75 So. 498 | La. | 1917
Lead Opinion
The de cujus left six wills, all in nuncupative by public act form, dated, respectively, March, 1906, January, 1910, January, 1911, June, 1911, October, 1911, and December, 1915, and all, except the first two by act before John A. Woodville, who is testamentary executor, and the son of Robert Woodville, the beneficiary under the last four wills, and was the intimate friend and legal adviser of the de cujus in the last five years of his life, from January, 1911, to the time of his death, December, 1915.
The will of March, 1906, omitting mere formal parts, reads as follows:
“I declare that my name is Salvatore Pizzati. I am 66 years of age. I have been marx-ied but once, then to Francesca Yalenzano, who is now living. No childx-en have been born to our marriage, and my father and mother are both dead; hence I have no forced heirs.
“I give and bequeath to my friend Sam Henderson, Jx\, all my personal effects that I may die possessed of, whex*ever situated, such as diamonds, rings, watches, chains, cuff buttons and all my jewelry; also my large box of silver; in fact, ah of my personal effects, with the exception of my small box of silver-, which it is my desire that my wife should receive. I make this bequest to my friend Sam Henderson, Jr., as an extra donation over and above the usual commission which he will receive as executor of my estate.
“Subject to said bequest, I give and bequeath to my said wife, Francesca Pizzati, during her natural life or until she remarries, the use, usufruct and enjoyment of the balance of whatever I may die possessed of, whatever kind or whex-ever situated, and I expressly dispense her from the necessity of giving any bond or security as usufructary.
“Subject to the said usufruct, I make the following bequests:
“I give and bequeath unto the commissioners of Audubon Park and of the lower City Park of this city each the sum of five thousand dollars, to be used by them in adding to attractiveness of the park for the benefit of little children.
“To the Eye, Ear, Nose and Throat Hospital of this city, the sum of ten thousand dollars.
“To the Maison Hospitaliers, on Bax-racks street, between Bourbon and Dauphine streets, one thousand dollars.
“To the Home for Homeless Men, one thousand dollars.
“To the Home for Homeless Women, one thousand dollax-s.
“To the Newsboys’ Home, the sum of two thousand dollars.
“To the Home for Incurables, two thousand five hundred dollars.
“To St. Joseph’s Church, on Tulane avenue, one thousand dollars.
“To the Convalescent Home, the sum of one thousand dollars.
“To the Jewish Widows Home, one thousand dollars.
“To the Kingsley House, the sum of one thousand dollars.
“To the Isidore Newman Manual Training School, as a compliment to my friend, Isidore Newman, one thousand dollars.
“To the St. Yincent’s Orphan Asylum, one thoxxsand dollars.
“To the Society for Prevention of Cruelty to Children, two thousand five hundred dollars.
“To tlxe Missionary Sisters of the Sacred Heart, to be used by them for repairs to the Boys’ High School, should it require repairs, and if not, for the improvement of the buildings used by them for boys, one thousand dollars.
“I give and bequeath all the rest and residue of my estate, after payment of my debts and the foregoing legacies, to the Tulane University of Louisiana, hereby constituting said University my univex-sal legatee, upon the tx-ust that the proceeds of this bequest be devoted to the building, equipment of a gymnasium on the grounds of the Tulane University of Louisiana, in the city of New Orleans, for the pex-petual use of the students of said University, which building I desire should bear my name or some proper inscription signifying that it was given by their friend, Captain S. Pizzati.
“If at my death a gymnasium shall already have been provided for that is adequate (not referring to temporax-y or incomplete buildings designed for gymnastic pux-poses which may be demolished or removed or devoted to other purposes), then and in that event I desire and direct all of the funds derived from the estate by the said University shall be utilized in the erection, equipment and endowment of a building to be devoted to the purpose of a school of architecture, which building, it is my wish, shall bear the name or inscription that it was given by ‘Captain S. Pizzati.’ I desire that my ex-, ecutor advise with the board of administrators of the University as to the building and its constx-uction, and generally to assist the said board in every way to the accomplishment of the purpose I intend, which is that my fellow man shall be benefited.
*653 “In making the above donation, it may be pos-' sible that I have not designated correctly by name the various charitable institutions to which I have made legacies, but it is my wish that no technical construction shall be made, as it is clearly my idea that those institutions, through their proper officers, whoever they may be, shall receive the amounts I have given them.
“I name and appoint Sam Henderson, Jr., as executor of my will, with seisin, and. dispense him from giving bond.
“I desire that my executor shall, in keeping with a letter that I have written him, which contains my wishes, spare no expense in connection with my burial.
“I hereby revoke and annul all last wills and testaments heretofore made by me, declaring this to be my last will and testament.”
The will of January, 1911, reads as follows:
“My name is Salvatore Pizzati. I have been married but once, and then to Francesco Yalenzano, who is now living with me. To my good friend Sam Henderson I will and bequeath the sum of five thousand dollars, and to the Eye, Ear, Nose and Throat Hospital the sum of ten thousand dollars, the balance of my estate I will and bequeath to my wife. I appoint and constitute as my executor with seisin and without bond my good friend, Sam Henderson.”
