13 La. Ann. 157 | La. | 1858
This case was before the court in 1855, and was remanded for further proceedings. See 10 An. 452. A-final judgment having again been rendered, which N unsatisfactory to the plaintiff, she prosecutes this second appeal.
We will consider the questions presented by her counsel in their order.
I. It is contended, that the sum allowed her in usufruct ought to have been $20,508 33£, instead of $18,341 66 which was allowed her by the decree of the District Judge. The decree of this court remanding the cause, fixed the estate in Louisiana left by the deceased at $135,000, subject to a reasonable deduction for the value of the slaves added thereto and improvements made since the death of said Henry L. Gonner, existing at the adjudication to George M. Marshall. The District Judge estimated these improvements at $25,000. In this we think he has fallen into an error. It is in proof that the additional slaves enhanced the value of the place $12,000. The testimony does not enable us to estimate the additional value given to the place by the building of the new gin and quarter for the negroes. It is shown that the plaintiff herself contributed labor towards these improvements, and as they were doubtless paid for out of the revenues of the place we do not feel ourselves called upon to make a proximate estimate. If the improvements were placed on the property from the revenues it is evident that plaintiff’s proportion of the revenues, viz: one-sixth thereof, have contributed to form the capital, upon a part of which she is subsequently to have her usufruct. If the defendants wished for the allowance they ought to have introduced certain proof of the value of such improvements, and not to have left the same to conjecture. We are of the opinion, that the judgment of the lower court ought to be amended in this particular, as prayed for, and that she should be allowed $20,508 33& in usufruct.
II. It is contended on the part of the appellant, that the usufruct of the one-sixth is a legal usufruct, and, therefore, under Art. 553 O. O., the plaintiff is not obliged to give security for the money to be delivered her. In the Erench text it is said in this Article, that the father and mother having the legal usufruct of the effects of their children, the vendor and donor, who have reserved the usufruct, are not obliged to give this security. The English text of the Article begins, '■'■Neither the father nor mother having the legal usufruct,” &c. We think the legal usufruct spoken of in this Article (553 C. C.) is that referred to in Articles 239, 240 and 241 of the Civil Code, and does not embrace the marital fourth. See 2 An., 43; 3 An., 490; Succession of Tassin, 12 An., 885, and Wood, Widow Neely, v. Administrator of Stokes, ante 143.
IV. The minor, Louisa JR. Conner, was represented in the suit by a curator ad hoe and her under-tutor, and it is proper that the judgment should also include her within its provisions.
V. The plaintiff complains of the allowance of commissions to her as tutrix. We are of the opinion, that the District Judge properly confined the tutrix to commissions upon $13,050, as this is the only amount which the minors appear to have received from the administrator and which was subject to the administration of plaintiff. It is clear that the revenues of the plantation while under the management of the administrator, and which were taken by him to pay debts, were not subject to the commissions of the tutrix. The decree allows her all that she is entitled to, but it is better that the decree should specify the exact amount due by each heir.
VI. The plaintiff recovered in the Probate Court of the State of Mississippi, on the settlement of her account of guardianship of Anna F. Conner, deceased, contradictorily with the defendants, $1621 13 as her commissions for administering said estate. As there were not revenues out of which the same could be allowed in Mississippi, this portion of the decree could not be paid, and the plaintiff sets it up against revenues arising in Louisiana. It is shown that $13,050 were invested in real estate in Louisiana from the revenues of the plantation. The deceased minor was the owner of one-fifth of this sum. Hence as these defendants and Louisa JR. Conner inherited the whole of the estate of the minor in Mississippi, to the exclusion of the mother, the judgment ought to be enforced in Louisiana against Mrs. Blalce, Mrs. Gastello and the minor Brielcell, for their virile shares of the same.
As to the remainder due by Louisa JR. Conner, plaintiff has the means of settling the same in her settlement of accounts with the said minor, Louisa R. Conner.