50 La. Ann. 524 | La. | 1898
The opinion of the court was delivered by
This appeal is by one of the legal heirs of the deceased, Mrs. Elizabeth C. Earhart, from the judgment of the lower court on the petition of the heir asserting rights, as such, against the other legal heirs.
The record shows the deceased left movable property, but no immovable property in this parish or State; there is testimony tending to show the deceased died possessed of landed property in the District of Columbia; the legal heirs of the deceased are her children,
The petition of the plaintiff filed some weeks after the death of the deceased sets forth that she left children, plaintiff being one of them ; that plaintiff is advised that defendants claim deceased left a will, but it had not been produced; that two of the children defendants in this suit had taken possession of property of the deceased; that plaintiff as one of the forced heirs was entitled to her portion of the properly of which deceased died possessed, and to have made an inventory of such property. The prayer was for citations of the legal heirs; that two of them charged with taking possession of the property and papers of the deceased produce any will or paper purporting to be a will, and if a valid will that it be probated; that if no will was made, the deceased be decreed to have died intestate; that if the will was found to dispose of more than the law permitted, it be reduced; that plaintiff be put in possession of two-thirds of the property of the deceased, ujrless the other heirs accept, and in that event that petitioner be decreed entitled to her proportionate share of the property. The answer of two of the heirs is to the effect their mother left no property in Louisiana, except movables, found in her bank box, denies that respondents have taken possession of any property, avers that deceased left a will made according to the law of Maryland, of which they annex a copy; that it has been filed in the Orphan’s Court, District of Columbia, and that respondents are advised the will, not in the form required by the laws of Louisiana, can not be probated here, and respondents make no claim except
The lower court in admitting the will in evidence over plaintiff’s objection stated as the ground for the ruling that plaintiff had called for the production of the paper, and that the objection would be treated as directed to the effect of the paper. The judgment recognized the plaintiff, and the three defendants as the legal heirs of the deceased; decreed that as such they be placed in possession of the property of the succession, and as to the alleged will the judgment reserved the rights of all parties in interest to assert or resist any rights founded on the paper if it should ever be presented for probate. The plaintiff on this appeal complains of the judgment because there is no decree that the deceased died intestate.
The paper produced in the lower court not in the form required by law for last wills, was not sought to be probated. If any demand had been made founded upon it, the objection to its introduction should have prevailed. No will can avail as a muniment of title unless probated, nor can it be probated unless in the form prescribed by the Code, Article 1637. Aubert vs. Aubert, 6 An. 104; 1 Hennen’s Digest, p. 467, No. 4. But the petition in this case charged that defendants had wrongfully possessed themselves of the papers of the deceased, tafeen the property she left from her banfe boxes and called on them to produce all papers and any paper purporting to be the will of the deceased. To meet these allegations the testimony of defendants was-offered to show what they did in reference to the subject for investigation ; that deceased had stated her will was in the box; her desire-it should be sent to her counsel in Washington, and that the paper copy of which was produced had been transmitted to the counsel in accordance with the request of the deceased. This testimony along with the paper had direct relation to the charges in the petition, and besides the paper was called for by the plaintiff. In this form of controversy, we thinfe, the objection to the offer of the will was properly overruled, and the paper received not to give it effect as a will, but because called for and pertinent to the issues as to defendants’ action made in plaintiff’s petition.
The plaintiff contends that the deceased domiciled here when she died, the lower court had the jurisdiction to determine the issue ten
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.