15 La. 562 | La. | 1840
delivered the opinion of the court.
Miriam Fowler, the legitimate wife of George W. Boyd, having died intestate, and without forced heirs, her husband made application to the Court of Probates, to be put in pos. session of all her estate. He showed that, by his marriage contract with his late wife, they had made to each other a mutual and reciprocal donation of the whole of each other’s property, to vest in the survivor, at the death of either ofl them. The judge granted the prayer of the petitioner, after requiring of him good and sufficient security, in pursuance of article 925, of the Louisiana Code. The nephews and! nieces of the deceased then took a rule on the defendant, to show cause why the order putting him in possession of all his wife’s property, should not be rescinded and set aside, on the ground that it was illegal, and had issued improvidently. This rule having been discharged, the plaintiffs have appéaled.
They contend that, as the lawful heir succeeds by mere operation of law, they, being the nearest heirs at law of the deceased, were of right, seized of her estate the very moment she died ; that, there being no last will of the deceased excluding them from her succession, they must be presumed to be entitled lo her estate, until some one shows a better title to it than themselves; that, admitting the universal donation contained in the marriage contract, to be valid, it only entitles the donee to claim the estate from them as the lawful heirs, but does not make him an heir, or justify the order by which he was sent into the possession of the estafe. They rely on the Louisiana Code, articles 908, 934, 935, 936, 941, 1563, 1454 and 1455.
The arguments of the appellants seem to proceed on the idea that lawful heirs alone become seized of an estate on the death of a testator. The same article, (934) however, which lays down the rule “le mort saisü le vif,” with regard to the lawful heirs, provides that this rule refers as well to testamentary heirs, as to instituted heirs and universal legatees, but not to particular legatees; and articles 1600 and 1502, provide, in substance, that it is only from the forced heins, that a universal legatee is bound to demand the delivery of the property bequeathed to him; and that, if there be no such forced heirs, he is seized of right of the estate, and is under no necessity of demanding the delivery of the same. It is clear then, that had Boyd been instituted universal heir or legatee, by a last will of his wife, he would, by mere operation of law, have been seized of her whole estate, and no demand whatever, from the heirs at law, would have been necessary. Such being the rights and privileges conferred by law on a universal legatee, under a last will and testament, we see no good reason why they should not belong to a universal donee under a marriage contract. The rights and liabilities of both should be the same: both are donees per modum universitatis; both are to receive after the death of the donor; both hold under the will of the latter; expressed, it is true, in different forms, but alike authorized and sanctioned by our laws. Louisiana Code, articles 2316, 2308,
It is, therefore, ordered, adjudged and decreed, that the . ’ 7 J a 7 judgment of the Court of Probates be affirmed, with costs.
