36 So. 41 | La. | 1903
Lead Opinion
Statement of the Case.
On the 21st of December, 1901, letters issued from the civil district court in favor of Rosa Lopez, widow of Nicolas G. Carbajal, as natural tutrix.of the minor children, issue of her marriage with her said husband.
Nicolas G. Lopez had already, under an order of the same court, been appointed undertutor of the children, and he had qualified as such on September 12, 1901.
On May 28, 1902, Mrs. Rosa Lopez filed a petition in which, after describing herself as widow of Nicolas G. Carbajal, and natural tutrix of the minor children, issue of her said marriage (naming them), she averred that it was her wish and intent to contract a second marriage with Francis Martin, and she desired to be retained as natural tutrix of said children; that previous to the celebration of the marriage she desired to convoke a family meeting according to law, in order to be retained as tutrix. She averred that Bernardo G. Carbajal, Nicolas G. Carbajal, and Facundo G. Carbajal (the first being a paternal uncle, and the other two second cousins of the minors) were their only male relatives residing within the circuit prescribed by law; that N. G. Lopez, their maternal uncle, was their undertutor. She suggested that, in default of relatives, Jerome Meunier, Carlos Menandez, Dr. Philip Berge, Jose Venta, J. Barzana, and Manuel Estalotte were friends of the family and of the minors, and suitable persons to compose said family meeting.
In view of tlie premises, she prayed for the convoking and holding of a family meeting in behalf of said minors for the purpose of deliberating, deciding, and advising whether she would be retained as natural tutrix of said minors; that the family meeting be composed of the persons named, or any five of them; and that the undertutor be notified to attend the meeting.
The district judge on the same' day ordered that a family meeting he held, in behalf of the minors, to deliberate and give their opinion and advice on the subject-matter of the petition; the family meeting to be composed of the persons named, or any five of them.
On the 4th of June the family meeting ordered was convened before Jules Meunier, notary public, at which all the parties named appeared, and were duly sworn, and deliberated upop. the matter submitted to them. Jerome Meunier, John Barzana, Dr. Philip Berge, Manuel Estalotte, Jose Venta, and Carlos Menendez declared their opinion to be that the second marriage of the widow with Francis Martin would not be detrimental to the interest of the minors, and they recommended and advised that she remain as their tutrix. Bernardo G. Carbajal, Nicolas G. Carbajal, and Facundo G. Carbajal objected to the widow being retained as tutrix, on the ground that, in their opinion, the interests of the minors would not be well protected. The undertutor concurred in the opinion, and, with the advice of the latter. The notary referred the proceedings to the court.
On the 23d of June, 1902, the tutrix filed a petition reciting the facts, and praying for a rule upon the undertutor and the other mi
The rule issued as prayed for. Defendants in rule answered, setting up, in detail and at length, their grounds of objection. On a trial of the rule the district court dismissed the oppositions, and approved and homologated the deliberations of the family meeting. Nicolas G. Lopez (individually and in his capacity of undertutor), Bernardo G. Carbajal, Nicolas G. Carbajal, and Facundo G. Carbajal applied for and obtained an appeal to the Supreme Court, which they perfected by giving bond. The transcript of appeal was filed in that court on November 5, 1902.