The will of June, 1911, reads as follows:
“My name is Salvatore Pizzati. I have been married but once, and then to Francesca Yalenzano, who is not living with me. To my good friend Sam Henderson I will and bequeath the sum of five thousand dollars, and to the Eye, Ear, Nose and Throat Hospital the sum of ten thousand dollars, the balance of my estate I will and bequeath to my wife and son, Marco Antonio Pizzati, share and share alike. I appoint and constitute as my executor with seisin and without bond my good friend J. A. Woodville.”
The will of October, 1911, reads as follows:
“My name is Salvatore Pizzati. I have been married but once, and then to Francesca Yalenzano. All of the disposable portion of-my estate, real, personal and mixed, I will and bequeath to my good friend Robert Woodville, of Utilla, Spanish Honduras, whom I have known for over forty years. Should I survive him then I will and bequeath all my estate to his eldest grandchild living at my death. I appoint as my executor with seisin and without bond my friend J. A. Woodville.”
The will of December, 1915, reads as follows: •
“My name is Salvatore Pizzati. I have been married but once, and then to Francesca Valenzano, who is still living. I desire my adopted son, M. A. Pizzati, to collate twenty thousand dollars ($20,000.00), which I have given him in cash. I,will and bequeath to my good friend Robt. Woodville, of Utilla, S. H., whom I have known for over forty years, the disposable portion of my estate. Should he die before me I will and bequeath to his grandchild; Dorothy Helen Woodville, the disposable portion of my estate. I appoint as my executor with seisin and without bond my good friend John Alonzo Woodville and I desire that all of the transactions I have had with him and which are in writing and signed by me be carried out as agreed upon in his behalf.”
It will be noted that none of these wills contains a revoking clause except the first. Hence one of the questions in the case is as to whether the money donations of the several prior wills are revoked by the posterior wills.
The case comes up on oppositions to the final account of the testamentary executor. After payment of the debts, he, in this account, gives to the surviving wife one half of the estate, and to Robert Woodville, beneficiary under the will last in date, the other half; this on the theory that the money legacies in the prior wills were revoked by the posterior wills, and on the further theory that the adoption of the son was a nullity, and that a certain agreement, to be hereinafter considered, which was entered into by the widow and Robert Woodville, the beneficiary under the will last in date with this adopted son, was also a nullity.
The account shows $90,685.15 of assets, as per estimation of inventory and as per cash in bank, all community property, and $19,-755.78 of debts, including all expenses of administration.
The oppositions to the account are numerous.
The particular legatees under the prior wills contend that their legacies were not revoked by the wills subsequent in date.
Article 1691, O. C.:
“The revocation of testaments by the act of the testator is express or tacit, general or particular. It is express when the testator has formally declared in writing that he revokes his testament, or that he revokes such a legacy or a particular disposition.
*655 “It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will.
“It is general when all the dispositions of a testament are revoked.
“It is particular when it falls on some of the dispositions only, without touching the rest.”
Article 1693, O. C.:
“Posterior testaments, which do not, in an express manner, revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the now ones, or contrary to them, or entirely different.”
The first case in which these articles came before this court for interpretation is Sarce v. Dunoyer’s Ex’r, 11 La. 220. In that case the testator had made particular legacies and named a universal legatee in a first will, and had in a second will again made other particular legacies, and named a universal legatee. AVhether the particular legacies in the second will were to the same persons as in the first the report of the case does not show; but a different person was named universal legatee. AVhether, as in the instant case, the testator stated in the second will that he intended it to be his last will and testament also does not appear by the report of the case. The court held that the particular legacies .of the first will had not been revoked. The court reasoned as follows:
“AVlien it is considered that the universal legatee is bound to discharge the particular legacies, and ,is in fact entitled only to the residuum after the payment of legacies and debts, the apparent inconsistency vanishes. The opinion of Duranton is the other way, but the reasoning of that learned professor is not satisfactory to our minds. His argument seems to lose sight of the essential quality of a universal legacy, to wit, the obligation on the part of the legatee to comply with the wishes of the testator as it relates to particular legacies; and we do not see how, according to his argument, the particular legacies contained in the same testament would be compatible with the institution of a universal legatee; for he who gives all to one has nothing left to bestow on others. The mere substitution of Cazeaux in the place of the manumitted slaves of the testator as residuary legatee, and of Pifie as executor, does not in a legal sense evince a change of will, as it relates to his nephews and nieces. AVe are sensible that to the great mass of the citizens it will appear absurd that a man can leave two last wills in force. But we are 'to ascertain the probable intentions of testators, not by reference to the common received notions on these subjects, but according to the provisions of law, and must presume, however gross the fiction, that the testator knew the law, and even its subtleties, as well as, if not better than, a professor of the faculty of Paris.
“Our view of the question is fortified by repeated decisions in Prance, under a similar provision in the Code Napoldon. Several of the royal courts concur in causes identically the same with this, in adopting the principles which we assume as the basis of our judgment. These are the highest courts which, according to the peculiar judicial organization in that country, could take cognizance of such a question, inasmuch as the Court of Cassation never receives the judgments of the inferior tribunals upon the merits of the controversy, as between the parties, any further than the judgment complained of violates any textual provision of the Codes. Merlin, verbo Cassation, § 2; 9 Sirey, 2 partie, 255; 28 Sirey, 2 partie, 188; 31 Sirey, 2 partie, 306.”
