Successions of Edwards

32 La. Ann. 457 | La. | 1880

The opinion of the court was delivered by

White, J.

The testamentary executor of Mrs. Lavinia Edwards and ■•administrator of W. E. Edwards presented his final account. Sundry oppositions were filed, which were in part sustained, and in part rejected. Two of the opponents, A. Talbot and H. L. Edwards, appeal. The ■amendment of the judgment not having been prayed by any of the ap-pellees, nothing is before us but the matters presented by the oppositions of the appellants.

1. State and parish taxes for the years 1873, 1874, 1875, and 1876 were placed on the account as privileged; they are opposed as not privi-leged for the want of proper assessment and registry of delinquent rolls, and because the privilege for the years 1873 and 1874 is pre■scribed.

The tax-roll for each of the years assessed the property as belonging to estate of Edwards, W. E., Widow ; “ it was described as eighty-acres 'tract of land, right bank of Mississippi river, bounded above by estate B. Rills, below by Azema Broussard the only difference in the various ■ assessments being that in 1873 and 1875 A. Broussard stands in stead of .Azema, and in 1876 the property is stated as bounded below by lands of J. T. Lefeaux. The testimony is, that up to 1868 the upper line was in part bounded by lands of B. Rills, and the lower in part by lands of Mrs. Broussard. That about 1868 the land on the upper line was transferred to Gay, and that Lefeaux became the owner of the lower Broussard tract at a date not mentioned. We consider the description as sufficiently accurate. One of the boundaries was certainly correctly given. The delinquent rolls we understand from the testimony to have been recorded; this being so, the failure to make the affidavit while it might have justified a refusal to register, does not vitiate the registry •when made, nor do wo consider the limitation in the act of 1877 to be ■retroactive.

2. Mrs. Edwards, at the date of her death, left a daughter, then a ¡minor, in necessitous circumstances. She was placed on the account for 'One thousand dollars, under the act of 1852. Talbot opposed, on the ¿ground that the minor was entitled to the one thousand dollars from ■the succession of the deceased father, and not from that of the mother, ■•and because, since the death of the mother, the daughter lias married, ■•and is not now in necessitous circumstances. The first objection was held to be not well taken in Succession of Mary Coleman, 27 A. 289. We are asked to reconsider the question and overrule the conclusion of ■our predecessors, on the ground that it is in direct violation of the ■terms of the act of 1852. We do not consider the reconsideration proper or necessary to be had. As said in City vs. Hermann, “ the construction of a statute is always a matter of delicacy, and when once made, should not be lightly abandoned and we are not disposed to do ¿so, “ unless compelled by a conviction that a previous conclusion has been reached without consideration, or is so manifestly wrong as to •leave no room for doubt.” While if the question were new, we'might hesitate to adopt the view taken in the Coleman case, it is far from certain •that the terms of the statute do not justify that view. The words whenever the widow or minor child of a deceased person ” are certainly broad enough to authorize the minor to claim from the estate of either the father or mother. True, the subsequent words “from the .succession of their deceased father or husband” would seem to limit the word “ person,” but the effect of this seeming restriction is doubtful in view of the terms of C. C. 3556. Be this, however, as it may, the construction given by our predecessors involved necessarily an interpretation of the statute consequent on the ambiguity of its terms, and we will not overrule it.. That the condition at the time of death is the •criterion, has been determined. 29 A. 702.

3. The deceased received as tutrix the amount of a legacy which belonged to two of her children. It was put on the account as secured ‘by the tutorship mortgage. It is contended that the general mortgage -of the minors can only be enforced after rendition of account. We have so held. 29 A. 256. In fact, non constat, that any thing be due •the minors until the account has been rendered. It is said this amount is liquidated, and hence removed from the operation of the rule. We do not so think; nor do we think the cases cited sustain the position. We will, however, reserve the rights of the parties.

It is therefore ordered, that in so far as it recognizes Ida P. and H. L. Edwards as mortgage creditors, the judgment below be reversed, reserving the rights of said parties to claim against the fund herein to 'be distributed, or any other such sum as may be found due on final settlement of the tutorship account. That in all other respects said .judgment be affirmed, costs of both courts to be borne by the succession.