On the suggestion of Mrs. Nicolas G. Carbajal, natural tutrix of the minors, that Nicolas G. Lopez, undertutor of the minors, died on the 31st of October, 1902, and that no succession representative was appointed to represent him until March 11, 1902, when his widow was appointed and qualified as natural tutrix of the minors, issue of her marriage with him; that the transcript of appeal was filed after the death of the undertutor before any successor was appointed to him, and when there was no representative of said succession, and no one who had the right to perfect and prosecute the appeal; that subsequent to the filing of the transcript Manuel Bornio had beén appointed undertutor of the minor children, issue of the marriage between Nicolas G. Carbajal and herself, and that he had not made himself a party to the appeal; and that it was proper that he should be made such, to determine whether he would prosecute or not the opposition to the homologation of the proceedings of the family meeting which retained her in the tutorship of her children—the court ruled Juana Suarez Lopez, widow of N. G. Lopez, and his minor children, Manuel Bornio, Bernardo G., and Nicolas G. Carbajal, to show cause why the appeal should not be dismissed for want of proper parties, and why such other and further relief should not be granted as might be proper in the premises. Bernardo G. Carbajal, Facundo G. Carbajal, and Nicolas G. Carbajal objected to a consideration of the rule for the reasons:
(1) That the motion to dismiss was informal, and did not comply with the rules of the Supreme Court—particularly rule No. 13 (21 South, xi), in that the necessary affidavit required by said rule was lacking.
(2) That mover had asked for the dismissal of the appeal for want of proper parties, whereas the rules of the court did not contemplate or provide for the dismissal of appeals for that cause.
Under reservation of these objections, they averred that Nicolas G. Lopez had died on the 31st of October, 1902, after the appeal was perfected; that Mrs. Juana Suarez Lopez, widow of Nicolas G. Lopez, tutrix of her minor children, and administratrix of his succession, had made herself a party to the appeal as appellant; that Manuel Bornio, who had been appointed under-tutor of the minor children of Nicolas G. Carbajal 'Since the death of Nicolas G. Lopez, was not a necessary party to the appeal, but, if he was, he should be made a party by order of court. In view of the premises, they prayed that the motion to dismiss the appeal be denied, for the reasons assigned; but, should the court hold that the motion was formal and sufficient and proper, under the rules of the court, then they prayed that the application be denied for the reason that Mrs. Juana Suarez, widow of Nicolas G. Lopez, had voluntarily made herself a party, and Manuel Bornio, undertutor, was not a necessary party. They prayed, in the alternative, should the court hold him to be a necessary party, that he be made a party by such process as might be necessary under the rules of the court.
Mrs. Juana Suarez Lopez, natural tutrix of the minors, issue of her marriage with Nicolas G. Lopez, and administratrix of his succession, appeared, and moved to be made a party to the appeal; praying that the cause be heard and determined according to law. Manuel Bornio, the newly appointed under-tutor of the minor children of Nicolas G. Carbajal, came into court, and joined the appellee, Mrs. Nicolas G. Carbajal, in her prayer for the dismissal of the appeal.
Opinion.
While the proceedings resorted to by appellee in this matter are unusual, they have resulted in all parties being brought before
The position taken by the appellee is substantially that when there is a divergence of ofiinion among the members of a family meeting, as to the interests of minors, upon any given subject submitted to them, and the undertutor agrees with the tutor and the majority in their views, the dissenting-members have no legal capacity to continue their opposition, and take legal steps to test the correctness of their legal conclusions. Her contention is based upon the language of article 277 of the Civil Code, and some expressions made use of by this court in the matter of the Succession of Hebert, 4 La. Ann. 77.
Article 277, referred to, declares that whenever an undertutor shall refuse to approve of the deliberations of a family meeting, or object to their homologation, the court shall decide whether the opposition is well founded, and, if not, the opposition shall be overruled, and the deliberations homologated as if no opposition had taken place, and “when the court shall decide that the opposition of the undertutor is unfounded, and shall homologate the deliberations of the family meeting, the undertutor who shall liave made the opposition shall be exonerated from all responsibility.”
The syllabus in the matter of the Succession of Hebert declares that “when a surviving father claims to have the interests of minor children in property forming part of the community of acquets and gains adjudicated to him, and the adjudication is recommended by a family meeting, the under-tutor alone has a right to oppose it on behalf of the minors. Relations of the minors have no right to interfere in such a case on their behalf. In the event of a collision of interests between the father and natural tutor and the child, the duty of representing the minor is confided to the undertutor.”