This reasoning is not satisfactory.
Some of the French courts and some of the commentators on the Code Napoléon have refused to recognize this inconsistency. One reason given by them for this conclusion in the matter is stated as follows:
“It is to be supposed that the testator has made this subsequent universal legacy not with any intention of revoking the legacies contained in the prior will, but in order to secure to this universal legatee the benefit of any eventual rights of accretion that would result from the lapsing of any of these prior legacies.” Aubry and Kau, vol. 7, p. 578, note 24, par. 725, Des Succession Testamentaires.
Laurent, vol. 14, Donations and Testaments, p. 235, No. 212, answers:
“If we could put to the testator this question: Was it in order to assure to your universal legatee the right of accretion that you instituted him your universal legatee V What would he answer? He would say: I do not understand what you mean by the right of accretion. My intention was to give all my property to my universal legatee; that is why I named him my universal legatee. What do you mean by preceding legacies that may lapse? These preceding legacies no longer exist, since I have disposed*659 of all my property by a testament which is the expression of my last will. All I know is that I had the right to change my mind in regard to what disposition I should choose to make of my property by will, and that I did so by this last will of mine.”
Another reason given, see Aubry and Rau, loe. cit., is as follows:
“The universal legacy has for its object, not the property of the testator considered in itself, but his patrimony ; that is to say, a universality of property distinct from the particular things composing it.”
Laurent, loe. cit., says:
“This argumentation is excellent, but in order that it should have any meaning, it must be placed in the mouth of a jurisconsult. Gan you imagine a woman knowing the difference between her property and her patrimony? When she leaves all her property, she intends that the legatee take all the property she leaves at her death. To interpret wills as if they were written by Lumoulin or Pothier is to lead to consequences which common sense cannot accept. And the law would do well not to clash too much with common sense.”
The matter being one purely of fact and common sense, Laurent and those who side with him would appear to have decidedly the best of the argument. However, the majority of the courts of appeal of France (not the Court of Cassation, however, since that court has no jurisdiction in the premises, the question being one of fact) have pronounced the other way; and so has this court in this Sarce-Dunoyer Case and in the cases of Lyom v. Fisk, 1 La. Ann. 456, City v. Fisk, 2 La. Ann. 78, and Tournoir v. Tournoir, 12 La. 19.
In this Tournoir Case the court gave no reasons, but simply held that the special legacies of a first will were not revoked by the naming of a universal legatee in a second will.
The two Fisk Oases involved the same will. They are of no weight in the present discussion, for the reason that they are founded in part on the fact that the testator had orally directed both wills to be carried out, and in part upon a provision of the Spanish law to the effect that “where two wills have been made the legacies contained in both shall remain valid,” and for the further reason that the court expressly stated that by reason of this provision of the Spanish law (held to be still in force) “the ascertainment of the intention of the testator is not necessary to the decision of this case”; whereas in the case now at bar the ascertainment of the intention of the testator is admittedly the whole case.
In Succession of Mercer, 28 La. Ann. 564, a second will not containing a revocatory clause gave a sum of money to a legatee to whom a like sum had been given in a first will, and gave to another legatee a sum less than had been given him in the first will. The court held that the legacies of the second will were not to be added to those of the first will, but to supplant them.
In Succession of Bobb, 42 La. Ann. 40, 7 South. 60, a subsequent will which had not disposed of the entire estate and which contained no revoking clause was held to have revoked a former will in which a universal legatee had been named. The reason given was that from the second will’s “tenor as compared with the previous wills it appeared clearly to have been intended by the testatrix-to have been made in lieu” of the prior wills.
Here from the reading of the second will the court deduced an intention to revoke the first; this on the principle that the whole question is simply one of intention; and we dare say it will seldom happen that the testament itself will not furnish some indication of what was the testator’s intention, either by some expression to be found in it, or by what would be the result if both wills were given effect.
“I give the disposable portion of my estate.”
And in the will of October, 1911, later in date than the will containing the special legacies, he had said:
“I give all the disposable portion of my estate, real, personal and mixed.”
If instead of resorting to legal refinements, out of place in such a case, for ascertaining what was the intention of the testator, we accept that intention as here plainly expressed, we avoid all difficulty. Where a testator merely says, “I constitute such a one my universal legatee,” there may be room for contending that he intended the person there named to take only after the discharge of all the legacies, for that is how a universal legatee takes; but where he says, “I give all the property I may die possessed of to such a one,” we do not see how there can be room for contending that he did not mean what he so plainly expressed. And we hold that in the present case he so intended.
And that conclusion is fortified by the circumstances of the case.
In the first place, each of the wills carries a complete disposition of the entire estate, and contains recitals which would have been entirely superfluous in a will intended to be merely additional, supplementary to, or designed to be read in connection with, another, and not to stand independently by itself as the sole and only will. We refer to the clause wherein the testator gives information about himself.
