Succession of McGill

| La. | Apr 15, 1851

The judgment of the court was pronounced by

Eustis, C. J.

Penelope McGill, the surviving widow of James McGill, deceased, applied by petition to the Court of the Ninth District, sitting in the parish of Concordia, for the homologation of her final account as tutrix of her children, James, Susan, John and Olivia McGill, (the wife of Augustus C. Watson) who were heirs of the said James McGill; she prayed to be released from all further charge of the estate of said heirs, and for general relief.

The homologation of this account was opposed by the curator of the succession of Duclcer. The balance admitted to be due by the tutrix was very large, and was reduced on the opposition to some $84,000. The judgment of the district court gave the heirs severally their share, with a tacit mortgage on the property of their tutrix. From this judgment the curator of Duclcer's succession has appealed ; and the heirs of James WLcGill are before us as appellees, being the parties in adverse interest to the appellant. '

The changes which were made in the account, by which the balance was reduced to the amount allowed by the judgment, it is not necessary to notice, as they are acquiesced in by the appellees. We will proceed to examine the several grounds presented by the counsel for the appellant for a reversal of the judgment.

I. The district court determined that no community existed between James McGill and his wife. The first point made by the counsel for the appellant is, that all the property owned by the deceased at his death was acquired during his marriage, and was the property of the community; and that, by his death, she became of right entitled to one-half of its revenues.

The parties were married in Mississippi previous to 1825 ; neither of them ever resided in the State of Louisiana. The law of Mississippi, the place of their domicil, establishes no community of property between husband and wife. We do not consider the arguments relating to the existence of the community under the former laws of this State as applicable to the present case. It is obvious that those laws would be utterly inoperative upon the parties unless they resided in the State or had property within it; and when, in 1828, by the repealing act, all the civil laws in force previous to the promulgation of the code were repealed, we are at a loss to conceive on what ground these former laws can be invoked by the appellees as regulating the matrimonial rights of parties domiciliated out of the State, and having no property within it. It not being shown that the property left by McGill at his death was acquired by him previous to the date of the act of 1828, all inquiry as to the effect of any other law than that in force at the time the property was acquired seems to us quite superfluous. The code provides that every marriage contracted in this State superinduces of right partnership or community of acquets and gains, if there be no stipulation to the contrary. Art. 2369. A marriage contracted out of this State between persons who afterwards come here to live is also subjected to the community of acquets with respect to such property as is acquired after their arrival. Art. 2370.

That no community existed, by virtue of the laws of this State, in property acquired by either of the married persons within this State, whose marriage Was not contracted within the State, nor who ever resided in it, we have always understood as resulting from the evident sense of these articles. In the much contested case of Packwood, 9 R. R. 438, the point appears to have been taken for granted, and we have acted upon it, in allowing the marital portion to the wife to which she succeeded as by inheritance. Dunbar v. Dunbar, 5th Ann. 159. Cooper v. Cotton, ante p. 256.

II. The next objection to the account which we shall notice is, that the mother has made no charge for the maintenance and education of the children. It is urged by the counsel for the appellant that the expenses of the maintenance of the children should be charged against their estate in Louisiana, and not against their estate in Mississippi. But their domicil was in Mississippi; it was there they were brought up and educated. The revenues of the Mississippi property could certainly with great propriety be applied to their expenses, rather than those of the Louisiana property which was incumbered with debt. We do not recognize the right of the creditor in a proceeding of this kind to defeat an appropriation of this character, which presents no feature of fraud, and which appears to be in conformity with the just and proper order of things. It appears that these expenses were settled under the authority of a court of probates of the domicil of the parties, in an administration of the personal 'property of the succession in that Slate,-^-Mrs. McGill being the administratrix. By that settlement, the portion of each heir in the slaves in Mississippi was assigned to each, and a balance established to be due by her to the distributees.

We do not find any sufficient evidence on which we can change the items charged for the expenses of the children’s support and education, or make any additional charge against the heirs in the present account. We concur with the district judge in the opinion, that they must be considered, so far as the appellant is concerned, as closed by the settlement of the estate in Mississippi.

III. James McGill became of age on the 31st of August, 1841, and Susan on the 23d of June, 1844. Against the claims of these two heirs, the appellant has opposed the plea of prescription under the 356th article of the Civil Code, which provides that the action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the day of his majority. The article 475 of the Code Napoleon is to the same effect, and it is conceded by the counsel for the appellees, that under the French authorities the prescription would embrace cases of this kind. Those authorities consider it immaterial whether any account has been rendered or not by the tutor, that an entire omission of this by the tutor does not prevent the prescription from accruing. Troplong, Prescription, 489. Although the debtor in this case may be considered as having renounced this plea of prescription, nevertheless, the appellant, being a judgment creditor, can avail himself of it. Code, 3429. Pothier on Obligations, 700. Troplong, Prescription, 100, et seq. The claims of these two heirs against their mother and natural tutrix we consider as prescribed.

IV. The claims of the two oldest being thus disposed of, it is only necessary for us to say, in relation to the ground urged by the counsel for the appellant, concerning the decreeing of a partnership between the two other heirs and their mother, that the evidence establishes no such relation between them.

The counsel for the appellant states in the close of his printed brief, that the true view of the case, although hinted at casually, has not yet been given; it is not and never has been one either of tutorship or of administration, and the rules of law applicable to the settlement of such cases have no bearing on this. Throughout the argument are charges of fraud and collusion, and the court is appealed to to adjudge the administration of the succession in Mississippi and the tutorship in this State as mere means of spoliation. If such be the character of the case, it is to be regretted that the present form of remedy should have been adopted by the appellant, and that the whole subject is not brought before us in a proper suit, and under proper allegations, to enable us to adjudicate upon the whole. As the matter stands on the appeal, we necessarily confine ourselves to the matters adjudicated upon in the court below. The judge who decided the cause had not the benefit of an argument from the counsel for the appellant; his reasons are not given at length; and it is not surprising that any decision on such multifarious matters presented as these are, should be, at best, but an approximation to the real merits of the cause. Although we are not satisfied with the manner in which several of the charges are stated, either as to form or the principle on which they appear to be based, yet we have not sufficient evidence that another mode of stating them or a different principle would lead to a result materially different.

We think it was incumbent on the appellant to have placed the cause before us in such a manner as would have enabled us to close this litigation; which if continued as the case has been conducted in the court below, affords little prospect of any termination. And for this reason we are averse to remanding the cause.

It is therefore decreed, that the judgment of the district court, so far as the same relates to the claims of James McGill and Susan McGill against their mother and natural tutrix, resulting from her tutorship and the tacit mortgage resulting therefrom, on the property of their said mother, be reversed; and the opposition of the said curator of Ducker to said claims be sustained, and the said claims be disallowed; and that in other respects the said judgment of the district court be affirmed; the costs in both courts to be divided between the parties,— appellant and appellees each paying one-half.