5 Rob. 9 | La. | 1843
The plaintiff alleges, that she is the sole heir of Marie Rose Layre, her sister, who died without leaving any descendants or ascendants, legitimate or natural. That the succession of the deceased was opened before the Court of Probates of the Parish of Orleans, and is composed of certain personal and real property, which is in the possession of the defendant, who pretends to be the owner thereof, under a will of the deceased, which, for certain reasons stated in the petition, is null and void. She prays to be recognized and decreed to be the sole and lawful heir of her sister; that the will be declared null and void; and that the defendant be condemned to restore the possession of the property belonging to the succession, &c.
The defendant first excepted to the jurisdiction of the court; but his exception was overruled. He afterwards filed an answer to the merits, alleging that the plaintiff has no right of
Judgment was rendered below in favor of the plaintiff, for the lot of ground and improvements thereon erected, described in the plaintiff’s petition; from which judgment, after having vainly attempted to obtain a new trial, the defendant has appealed.
One of the grounds on which the will is attacked in the petition, is, that the deceased could not, under our laws, make any donation, whether inter vivos, or mortis causa, to the defendant, as the deceased and the defendant had lived together, up to the time of the death of the deceased, in open concubinage.
The claim of the plaintiff appears to be resisted on three distinct grounds, which have been strenuously urged before us on the argument of this cause. ' It is contended:
1st. That the plaintiff, who is only the natural sister of the deceased, is by law excluded from setting up any claim to her inheritance.
2d. That said plaintiff never was legally and regularly recognized as the heir of the deceased before the Court of Probates ; this being a prerequisite to her instituting any action for the recovery of the property belonging to the succession.
3d. That the concubinage alluded to in the 1468th article of the Civil Code is therein qualified, and required to be an open concubinage; and that, in this case, no such open concubinage has been established.
I. In support of his position, the defendant’s counsel has relied upon the 923d article of the Civil Code, which provides, that “ in defect of lawful relations, or of a surviving husband or wife, or acknowledged natural children, the succession belongs to the State.” Hence, he has argued that the plaintiff is excluded from the right of inheriting from her natural sister, since the law clearly indicates that the State is to take the succession, in the absence of those who are therein denominated, among whom natural brothers and sisters are not included. This, it seems to us, is a non sequitur. If we refer to the 911th article of the same code, we
We have been referred to the case of Victor v. Tagiasco, 6 La. 644, in which it was urged, that this court seems to have entertained a different opinion ; and the counsel, relying upon its application to the present case, confidently called upon us to overrule the decision reported in 11th La., as being contrary to a previously settled jurisprudence. The counsel must have been laboring under a great mistake ; for the case referred to, far from sustaining his pretensions, recognizes impliedly, if not expressly, the provision contained in article 917, and holds, that “if, in order to place either the surviving husband or wife in the situation the Legislature has clearly assigned them, natural brothers and sisters, or their descendants, are, in certain cases, postponed to the former, courts of justice merely comply with the wall of the legislator, in giving to the surviving spouse his legitimate rank.” This is very far from declaring, that natural brothers and sisters are not entitled to inherit.
II. This action may be considered as a petitory one, brought against a third possessor. The plaintiff must recover upon the strength of her title to the succession of her sister ; and for that purpose, she must show that she is the natural sister of the deceased, and that the deceased left no lawful heir entitled to her inheritance. This has been done satisfactorily. The evidence establishes, that the defendant was put in possession of the estate, as testamentary heir, by a decree of the Court of Probates. It was, therefore, useless for the plaintiff to attempt to demand the possession of the property of the succession, since it had been delivered to the defendant, and the estate had ceased to be under the control and supervision of the Probate Court. Her application to the Court of Probates would have had no object, as that court was no longer possessed of any power over the succession, and, consequently, no order could have been rendered to take it out of the defendant’s hands. The action of revendication was left to the plaintiff, and we are not prepared to say, that previous to
III. This is a question of fact, which is easily answered by the evidence. It is not necessary for us to enter into any detail of the disgusting facts disclosed by the testimony. To illustrate the immoral conduct of the defendant, it suffices to say, that the allegation of concubinage is clearly made out, and that the record shows, satisfactorily, that the deceased and the defendant lived together in open and notorious concubinage. The English text of art. 1468 of the Civil Code is fully applicable.
With regard to the exception of jurisdiction : it was not insisted on by the defendant’s counsel, and was properly overruled by the Judge, a quo. The rule is well established, that “ when an action of revendication is instituted by an heir at law, against the testamentary heir or universal legatee, who has been put in possession of the estate, and who sets up the will as his title to the property, District Courts are the proper.tribunals in which such suits must be brought.” Robert v. Allier, 17 La. 15.
Judgment affirmed.