46 La. Ann. 301 | La. | 1894
The opinion of the court was delivered by
Jumonville Morvant died in the parish of Lafourche on June 2, 1890, leaving neither ascendants nor descendants, but collateral relations. On the 6th June, 1890, Sylvere Morvant, a brother of the deceased, applied to be appointed administrator of the succession. An inventory was taken, and, after the usual
In the suit of Harriet Reese vs. The Succession of Morvant, a document which was afterward probated as a will was filed, the filing bearing date 25th February, 1891, and it remained on file in that suit until the 8th of October, when, at the instance of one Frank Reese, represented by TÜessrs. Beattie & Beattie, attorneys at law, it was offered for probate as the last will of Jumonville Morvant.
On the 31st October, 1891, Sylvere Morvant and his brothers and sisters filed their opposition to the probate of this document and the-prayer for the executorship, claiming that it was not a will, but asking, if the court should so declare it to be, that Sylvere Morvant be appointed executor.
The District Court on the 12th December, 1892, held the document to be a will, leaving the question of the executorship to be determined subsequently. On appeal to this court this judgment was affirmed. Succession of Morvant, 45 An. 207. In the subsequent contest for the executorship, Sylvere Morvant was appointed and qualified as such on the 17th June, 1893.
The instrument probated as the will was as follows:
“September 14th 1878.
“ Brother and Sister i Give my piec of Lands What i Bout from Miss-O M Gillis To Harriet Reese and Frank the boy what i rase and also, my buggay and all my Cow and my oxson and the Oart also dollar My Mare and oil What i got in the house i give all that To Harriet Reese and Frank Longs they live Brother and sister i give that to. Harriet Reese and Frank for they Life times So no Law got anythings to do With What i give her and Frank i give it to her with all my heart She has been with me 24 years Well my Brother and Sister
“J. Morvant
“ J. Morvant
“JF Morvant
“ Brother Joahim you will get all my money that Mr. H W tabor got for me and you will give it to harriet Rees he got 2 noat for me.”
The executor filed his final account of executorship and tableau of distribution on the 8th of December, 1893. To this account Messrs. Beattie & Beattie, Frank Reese, Harriet Reese, and the tutrix of Germaine Morvant, one of the minor heirs, filed oppositions.
On the trial of the case the executor filed .'pleas of estoppel and res judicata to the opposition of Harriet Reese. •
In this account or tableau the executor makes the statement that, by the last will of the deceased, Frank Reese and Harriet Reese were given the usufruct for life of — first, the real estate described under the item 1 of the inventories, valued at $700; second, the horned cattle or their value, described under Nos. 5, 6, 7, 8 and 9 of the inventories, aggregating a value of $79; third, the movables, the No. 10 (one gun and one hunting bag), valued at $30, but that the buggy referred to in the will is no longer in existence and the mare, “ Dollar,” died long since.
He declares that, in his opinion, the rights of Harriet Reese were fixed'by the judgment rendered in her suit against the succession, and that she can not claim the rights fixed by that judgment and also the usufruct bequeathed her; that, therefore, he proposed to deliver to Frank Reese, upon his furnishing security as usufructuary and otherwise complying with the law, the aforementioned property still in existence, to be enjoyed by him in usufruct according to the terms of the will.
The account showed certain movables and a balance in cash still in the hands of the executor, which he proposed to distribute among the legal heirs of Morvant.
In the opposition filed by Messrs. Beattie & Beattie they claimed as being due them as privileged creditors of the j succession the sum of five hundred and five dollars for their services as attorneys at law. They allege that knowledge of the existence of the paper afterward probated as a will was brought home to Sylvere Morvant,
Frank Reese claimed in his opposition that by the last will of the deceased he was made his sole universal legatee. He opposed generally each and every item of t e account,- and certain items thereon particularly mentioned. He prayed that he be declared the sole universal legatee and placed in possession of the estate, and that he recover judgment against the accountant for thirteen thousand one hundred and seventy-five dollars.
