Theall v. Theall's Legatees

| La. | Sep 15, 1837

Bullard, J.,

delivered the opinion of the court.

The mother and forced heir of Joseph Theall, who had received a particular legacy under his will, intervened in the case pending in the Probate Court, for a final partition and settlement of his estate, and claimed one fourth of the property of the testator as her legitime. Her right is denied by the widow who is one of the residuary legatees, but she further contends, that even if the intervenor is entitled to one fourth of the estate, she is bound to renounce her specific 7 r legacy and restore the same to the mass.

The widow is appellant from a judgment which allowed the forced heir her legitime, without any deduction from the legacy she had received.

That part of the Louisiana Code which treats of the reduction of dispositions, and the manner in which it is to be done, establishes the general principle, that “ when the dispositions mortis causü exceed either the disposable quantum, or the portion of that quantum after the deduction of the value of donations inter vivos, the deduction shall be made pro rata, without any distinction between universal dispositions and particular ones.” Louisiana Code, article 1498.

This article of the Code appears applicable to the case under consideration. A forced heir demands a reduction of donations mortis causa, in order to make up to her that port ^ ^ , tion which the testator could not validly dispose of, and tne will contains both kinds of disposition.

The article 1638 of the Louisiana Code, on which the counsel for the appellee relies, provides, it is true, that “ if the effects do not suffice to discharge the particular legacies, those of particular objects must first be taken out, and the surplus be proportionally divided among the legatees of sums of money.” But the article immediately preceding (1627) appears to recognize the same principle of reduction for the benefit of forced heirs. It declares that “ particular legacies must be discharged in preference to all others, even though they may exhaust the whole succession, or all that remains after the payment of the debts, and the contribution for the legitimate portion in case there are forced heirs.”

Where the mother received a legacy of particular objects, which belonged to the community between the testator and his wife, she will be bound to account to the widow for one half of their value.

It appears that the objects bequeathed to the forced heir belonged to the- community, and we are of opinion she is bound to account to the widow for one half of their value.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed, and it is further ordered, that the case be remanded with directions to the Probate Court to proceed to the partition and settlement of the succession, and the deductions in order to make up the legitime of the forced heir, according to the principles stated in this decree, and that the appellee pay the costs of this appeal.