23 La. Ann. 734 | La. | 1871
This controversy involves oppositions to two accounts, original and supplemental, filed by the testamentary executrix, and the rights of certain legatees under the provisions of the will of deceased.
The original account contains a statement of the real estate of the community, inventoried at $2500, and movables inventoried at $46, and of the separate property of the deceased, consisting, first, of the proceeds of property expropriated to tlie city of New Orleans amounting to $2500, from which is deducted amount of vouchers one and two ($108 00), leaving $2391 34 net, and second, proceeds of Magnolia, street property belonging to the decedent before, aud improved and sold after marriage for $4000, oue-fourtli cash, balance in three notes-of $1000 each, from which is deducted cost of improvements and expenses as per vouchers three to ten ($2547 35), leaving $1452 G5 net, making the separate assets amount to $3843 99; from this are deducted $1800, amount of two mortgage notes executed by the deceased before and paid after marriage, as per vouchers eleven and twelve, $530 funeral expenses, as per vouchers thirteen to fifteen, $439 10, judicial charges, as per vouchers sixteen to eighteen, and $100 for probable additional costs, leaving $974 89 as separate funds, hut entered or described in the account as due by the community to the succession. The executrix then credits herself with $1000, brought in marriage hy her, and $202 hills paid by her as per vouchers nineteen to twenty-three, from which she deducts the rents of community property collected by her, $273, less $90, paid for repairs, as per voucher twenty-four, leaving a balance in her favor of $1019, to the extinguishment of which she applies the above balance of $974 89, leaving a deficit of' $44 11 to be paid her out of the community before dividing it between herself and the heirs, and she claims the full ownership of the one-half of the remaining community property as surviving widow and the
The lather ami hi others of the decedent, named as legatees, oppose both accounts as incorrect in this, that to the community property should ho added $800 for a house erected thereon, and several articles specially described and valued at $283, and to the separate property a watch and chain worth $125; that the sum of $700 due by Mr. and Mrs. Bremer, and $500 due by Mr. and Mrs. Heffernan, are omitted; that nothing is due to the widow, and the sums shown by the various vouchers, except numbers one, two, sixteen, seventeen and eighteen are unfounded in law or charged to the wrong estate, and the father asks to be put in possession of one-third of the succession bequeathed to him, and tlie "brothers ask that the widow furnish bonds as usufructuary of tlie residue. The appraisers and parish recorder oppose, claiming their fees, which are admitted. The parish judge rendered judgment allowing the fees of the appraisers aud recorder out of the sum reserved for costs, increasing the amount in favor of the widow to $483 21, to he paid out of the community property, tlms’absorbing all the separate property of the husband, recognizing her as owner of one-half of the community property, and entitled to tlie usufruct of the other half thereof under tlie will, as not exceeding the disposable portion, and homologating the account as thus amended at the costs of the heirs, who have appealed.
The record contains a large mass of irregular, confused unnecessary proceedings, and irrelevant, conflicting evidence, out of which it is difficult, if not impossible, to ascertain and adjust the rights of the parties, and we have given the foregoing analysis of the accounts and judgment, which we cau neither sustain nor amend, in order that our views of the law applicable to tlie issues involved may be understood in the construction of another and more correct account.
The demand that the value of a house, erected on the community property, should be added to the account can not prevail, as the property existing in kind must be accounted for at its actual value, or wbat it may sell for, without reference to the original cost or the cost of any additions. As to the several articles, which it is alleged should be accounted for, the evidence shows that some belonged to the widow and others were disposed of by the husband prior to Ms death. The proof siiows that Dennis Heffernan owes the succession $400. not embraced in either inventory or account. His acknowledgment of this-indebtedness is conclusive against him in favor of the succession, and is one of its assets to be accounted for. The amount due by F. W. Bremer is shown to be due to the widow in her own, right. Vouchers
The will is in the following words: “ I do hereby make and constitute my beloved wife, Barbara G-rau, to be my sole executrix, giving her . hereby full seizin and-detainer of all my estate. In case my father, now in Ireland, should survive me, I will and bequeath to him the portion of my estate to which he shall be entitled by the laws.of Louisiana. I will and bequeath to my said wife surviving me, and in ■case she should not again marry, the usufruct of all the estate and property I may die possessed of, to be by her enjoyed during her natural life, and at her death or in case of her marriage again, I make and constitute my said father, James Steele, and in case of his decease anterior to hers, then to my brothers, Hugh Steele, John Steele and Harper Steele and Robert Steele, or the survivors, to be by them ■equally enjoyed and the property divided between them as my residuary legatees; hereby revoking all former wills and codicils by me heretofore made, holding these presents alone valid.”
Though somewhat obscurely drawn, we must construe the foregoing
After the payment of the debts, one-third of the succession, consisting of all the separate property of the husband and one-half of the community property, must be delivered to the father and the other two-thirds to be held in usufruct by the widow under the will. In making this partition the father must bear his'proportion of the taxes, and insurance on the property partitioned accruing since the death of the testator.
To sum up. The account should set forth the community property and funds; the separate property or estate of the deceased, less one-half of the increased value thereof caused by improvements made by the community; the community debts to be paid out of the community funds, and the charges against the succession or separate estate proper of the deceased to be paid out of said succession or estate, and the partition made as above stated, the widow to furnish security to be, fixed by the judge below; and for this purpose
It is ordered that the judgment appealed from be reversed and this-cause remanded to the lower court, and the executrix required to file an account in accordance with the foregoing views and the necessary proceedings had in accordance with law; costs ot appeal to be paid, by the widow and appellee.