In the second place, all the special legacies stand upon precisely the same footing, when we come to consider whether they have been revoked or not; all have been revoked, or else none; and, if none, then they more than absorb the entire estate, and the will last in date is nullified; the wills of earlier date have precedence over it. What greater inconsistency, or contrariety, or difference than this there can be between two wills, outside of an express revocation, it would be hard to imagine. The conclusion that a universal legacy does not revoke special legacies in a prior will is qualified even by Aubry and Rau, ubi cit., by the addition “unless, indeed, these previous special legacies would absorb the entire succession.”
The learned counsel for the special legatees call attention to the express revocation contained in the first will as showing that the testator was aware of the necessity of revoking prior wills if he desired to nullify them, and as giving rise, therefore, to an inference that his not inserting this clause in the subsequent wills was because of his having intended that they should stand.
No doubt, a good deal of significance must be attached to this circumstance; but whatever force it may have is manifestly overcome by the other circumstances of the case.
The adopted son, Marco Antonio Pizzati, filed an opposition claiming to be entitled to one-half of one-half of the estate by virtue of his adoption, confirmed by an agreement entered into by him and the surviving widow and the universal legatee, Robert Woodville, as follows:
“It is mutually agreed by and between (1) Mrs. Frances Valenzano Pizzati, (2) Marco Pizzati, (3) Robert Woodville, of Utilla, S. Honduras, herein represented by his agent and attorney in fact, J. L. Warren Woodville, that the last will and testament of the late Salvatore Pizzati, executed on December 7, 1915, will be registered, probated, and executed in accordance with the terms, except that Marco Antonio Pizzati will not be called upon to collate the twenty thousand dollars ($20,000.00) as detailed in said will, it being understood and agreed among all parties as though that clause of the will was not written, considering there was a consideration for said twenty thousand dollars ($20,000.00)*663 which absolves the said Marco Antonio Pizzati from collating same.
“That the universal legatee, Robert Woodville, will receive one-quarter of the not value of the estate, one-fourth of the net value of the estate to Marco xlntonio Pizzati, and the widow, Mrs. Prances Valenzano Pizzati, will receive the one-half of the net value of the estate ; it being understood that the one-half received by Mrs. Prances Valenzano Pizzati is her community interest in the estate, which is entirely community. In all other respects the said will is to be carried out as written.”
The adopted son contends that the executor, in filing his account, had no right to ignore the adoption and the said agreement; that his legal duty was to carry out the will which recognizes the adoption'; that, at all events, the validity of the adoption and of the agreement cannot be inquired into in this proceeding, since there are no pleadings setting up those issues; that the executor and the residuary legatee, holding under the will, are without standing for contesting the validity of the adoption; that another reason why the residuary legatee is without standing in the premises is that he is without pecuniary interest, since, not to him, but to the heir at law, would inure the share of the adopted son in the estate should the adoption be set aside; that the said agreement was a valid compromise, and a ratification of the adoption, and, even if invalid, could not be thus ignored, but had to be recognized and given effect to until set aside in a direct action; and, finally, that the executor and the widow are estopped from contesting either the adoption or the said agreement, because they joined with the adopted son in the petition presented to the court for the probate of the will, and there recognized and affirmed the adoption.
We think the course followed by the executor in ignoring the adoption and the agreement in his account was proper.
He was no party to the agreement, and therefore not bound by it. If its validity vas being contested for reasons which appeared to be good, he was not obliged to recognize it in his account, but could ignore it, as he did, and let the parties in interest set it up in opposition to his account, as has been done, and let the question of its validity be contested in that manner.
In like manner, if he became advised that there was no adoption, and that in the absence of an adoption the one-half of the estate had to go to the residuary legatee, his duty was to frame his account accordingly. This course was followed in Succession of Dupre, 116 La. 1090, 41 South. 324, and no objection was made to it. In that case the question of the validity of the adoption came up on an opposition to the account as in the instant case.
Marco Antonio Pizzati, the adopted son, was a major at the date of the adoption, and the adoption was by notarial act, not by judicial proceedings.
Civil Code, art. 214, authorizes the adoption of majors, but makes no provision for any form of proceedings for effecting an adoption; and no provision therefor is to be found in our law, unless it be section 2328 of the Revised Statutes, or Act 64, p. 77, of 1868, from which the said section was taken by the revisers of the statutes. These require that the adoption be effected by means of judicial proceedings. Counsel for the adopted son contend that the said act of 1868 was repealed by the repealing clause of the Revised Statutes, and that the said section of the Revised Statutes has no application to the adoption of majors. On the other side the contention is that the said section of the Revised Statutes does have application to majors.
That part of the title of the Revised Statutes which pertains to this section 2328 reads, “An act relative to the adoption of minors and the form of proceedings;” and this section 2328 is found in the Revised Statutes in the- chapter headed “Minors,” and in this chapter it is found under the subhead “Adoption of Minors.” The section is taken verbatim from the said act of 1868, which had reference to the adoption of both majors and minors, and it contains the clause “.when the person whose adoption is solicited is a minor.”
It is in view of this clause that the contention is made that the section has application to majors as well as to minors. While the contention that it has application only to minors is based on the fact that the place in which it is found in the Revised Statutes, and the rubrics under which it is found, and the title under which it was adopted, all indicate that it has application only to minors.
