50 La. Ann. 840 | La. | 1898
The opinion of the court was delivered by
Several distinct matters are included in the appeal in this court under the above title, brought up in one and the same transcript.
The executor of the estate having filed a provisional account in which Dr. Formento was placed as a privileged creditor for seven hundred and fifty dollars for medical services rendered to the •deceased, and Dr. Matas for two hundred and fifty dollars, and in which Drs. Larue and Mioton were entirely left out, the parties named filed opposition thereto, Dr. Formento claiming to be a creditor for three thousand two hundred and sixty dollars, Dr. Matas for five hundred dollars and Drs. Larue and Mioton each for one hundred dollars.
The executor having failed to recognize a claim advanced against the succesion by the city of New Orleans for city taxes on personal property for the years 1884 to 1895, inclusive, with interest, and also for certain taxes on real estate, the city filed an opposition to the account. Mrs. Jeannette.Prescott, as natural tutrix of.her child, •Charles M. Tañe (universal legatee of the deceased), opposed the claim for taxes, pleading the prescription of three years, in bar of the tax lien and privilege. She prayed that the demand for taxes be rejected. The District Court sustained the opposition of Dr. Formento, according him twenty-five hundred dollars, and that of Dr. Matas, according him three hundred and seventy-five dollars It ordered Drs. Larue and Mioton to be each placed on the account for seventy-five dollars. It sustained the opposition of the cfty of New Orleans for city taxes to the amount of the several tax bills sued upon, with interest as prayed for.
It recognized the city of New Orleans as a creditor, as per tax bills sued on for city taxes on real estate for the years 1893, 1894 and 1895, but decreed all the other taxes claimed barred by the prescrip - tion pleaded.
The executor appealed.
All of the opponents asked that judgment be amended. The city prayed that it be amended by recognizing it as an ordinary creditor for the taxes on movables, as shown by the tax bills on which it declared.
The District Judge, in assigning reasons for the modification of his original judgment, stated that he had not altered Lis mind as to the actual value of the services rendered by the different physicians, but that the succession was much smaller in value than he had believed it would be, and that that fact was a proper element for consideration in determining the amount of the fees which should be recognized; “ that the property of the succession had depreciated, rents had ceased, and there was little left.”
This court is not advised of the condition of the estate. The District Court was justified in fixing the fees, in taking into consideration the value of the succession, by the following decisions: Succession of Mager, 12 Bob. 413; Succession of Virgin, 18 An. 42; Succession of Linton, 21 An. 130; Czarnowski vs. Succession of Zeyer, 35 An. 798; Breaux, Fenner & Hall vs. Francke, 30 An. 336.
We do not think that we would be warranted in declaring error in the judgment appealed from in these particular respects.
We think it not amiss, however, to say, that we fully concur with the opinion of this court expressed in the Succession of Dudóse, 11 An. 406, in reference to the legality of an extra charge for the visits of a physician, based simply upon the fact that more than one physician should have been called in, and should have regularly attended the patient.
We think the amendment asked for by the'city of New Orleans should be made. The plea of prescription set up in the District Court was simply as to the lien and privilege by which the taxes on personal property stood secured. The court should not have
The second question involved in this matter is the correctness or incorrectness of the District Court in confirming Miss Jeannette Prescott as natural tutrix of the minor, Charles M. .Taite. She was once before confirmed as such tutrix by that court, but on appeal to the Supreme Court the judgment was reversed and the order of appointment was set aside, as will be seen by reference to the report of the case in the 49th An. 710.
On the return of the cause, she made a second application for appointment and confirmation as natural tutrix of said minor. After hearing evidence, the District Court granted her prayer, and she was confirmed as such.
It is established by the evidence that the applicant is the natural mother of the child; that she was brought to the city of New Orleans about the year 1887 by the deceased, Mrs. Helen 0. Haley, who then, and for many years thereafter, was keeping a house of ill fame in that city; that she was then about sixteen years of age; that while an occupant of this house she gave birth to the child referred to. About the year 1889 she returned to New York, where it appears she was the kept mistress of several different persons. When she returned to New York she left the child with Mrs. Haley, who had exclusive charge of him up to the time of her death, on the 23d day of June, 1895. Mrs. Haley .left a last will and testament in which she constituted the child as her universal legatee and referred to him therein as her adopted child.
In this will she appointed Anatole A. Ker her testamentary exec - utor and tutor of the child. Ker qualified as executor, but the succession not having been yet fully administered, he failed to qualify as tutor. Matters were in this situation when, on or about the 20th
In the reasons assigned by the District Judge for his recent action ‘he refers to the very strong claims which a mother has to have possession and control over her child, and he expresses his conviction that the mother can, as matters stand, be safely entrusted with its care. Without entering into the details of the testimonv in the case, we regret that we do not feel justified in affirming his judgment. There has not been on the part of the mother the interest in its welfare manifested which would indicate any great affection toward it. Through the long interval between her departure from New Orleans to the death of Mrs. Haley, we find no evidence of her having kept in touch with the child other than is shown in a single letter written in 1892, in which she refers to him. While no act of adoption has been produced, and doubtless none was passed, the mother seems to have entirely surrendered the child to Mrs. Haley, who cared for it as her own up to her death.
When Mrs. Haley died, she was supposed to have left a very considerable estate and it was only about fifteen months after the date of the opening of her succession that the mother seems to have been aroused to any interest in her son, who, in the meantime, had been placed by the executor, at the expense of the successsion, in a school •presided over by “ sisters ” of the Catholic church. The child is now under influences which the mother herself could not but commend, ■and where it is, it will unquestionably receive all possible care and ■attention. We recognize fully the claims of a mother to have the ■custody of her child, but we are not satisfied in this case that it would be to the latter’s interest, or for its good, that it should be taken from this jurisdiction where the courts of this State could have no supervision over its future condition.
The mother is a resident of New York, and is now in that State. ^Everything points to an intention on her part to have the child sent to her. She seems, at the present time, to have a position as companion of a widow living in the city of New York, but we are not advised of her having any means of support outside of what pay she ean receive from this source. What would become of her, in case she should lose this position, we do not know.
For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Oourt appointing and confirming Miss Jeannette Prescott as natural tutrix of the minor, Charles M. Taite, be. and the same is hereby annulled, avoided and reversed, and the appointment set aside.