In that case the deliberations of the family meeting were opposed by a maternal uncle of the minors. Whether he had been a member of the family meeting, or not, does not appear; nor, if so, does it appear what position he took in the meeting. His grounds of opposition were deemed sufficiently well grounded to have caused the district judge to decline giving his approval to the conclusions of the meeting, and his judgment of refusal so to do was appealed from. This court did not decline to pass upon the issues raised. It- declared that the oppositions ought to have been dismissed for the reason that the allegations were not sustained. It appears that the uncle, in his opposition, 'had charged the father with fraud. The court said there was no ground for the accusation; that it believed the scandal of the suit would do great injury to the minors, and, on a deliberate view of their best interests, it were better that they had been left to the good faith of the father, and to the supervision of the undertutor. The court, however, said it did not undertake to lay down any limit to the discretion of courts in protecting the property of minors from spoliation. The stricture of the court upon the opposition jnade in that particular case was doubtless well grounded, and the suggestion thrown out that, as a general rule, the interests of minors would be best subserved by leaving them in the hands of the undertutor is also doubtless correct; but we cannot afford to lay down as a rule of law that the duty of relatives of minors who have been made members of a family meeting ends with the expression of their views in the meeting. Each case must stand upon its own facts, and members of family meetings who are of the opinion that the object sought to be attained by the deliberations would result in the sacrifice of the pecuniary interests or welfare of the minors are in the line of duty in following their objections. It is often objected that our own system of holding family meetings is utterly useless; that the tutor generally proposes for undertutor some one in sympathy and harmony with his views, and courts make the appointment as a matter of course, without any consideration of his fitness; that the tutor also suggests the names of the friends of the minors who are to serve as members of the family meetings, and those names are judiciously selected so as to further the wishes of the tutor; that these meetings, as a usual thing, act merely as an instrumentality in carrying out the tutor’s wishes. This objection is, to a certain extent, well founded; and, while we should encourage nothing calculated to
The action taken by the new undertutor does not change the fact that the former undertutor, under a sense of his official duty, appealed from the judgment of the district court. It is our duty to examine into the merits of the case. The application to dismiss the appeal is denied. The appeal is maintained.
Opinion on the Merits
On the Merits.
(Nov. 3, 1903.)
The widow Carbajal, wishing to marry again, applied to the court for the convocation of a family meeting to decide whether she should remain tutrix of her children, issue of her marriage with the deceased. She alleged that the minors had only four relations within the jurisdiction 'of the court, one of whom was their under-tutor. She named these relations, and suggested that, in default of relations, it would be necessary to appoint friends to compose the family meeting; and she gave the names of six persons suitable to be appointed. On this petition the judge made an order calling the meeting, and providing as follows: “Said meeting to be composed of the persons named in the said petition, or any five of them.”
The notary summoned to the meeting the nine persons thus named by the judge. The three relations voted against retaining the widow in the tutorship, and the six friends voted in favor of retaining her. Thereupon the widow petitioned the court for the homologation of the proceedings of the meeting, and cited the undertutor and the three relations to show cause to the contrary, if any they had.
They appeared, and assigned for cause that the order of court -calling the family meeting, and all the proceedings had thereunder, were null and void, because in contravention of articles 281, 282, and 284 of the Civil Code. As further cause, they made against the tutrix certain allegations, which we will say, in passing, are not supported by the evidence.
Articles 281, 282, and 284 of the Civil Code read as follows:
“Art. 281. Family meetings, in all cases in which they are required by law, for the interest of minors or of other persons, must be composed of at least five relations, or in default of relations friends of him on whose interest they are called upon to deliberate.
“These relations or friends must be select*953 ■ed from among those domiciliated in the parish in which the meeting is held, or in a neighborhood parish provided they do not reside at a distance exceeding thirty miles.
“Art. 282. The relations shall be selected according to their proximity beginning with the nearest.
“The relations shall be preferred to the connection of the same degree, and among relations of the same degree, the eldest shall be preferred.”
“Art. 284. The appointment of the members of a family meeting shall be made by the judge.”
