106 La. 494 | La. | 1901
Lead Opinion
On the application for rehearing by
On rehearing by
The opinion of the court was delivered by
Edward B. Benton, a resident of the Parish of St. Tammany, died in New Orleans, June 4th, 1897, leaving real and personal property in said parish, and in the Parish of Orleans. Upon June 7th, following, his sister, Ella S. Benton, a resident of New York, presented to the District Court of St. Tammany an instrument, purporting to be her said brother’s olographic last will, dated May 29th, 1897, whereby, after-certain particular legacies, the testator gives “the remaining, disposable, portion” of his estate to his two sisters, Ella S. and Charlotte E. Benton, and names the former as his executrix, without bond. This instrument was duly proved and ordered to be recorded and executed, and the proponent took the required oath and received letters testamentary. Upon June 28th, a petition was presented to the court in the name of Mrs. Rachel Benton, in which it is alleged; that the petitioner resides in New Orleans; that she was married to the decedent, at Cairo, Illinois, August 11th, 1869, and lived with him, thereafter, in New Orleans, for many years, until he withdrew from the matrimonial domicile, and that said marriage was never dissolved; that she loaned him money, before, and placed in Ins hands property belonging to her, after, said marriage, and is a creditor of his succession with respect to the same in an amount exceeding $5,000.00; that the decedent left property in this State, acquired during said marriage, and which fell into the community superinduced thereby, and that she is entitled to be recognized as owner of one-half thereof; that he also left a daughter, issue of said marriage, now the wife of Jules E. Peytral, of New Orleans, and that the instru
_ There was also filed upon the same day (June 26, 1897), a petition on behalf of Mrs. Peytral, in which it is alleged that the petitioner is the only child, and forced heir, of the decedent; that the instrument probated as his will is void for the reason that it was not “dated, written, and signed by the hand of said decedent, nor without assistance,” and because he was non compos mentis at the date at which said instrument purports to have been executed, and was under the control of his sister, Ella Benton, and of one of the particular legatees.
It is further alleged that, in any event, the bequest to said particular legatee is void, for the reason that she was the concubine of the decedent, with whom he lived, whilst his wife, the mother of the ■petitioner, was, and is, living. She prays that the probate of the said alleged will, and the confirmation of the executrix, be annulled, and that said instrument be decreed to be of no effect; or, if that be denied, and said instrument be maintained as the will of said decedent, that the particular legacies therein be declared null; that said Ella Benton be removed, as executrix, and that petitioner be appointed in her stead; and that petitioner be also recognized as the sole heir of the decedent and sent into possession of his entire estate; or, in the alternative, that she be recognized as his forced heir, to the extent of two-thirds of said estate. And she further prays that an inventory be ordered. Upon this petition, the judge a quo made an order directing the executrix to give bond in the sum of $25,000, within thirty days, and to show cause, within a shorter time, why she should not be removed, for failure to cause an inventory to be made, or begun, as required by law. Thereafter, a petition was filed in the name of Mrs. Rachael Benton, which recites the order of court above mentioned and alleges that the executrix has failed to comply therewith, and that her
The inventory was accordingly taken, and, in due time, there being no opposition, the applicant took the oath, gave bond, and, upon September 24, 1897, received letters as dative testamentary executrix. In May, 1898, she filed a provisional account, which was opposed by two persons, claiming to be creditors, and, by the particular and universal legatees. The legatees also appeared, and, for answer to the petitions, filed on behalf of Mrs. Benton and Mrs. Peytral, deny the averments and charges therein made and insist upon the validity of the will.
