for the years 1888 to 1915, inclusive.
The administrator and curator ad hoe appeared and excepted to the petition on the ground that it disclosed no right or cause of action, which exception was on February 5, 1918, overruled. The curator ad hoc, reserving all rights under said exception, then filed a plea of vagueness on April 2, 1918, in which it was said that the petition did not set out or identify the act of donation which was attacked, “nor does it even show that same is of record in this parish nor where it is recorded; that this information is absolutely essential in order that respondent may know what instrument is referred to in plaintiff’s petition, and may properly appear and plead his defenses to said action.” The curator further averred that plaintiff had not set forth in what particulars the said donation was null and void, and prayed that petitioner be required to set forth with precision the nature of the demand, and “to set out and identify the act of donation referred to in her petition,” and that she disclose what connection the same had with this case.
Without waiting for a ruling by the court
“Adopting all the allegations and the prayer of the original petition, your petitioner shows further that a certified copy of the instrument referred to in petitioner’s petition is hereto attached and made part hereof, and that same is recorded in your said parish in Notarial Book A, pages 435 and 436.”
She further alleged that — •
“Said instrument is utterly void on its face for many reasons, two of which are as follows: (a) The said so-called act of donation is not notarial in form; and (b) it attempts to give all the property that donor was possessed of. It should be annulled also for the want of fulfillment of the conditions set forth in same, even if it were not null and void on its face for lack of form, because it undertakes to dispose of all the property of donor.”
The prayer of the amended petition was the same, in substance, as that of the original.
The copy of the act of donation attached to the amendment is as follows:
“State of Louisiana, Parish of West Carroll.
“Know all men by these presents that I, John Haynes, of my own free will and accord, of sound mind and memory, being now well stricken in years, and being desirous of arranging all my affairs before death, do make the following disposition of all my effects, to wit:
“Having on divers occasions, in former years, given unto my son, Thomas P. Haynes, and unto my deceased daughter, Fanny B. Sterling, money and property amounting in value to their just and full proportion of all that I am worth and having never given unto my daughter, Bythellow, anything, do now give, set over, transfer and with these presents do deliver unto her, all the right, title and interest which I have and hold in and to the following property, for her own use and benefit, in fee simple and forever, to wit: Two hundred and forty acres of land, more fully known as follows, to wit: SE% of section No. 22 and N% of NE]4 of section 27, all in T. 20 N., of B. 10 E., district of lands north of Bed Biver, being the place on which I now reside, and all the rents, revenues, improvements and appurtenances, thereon, and thereto attached and belonging.-' Also six head of horses and mules now on the place, also all the cattle which I own, about 40 head more or less, marked with a split in the left and swallow-fork in the right ear. Also a wagon and farming utensils of every kind which’ I own and on my place, conditioned that she, the said Bythellow Haynes, pays all my just debts, and furnish me with a home and support for the remainder of my life and signs her name to these presents, accepting of this donation with the condition, attached. Given under my hand this the 2nd day of January, 1883 and in the presence of Creed T. Millikin, John D. Millikin and H. B. Lott, good and lawful witnesses whose names are hereto signed.
“Jno. Haynes.
“Bythellow Haynes.
“Attest:
“H. B. Lott.
“C. T. Millikin.
“John D. Millikin.
“State of Louisiana, Parish of West Carroll.
“Personally came and appeared before me, the undersigned authority, H. B. Lott, who being sworn says that he is one of the subscribing witnesses to the foregoing transfer and that he saw all the.parties thereto sign their names, with the true intent and purposes therein set forth and expressed. H. B. Lott.
“Sworn to and subscribed before me this the 2d day of January, A. D. 1883.
“W. A. Hedrick, Clerk, D. C. [Seal.]”
On April 23d the court rendered a written opinion on the plea of vagueness, holding that the amended petition filed by plaintiff “constitutes a substantial compliance with demands of defendant’s plea of vagueness.” Thereafter, on June 11, 1918, the curator ad hoc, reserving the benefit of all previous exceptions, pleaded that plaintiff had estopped herself from attacking the said act of donation for the following reasons:
That she had attached to her amended petition copy of said act and made the same part thereof, without any restrictions or reservations whatsoever, and was therefore bound' by all that was contained therein; that in said act the said Dr. John Haynes had set forth that in former years he had given to his son, T. P. Haynes, plaintiff’s former husband, money and property amounting in value to his just and full proportion of all that Dr. Haynes was then worth;
On the same day that the plea just referred to was filed the said curator ad hoc filed another plea of estoppel, in which he averred that, by suing as the sole heir of her daughter, Eugenia Haynes, and through her as the heir of Dr. John Haynes, plaintiff had thereby accepted “fully, unequivocally, and expressly” his succession, and was therefore bound by his declarations contained in the said act of donation.
Subsequently,' September 12, 1918, defendants pleaded estoppel again, based upon the same grounds.
The pleas of estoppel were tried, plaintiffs therein, defendants in suit, offering in evidence the amended petition with exhibit attached, together with the entire record in the tutorship proceedings of the minor, Eugenia Haynes. Defendant in the pleas tendered no proof.
On March 4, 1919, the lower court handed down a well-considered written opinion sustaining the pleas of estoppel. Plaintiff has appealed, and defendants have answered, praying that the judgment be affirmed, and in the alternative, if the plea of estoppel be overruled, that the exception of no cause or right of action be sustained.
Opinion.
Exception of No Cause or Right of Action
Defendant contends that the petition does not state a cause of action, because:
(1) Plaintiff does not sue as a forced heir of Dr. Haynes, and cannot complain if he did dispose of all his property, for such an heir alone is entitled to attack a donation on the ground that the donor has divested himself of his entire property.
(2) Even if it be held that the plaintiff has sued in the capacity of a forced heir, she has no right to have the entire donation annulled, but merely to have it reduced so as not to entrench upon her légitime.
(A) That she has not alleged any facts showing such encroachment upon her légitime, and, having made the act of donation part of her amended petition, the effect was to have her pleading say that her husband had received all that he was justly entitled to, and thereby to negative the idea of any such encroachment.
' (3) That, in so far as the charge is made that Miss Bythellow Haynes did not comply with the conditions of the donation that she should support her father during his lifetime, there is no allegation that any demand was even made therefor, and consequently no putting in default, as a result of which neither Dr. Haynes, nor any one claiming under him
(4) That, having accepted unconditionally the succession of Dr. Haynes, she is bound by the recitals in the act of donation.
We deem it unnecessary to pass upon the character of plaintiff’s heirship, in disposing of this exception, for that issue is involved more properly with the charge of nullity on account of the donor’s having disposed of all his property without reserving enough for his support, in violation of article 1497, B. C. C. We think the petition otherwise discloses a cause of action, as will appear from what we have to say hereafter in this Opinion, and we prefer not to pass upon such important questions of law in disposing of an exception, which, if the petition alleges a cause of action on any score, must be overruled.
In our opinion, there is no occasion for the application of the provisions of law with respect to putting in mora, since the petition alleges an entire failure of the conditions imposed by the donation or contract, and the possibility of their performance has long since passed by the death of Dr. Haynes, who died in 1887, four years after making the donation.
For the reasons assigned, the judgment appealed from is annulled and reversed, the pleas of estoppel and no cause of action are overruled, and this cause remanded to be proceeded with according to law and the views herein expressed; defendants to pay costs of appeal;- all other costs to await final judgment.