King v. KingKing v. King
Jоseph King died in 1898, leaving a last will and testament, the provisions of which, pertinent to this controversy, are:
(4) “I will and bequeath to my grandchildren, Bessie Vinson and Clyde Kemp, lot (2); provided that my daughter, Minnie Evans, receive all rents, benefits and emoluments therefrom during her natural life.”
(5) “I will and bequeath to my grandchildren, Bessie Vinson and Clyde Kemp, lot (3); provided that my daughter Elizabeth Young, recеive all the benefits, rents and emoluments therefrom during her natural life.”
(6) “I will and bequeath to my grandchildren Bessie Vjnson and Clyde Kemp, lot (4); provided that my son Charles W. King, receive all the benefits, rents and emoluments therefrom during his natural life.”
*22 (7) “It is my will that what is known as the Cypress Brake be held jointly by 'my son, Charles W. King, my daughter Minnie Evans and my granddaughter Bessie Vinson, for the purpose of keeping their plаces in repair, and in case any of these legatees sell his of her interest in this brake then his or her interest in the brake is not to follow such sale, but reverts to the other holders of it.”
(8) “I will аnd bequeath to my son, Charles W. King, all notes and judgments and accounts that I may hold against him.”
(9) “I will and bequeath to my son Joseph H. King, * * * the sum of $800.”
(10) “It is my will that all other property I may have, be disposed оf, and after payment of my debts, be equally cjivided between my son Charles W. King and my daughter, Elizabeth Young and my daughter Minnie Evans.”
“I appoint E. W. Foster and C. W. Elam the executors of my will.”
The will was admitted to probate and ordered carried into execution by the executors named. All of the personal property was sold, the debts and money legacies discharged, and the balance of the profceeds was distributed as provided in the tenth .clause of the will as above quoted. The land was turned over to the legatees as provided in the will, and thе executors discharged by judgment of the court.
There were four children who survived their father, to wit: Joseph H. King, Minnie King Evans, Elizabeth King ’ Young, and Charles W. King. They were all duly notified of the time and place of the probate of the will. One of the heirs, Mrs. Minnie fifing Evans, died without issue, and her interest in the estate descended to the other three heirs.
This suit is brought by Charles W: King against the other heirs and legatеes to annul the will and to set aside the probate proceedings thereunder. The principal attack is directed at paragraphs 4, 5, 6, and 7 of the will as we have numbered them, as containing a prohibited substitution fidei commissum.
It is further alleged, however, that the pretended partition by the will purported to secure an advantage to one of the coheirs exceeding the disposable portion.
The prayer of the petition is that the will and all probate proceedings thereunder be declared null and void, and that plаintiff be decreed the owner of one-third of all the property of the estate, and, in the alternative, that he be decreed the owner of lot 4, which was bequeathed to the grandchild of the deceased, the revenues to go to Charles W. King.
The defense is an affirmance of the validity of the will, a plea of estoppel based on an express ratification by acceptance of the legacies under the will, and by acquiescence and silence for more than 20 years.
There was judgment rejecting the plaintiff’s dеmand, and he has appealed.
The proposition is not disputed that a testator may give the naked ownership of property to one person and the usufruct to anоther. C. C. art. 1522. Succession of Baker,
The right of usufruct may be established by will (C. C. art. 540), and all kinds of fruits, natural, cultivated, or civil, produced during the existence of the usufruct by the things subject to it, belong to the usufructuary. C. C. аrts. 544, 545. The language used by the Testator follows substantially the definition of usufruct as given in the Code.
The case of Succession of Ledbetter,
“ * * * the half of the remaining part of my estate or the half of the revenues therefrom during his lifetime, but should he die without an heir or child, I wish his part of my estate to be paid or go to my present grandchildren.”
The court held that the provision thus quoted did not confer the naked ownership on one person and the usufruct on another, but was the giving of the property to one person during his life and at his death to go to another, and hence the devise was invalid. The mere reading of the. opinion will show its total inapplicability to the provisions of the will here in contеst.
The plaintiff alleges that the will purported to secure an advantage to one of the coheirs exceeding the disposable portion. There is no demand, however, for reduction, and the record fails to show that the légitime of any of the heirs, was in any way prejudiced.
We are impressed from a careful study of the record that if any one of the heirs Obtained an advantage over others under the terms of the will it was the plaintiff. But be that as it may, the plaintiff is without legal or moral right at this late date to challenge the validity of a will, probated and carried into execution more than 20 years before the filing of this suit and which has been ratified and acquiesced in by all of the heirs and legatees therein, including the рlaintiff himself. The record shows that the plaintiff and the other heirs accepted service of the petition to probate the will, and made no protest against the same or any of its provisions; that the plaintiff and the other heirs consented to the homologation of the final account of the executors and their discharge, and that the plaintiff rеceived his one-third of thenet proceeds of the sale of the movable property as distributed on said final account.
When Mrs. Minnie Evans, one of the coheirs, died without issue, the plaintiff and the other two heirs were by judgment of the court sent into possession of all the property belonging to her estate, including, specially and particularly, that part of her estate given her in her father’s will.
The will gave to plaintiff certain notes, accounts, and judgments which his father held against him, and on November 16, 1898, shortly after the will was probated, the plаintiff wrote the clerk of the court to cancel a judgment which his father held against him. In this letter he expressly accepted the benefit of the will by which all debts due by him to his father were rеmitted. He disposed of all of .the property béqueathed to him by the will. He joined with his coheirs in an oil lease to the Gulf Refining Company of the third interest in the Cypress Brake bequeathed to him by the will. He exchanged an undivided one-eleventh of his interest in the Brake with Mrs. Hollingsworth, and later sold all of his interest in said Brake to W. R. Hollingsworth, reserving only one-half of the minerals. In 1918 he joined in а partition of the mineral rights in the King Brake under which he received in full ownership the mineral rights under 17 acres of said Brake. And in 1920 he sold one-half interest in the minerals under said 17 acres to othеr parties. In September, 1918, in an -"authentic act, he joined the devisee under the will in an oil and gas lease of lot 4 to W. M. Pollock. In this lease he expressly declared that the dеvisee was the naked owner of said lot, and that he (the plaintiff) was the usufructuary under the will of his father.
After the long lapse of time, after all of these proceedings, and in the faсe of the solemn acts and the judicial proceedings to which the plaintiff was a party, he cannot be heard now to assail the validity of the will, and especially is this true sincе he does not offer to return to the estate or the other heirs the benefits he has received, nor to revive the
As we have seen, a large part of the property received by the plaintiff and the other heirs under the will has passed beyond their reach into the hаnds of third parties. It would therefore be impossible to restore the situation as it existed, before the will was carried into execution.
In Heirs of Barrow v. Barrow,
For the reasons assigned, the Judgment appealed from is affirmed, at the cost of appellant.
Rehearing refused by Division B, composed of DAWKINS, LAND, and LECHE, JJ.