In May, 1898, Mrs. Mary E. Monroe, claiming as creditor and paftcular legatee, presented a petition asking that the dative testamentary executrix be ordered to file a true statement of her accounts, together with her bank book, and, in default thereof, that she be dismissed from office, condemned, with her sureties, for all monies collected by her and not deposited and accounted for, and the executrix was, accordingly, ordered to file an account and to show cause why she should not be divested of her office. In February, 1899, another petition was filed, on behalf of said particular legatee and the two universal legatees, praying that said dative executrix be deprived of her office, condemned for certain monies alleged to have been received, and decreed to have no interest in the succession; and the two petitions thus mentioned were, in regular course, put at issue. In July, 1900, the dative executrix provoked the seizure by judicial sequestration, of certain property said to belong to the estate and to have been put in the possession of the particular legatee mentioned, who moved, without avail, to set aside, and to bond, said seizure. Thereafter, said particular legatee offered for probate an instrument purporting to be a will, made by the decedent in April, 1898, and the probate thereof watrefused, on the grounds, that the will, of later date, already probated, disposed of the entire estate, and that it was useless to probate the other. From the issues as made up by those varied pleadings, it resulted that a number of judgments were rendered, four of which were to the following effect, to-wit:
1. A judgment rejecting the demand for the destitution of the executrix and praying that she be decreed to be without interest in the succession.
2. On the oppositions to the. account.
*499 3. Refusing to set aside, or release on bond, the judicial sequestration.
4. Refusing to probate the will of April, 1893.
These judgments have been brought up for review by means of an appeal taken on behalf of the particular, and universal, legatees, and they will be considered in the order in which they have been mentioned.
I.
The appellants pray that the dative executrix be destituted of her office and decreed to be without interest in this succession upon the grounds, inter alia, that she obtained her appointment by falsely and fraudulently representing herself to be the widow of the decedent, when, in fact, she was never legally married to him. The evidence shows that, in' 1863, she was married, in Mississippi, to Burrill J. Manscoe, and that she lived with him, in said State, except during certain intervals of separation, until, probably, the year 1866, when they came to New Orleans. Whether they came with the intention of establishing a permanent domicil here is not altogether free from doubt, but, as a matter of fact, after a separation, the duration of which is not shown, they resumed their relations, as husband and wife, in New Orleans, about the beginning of the year 1867, and remained together until the middle of that year, when they separated finally, and the next definite information we obtain as to the defendant’s whereabouts is from a petition for divorce, filed, in her name, in June, 1869, in the Circuit Court of Knox county, Indiana. In said petition, and in an amended petition, filed at a later date, she alleges that she is a bona fide resident of said county, and has lived there for more than a year; and she charges her husband with want of support, drunkenness, brutality, and adultery, and prays for a judgment of divorce. The defendant was summoned, by publication in a Knox county newspaper, and, thereafter, upon the testimony of four or five reputable witnesses, taken under commission in New Orleans, and fully sustaining the charges contained in said petition, there was a decree of divorce, which was entered upon what is called the “judgment book,” as of date August 12th, 1869. It is now claimed that said judgment was really rendered upon August 10th, 1869, and that, by a proceeding had, for the purposes of this litigation, in 1898, the date of said judgment has been changed, nunc pro tunc, to that which it should originally have borne. Be that as it may, upon August 11th,
There is no evidence in the record (save the finding in the decree of divorce to the effect that all the facts necessary to the obtention of that decree had been established) as to the plaintiff’s bona fide residence in the State of Indiana. Upon the other hand, there is no evidence sufficient to overcome the prima facie effect to which that finding is entitled. The most that can be said concerning such evidence being that it raises a suspicion that the animus manendi may have been wanting. In view, therefore, of a ruling heretofore made upon this point, whilst we should hesitate to maintain the validity of the divorce so obtained without further proof of the good faith of the
As to the suggestion that the marriage was null, because entered into within ten months after the divorce, by reason of the provisions of the Code, Article 137. If it be assumed that the article in question is applicable to the defendant, and to the marriage contracted by her, in Illinois, we are, nevertheless, of the opinion that said article is not framed in such terms of prohibition, especially when considered in connection with Articles 115 and 960 of the Code, as to justify the conclusion that a marriage entered into in contravention of its provisions is stricken with nullity. Our conclusion upon this branch of the case, then, is, that the defendant believed, and had reasonable grounds for believing, that she was a lawfully divorced, and a lawfully married woman, and that she, and her daughter born of such marriage, are entitled to the benefit of the civil effects resulting therefrom. C. C. 117, 118; 1 Marcade 522; 1 Baudry Lacantinerie 329; Patton vs. Cities, etc., 1 Ann. 98; Succession of Navarro, 24 Ann. 298; Blasini vs. Succession of Blasini, 30 Ann. 1388; McCaffery vs. Benson, 40 Ann. 10; Smith vs. Smith, 40 Ann. 1140; Jerman vs. Tenneas, 44 Ann. 620; Bothick vs. Bothick, 45 Ann. 1382; Succession of Hernandez, 46 Ann. 962.