The latter view impresses us as being correct. Not entirely because of the reasons here given, but for the paramount reason that, as applicable to majors, the section would be null because violative of the constitutional provision which requires the object of every act to be expressed in its title. Legislation on the subject of majors would not be responsive to a title relative to minors.
In the decisions under the revisory legislation of 1855, State v. Fuller, 14 La. Ann. 667, and other cases, it was held that previous statutes creating crimes were not repealed by the repealing clause of the revision repealing all laws in conflict and on the same subject-matter. Those cases were distinguished in State ex rel. Jarvo v. Judge, 37 La. Ann. 578, which involved the repealing clause of the revision of 1870, the Revised Statutes. In this Jarvo Case the court laid stress upon the fact that the titles of the acts of revision were in sweeping terms, to wit, “An act relative to crimes and offenses,” and “An act relative to criminal proceedings”; and very properly said that these acts were necessarily on the same subject-matter as prior acts relative to crimes and criminal proceedings, and laid stress also on the fact that the repealing clause of the Revised Statutes of 1870 made express exception of the act of 1805 entitled “An act for the punishment of crimes and misdemeanors,” thereby clearly indicating that all previous legislation on the subject of crimes was repealed except the act thus expressly excepted.
What was said in Succession of Dupre, 116 La. 1091, 41 South. 324, has reference evidently only to the adoption of minors. It will be noted that the act of 1872 there involved does not contain a repealing clause.
Very true in this Jarvo Case the court says that “it was the intention of the Legislature to authorize not merely a compilation or digest of the laws of the state, but to adopt a body of laws under the general head of ‘Revised Statutes” and one might infer from this that the court meant to convey the idea that all previous statutes were repealed even though not in conflict nor on the same subject-matter ; but the court meant nothing of that kind, as is evident from what follows in the opinion, and could not have meant it, as the repealing clause would have bad to be worded differently in order 'to convey that meaning. Evidently, if the Legislature bad intended to repeal by the Revised Statutes all previous legislation, whether on the same subject-matter or not, it would have been easy to say so. But it would have been most dangerous. For many a statute might then have been found to have been repealed which there bad never been any intention to repeal; and the state would soon have awakened to the fact that it was without necessary legislation upon many points.
And we think this matter of the mode of adoption of majors would have been one of them. There would have been legislation authorizing the adoption of both majors and minors, and there would have been legislation providing a mode of adoption for minors, but none for majors. Why the revisers would have thus concluded to leave the state without any provision whatever as to the mode of adopting majors it would have been bard for any one to explain. The fact is that they did not, but that the act of 1868 prescribing the mode of adoption for majors was not repealed, but continued in full force and effect.
Article 214 of the Civil Code says, “Any person may adopt another,” etc.; i. e., may adopt a major as well as a minor. But it makes no provision for the mode of proceeding for the adoption of a major, nor is such mode provided for anywhere else in our legislation, except in said act 1868 and in the acts which it amends.
In this condition of things the learned counsel for the adopted son argue that, inasmuch as the adoption of majors is authorized, and no special mode is prescribed for effect
Adoption is not a contract, and is not of natural law at all. The breath of the Legislature creates it out of nothing. It is wholly and entirely artificial; it is precisely and exactly what the Legislature makes it. The particular adoption which article 214 has reference to is declared by that article itself to have the effect of investing the adoptee with “all the rights of a legitimate child in the estate” of the adoptant, except that it “shall not interfere with the rights of forced heirs.” So that it makes an heir of a person who is not such; disturbs the order of succession except as to forced heirs. Such being the case, the parties to it are not the sole parties in interest, but all the legal heirs who are to be displaced by it have an interest; and, as the matter involves the status of heirs, society Itself has an interest. This status, once established, is entitled to recognition, or, in other words, to have full effect, in all countries where adoption is allowed. Succession of Caldwell, 114 La. 195, 38 South. 140, 108 Am. St. Rep. 341. It is not a thing of gradual growth, but springs into full, final, irrevocable existence the moment the ceremonial which is to bring it about has been gone through with, whatever that ceremonial may be.
The legal status is a result of the adoption; it is not the adoption itself, for the adoption is the act, the outward manifestation or ceremonial, by which it is brought about. A statute which authorizes the result to be brought about, but dodS not provide the means of bringing that result about, or, in other words, authorizes adoption without providing the means of effecting it, is defective, and can have no operation. Such a statute is in the same condition as those constitutional provisions which, for the same reason of not having provided the means of being carried in effect, are held not to be self-operative. For instance, article 132 of the Constitution of 1868, reading, “All lands sold in pursuance of decrees of courts shall be divided into tracts of from ten to fifty acres,” was held not to be self-operative. Bowie v. Lott, 24 La. Ann. 214; Morrison v. Flournoy, 25 La. Ann. 546; Bohn v. Bossier, 29 La. Ann. 144; Greig v. Eastin, 30 La. Ann. 1130; City of New Orleans v. Wood & Bro., 34 La. Ann. 735. And article 192 of the Constitution (1879) reading, “Parochial and tbe municipal elections in tbe cities of New'Orleans and Shreveport shall be held on tbe same day as tbe general state election, and not oftener than once in four years,” was held not to be self-operative. State ex rel. v. Patton, 32 La. Ann. 1200. We dare say provisions of this kind, not self-operative, may be found in every Constitution.
