13 La. Ann. 100 | La. | 1858
The plaintiffs, Antonio Nolasco and Gertrude Nolasco, free persons of color, claim by inheritance the Succession of Antonio Nolasco, James Nolasco and John Rous, of which John G. Morris, since deceased, was appointed curator by the Court of Probates of the Parish of West Feliciana. The petition alleges that Antonio Nolasco died testate, bequeathing to the plaintiff Antonio Nolasco, Margcwet Nolasco and Gertrude Nolasco, his acknowledged natural children, born of Ellen Wooten, a free woman of color, a legacy of $1,000, and the residue of his estate in equal portions to his brother, James Nolasco, and John Rous; that James Nolasco also died testate, bequeathing one-half of his estate to John Rous and the other to Margaret, Ges'trude and Antonio, the children of Ellen Wooten; that the plaintiff G&i'ti'ude is the uterine sister of her co-plaintiff, born subsequent to the death of the testator, Antonio Nolasco, deriving her rights from her two half sisters, Margaret and Gertrude, who died at the age of minority without issue, and from her mother, who died since the institution of the present suit; that after the death of both testators and the legatee, John Rous, James Turner was appointed curator of the three successions, and as such was succeeded by John G. Morris, to whom he rendered an account of his administration ; that the latter’s appointment was reneioed from time to time until the 20th of September, 1830, when he filed a tableau of distribution, embracing the three estates and acknowledging the receipt of $4,476 57 from his predecessor, James Turner, who had also thus administered said estates. It is alleged that the legacy to Margaret and G&rtt'ude devolved at her death on her mother and the plaintiffs as her legal heirs. The claim of the plaintiff Gertrude is limited to whatever rights she may have acquired by inheritance from her half sisters. The other plaintiff claims one-third of the $1,000 legacy, one-sixth of the estate of James Nolasco, as legatee under his will, and whatever rights may have devolved upon him from the successions of his deceased sisters, Marrgan'et and Gertrude.
The defence set up is that of res judicata ; that the matters now in controversy have already been passed upon, first, in the judgment of homologation of the account rendered by the curator Morris, whose estate is represented by the defendant as administrator; and, secondly, in the judgment in the case of Ellen Wooten, f. w. c. v. G. Harrison, tutor, et al. (See 9 A. 234.) The defendant also interposed the prescription of one, two, three, five, ten and twenty years as a bar to the action.
The first question presented is a motion to dismiss the appeal, on the ground that the appeal bond was signed by one of the plaintiffs, without the authorization of her husband. The record discloses the fact that B. Populus, besides appearing with his wife in the case, has specially authorized her “ to act and perform all acts necessary for protecting her interest in the prosecution of the same to its final termination.” We consider this sufficient.
Our next inquiry is, what were the rights acquired by the respective parties under the alleged heirship. Ellen Wooten inherited both estates of her natural children, Margaret and Gerti'ude, to the exclusion of Antonio and G&rtrude, the plaintiffs in this case. C. C. 916. The plea of res judicata, based on the judgment in the case of E Wooten, f. w. c. v. G. Harrison, tutor, et al., must be considered as a perpetual bar to the plaintiffs’ recovery of any rights alleged to have been derived from the estates of the testators by inheritance from their mother. 9 A. 234. It is clear then that the claim of the plaintiff, Gerti’ude, is entirely unfounded in law. With respect to the other
Judgment affimed.