The plaintiffs allege that the defendant failed to furnish a sufficient bond, with solvent sureties; that she failed to deposit the funds of the succession in a bank in the parish, paying interest on deposits; that she has failed to file annual accounts; and that she has paid out the money of the succession without authority. These charges are all substantiated' except the first, with regard to which, it appears that the amount of the bond furnished by the defendant was fixed by the court, and is ample, and that new sureties were furnished when ordered to replace those who died or were doubtful. As to the failure of the defendant to file an annual account, it is not, of itself, sufficient cause to justify destitution, unless such failure continues after demand and order for an account. But the failure of the defendant in this regard acquires a cumulative effect, when considered in connection with the more serious charges, which are fully established. Our learned brother of the District Court held, upon the authority of Succession of Peytavin, 7 R. 477, that the defendant was excused for the failure to deposit the funds of the succession in a bank, in the parish, paying interest on deposits, by reason of the fact that there
We therefore conclude, in view of the several irregularities which have characterized the administration of the defendant, that some other person should be placed in charge of this succession.
II.
Considering the opposition to the accounts, we find that the executrix had received, prior to the date at which said account was prepared, $1375, and that she had charged herself with $1175. She should be required to debit her account with $250 additional. The proposition
Considering the items on the credit side of the account:
Items 1 and 2, amounting to $150, it is admitted, were properly disallowed.
Item 8 — $225. The credit in connection with this item is $223.60, which, it is said, was paid to redeem the Honey Island property. The evidence upon the subject is not in the record before us, and the question of the correctness of the credit must rest in abeyance until the issues presented in the record No. 13,739 are determined.
Item 4 — $175, for taxes, interest, etc., on the Honey Island property. We find no evidence in the record concerning this item, but will reserve the rights of the defendant with respect thereto.
Items 5 — $6; 6 — $47; 15 — $6; 16, 17, 18, 19, 20. 21, amounting to $72; 25 — $19.35; 26 — $19.35; 27 — $2; 28 — $10; 29 — $25, being costs and charges disbursed by the defendant, from the funds of the succession, in connection with her efforts to establish the validity of her divorce from Manscoe and her subsequent marriage to E. B. Benton, hávé no proper place upon her account as general charges against the succession.
*507 Item 9 — $450, “To John C. Wickliffe, attorney for Mrs. Rachael Peytral, legal heir of the succession.”
This item also falls within the ruling applied to the items last above mentioned. Succession of Gourjon, 10 R. 541; Succession of Hasley, 27 Ann. 586; Succession of Hughes, 14 Ann. 863; Succession of Florence, 36 Ann. 304.
Items 7 and 14 — $100 and $20, respectively, costs of court on account. These items are sustained by the evidence and are admitted.
Item 8 — $450, “On account attorney’s fees to Stifft & Madison, for succession.” There is some confusion as to what is meant by the items of attorney’s fees which appear on the account, it being claimed by the counsel representing the defendants, Mrs. Benton and Mrs. Peytral, in the brief filed by them, that the item No. 9, to John C. Wickliffe, attorney for Mrs. Rachael F. Peytral, legal heir of the succession, does not represent a claim for attorney’s fees due by Mrs. Peytral, but by the succession, and therefrom arises the confusion. If the item in question is not intended to represent the claim of Mrs. Peytral’s attorney, why does the language used express that idea, and no other?
The learned judge a quo relegated both of these questions to a future account, saying: “Items eight and nine, attorney’s fees, must be placed in a new account, and the services specified so that the court can decide what service was rendered on behalf of the estate.” We have concluded, however, that item 9 has, by its terms, nothing to do with the estate, and we have rejected it for that reason. Upon the other hand, item 8 is, by its terms, a charge for services rendered to the estate, and we are of opinion that there is sufficient evidence to justify us in allowing it. We agree with the judge a quo, however, that the necessity for the expenditures for telegrams and trips to Amite and Covington is not made sufficiently apparent.