The respect in which it is said the order of the judge contravenes article 284 is that, instead of appointing definitively the persons who should compose the family meeting, it leaves to the notary to take any five out of the nine persons named, thereby delegating in part to the notary a power of appointment which can be legally exercised only by the judge himself. We not think this point can be sustained. Had the notary exercised the discretion with which the order invested him, and held a meeting composed of persons ■of his bwn selection, the point might have been well taken. But he did not do this. He convoked to the meeting all the nine persons named in the order, thereby ignoring and reducing to mere harmless surplusage that part of the order delegating to him the power of appointing.. By this, what defect there was in the order was cured.
Article 281 is said to be contravened, in that, whereas, under its provisions, friends can be appointed on a family meeting only in default of relations (that is, when it is not possible-!» secure five relations, the minimum number required for a valid meeting), the judge appointed six friends, although there were three relations present, and therefore a default of only two.
If, as here contended, the judge was without authority to appoint more than two friends, the objection is a very serious one, for, in consequence of his action in appointing six, the result of the meeting has been changed. Had only two friends been appointed, the relations would have constituted a majority of the meeting. Bet it be noted, too, that by express statute (article 254, Civ. Code) the question of the retention, vel non, of the tutrix, has to be decided by the family, not by the judge, and that, by the appointment of this extra number of friends on the meeting, the judge has brought about a different decision from that which would have been reached by the family, so that he has done indirectly what he could not do directly. If it be true, therefore, that only two friends could be appointed, the proceedings of the meeting must be held not to represent a decision by the family, as required by law, and to be, in consequence, null and void.
The law has not left the composition of family meetings to the untrammeled discretion of the judge. It has prescribed in positive terms that the meeting shall be composed of at least five, and has prescribed in equally positive terms that it shall be composed of relations. Why, in prescribing the number of the members, the law has so emphatically fixed the lower limit, and left the upper limit undetermined, is obvious enough. Evidently, it was considered that not fewer than five persons should be called to the deliberations even if, in default of relations, friends had to be called in to fill out that number, but that, if more than five relations were available, there could be no objection to calling in as many more as might seem advisable, and that the discretion as to calling in this greater number might be left with perfect safety to the judge. But by this latitude it was not meant to convert the meeting of the family into a meeting of mere friends, or to leave it to the caprice of the judge so to do. Such an intention is nowhere expressed. The judge is authorized to appoint friends in default of relations. It is only in default of relations that he can appoint friends. His power to appoint friends is conditional upon there being a default of relations. Now, evidently, the default here spoken of is an existing, unavoidable default, not one which, by increasing the membership of the meeting beyond the strictly requisite number, the judge may himself create at pleasure. The idea evidently is that, if any number of relations be lacking to make up the full quota required for the constitution of a legal meeting, the judge shall supply the deficiency by the appointment of friends.
That, in the constitution of family meetings, our law does not place mere friends on the same plane as relations, has been emphasized by this court in a number of de
In the case of State v. Pitot, the court said:
“The next question is, can the court order a meeting of the family composed of other-persons than the relations? The law recognizes the right to call on friends where there are no relations—in default of them, is the language of the Code. Whether, after all the means which are in the power of the tribunal of the first instance to compel the family meeting to act on the matter submitted to them have been exhausted, and no result can be obtained, there is an authority to pass over the relations and call in friends, is a question we are not called on at present to decide. So long as there is a possibility of obtaining a decision from those to whom the law has given the preference in deciding on the affairs of minors, the court cannot entertain the question of submitting their interests to the decision of others.”
And in the case of Succession of Fried, the court said:
“As in the cited case, we are not disposed to restrict the judge’s authority, although we think it imperative not to hold as legal a family meeting composed of strangers, when no notice has been given to relatives. Although, in the matter of the appointment of a tutor, the family meeting is advisory, and the judge is invested with large discretion, yet it should appear that it has been organized in the manner required.”
