91 So. 674 | La. | 1922
Lead Opinion
This was a partition suit as originally instituted, but by agreement the issue was restricted in the lower court to the question of ownership vel non of the community interest of Alpha Beck in 1,140 acres of land. Shortly after their marriage in 1854, Elias Beck and Alpha Beck (born Harcrow) established a matrimonial domicile in the parish of Bienville, where they resided until the death of Elias Beck in 1884. There were nine children born of the marriage, seven of whom are parties to this suit in their own right, and two predeceased are represented by their children.
Elias Beck left a will which was admitted to probate some few months after his death. Among the provisions of the will were the following:
“I will and bequeath to my wife during her life, the use and usufruct without bond, of all my lands and the improvements thereon, also stock and farming implements.
“I donate all my lands and stock, subject to my wife’s usufruct, equally to my four sons, Neal Beck, Nicholas Beck, William Beck, and Elias Beck, one-fourth each, to be divided as they and their mother see fit and as each of said sons become of age to receive his share thereof, but under her usufruct.
*193 “It is my will that neither my wife nor any of my children shall raise any question or claim as to a first or second community.”
The four sons named as legatees of the land were minors at the'time of the death of their father; the oldest of them being 17, and the youngest 13. The widow and the four sons named continued to live on the “old homestead” until the death of Alpha Beck in 1916. In 1905, the four legatees by different acts, under private signature, made an extrajudicial partition of the 1,140 acres of land. The name of their mother appears among the signatures to the acts of partition, but it is claimed that she did not sign the acts, nor was her name signed by any one legally authorized to do so. Mrs. Beck could neither-read nor write, but she was present, and it is fair to assume from the evidence that she verbally authorized one of her sons to sign her name. It is unnecessary to decide whether the signature to a sale of real estate, made under such circumstances, is legal or not. The acts of partition contain this statement:
“Alpha Beck, widow of the deceased, Elias Beck, joins herein to concur in said deed and to waive her rights as usufructuary to the property herein conveyed by partition.”
It may be stated that the tax collector was made a party to the suit, and it was shown contradictorily with him that there was no inheritance tax due.
There was judgment recognizing the plaintiffs and defendants as heirs of their mother Alpha Beck and ordering them sent into possession of all of the property belonging to her estate, including the undivided one-half interest in the land claimed by the four sons under the will of Elias Beck. The four sons named and Charles Beck have appealed.
Opinion.
1. It is contended that Mrs. Beck recognized and acquiesced in the will by joining in the act of partition with the four sons, and that, if living, she could not be heard to assert her community interest in the land, and for the same reason her heirs, other than the four sons, are estopped from doing so. If the language employed could be given the effect of a translation or conveyance by Mrs. Beck, or that she intended by the acts to recognize the will and to convey to her four sons her community interest, there was no consideration whatever received by her for either the land or for the waiver of her usufruct. As to Mrs. Beck and her heirs, the said acts were pure simulations, without any effect, and cannot form the basis of an estoppel.
Forced heirs are not only not estopped from contesting the simulated acts of their parents, to which they were not parties, but they are specifically granted by statute the right to have such acts set aside even by parol evidence, and the right of action is not restricted to their legitime. C. C. art. 2239; Act 5 of 1884.
For the reasons assigned, the judgment appealed from is affirmed, at the costs of appellants.
Rehearing
On Application for Rehearing.
Rehearing refused.