The particular legatee ,Mrs. Mary E. Monroe, asks to be recognized as a creditor, partly privileged and partly ordinary, first, for $1605, for services as housekeeper, from July 23, 1888, to June 4th, 1897, at $15 per month, and, secondly, for $1,395 for services as nurse during the last illness of the deceased. There is not the least evidence in the record to sustain the charge made by Mrs. Peytral and her husband with regard to the relations which subsisted between this opponent and the decedent. Upon the contrary, it is shown, without contradiction, that the opponent is a woman of good character, who, whilst in charge, as housekeeper, of the decedent’s establishment, has lived there, sur
III.
In support of his judgment upon the application to bond the sequestration, the judge a quo says: “Up to the time of Dr. Benton’s death, he retained possession and control of this property, though his sister, who lived with him, claimed under a tax title. Mrs. Monroe was on the property, as his housekeeper. After Benton’s death, the sister, who had the tax title, sought to administer the property under the will, of the deceased constituting her a legatee and testamentary executrix. She claims that she redeemed the property sold at tax sale * * *. After the alleged redemption, Miss Benton gave Mrs. Monroe a quit claim deed to the property, without warranty. The widow of Benton claims to own one-half of the property, as belonging to the community, but the legality of her marriage is disputed by Mrs. Monroe and the Bentons. The daughter of Benton disputes the validity of the will and claims the estate as a forced heir.' Her legitimacy is contested by the Bentons. It also appears that the property is under seizure by a mortgage creditor. Thus, we have the following parties claiming the property: Benton’s sister claiming, under the will, and as legal heirs; Mrs. Mary E. Monroe, claiming under tax title; Mrs. Benton claiming as widow in community; the daughter claiming as forced heir,’a mort
These reasons, we think, are amply sufficient to sustain the conclusion reached. Aside from, which, the question of the ownership of thi9 property is now pending in another suit, which is soon to be decided in this court, and no good purpose could be subserved by changing the status quo in the meanwhile. C. P. 273. 274. Schwan vs. Schwan, 52 Ann. 1183.
IV.
In the matter of the refusal of the judge a quo to admit to probate the alleged will of April, 1893, we find no sufficient reason for making any change in the judgment. The instrument offered for probate gives nothing to anyone which is not given by the later will, which has been probated, and which disposes of the entire estate of the testator.
It is, therefore, ordered, adjudged and decreed, that the judgment ol the District Court, of date September 4th, 1900, rejecting the demand of Misses Ella S. and Charlotte E. Benton, universal legatees, and ol Mrs. Mary E. Monroe, particular legatee, for the destitution and removal from office of Mrs. Rachael L. Benton, dative testamentarv executrix of Edward B. Benton, deceased, be annulled, avoided, and reversed, and that there now be judgment in favor of said parties first named, and against said Rachael L. Benton, destituting her of, and dismissing her from, said office of dative testamentary executrix. It is further ordered, adjudged and decreed, that the judgment of said court, of date August 27th, 1900, upon the oppositions of Misses Ella
In so far as said judgment approves and allows the items 3 and 4 of said account, and rejects, as in case of non-suit, the two items of $450, each, for attorney’s fees, that said judgment be annulled, avoided and reversed, and that there now be judgment rejecting said items 3 and % as in case of non-suit; approving and allowing item No. 8, being an item of $450, attorneys fees to Stifft & Madispn; and rejecting the item of $450, attorneys fees to “J. C. Wickliffe, attorney for Mrs. Rachael F. Peytral, legal heir of the succession.” It is further ordered, adjudged and decreed that, in all other respects, said judgment be affirmed. It is further ordered, adjudged and decreed, that the judgment herein rendered, of date August 8th, 1900, denying the application of Mrs. Mary E. Monroe to release on bond the judicial sequestration of the Honey Island property be and the same is hereby affirmed. It is further ordered, adjudged and decreed, that the judgment of said District Court, of date July 12, 1900, refusing the application of Mrs. Mary E. Monroe for the probate of the alleged will of April —, 1893, be and the same is hereby affirmed. It is further ordered, adjudged and decreed, that the costs in both courts be borne by the succession.
