91 So. 435 | La. | 1922
By Division A, composed of Chief Justice PROVO STY and Justices OVERTON and LECHE.
Nellie Barrett Manning, wife of Patrick Manning, died in the city of New Orleans June 13, 1919, leaving a will in nun-cupative form by public act, whereby she made the following dispositions. She desired that her home be sold and with the proceeds that a tomb be built for her in St. Patrick’s Cemetery No. 3, to cost $1,800, and $200 to pay for her funeral expenses. She then made the following bequests: Her $500 United States bond to Andrew John Cotter; five premium bonds and^her diamond ring to her sister, Helen Cotter; two lots in Bay St. Louis to Hanna Pichón, also the silverware in her house; $200 to Michael Cotter; her gold watch and chain to Helen Pichón; her diamond earrings to Eugene Pichón; to her husband she bequeathed four Liberty Bonds and the rest and residue of her succession, instituting him her universal legatee. This will was ordered to be registered and executed June 16, 1919. An inventory of the property claimed to belong to her succession, made July 2,1919, shows in its recapitulation an appraisement of bonds, $1,001, of War Saving Stamps $17.20, of household effects $128.55, of real estate $2,000, and cash in bank $200.48, totaling altogether $3,347.23.
Thereafter Patrick Manning, surviving husband of the deceased, appeared in the mortuary proceedings by petition, wherein he claims that the will is null and void for the reason that testatrix had for several years prior to the confection of said will been gradually failing in mind and body so that when she made said will she was irresponsible and devoid of understanding. He further averred that the property disposed of by said will was community property, and that testatrix could only have disposed of her proportion thereof; that under any interpretation of said will its terms could not be carried out; and that he is the only heir of deceased, and as such entitled to inherit her whole estate. Petitioner then prays that the will be declared null and void, and in the alternative that the property disposed of in said will be adjudged as belonging to the community lately existing between himself and the deceased, and as such that he be recognized as sole owner of one-half of the said property.
The district court, after due trial and .hearing, dismissed the demand of Patrick Manning and rendered judgment in favor of the defendants, who are the executor and the legatees under the will. Prom that judgment Patrick Manning has taken the present appeal.
Taking the pleadings as our guide in determining what issues are presented by this appeal, we notice that the prayer of the opposition filed by Patrick Manning is not as broad as the allegations of his petition. He prays that the will be declared null, and, in the alternative — meaning that if said will is not null — that the property disposed of
For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that Patrick Manning’s demand for the nullity of the will of the late Nellie Barrett Manning, his wife, be dismissed, that the property listed in the inventory of the succession of said Nellie Barrett Manning be recognized and decreed to belong to the community lately existing between Patrick Manning and the said Nellie Barrett Manning, his wife, and that said Patrick Manning be recognized as owner of one undivided half thereof, costs of the lower court to be paid one half by opponent and the other half by the succession of Nellie Barrett Manning, and costs of appeal to be paid by the succession of Nellie Barrett Manning.
Rehearing refused by Division B, composed of Justices O’NIELL, LAND, and BAKER.