Our conclusion is that the judge had authority to appoint only two friends, and that the proceedings of the family meeting are, in consequence, null and void.
The question of what constitutes a default of relations, and whether the judge may appoint a greater number of friends than necessary to fill out the quota for a legal meeting, was not considered in the Bothick Case, 44 La. Ann. 1037, 11 South. 712, to which we are referred. All that was there decided was that the judge may, in his discretion, exclude relations whom he considers disqualified from serving, and appoint friends in their place. In the instant case no question is raised in connection with the exclusion of relations.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the proceedings of the family meeting in question be vacated and the rule dismissed; the mover, Widow Carbajal, to pay the costs of both courts.
Rehearing
On Rehearing.
(Feb. 29, 1904.)
We repeat, with emphasis, that the reasons assigned by the minority of the family meeting, consisting of the three relatives of the minors, for opposing the retention of the mother as tutrix, are not supported by the facts. The rehearing was granted in order that the court might further consider the questions of the necessity and effect of action by a family meeting in a case such as this, and whether the meeting, as herein held, was legally constituted. The law bearing more immediately upon these questions is to he found hi the following articles of the Civil Code, to wit;'
•‘Art. 254. If the mother, who is tutrix of her children, wishes to marry again, she must, previous to the celebration of the marriage, apply to the judge in order to have a meeting of the family called for the purpose of deciding whether she shall remain tutrix. If she shall neglect to call such meeting, she shall, ipso facto, be deprived of the tutorship.”
“Art. 281. Family meetings, in all cases in which they are required by law, * * * must be composed of at least five relations, or in default of relations, friends of him on whose interests they are called upon to deliberate.”
“Art. 284. The appointment of the members of the family meeting shall be made by the judge. * * *”
“Art. 291. The officer before whom the,family meeting is held must make a particular proces verbal of the deliberations, cause the members of the family meeting to sign it, if they know how to sign, sign ifhimself, and deliver a copjr to the parties that they may have it homologated.”
The purpose of this law is to secure for the minor a friendly supervision of his person and estate, and the preference given to his relations in the matter of the composition of family meetings to be held in his behalf is based upon the assumption that, by reason of the ties of consanguinity or affinity which should bind them to him, they
From the report of the case of State v. Pitot, 2 La. 537, it appears that a meeting of the family and friends of certain minors had been convoked to consider the demand of their tutrix to substitute a special for a general mortgage, their only duty being to determine whether the property offered was of sufficient value; that “a portion” of the members were in favor of acceding to the demand; that a majority, however, opposed it, three of them declaring “that the property of minors was a thing sacred, which could not be touched, and that, if the mother wished to sell, she might do so, subject to the mortgage,” and the fourth declaring his willingness to accede to the demand, “provided all the rest of her property remain bound.” It further appears that a second meeting, composed of the same persons, was called, with like result; that the tutrix thereafter applied to the judge to accept the special mortgage, or else to convoke another meeting, to be composed of different persons; that, upon his refusing her application, she applied for a writ of mandamus to compel him to grant it; that, in denying the writ, this court held that the family meeting had practically refused to act; that action by a family meeting was an indispensable prerequisite to action by the court; that the court a qua had not exhausted its power in the effort to obtain action by the family-meeting; and that, so long as there was a possibility of obtaining action upon the question involved by those to whom the law gives a preference, it could not be submitted to-the decision of others. “Whether,” said the-court “after all the means which are in the-power of the court of the first instance to-compel the family meeting to act on the matter submitted to them have been exhausted, and no result can be obtained, there is an authority to pass over the relations and call in friends, is a question we are not called on at present to decide.”
