10 Rob. 512 | La. | 1845
The petition represents that the plaintiffs, together with Emilie Prevost, the widow Majastre, are the only- legitimate heirs of one Maurice Prevost, who died in March, 1843, leaving an olographic will, which was subsequently opened and proved by proceedings had before the Court of Probates; that the deceased, by his said will or testament, bequeathed a
The plaintiffs subsequently filed two supplemental petitions, in the first of which they state, that they have been informed that the immovable property bequeathed by the testator to Florestine, has been by him alienated, but that the testament provides that, in case the property should not be found in kind in the succession, then a sum of $5000 is to be paid to the legatee in lieu thereof. In the second, they allege that Florestine Cécile, being the child of Clarisse, who was notoriously the concubine of the deceased, is but a person interposed by the testator, for the purpose of evading the provisions of the law, and of bequeathing to Clarisse a greater portion of his estate than is allowed by law.
The widow Majastre joined issue, through her attorney in fact, who pleaded; 1st. That admitting the plaintiffs to be the brother and sister of the deceased, they have no right to assail
Florestine Cécile also filed her answer, in which she begins by denying that the plaintiffs have any color of interest, or show any capacity that could give them any right to prosecute this suit, averring that its decision can by no means benefit or prejudice them, and that, on this ground alone, they ought to be dismissed. She further denies the allegations of the plaintiffs’ petition respecting the relation in which she stood towards thd testator; and alleges that, being born a slave, she was, at the age of three years, emancipated by an individual named Miguel Constant, who considered her as his daughter, &c.; and she further specially denies all the allegations of the said petition whereby the dispositions favorable to her in the last will of the deceased are sought to be annulled and destroyed, and prays that said will be maintained, and declared legal and valid, &c.
This case was tried below on the question of interest only; the widow Majastre pretending that the plaintiffs have no right to claim any part of the testator’s estate,, even supposing the legacies contained in his will were illegal or subject to be reduced, because; as universal legatee duly instituted by the said will, she is entitled to inherit the 'whole of the testator’s estate, to the exclusion of his other legitimate collateral relations ; and accordingly we find in the record a written consent, signed by all the counsel of the parties, in the following words: At the request of the plaintiffs" in this case, the question raised by way of exception, which denies the right claimed by said plaintiffs of having, in preference to the universal legatee, the benefit of any failure in the particular legacies devised by the will, was alone submitted to the decision of the court. In the actual state of proceedings, the plaintiffs consider that unless they be maintained in the position which they have assumed in
The judge a quo being of opinion that, according to the spirit of articles 1474 and 1702 of the Civil Code, every portion of the succession,, disposed of against the prohibitions of the law, must devolve upon the heirs of blood of the testator, overruled the defendant’s exception of want of interest in the plaintiffs; and from this judgment, the widow Majastre, the executor, and Florestine Cécile have appealed.
The disposition of the will relied on by the widow Majastre, as instituting her the universal heir or legatee of the testator, is as follows: J’institue pour ma legataire unique et universelle ma sceur Emilie Prevost, veuve Majastre, residente á New York, lui donnant et lui leguant d ce titre, la generdliú des Mens que je délaisserai d mon deces.” This institution is clear and explicit; it is subject to no condition; it is an absolute institution of an universal heir, by which the legatee becomes entitled to take, not the remainder of the succession, as it is alleged in the petition, but the whole estate of the testator, and by which the universal legatee, after the death of the testator, is seized of right of the effects of the succession, without being bound to demand the delivery thereof. Civil Code, articles 1599, 1602. Thus, it is clear, that the testator has left nothing undisposed of.
The judgment appealed from, however, on the supposition that the particular legatee is the natural child of the testator, intimates, though it does not decide the question absolutely and directly, that under the provision contained in article 1474 of the Civil Code, the plaintiffs must be entitled to recover their portions of the estate of the deceased, as also by the terms of article 1702, which, he says, are calculated to protect good morals, and have also the direct tendency to avoid agreements and understandings between the testator and his testamentary heir, which might defeat or impair the object of the law.
Article 1474 says, that “ in all cases in which the father disposes., in favor of his natural children, of the portion permitted him
But the real question submitted to our solution by the counsel on both sides, under their written agreement, is, whether the plaintiffs are entitled to share equally with their sister the amount which would proceed from the failure of the particular legacies, or from their being reduced to the portion permitted by law to be disposed of? or, in other words, is the universal legatee entitled to the exclusive benefit of the failure of the particular legacies, or of their reduction ?
Article 1702 of the Civil Code provides that, “except in the cases prescribed in the two preceding articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it either to a legatee or to an instituted heir, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the ligitimate heirs.” This article is preceded by article, 1697, which says, that “ legatees under an universal title, and legatees under a particular title, benefit by the failure of those particular legacies which they were bound to discharge.” From the words of the first of these articles, it seems
But this question, which is pei’haps a new one in our jurisprudence, does not appear to be subject to any difficulty in the country from which we have borrowed the greatest part of the provisions of our Civil Code; and although articles 1697 and 1702 are not found embodied in the Napoleon Code, and seem to have been adopted by our legislature with the view of adding these provisions to those contained in the French Code on the same subject, we have thought proper to consult several French commentators, whose opinions we have found to be unanimous upon this important point of our laws. Denizart, in his collection of jurisprudence, vol. 1, verbo Accroissement, §4, says: “ Quant aux Ugataires universels, en général les legs particuliers
But it has been urged by the plaintiffs’ counsel, that the universal legatee, having set up, in her answer, that the dispositions contained in the will are legal and valid, and must be maintained, and having prayed that said will be executed in all its dispositions, this amounts to a renunciation on the part of the said universal legatee of the benefit of the failure of the particular legacies, and that, in such a case, such failure must enure to the benefit of the heirs. Hence, it has been ingeniously ar
Furthermore, the universal legatee is only represented in this suit by an agent, who, unless with sufficient and special powers, cannot, in the defence of the rights of his principal, make any abandonment or renunciation of her said rights ; and it is obvious that the universal legatee would not be bound by the unauthorized acts of her agent, though found in, or resulting from allegations or confessions made in judicial proceedings.
It is, therefore, ordered and decreed, that the judgment of the Court of Probates be annulled and reversed; and that the plaintiffs’ petition be dismissed, with costs in both courts.