Rehearing
The dative testamentary executrix has been destituted. The judgment is final both as to the destitution and the writ of sequestration which was issued in the case and which is to remain for the time being undisturbed. It is also final in matter of the opposition to the account filed and approved.
This court granted a rehearing in matter of the good faith of Mrs. Rachael Benton and upon questions incidental to that issue.
The ease having been argued on the rehearing, further consideration was given to the issues.
It was not deemed advisable, in order that the issues may be tried before the District Court, to recall and set aside the judgment (decreeing that Mrs. Benton was in good faith) of this court -and of the District Court, and let the case be remanded to try this issue and to determine again the effect to be given to the proceedings for divorce and to the judgment rendered between Mrs. Benton and Burrell J. Manscoe in Indiana. Mrs. Peytral, daughter of E. B. Benton and Mrs. Rachael Benton, is also a party to this litigation. She sued to destitute the executrix, and to annul the will, and claim the succession. She asked to be recognized as Dr. Benton’s sole and only heir.
On the trial of the case, her evidence was heard. It was made manifest that the late Dr. Benton always treated her as his daughter. After having left the matrimonial home to reside in another parish of this State, it was to her always that he wrote. His letters to his daughter are advisory and kind. He admonished her to keep good company or none; says to her that he is pleased with her letters; that her mind is improving, and that good books are excellent companions; says to her that she is near and dear to him. At all times he seeks to protect and shield her. All his letters contain a number of expressions to that end. The family of Dr. Benton have always considered her ns one of its members. In letters, the mother of Dr. Benton refers to this daughter when she was a child as “Baby Rachael.”
Whatever errors the mother may have committed, and however void the decree, of divorce obtained in Indiana may have been, it would be a sad necessity if ever it becomes necessary, under the law, to decide that this daughter must be considered an outcast from all family ties and be numbered as one among the disinherited of humanity. She, until recently, as we understand, had no cause to suspect that she was not the daughter of a legal marriage.
' The mother of Dr. Benton, and the other members of her family, while he lived, always looked upon him, so far as the record discloses, as the husband of Mrs. Benton and the father of Rachael. The letters addressed to them by Mrs. Benton, mother of Dr. Benton, lead to the inference that they considered her as united in lawful wedlock.
There remain two sisters and a brother of the late Dr. Benton. The sisters are the claimants. The brother has not sought to have the decree of divorce declared void, or to attack the will. The plea of the sisters to have the marriage of their brother decreed void and the child illegitimate is not persuasive.
The license in due form is produced and evidence of the marriage which took place in Cairo, Illinois. This was preceded by a decree of divorce.
As relates to the daughter, we are thoroughly convinced that the marriage must be given complete legal effect. As relates to the father and mother, we are of the opinion that it falls within the principles laid down in Smith vs. Smith, 43 Ann. 1148.
As relates to Mrs. Benton, and particularly to the late Dr. Benton, we are not prepared to hold that plaintiff had made out such a case as requires us to decree that the marriage was not at least a putative marriage.
The good faith of the parties sufficient to give it effect as such has not been rebutted to an extent that would justify us in recalling the views heretofore expressed by us, and in setting aside our original decree.
Our order granting the rehearing is rescinded and recalled.
Our former decree is reinstated and is the decree of the court.
Rehearing
On the Application for Rehearing.
An application for rehearing has been made on behalf of Misses Charlotte Benton and Ella Benton and Mary Monroe, to which has been annexed certain documentary evidence bearing upon the question of the bona fides of the dative executrix, Mrs. Rachael L. Benton, in the matter of the obtaining of her divorce from Burrell, J Manscoe, together with affidavit's going to show that this evidence has been newly discovered. Without expressing any opinion as to what may be the further action of the court in the premises, we are ’of opinion that the application, as thus made, justifies the re-opening of the case quoad the -particular questions hereinabove referred to, and matters incidentally connected therewith and to be affected thereby.
It is, therefore, ordered, that the rehearing as prayed for by the parties above named be granted. And it is further ordered that the rehearing, as applied for by the dative executrix, be denied.