4 Rob. 201 | La. | 1843
This action is brought by the plaintiff as a legatee under the last will of John W. Leonard, to recover a tract of land in the possession of the defendant, denominated the Gustavus tract, and designated as section No. 15 on the township map of Township No. 2, Range 4, East. The petition alleges, that the testator died without descendants or ascendants, and that after a few bequests to his collateral relations, he willed, that whatever may remain, after the payment of his just debts, should be paid over to the plaintiff, his sister, for the purpose of educating her children Ferdinand, Alfred, and Elenor, and to subsist them and herself, and to make such other judicious disposition of the property to their use and benefit as circumstances may require ; that he willed, moreover, in case his property should produce more than sufficient to pay his debts, “ that his brother Samuel Leonard should participate in the overplus, in the following ratio, (if he considered himself in equal need with his sister’s family,) that is to say, from the first $1000, he should receive $200; from the second thousand, $300 ; from the third thousand, $350 ; from the foürlh thousand, $400; from the fifth thousand and all other sums, an equal moiety, &cthat the deceased died on the first of November, 1818, and that his last will, in the olographic form, was probated according to law. That on the 11th of December, 1823, Thomas Webb, then acting as deputy sheriff of the parish of St. Helena, under the authority of two writs of fieri facias is sued against Samuel Leonard, did levy upon the aforesaid tract of land, which belonged to the succession of J. W. Leonard, to satisfy the same; and that, on the 19th of January, 1824, the said
There is no dispute about the facts- of this case, which the record shows to be as stated in the petition.
On the trial, the introduction of the last will of the deceased was objected to, on the ground that it had not been legally probated, it appearing from the proces verbal drawn up by the judge that the probate was made at the dwelling house of the late J. W. Leonard, when it should have taken place at the Court House. The judge properly disregarded this objection. A Special Court was held by the Probate Judge of St. Helena at the residence of the deceased. Being satisfied by the evidence adduced, that the material requirements of the law for the validity of olographic testaments had been complied with, he rendered a judgmfent confirming the will, and ordering its execution. This judgment cannot be inquired into collaterally. 2 Mart. N. S. 292. 2 La. 590.
The will itself has been attacked as containing a substitution or
Our attention has next been called to the charge given by the judge on the plea of prescription, which is said to be erroneous. He instructed the jury that if the defendant being deputy sheriff, purchased the land at a sale made by himself, he did not hold it in good faith, and that the act of sale by the sheriff of the parish to him of the said land could not be the basis of prescription. This charge appears to us correct, and in accordance with the true spirit and rules of our jurisprudence. On general principles as well as by the laws in force in 1824, the defendant could not lawfully become the purchaser of the property he was employed to sell. By the laws of the Recopilación the prohibition to purchase at a judicial sale extended to all the officers of the law, even when
D’ailleurs, on conpoif. aisément que celui qui mettrait a Vorigine de sa possession ce cachet d’illégalité et de mépris pour des prohibitions si morales, ne serait pas de bonne foi. De la Prescription, Vol. 2, No. 905.
It is otherwise with regard to relative nullities. If the persons in whose favor they are established do not complain, the title which contains such a relative nullity is nevertheless a just title, under which prescription can be acquired. 2 Troplong, Prescrip. No. 902 to 907 and 491 to 922. As to the prescription of five years, established by the act of 1834, we have heretofore held, and have no reason to doubt the correctness of our determination, that it covers only informalities occurring in the manner of advertizing and making public sales.
The judgment appealed from is said to be clearly erroneous, as it gives the whole land to the plaintiff, who at most can claim only one half of it, Samuel Leonard being entitled under the will to the other half. The will in our opinion, vests no right or title whatever to the land in Samuel Leonard. He is to receive certain amounts of money on certain contingencies, which may or may not arrive. What will be coming to him, if any thing at all, cannot be ascertained until all the property of the estate shall have been sold, and the debts of the deceased paid. The object of this suit was to bring back into the succession of J. W. Leonard, this land, to be disposed of under the will, and we do not understand the judgment as decreeing any thing more. As to the exception taken to the plaintiff’s right to sue, on the ground that being a legatee under a universal title, she was bound to demand of the presumptive heirs a delivery of her legacy, according to article 1605 of the Civil Code il cannot avail the defendant. From the terms of the will, the plaintiff might well be considered as a universal and residuary legatee, charged with paying a portion of the assets of the estate to another person ; but were she viewed only as a legatee under a universal title, there was no nearer presumptive heir of the deceasedt han herself, to whom she could apply as having the legal seisin of the propertyof the estate. 5 Toullier, No. 611. No. 495.
Judgment affirmed.