Learned counsel say that the mode by notarial act is a good mode. Doubtless it is; and so are, or were, the other various modes practiced among different peoples at different times in the history of the world. These other modes would not have been used if they had not been thought to be good; nay, if they had not been thought to be the very best. Counsel are positive that this mode by notarial act which they are holding to be good is good; but they have no better legal ground to stand on for saying so than some other party who had chosen some other mode (no matter how fantastic) would have for saying that this other mode was good. The law alone can fix this mode; the courts cannot do so, nor can the parties.
Adoption not having any existence independently of the legislative will expressed in some statute, it must necessarily be dependent upon some statute not only for the result, or effects, of it, but also for the manner of it. It is entirely, from the first to last, of artificial creation. Such being the case, the statute must needs prescribe not only the effects, or result, but also the act, or ceremonial, which will bring about the result.
Very true a notarial act shows an intention to adopt, but adoption cannot result from the mere manifestation of an intention to adopt, or from the mere combined manifestation of an intention to adopt and to be adopted. If it could, the legal situation would be that any manifestation which would be sufficient for showing such an intention would secure the purpose of effecting an adoption. An oral declaration of adoption in the presence of reliable witnesses would be as efficacious, as much entitled to recognition, as one by writing, by notarial act, or by judicial-proceeding. Neither having the sanction of positive law, but depending both of them for recognition upon their mere aptness for making proof of the manifestation of an intention to adopt and to be. adopted, neither could claim legal precedence over the other; both would stand upon precisely the same legal footing. Adoption vel non would then depend upon the mere sufficiency of evidence, and would be susceptible of proof like any other fact en pais. Circumstantial evidence would be just as good and effective as a private writing or the direct testimony of witnesses. The courts can sanction no such result as this; and yet it is the necessary and inevitable consequence of allowing adoption to be effected in any other mode than in some mode prescribed by law.
Unless we are prepared to hold that adoption may be effected in any mode which the fancy of the parties may dictate (no matter how fantastic), we have to conclude that it can be effected only in some mode expressly provided by law; and this last is our conclusion.
The adoption, not having been in the form prescribed by law, is null.
“Error as to quality or character in which the party acts, as well as a mistake as to the person himself, invalidates a contract, when such a quality or character is the principal cause of the agreement: Thus, a compromise with one, who is supposed to be the heir of a deceased! creditor of the party contracting, is void, if he be not really the heir.”
The agreement, being null, cannot serve as a basis for estoppel.
As to the petition filed jointly for the probate of the will, the residuary legatee was no party to it; and if he had been a party, and if the allegations there made had been of a nature to estop him, the same error which releases him from the said agreement would have released him from the estoppel resulting from the judicial allegations thus made; for the allegations would have been prompted by the same error.
The will does not purpose to bequeath the reserved portion of the adopted son; it merely mentions the fact of the adoption. An analogous case is that of Succession of Serres, 136 La. 531, 67 South. 356, where the recital in the will of the fact that the legatee was the legitimate child of the testator was not equivalent to, and did not have the effect of operating, a legitimation.
In that connection a notarial act executed by the decedent in January, 1911, is noteworthy. In it he declares that he “repudiates, cancels, and annuls” the adoption, and gives his reasons for so doing.
The collation of the $20,000 discussed in the briefs is not involved in this case; the matter involved being simply the approval of the account of the executor.
Opposition of Horace H. Newman.
On April 18, 1914, the decedent made a written contract with Newman by which he sold to him 120 shares of stock at $195 per share, less a deduction of $1 per share, representing .the usual commission of brokers for selling stock, which expense Pizzati was being saved by selling to Newman, who was himself a broker.
There was then due and uncollected a dividend of $1 per share. The agreement was that this dividend should go to Newman.
Pizzati, instead of delivering the stock to Newman, sold it to some one else. Newman fixes as of April 24, 1914, the date at which he became informed of the breach of the contract. At that date and thereafter the market price of the stock was $200 per share; and Newman claims as damages the difference between $193, which he would have had to pay under the contract, and $200, which a like amount of stock would have cost him on the market.
He is clearly entitled to judgment if he did not become informed of the breach of the contract before said date; but the opposite contention is that he had this information in the evening of the 18th, which was a Saturday, and that on the following Monday, the 20th, the market price of said stock had fallen to $193 bid, and none offered, and on the 21st, morning, to $192 bid and offered at $194, and that, inasmuch as he could have bought a like amount of the same stock at the same, if not a lower, price, he suffered no damage.
The evidence leaves doubtful when Newman became advised of the breach of the contract. We think it is best to leave the case open for positive and definite evidence to be produced on that point.
Opposition of Dr. T. R. Rudolph.
Opponent is not shown to be one of the au
Opposition to Olaim of Woodville & Woodville.
The law firm of Woodville & Woodville, composed of the executor, J. A. Woodville, and of the attorney of the executor, J. L. Warren Woodville, brothers, is put down in the account for $10,000, because of the following document:
“I admit owing J. A. Woodville ten thousand dollars according to my agreement with him for all the time and attention he has devoted to me. New Orleans, Sept. 24, 1915.
