| La. | Apr 15, 1847
The judgment of the court was pronounced by
This is a petitory action to recover certain slaves claimed by plaintiff under the will of his father, Jesse Harper, senior, and which are alleged to be in the possession of defendant. The petition alleges that Jesse Harper, senior, being then a resident of the State of Mississippi, executed his will on the 9th August, 1811, and soon after died, leaving two sons, Jesse Harper and the plaintiff; that by his said will, he made various deyises and bequests to his said sons, but upon the express condition that, should said Jesse or plaintiff die without lawful heir, the portion devised to him should go to the survivor; that, after the death of his father, Jesse Harper took his portion of the slaves bequeathed, and among them those sued for, out of the State of Mississippi into the State of Louisiana, where he, himself, died, without issue, in 1838. The slaves are held by the defendant under a probate sale of the effects of the succession of the late Jesse Harper, junior, who died in Louisiana, in 1838, having
There was judgment for the defendant, and the plaintiff has appealed. The will was admitted to probate in the State of Mississippi. The clause relied on by the plaintiff as establishing his right to recover the slaves as his property, is as follows: “ After that I give to my two sons Jesse and William, all my lands, to be equally divided between them; if either of my sons should die without a lawful heir, his part, real and personal, to the surviving one.” This clause is interpreted to relate to and include the bequest of slaves,made to the sons in another part of the will.
It is contended by the cousel for the plaintiff that, the contingency on which the devise was to take effect in favor of the survivor, has occurred by the death of of Jesse Harper without issue, and that the title to his share of his father’s estate vested instantly in the plaintiff; and that the slaves in question forming no par’tof the succession of the deceased, no title could be derived under the probate sale. The absolute property in the slaves is said to have been vested in the devisee, subject to the contingency which devolved it exclusively on the surviving brother. The difficulty which occurred to us on the argument of this case has not been overcome. It is, whether we can recognise the existence of such a title to slaves as the plaintiff’s rights import, conceding that by the laws of Mississippi he would be held to be the owner oí the slaves, and, as such, entitled to recover them as his property. On their permanent removal to this State, they became immovables by the effect of law.
The clause in the will of Jesse Harper, senior, on which the plaintiff’s claim rests, creates a substitution. By chapter 4th, of the 2d title, book 3d, of the Civil Code of 1808, which was in force at the time the slaves in question were removed to this State, in 1823, which treats of dispositions reprobated by law in donations inter vivos and mortis causa, substitutions and fulei-eommissa are pro hibited. The same provisions exist in the Code of 1825, art. 1507. The nullity of substititions extends even to the instituted heir, donee, or legatee, who is charged to return a thing to a third person; and the courts of this State have uniformly given effect to the prohibition, not only as a part of the law but of the .declared and established public polity of the State. Cloutier v. Lecompte, 3 Mart. 485. Farrar v. McCutcheon, 4 Ib. N. S. 45. Mathurin v. Livaudais, 5 Ib. N. S. 302. Arnaud v. Tarbe et al. 4 La. 504.
The proper application of the law to the case under consideration presents a question of importance, and by no means free from difficulty. It is contended that the law of Mississippi, having had its full effect on the property in dispute for several years, the rights of the parties were complete and vested, and cannot be held to be impaired by its removal to this State, and remaining here for the time and under the attendant circumstances.
On the other hand, it is urged for the defence, that, under the law of Louisiana, no such title in slaves as that under which the plaintiff claims, can be recognized.
It is the attribute of every government to establish and regulate such modifications of the rights of property in things within its jurisdiction, as the public interest requires. Testamentary substitutions are prohibited in this State. The prohibition is established in the interest of public order and state policy. & Toullier, no. 13. Discussions du Code Civil, on art. 896 of Napoleon Code, 2d
Nor does it appear material in relation to the nullity of the .substitution as the basis of a title, whether the testamentary disposition acts upon the property within this State at the time of its taking effect, or subsequently on the .translation of the property to this State. It is the operation of the testamentary disposition on property within the State which the law reprobates, and it is this obnoxious operation of the will of Jesse Harper, senior, which the plaintiff seeks to carry into effect through the tribunals of this State. The effect which we give to our own laws on property within our jurisdiction is no more than that which is usual, particularly in relation to this description of property.
Throughout the most populous and powerful States of this Union, the right of property in slaves is not now recognized, except under the provisions of the constitution of the United States, and, in most of them, in the course oí their legislation, ithas been limited to a termofyears, and restricted to slaves m esse. They are persons, and their condition and the right of their master to their service depend exclusively on the law of the State under the guarantee of the constitution. It is difficult to imagine on what principle the law of a sister State can have effect on persons and slaves born in this State, and in the service of a citizen and inhabitant. Slaves are considered in Louisiana as immovables. It rests with the legislative power of the State exclusively, to regulate the different descriptions of property or ownership in relation to them. The modifications of the right of property under our laws are few and easily understood, and answer all the purposes of reasonable use. It is incumbent on courts to maintain them in their simplicity. A stranger case could not occur than this, to show the dangers and evil consequences of giving effect, within our own limits, to the complicated and involved jurisprudence upon which the title of the plaintiff has been supported at bar.
"We therefore conclude that the title asserted, being a testamentary substitution which was to take effect on the death of Jesse Harper, junior, he being domiciliated and dying in this State, and his slaves being, and some of them born, therein, we cannot give it effect. Judgment affirmed.