61 So. 852 | La. | 1913
This suit was instituted by five of the children of David F. Williams 'against David F., Jr., and John D. Williams, also children of David F. Williams.
The purpose is to set aside and have declared null the last will of David F. Williams.
In his will, made in the nuncupative form by public act, he bequeathed to his wife, Briget Farley, all his property. After bequeathing all his property as above stated, he bequeathed to her the usufruct of the property, with the exception of his farm and a few head of cattle on the farm in Livingston Parish, which he bequeathed to his sons John D. Williams and David F. Williams, the defendants.
We insert for reference an excerpt from the will:
“I leave and bequeath to my wife, Briget Farley, all I may be possessed of at the time of my death, she to have the usufruct during her life time provided she does not get married again and behaves herself, with the- exception of my farm in the parish of Livingston, which I will with all the stock to my sons, John D. Williams and David F. Williams. After the death of my wife, it is my wish that my property shall be equally divided among my^ children, Mary Ann, Margaret, Mathilde, Alice, Elizabeth, John D. Williams and David F. Williams.
“Furthermore, it is my wish that my children keep the property together as long as they can after the death of my wife and pay the taxes and insurance.”
David F. Williams, Sr., died in the year 18S7. The same year, on the'.petition of David F. Williams, Jr., and John D. Williams, the will of their father, Williams, Sr., was probated in proceedings to which it does not appear that plaintiffs were parties. These heirs were recognized and the decree placed them in possession in December, 1907.
The will is dated October 25, 1887.
The grounds for annulling the will are, in the first place, that it is vague and contradictory and not reconcilable; that, the will being null, each heir is entitled to a fractional interest corresponding with the number of children, to wit, one-seventh, subject to the mother’s usufruct; that no extra portion was bequeathed to the two sons David F. Williams, Jr., and John D. Williams. These plaintiffs claimed the benefit of the laws relating to the légitime or forced heirship. They allege that at most the legatees, Williams, Jr., and John D. Williams, were not entitled to anything in excess of the usufruct; that, none the less, they went into possession of property and claim as owners, under the will attacked, lands in area over 500 acres, although under the terms of the will they at most have only the usufruct of the farm, measuring about 50 acres, and of the stock on the place.
It appears of record that John D. Williams and David F. Williams, Jr., sold the woodland to the Pennawich Lumber Company for $8,000, and that the vendee was removing the timber from the land at the time that this suit was instituted.
Article 3542 fixes the prescription of an action of reduction of excessive donation, or to rescind a testament, at five years. The issues here fall'within the terms of the article of the Civil Code in regard to prescription. The construction placed upon these articles by the decisions sustains the view just expressed.
The contention on the part of the defendant is that the decision in the Succession of Ball, 43 La. Ann. 344, 9 South. 45, sustains his ground of defense based up'on prescription. In that case plaintiff sued for the reduction of a legacy to the disposable quantity. There are expressions in the decision which seem to confine the issues to a legacy as due. The statement of the facts of the case
We have carefully read this opinion and have not found that it affords the least comfort to defendant, as it does not hold that prescription runs from the death of the testator.
In the Moore Succession, 42 La. Ann. 336, 7 South. 561, there is an unconnected expression regarding the date from which prescription begins to run. There was no necessity to express that view in order to arrive at a conclusion. It follows that the decision is barren of importance and not pertinent. These are the decisions' confidently cited by the defendant.
On the other hand, there is reliable authority for holding that prescription begins to run from the date of probation of the testament. We do not think it is difficult to arrive at that conclusion, for it certainly appears reasonable that a judgment forms a sufficient basis for an action of nullity, and hence that prescription runs from its date. That was substantially the view expressed in Calais v. Semere, 10 La. Ann. 684.
[2]The judgment annulling the will and placing the heirs in possession is not an absolute nullity. There is no good reason for holding in regard to it as if it were entirely null and void and compute the time the prescription runs from the day of the death of decujus. Our view finds support in Succession of Justus, 45 La. Ann. 190, 12 South. 130. In another case the court recognized the validity of a judgment probating a will sufficient for it to serve for the basis upon which to compute the running of prescription. The validity of the judgment was sufficient to give rise in time to a right of property. Thomas v. Blair, 111 La. 679, 35 South. 811.
The plea, therefore, is overruled.
Generally the word “farm” includes all.the land which forms part of the tract. The farm may be' made of several connected parcels under one control, and the testator who devises his farm devises not a part of the farm but the whole farm. In re Drake (D. C.) 114 Fed. 229, 231; G. W. D. Goodtitle v. Paul, 2 Burroughs, 1089-1094.
If he intended to give the usufruct to his wife (as we hold), we meet with difficulty in determining what property he intended to bequeath to his sons. As he gave the usufruct to his wife of all the property other than the farm, the usufruct of the farm should go to the sons under the expressions of the will taken as a whole. The words “with the exception of” them refer to the usufruct and not to the ownership of the property. That is, he gave the usufruct of the farm to his sons; and the usufruct of the other property to his wife. This inference is sustained by the fact that in following provisions of the will he gave, not the residue of his property to be equally divided among his children, but his whole property. It includes the farm as well as the other property which at his death was his property unless his intention was to bequeath the farm to his sons. That we do not find clearly expressed. The last written clause to which we gave effect carries with it the least quantity.
In Obscuris Quod Minimum Est Sequimur, the text reads:
“When a person has ordered two things which are contradictory, that which is last written is presumed to be the will of the testator, in which he has persevered and a derogation to what has before been written to the contrary.” Oivil Code, 1723.
Very few words well written would have sufficed to bequeath the interest of the decujus in the farm. Succession of Bobb, 41 La. Ann. 247, 5 South. 757.
The sons have the right to the usufruct to half of the farm. Miller v. Hirsch, 110 La. 264, 34 South. 435.
It will have to be collated, and the amount, if any was given in excess of the légitime, reduced. Civil Code, 1227, 1228 et al.
The contention of plaintiff is that it should be calculated at the time of the inventory as decided by the district court.
We cannot agree with that view. We are of the opinion that the value is .properly determined at the opening of the succession. Oivil Code, 1270.
It is ordered, adjudged, and decreed that the judgment be amended by substituting the 'word “usufruct” as the portion of John D.
The judgment, as amended, is affirmed; costs of appeal to be paid by John D. and David F. Williams, Jr.