LSignedJ Colonel S. Pizzati.
“Witnesses:
"A. Fisher.
“J. L. Warren Woodville.”
The attack upon this document has failed completely. There can be no serious question that it was executed by the decedent while in the possession of all his faculties, and for the purpose of serving for what it purports to be, the free acknowledgment of an indebtedness in the amount specified. Valuable and long-protracted services are shown to have been rendered, in remuneration of which the document was executed. Whether they were really worth that much is a question which the decedent could and did decide for himself; and with which therefore the courts have no concern.
While the document is in favor of J. A. Woodville alone, the evidence shows that the brothers and law partners had an express understanding that whatever services were being rendered to Salvatore Pizzati were for and by the firm, inasmuch as those not of a professional character took up time that was due to the firm.
Funeral Bill, $508.75.
Fee of J. L. Warren Woodville, $4,000.
This first point may be considered to have been finally settled by the decision of this court in the case of Succession of Richards, 49 La. Ann. 1115, 22 South. 317, citing Fenner v. McCan, 49 La. Ann. 600, 21 South. 768. In Succession of Hutchinson, 112 La. 656, 36 South. 639, large fees were allowed to the attorney of the executors, who were themselves lawyers. The evidence shows that no part of this fee is to inure to the executor.
The amount of the fee is reasonable.
Robert Woodville, Reputed Interposed.
Something is said in one of the briefs about Robert Woodville, the legatee, being a
The judgment appealed from is amended by reducing to $250 the amount allowed to Dr. T. R. Rudolph, and it is set aside in so far as it recognizes Marco Antonio Pizzati as the adopted son of the decedent, and orders one-fourth of the net estate to be delivered to him, and in so far also as it rejects the claim of H. H. Newman, and it is otherwise affirmed. The case is remanded for further evidence on the opposition of H. H. Newman; the costs of the appeal to be paid jointly by the appellants Dr. Rudolph, Marco Pizzati, Audubon Park Association; Kingsley House Association, Société des Dames Hospitalieres, St. Alphonsus Convent of Mercy, Society of St. Vincent de Paul, Association Relief Jewish Widows and Orphans, New Orleans City Park Improvement Association, Eye, Ear, Nose and Throat Hospital, succession of Samuel Henderson, and the succession of Salvatore Pizzati, or each one-twelfth thereof; the costs of the trial court to be paid by the succession, except those specially incident to the several oppositions which either by the judgment appealed from or by the present judgment have been rejected, which are to be paid severally by each of the said opponents as incident to his opposition.
See concurring opinion of LAND, J., 75 South. 510.
Rehearing
On Rehearing.
A rehearing was granted in this case upon the opposition and in the terms following, to wit:
“The opposition of Mrs. Pizzati, in so far as it is based on the provisions of the wills and her rights, .if any, as heir of the deceased; the opposition of Marco Pizzati, in so far as it is based on the provisions of the wills, and the compromise agreement of the parties, filed in evidence; and also the opposition of Dr. Rudolph.”
No rehearing was granted upon the question of the validity of the alleged adoption of Marco Pizzati, and the judgment as handed down is final upon that question.
Upon a re-examination of the oppositions filed by Mrs. Pizzati and Marco Pizzati, we find that neither of them claimed anything under the provisions of the wills, those claims having been set up, for the first time, by Mrs. Pizzati in her application for rehearing, and by Marco Pizzati in the brief filed in support of his application for rehearing. But, if it were otherwise, the result would be the same. Mrs. Pizzati rests her claim upon the theory that the testator, having, by his latest will, bequeathed only the disposable portion of his estate to Woodville, died intestate as to that portion which would have constituted the légítime of Marco Pizzati if he had been legally- adopted, and that, in default of such legal adoption, it devolves upon her as the heir at law. Marco Pizzati’s contention is that the legacies in his favor (of the entire estate and one-half of the estate respectively) under the wills of January 14, 1910, and June 12, 1911, were not revoked, but were merely ) reduced, by the bequest of the disposable por
“Thus,” say the French authorities, with practical unanimity, “a legacy of ‘that of which I am permitted to dispose,’ or a legacy of ‘the disposable portion,’ constitutes a universal legacy, giving right to the whole of the property, if at the time of death there are no forced heirs, or if the forced heirs renounce or are excluded.” Fuzier-Herman, vol. 2, p. 754, No. 8; C. N. 1003 (citing many authorities); Baudry-Lacontinerie, Des 'Donations et Des Testaments, vol. 2, p. 196, No. 2296; Demolombe, Traite des Donations, vol. 4, p. 472, n. 540; Coin-Delisle, art. 1003, n. 9; Duranton, vol. 9, p. 192 (3d Ed.); C. V., B. III, tit. II, Nos. 181, 182; Laurent, vol. 13, pp. 569, 572, citing a case (page 572) in which it was held that the legacy of the disposable portion of the estate of the testator was a universal legacy, and in which reference is made to a case decided by the -Boyal Court of Colmar in 1830 and affirmed by the Court of Cassation May 25, 1831, in which it was held that, an adoption having been annulled, no cognizance could be taken of it.