Harriet Reese in her opposition declared that she was entitled to one-tenth of the whole succession by virtue of her judgment, in the suit already referred to, asserting that said one-tenth had been adjudged to her under a manual donation inter vivos made to her by Jumonville Morvant. She claimed that she was, moreover, entitled to one-half of the remainder of the succession for the reason that for forty years next preceding and up to the death of the said Morvant he and she had lived continuously and uninterruptedly as man and wife, but that their relations ab initio were those of employer and servant — opponent being his servant; that at the time their relations as such began, and for years thereafter, Morvant was a poor man, not owning any property whatever; that opponent attended to all his household affairs, keeping house for him, raising and selling poultry, raising cows, caring for them, selling eggs and milk, doing all his housework, as cook and washerwoman, caring for and saving up the money made by them in their joint industry, economizing in every possible way the sam 5 as a good and dutiful wife
The district judge recognized Frank Reese as the owner in full ownership of the real estate referred to in the will and ordered him to be placed in possession thereof. It recognized him to be entitled to hold in usufruct certain movables mentioned, and ordered that he be placed in possession as usufructuary on giving security as such according to law. It rejected the claim of Harriet Reese in so far as she set up a claim to be entitled to one-half of the property of the succession, in addition to the one-tenth of the estate adjudged her under the donation of the two promissory notes.
It ordered the executor to account for $175 for the stallion Grandy, and rejected his claim for commissions on the property declared to have been bequeathed to Frank Reese. It reduced the fee of L. P. Caillouet, attorney at law, to $200, and that of Messrs. Badeaux and •A. F. Knobloeh to $250; also reduced to $10 the fee of Ooulon, notary, and such changes having been made and ordered to be made, ■it homologated the executor’s account.
Messrs. Beattie & Beattie, Harriet Reese, Frank Reese, Sylvere Morvant, the executor, and Mrs. Pauline Hebert, tutrix, appealed.
We think the action of the lower court in rejecting the opposition of Messrs. Beattie & Beattie was correct. Morvant appointed no executor in his will, which was limited in its dispositions to a special legacy of specific property. The existence of the paper afterward probated as such will was unknown to his legal heirs at the date of his death, and his succession was regularly opened and placed under administration with an administrator as its legal representative. Opponents claim that their services in subsequently, at the request of Frank Reese, propounding the will for probate and doing so successfully against the opposition of the heirs and administrator
The rejection by the court of the opposition of Harriet Reese, claiming one-half of the property of the succession, in addition to the rights adjudged to her under the donation of the two notes mentioned, was also correct. She alleges that she was the servant of Morvant. She never ceased to be such. If anything be due to or belong to h’er, it is not “property ” based upon the grounds set up, but “ money” as “ wages ” for services rendered. If the claim asserted by the opponent were maintained, it would place the concubine of a person upon the same line and footing as a wife. Such a proposition can not for an instant stand the test of either law or morals.
The cases of Delaman vs. Roger, 7 An. 152, and Malady vs. Malady, 25 An. 450, relied on by the opponent, were decided upon their own special state of facts and not upon the theory of a quasi community of acquets and gains between a man and his mistress, on which theory the present claim must rest, if at all. In the cases cited the rights of the women were predicated on the fact that they had actually furnished the money with which the property was purchased.
Art. 2804 of the former is Art. 2888 of the present Civil Code, and is as follows:
!< Universal partnership shall only be contracted between persons who are not respectively incapacitated by law from conveying .to or receiving from each other to the injury of others.”
There is not a word in the record going to show that the deceased ever received a dollar from the opponent, or that a cent of her money was ever employed in the acquisition of any property, whilst it does appear that in the settlement of the estate she will, under the donation made to her, receive in money an amount equal to one-tenth of the value of the whole succession.
This opponent made special objections to the account filed by the administrator. Some of these objections were to the effect that the administrator had failed to charge himself with various amounts which should have been placed to the credit of the succession; others, that certain charges presented as claims against the succession were excessive. As a general rule, one neither an heir nor a creditor of a succession has no right to interfere in its administration, but under the exceptional facts and circumstances of this ease Harriet Reese, though holder and owner of two notes against third persons, became entitled to examine and question the account of the administrator, in so far as it would tend as rendered to throw the tenth of the value of the estate illegally and improperly below the amount of the two notes donated to her. The parties whose claims were reduced upon these oppositions, and those of Frank Reese, have not appealed. The administrator is not authorized to appear before us in their behalf, and the judgment as to those parties must remain untouched. There has been a misapprehension, we think, in respect to the position and rights of Harriet Reese, and in the scope of the judgment which was rendered in the suit which she instituted to have herself recognized as owner of the two notes referred to.
