11 La. 384 | La. | 1837
delivered the opinion of the court.
The petitoner avers, that Eleanor O’Donegan, wife of the defendant, died without descendants, but leaving a mother, and the petitioner, her sister, who are her only legal heirs. That the deceased brought into marriage property consisting of land, money and cattle, hogs, horses and furniture, all of
The petitioner further sets out, that the defendant has taken possession of the whole of the above property, claiming his wife’s portion, as her heir, under the last will and testament, which the petitioner alleges to be null and void, for the following reasons:
1. Because it was not dictated by said Eleanor to James Ray, pretending to act as a notary public, in the presence of the subscribing witnesses, nor was it written in presence of said Eleanor and the witnesses.
2. Because it does not appear that it was dictated by said Eleanor to said Ray, and written by him as dictated.
3. Because it is not dated at any particular place.
4. Because said Ray, who wrote the will, was not a notary public at the date thereof.
6. Because if said Ray were a notary public, he was not such for the parish of St. Landry, or any other parish in the state.
6. Because it is not set forth in said will, that all the requisite formalities were observed, without interruption, at one time, and without having turned aside to other acts.
8. Because it is not stated that said Ray read the will to said Eleanor in the presence of the witnesses, or otherwise.
9. Because said will is deficient in all the forms required by law to make a legal and valid testament.
The petitioner concludes with a prayer that she be recognized as one of the heirs of said Eleanor; that said last will and testament be declared null and void ; that she have judgment for one fourth of the property held in community if it exist, in the possession of defendant; otherwise for the sum of fifteen thousand dollars, the value of such fourth part; that an inventory be made, and a partition take place after judgment in her favor, and that she have relief generally.
The defendant having died before issue joined, his administrator filed for answer “ that the court has no jurisdiction of this cause, but that the Court of Probates of the parish of St. Landry, has exclusive jurisdiction of the matters and things set up in the plaintiff’s petition,” and prays that the suit be dismissed.
On the trial upon this plea the court decreed as follows :
“ In this case it appearing to the court, that the will sought to be set aside by the plaintiff, had been admitted to probate, and ordered to be executed by the Court of Probates of the parish of St. Landry ; and this court being of opinion that it has no jurisdiction of this cause, it is therefore ordered, adjudged and decreed, that this suit be dismissed, that there be judgment against the plaintiff for the costs of this suit to be taxed.”
From this judgment the plaintiff appealed.
We are aware of the difficulties attendant on this question of jurisdiction, and have not formed an opinion without much hesitation.
The plaintiff sets up a claim under the law of inheritance, to lands, slaves, and a variety of movable property ; that
But the petitioner proceeds further, and alleges the nullity °f the will, which constitutes the very title under which the defendant holds the property in controversy. Before what court then must the validity of this will be tested Í
By the law defining the jurisdiction of the Courts of Probate, it is declared:
That they shall have exclusive power “ to' open and receive the proof of last wills and testaments, and to order the execution and recording them.
“ To decide on claims for money which are brought against successions 'administered by curators, testamentary executors or administrators of successions, and to establish the order of privileges and mode of payment.
“ All debts in money which are due from successions administered by curators appointed by courts, and by testamentary executors, shall be liquidated, and their payment enforced by the Court of Probates of the place where the succession was opened.
“ The case is different with respect to the action of reven-dication, and other real actions which shall be instituted against such estates ; they may be brought before the ordinary tribunals.”
The French text is still more explicit: “ elks sont■ du ressort des tribunaux ordinaires.” Code of Practice, articles 924, 983.
It appears then that the jurisdiction of the Courts of Probate, is limited to claims against successions for money, and j^iat a]l claims for real property appertain to the ordinary tribunals, and are denied to Courts of Probate. The plaintiff in this case was, therefore, compelled, in suing for the property of t^ie succession, to seek redress in the District Court, and whether she attacked the will, or the defendant set it up as . . . . r his title to the property, the court having cognizance of the subject, must of necessity examine into its legal effect,
-^11^ ^though the will may have been admitted to probate, and an order given for its execution, yet these are only pre
In the case of M'Caleb vs. M‘Caleb, in 8 Louisiana Reports, we recognized the right of the Probate Court to inquire collaterally into the character of certain alienations of real estate ; and in one of them, whether contracts purporting to be sales, were in truth intended as donations. Such an inquiry became necessary in order to ascertain in what proportions the remaining property was to be distributed, which was the main question for its decision.
Nor does this opinion necessarily conflict with the decision of the Court, in the case of Lewis’s Heirs vs. His Executors et al., 5 Louisiana Reports, 387, cited by defendants counsel. There the whole property of the succession was in the hands of the executor, the officer of the court whose functions had not expired. In the case before us, the will was admitted to probate, on the 26th May, 1831, and William G-. Knox, the defendant and testamentary heir, confirmed as executor on the 27th of same month and year. In May, 1832, his functions as executor had expired, the probate of the will had taken effect, and the will itself executed by his coming as heir into the possession of the estate under it, long before the institution of this suit, in November, 1833.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that this cause be remanded with, instructions to the court to proceed therein, according to law, and the costs to be paid by appellee.