It seems apparent from this that the judge had exercised the authority vested in him with respect to determining the number and personnel of the family meeting, and that the meeting was composed of more than five persons, though they were not all relations of the minors; and it will be observed that the questions of his authority to set aside a decision prejudicial to the interest of the minors, and to submit the matter at issue-to a meeting differently composed, or to exclude the relations for incompetency or unfriendliness, whether originally or after setting aside their action, were not in the case. These questions have, however, been considered in other cases. In the matter of Estate of Marionneaux, 28 La. Ann. 427, it appeared that a family’meeting had approved an agreement whereby the tutrix had consented to release, in part, a debt in which her minor child was interested, whereupon, at her instance, another meeting was convoked, which disapproved of the agreement. The debtor prayed for the homologation of the action of the first family meeting, and opposed that of the second. This court said: “Why any family meeting should suppose-that it was to the advantage of the minor to reduce from $9,000 to $3,000 this debt, is not easy to imagine. But, whatever may have been their motive for their advice, the tutrix did not act on it; but, on the contrary, she caused another family meeting to be convoked, who advised against the act. It is contended that the second family meeting-had no power to revise the action of the-first. * * * If the probate court, in its discretion, saw fit to appoint a second family
In the Interdiction of Bothick, 43 La. Ann. 547, 9 South. 477, it was held that the question of the selection of a curator for the interdict should be submitted to a family meeting, and that the “judge will next have to act on the recommendation, in the exercise of his sound legal discretion.” ' Thereafter, in the same case, a family meeting was convoked; and, although there were near relations and connections within the prescribed limits, the judge a quo, having reason to believe that they were likely to pursue their own interests, rather than that of the interdict, excluded them, and appointed eight friends, and, the eight so appointed failing to agree, appointed a ninth. The action of the meeting, as so constituted, was opposed on the ground, among others, that the relations were illegally excluded; and from an adverse judgment the opponents appealed to this court, where the chief justice, as the organ of the court, said:
“Articles 281 and 282 of the Code are merely declaratory of a principle. They look to a general rule, but do not attempt to' write out of the articles the exceptions to the same which may result from the very nature and reason of things. The theory of the articles is that the nearest relative and connections of minors, being bound to them by special and direct ties, would take a more lively and earnest interest in their welfare than would strangers, or even friends. * * * A family meeting composed of persons unfriendly or hostile to a minor, or evidently pursuing their own interests as their first motive and consideration, would outrage the purpose and spirit of the law.” And the action of the district court was sustained. Interdiction of Bothick, 44 La. Ann. 1037, 11 South. 712.
In the Succession of Fried, 106 La. 279, 30 South. 839, the complaint was that the family meeting was composed mainly of friends, although there were relatives who were not called, and no good reason was assigned for their exclusion. Mr. Justice Breaux, speaking for the court, said: “In the Bothick Case, 44 La. Ann. 1037 [11 South. 712], the court held that the judge not only has the legal discretion, but that it becomes his duty, to exclude from a family meeting relatives who are hostile to a minor, or are evidently pursuing their own interests, but, not, however, without some reason prompting the exclusion. As in the cited case, we are not disposed to restrict the judge’s authority, although we think it imperative not to hold as legal a family meeting composed of strangers, when no notice has been given to the relatives.”
The learned counsel for appellants in the case now under consideration, referring to article 281 of the Civil Code, say:
“The use of the word ‘default’ shows not only that the relations are entitled to the preference, but also that friends are called in simply to make up the deficit in the number of relations that would be necessary to constitute a legal family meeting. In other words, our contention is that, where there are five relations, there is no default of relations, and none can legally be created, and the family meeting must be composed exclusively of relations; where there are * * * three relations, there is a default of only two, and only two can be added; where there are no relations present, there is a default of only five, and the family meeting must be composed of five friends. The power of appointing more than five, which is vested in the judge, appli.es solely to the matter of appointing relations, whilst his power in the matter of appointing friends is limited by the plain provisions of the Code to the contingency which arises when there is an actual default of relations, and the number of friends that he can appoint can never exceed the actual deficit.”
This argument ignores the fact that, in establishing the minimum number, the law leaves it to the judge, so long as he does
It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, at the costs of the appellants.