The next opposition in its order in the record is that of Frank Reese. In reference to this the district judge said: “The first question to be disposed of is how should the will of Jumonville Morvant be construed and interpreted. In other words, what did he dispose of — to whom and by what kind of title? The executor contends that by his will Morvant left only the usufruct to Frank Reese of the real estate which is described in the inventory, and the usufruct of the horned cattle, gun and hunting bag, which are also inventoried. He claims, on the other hand, that all of the property described in the will and left by the testator at his death was given to him in full ownership and not as usufructuary. By his will the testator constituted Harriet Reese and Frank Reese his legatees, but as the former was his concubine and could not receive anything from the estate beyond the tenth part provided for by Article 1481, the latter became his sole legatee by right of accretion under Article 1707, 0. C. What then did he leave to Frank Reese? * * * I think it plain that he intended to give to his legatees in full ownership the land which he bought from Mrs. C. M. Gillis — -the same which is described under No. 1 of the inventory, and that he gave to them the
“Mareadé says: ‘Ainsi celui qui legue tous ses immeuble; mais eomme biens speciaux determinés et non en masse; celui qui legue m.me en masse et dans leur ensemble toutes ses maisons- — -tous ses bois — tous ses immeubles de- colonies ou de tel departement ec qui exclut ainsi ses autres immeubles ds la disposition ne fait que des legs particuliers. II en sera ainsi encore de toute.- dispositions d’usufruct si éxtendu que eet usufruct puisse étre.’ Yol. 4, p. 101 (Art. 1010, O. N.) ; same volume, p. 117 (C. N. 1019) ; Succession of Dougart, 30 An. 272.
“It is clear to my mind that the testator intended to leave the usufruct of the buggy which he then had, and which the evidence shows was not on hand at the time he died. It is not necessary to discuss what cows he intended to dispose of in usufruct, since the executor has proposed to turn over the horned cattle left at the death of the testator. The evidence shows that at that time there were no longer, any oxen, also that the mare ‘ Dollar ’ had died,
The judgment of the court as to Frank Reese conformed to the views expressed by the judge in his opinion. The conclusions reached by the District Oourt were correct, except that relative to the disposition made by the testator of the land mentioned in the will and described under No. 1 of the inventory. We are of the opinion that the testamentary disposition made of that land in the will was of the usufruct thereof during lifetime, and not of the full ownership of the property. Counsel of the executor in their brief say: “The articles intended to be bequeathed are enumerated by this illiterate man in his own inartistic and clumsy manner, but in such a way that his meaning is obvious. No period can be supplied, without doing violence to the sense, after the words ‘the boy what I rase,’
Holding, as we do, that Frank Reese was a special legatee of particular objects, the opposition filed by him wherein he seeks to-charge the executor with an increase in the credit items of the account require no attention at our hands and this is conceded by his counsel.
In deciding that only the usufruct of the land mentioned in the will was conveyed by the will, we throw the constructive possession at least, and the responsibility for that property for the time being) upon the executor, whose duty it will be to see that proper security be given by the usufructuary in the premises. Being thus responsible for it, he is entitled to have the same included in the property upon which his commission is based. With the exceptions mentioned, we think the judgment appealed from is correct.
For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be amended in so far as it adjudged and decreed and recognized Frank Reese to be the owner in full ownership of the real estate bequeathed to him by Jumonville Morvant and described under No. 1 of the inventory in his succession, and that he be ordered to be placed in possession thereof by the executor, Sylvere Morvant, and it is now ordered, adjudged and • decreed that Frank Reese be and he is hereby recognized as usufructuary during his life under the will of Jumonville Morvant of the real estate mentioned in said will and described under No. 1 of the inventory of his succession, and that he be placed in possession thereof by the executor on his giving security according to law.
And it is further ordered, adjudged and decreed that the judgment appealed from be amended in so far as it rejects the claim of the executor to be paid a commission of two and. a half per cent, on seven hundred dollars, the inventoried and appraised value of the real estate recognized m the judgment to be the property of Frank Reese,,