In Succession of Robert, 2 Rob. 427, this court had under consideration the will of a minor who actually resided in France, where the will was made and where, under the law, she had a forced heir, but whose legal domicile was in Louisiana, where her estate, consisting exclusively of movable property, was situated, and where she had no forced heir. The disposition in controversy reads, “Je donne et légue ü M. Gustave Allier, qui je dois épouser, tout ce dont la loi me permit disposer;” and it was held that it was to be construed in accordance with the law of Louisiana, and, so construed, meant that the testatrix intended to- give all that she was capable of giving, and “that her disposition must prevail as a legacy of her entire movable estate.”
The theory that the legacies in the earlier wills in favor of Marco Pizzati were not revoked, but were merely reduced, by those in the later wills in favor of Woodville, are equally and obviously untenable, since it is-clear that, as the later legacy to Woodville, included the entire estate, there could be nothing left of the prior legacies bequeathing the entire estate or the half of it to another legatee.
“Before opening his succession and before filing the will for probate, the widow, the adopted son and the legatee of the disposable portion, entered into a written agreement in the following words.”
Then follows a copy of the agreement, the italics in the above being black-lettered in the brief.
On the day of its making, therefore, the parties to the agreement, describing themselves, respectively, as the widow, “adopted son,” and “universal legatee” of the decedent, filed their petition in the district court praying that the will of December, 1915, be registered and executed. Thereafter, upon the filing by the executor of his account, “Marco Pizzati, adopted son of the late Salvatore Pizzati,” again appeared by way of opposition thereto, setting up the agreement in question and praying, not that he be decreed owner of the entire estate according to the will of January, 1910, or of half of the estate, according to the will of June, 1911, but of one-fourth of the estate, apparently both in the capacity in which he sued and by virtue of the agreement upon which he sued. On the trial of the opposition, being called on to elect whether he claimed as an adopted son or under the agreement, his counsel (under protest) stated:
“We now declare that we stand on our rights as an adopted son, * * * and, in so far as the widow and the universal legatee are concerned, we stand upon the instrument herein declared upon in our opposition.”
Which instrument, as we have seen, had been declared upon in the capacity of adopted son.
The judgment of the district court sustained the adoption, held that the opponent was under no obligation to collate the $20,-000, and recognized him as the legally adopted child, “entitled to all the rights of a forced heir in the estate of the deceased, and entitled, under the agreement of January 3, 1916, to receive one-fourth of the net estate of the deceased.”
In this court, on the appeal, Marco Pizzati, through his learned and able counsel, asserted his right in an original brief which bears the legend, “Original Brief in Behalf of Marco Antonio Pizzati, Adopted Son, Appellant,” and which insists upon it throughout, that, for all the purposes of the case, Marco Antonio Pizzati was, and is, the adopted son of the decedent. Thus we find in support of the objection that Robert Woodville had no right to raise the questions argued at the bar, including the question of the validity of the adoption, the following passages:
“Second. The written agreement, made after the estate had vested by the death, absolutely precludes him from setting up the question he has here raised. That agreement subsists for the purposes of the case in its entirety. * * * Indeed, its validity is not disputed by his counsel, should the question of status be decided against him. This agreement was a ratification of the will and an adjustment of all differences which might be raised, or could have been raised, against the rights of either party to the same. It is more than tins; it is a recognition of the status of Marco Antonio Pizzati, and an establishment by consent of his interest in the estate, and of the interest of Robert Woodville the legatee.” (Italics by the court.)
And the following page of the brief is devoted to an argument which inferentially admits that the agreement was entered into by Pizzati in the capacity of adopted son, but
Our re-examination of the testimony offered in support of Dr. Rudolph’s opposition has satisfied us that, whilst the doctor has somewhat overestimated the number of his consultations with the decedent, we have somewhat underestimated the character of the services that he was called on to render. He testifies that there were ten office consultations between November 2d and December 8th, from which last-mentioned date he visited his patient at the latter’s temporary residence until he died, and that he paid an average of five visits a day during that period. The patient was at first suffering with dysentery, was taken with pneumonia on the 12th or 14th, and recovered on the 22d or 23d, and, after a few days, developed toxaemia, of which he died on the 30th, from which it would appear that the doctor visited him for 22 days, which, at the average of 5 visits a day, would be 110 visits. Beyond that, however, it appears that the patient was irritable and intractable, and at times violent, and that he required services from the doctor which should have been rendered by the nurses and would have been rendered by them if they had been permitted. Upon the whole we conclude that the compensation to be allowed should be increased to $1,000.
It is therefore ordered that the judgment heretofore handed down be amended by increasing the amount allowed Dr. Rudolph to $1,000, and condemning the succession to pay the costs of his appeal, and that, as thus amended, it be reinstated and made final.
Rehearing
On Applications for Rehearing.
It is hereby ordered that all the petitions for rehearing filed in this cause be refused, except the following, which are hereby granted, to the extent indicated below;
The opposition of Mrs. Pizzati, in so far as it is based on the provisions of the wills, and her rights if any, as heir of the deceased.
The opposition of Marco Pizzati, in so far as it is based on the provisions of the wills, and the compromise agreement of the parties filed in evidence, and also the opposition of Dr. Rudolph.
