88 So. 297 | La. | 1921
Louis Schadwell died in 1873, leaving a widow and children, issue of his marriage. His estate consisted entirely of community property. His widow, survi-f- or in community, took possession of it, and retained this possession until her de'ath in November, 1917.
The court accordingly, on January 24, 1918, rendered judgment, sending the said heirs into possession, and ordering a partition by licitation, and appointing a notary to carry out the partition.
The property was sold, and, the parties having in due course appeared before the notary designated by the court for making the partition, disagreement arose over various items, among which was that of the commission to be allowed to the auctioneer who had made the sale of the property, and the notary referred the parties to the court for settling their differences. We are concerned now only with the question of the proper allowance to be made to the auctioneer.
The law on the subject is Act 130 of 1914, amending Act' 104 of 1896, which provides that “on sales of succession property” the compensation of an auctioneer shall be “a commission on each adjudication of not more than two per cent, on the first $10,000, and one per cent, on the excess,” and that on judicial sales of real estate made under order of court it shall not be more than 2% per cent, on the amount of each adjudication.
“It is contended that ownership cannot be laid in the succession of a person deceased, but must be laid in, the executor or administrator by name. This is undoubtedly the rule of the common law, based upon the doctrine recognized in that system, that the legal title to the estate of the deceased vests in the administrator thereof, who is, in the eye of the law, technically the owner; and hence, where ownership is charged, it must be laid in him.
“This doctrine, however, finds no place in the law of Louisiana. The maxim, ‘Le mort saisit le vif,’ is expressly embodied in our Civil Code, and excludes the interposition of any temporary and qualified ownership, such as that of administrators, between the deceased and his heir. C. C. 940 et seq.
“Pending the acceptance or rejection by the heir, which, when made, retroaets to the instant of death, and pending the administration, all ‘the estates, rights, and charges which a person leaves after his death’ are vested in, and belong to, the abstraction called ‘succession,’ as expressly stated in articles 872 and 873 of the Civil Code.”
In Carter v. New Orleans, 33 La. Ann. 816, the court quoted this last paragraph for sustaining a tax assessment In the name of “Estate of N. R. Jennings,” where the contention was that it should have been in the name of the heirs.
[S, 6] Formerly this transit of the property from the decedent to his successors could be instantaneous and without any legal ceremony whatever, by operation of the maxim, “Le mort saisit le vif.” “A succession,” says 940, C. C., “is acquired by the legal heir immediately after the death of the deceased.” By “a succession” is here meant “the estates, rights and charges which a person leaves after his death.” Article 872, C. C. But the Inheritance Tax Law (Act 109, p. 173, of 1906) now makes it unlawful for heirs to take possession without having first obtained an order of court sending them into «possession. They become owners from the moment of the death of the decedent (Tulane University v. Board of Assessors, 115 La. 1025, 40 South. 445), but they cannot legally take possession.
We have a whole body of rules relative to successions which owe debts, or in which legacies are to be delivered; but as the successions of Mr. and Mrs. Schadwell owed no debts, and there were no legacies to be delivered, that body of rules may be passed over in silence.
In Freret v. Freret, 31 La. Ann. 506, this court said:
“A succession is terminated when all the debts appearing to have been paid by a final account of its administrator duly homologated, the heirs shall have been put in possession of the hereditary effects by a judgment of court.”
In Levy v. Hitsche, 40 La. Ann. 505, 4 South. 474, this court said:
“It has been frequently decided that, in case a succession has been fully administered by a testamentary executor, tutor, curator, or administrator, and the heirs all of whom are majors, have come into the possession of the residuum, as an inheritance, or the same has been' unconditionally accepted by them, the probate jurisdiction over the property ceases, and the eoproprietorship of such heirs supervenes.”
The judgment appealed from, which held differently, must therefore be reversed.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside; that the opposition of Matthews Bros., auctioneers, be sustained, and that the report or procSs verbal of the notary charged with making the partition herein be amended so as to allow to the said Matthews Bros., auctioneers, in the partition herein, the sum of $405.37, being 2y2 per cent, on the amount of each adjudication made by" them in the sale heretofore- made for effecting a partition herein; and that the costs of the said opposition, including those of the present appeal, be paid out of the fund to be partitioned.
See dissenting opinion of O’NIELL, J„ 88 South. 300.