6 La. Ann. 719 | La. | 1851
The following facts appear by the records of the late probate court of the parish of Union:
On the 22d day of July, 1844, the defendant, Thomas M. Smith, presented a petition to that court, in which he stated that George Felix Heard and Emily S. Traylor, his wife, were both dead; that they left a minor child, named Thomas Smith Heard, then in that parish ; that the property which the minor owned was principally in that parish, and consisted of about ten negroes, which he had given to the mother of said minor. He asked that Josiah C. Traylor, the uncle of the minor, might be appointed his. tutor, and himself the under-tutor. He was appointed and sworn, as the under-tutor, and, after proper proceedings, Josiah C. Traylor was appointed and qualified the tutor of the minor.
The tutor, on the 31st of July, 1844, made an inventory and appraisement of the property of the minor, which consisted of thirteen slaves, appraised at $3700. The inventory was signed by the defendant, and, at the bottom, it was stated that the property was deeded by him, Thomas M. Smith, as would more fully appear by reference to a copy of the deed hereunto annexed. This copy of the deed was then recorded in the parish of Union, and is identified by the testimony of the late probate judge of that parish. It is dated on the 10th of September, 1839, in Perry county, in the State of Alabama, and declares, substantially, that Thomas M. Smith, in consideration of the love and affection which he entertains for his adopted child and daughter, Emily S. Traylor, he gives her ten slaves, naming them, for the term of her natural life, and, at her death, he gives and confirms the negroes, with the increase of the females, to the heirs of her body, to have and to hold the slaves to them, and the heirs of their bodies, forever.
Under the inventory, accompanied by this deed, Josiah C. Traylor, the tutor of the minor, was put in possession of the slaves by the defendant, as being the property of the minor, and held it for him until his death. The documents and evidence thus referred to, leave not a doubt that the property belonged to the minor, Thomas S. Heard. The deed of gift to his mother, during life, and to him, after her death, made in Alabama, was now, at least, executed, by the delivery of the slaves to his tutor, and the registry of the deed in the parish where he resided with the property. The probate proceedings, carried on by the defendant, amount to a judicial confession on his part, that the property belonged to the minor. Code, 2264, 2266, 2270. Even if we supposed, which we do not, that he was in error of law, as to the effect of his deed of gift, he could not revoke his judicial confession, and it affords the legal presumption that the slaves belonged to the minor. Art. 2264. We have no doubt the minor could have recovered the slaves from his tutor, had he arrived at the age of majority, notwithstanding any intervention or claim of the defendant, Smith.
But the minor died on the 7th of July, 1845, when the defendant applied for the curatorship of his vacant estate, alleging that he left a considerable estate of property, real and personal, situated in the parish of Union. He was appointed. Twelve slaves were inventoried, and appraised at the sum of $3675, but the curator made anote at the bottom of the inventory, that he claimed them by virtue of a deed of gift, of which a copy was filed in the probate judge’s office, on the 31st July, 1844. It is the same deed of gift, by which, as we have seen, he acknowledged that he' divested himself of the slaves in favor of the deceased, whose estate he was administering, and his mother. The pretence, therefore, that he applied for the curatorship of the succession, merely to get his own pro
The question then arises, has the plaintiff established that he is the true and only heir of the deceased minor, Thomas S. HeardThe probate proceedings show that Emily S. Traylor, the mother of the minor, and wife of its father, George F. Heard, died without any other issue. It is alleged that George F. Heard, the surviving father, went to Texas, married Mary Ann Wehster in November, 1842; that George Franklin Heard, born in 1843, was the only issue of this marriage; that the lather died/in 1844, and that the plaintiff is the guardian of the minor child, who is the legal heir of his half-brother, who died in Union parish on the 7th of July, 1845.'
That Mary Ann Wehster gave birth to the child, in 1843, while living with George F. Heard, as man and wife, and that lie died in 1844, is fully established by evidence. The only fact seriously contested, is their marriage, in 1842. A minister of the gospel swears, that he married them, in the Republic of Texas, in the fall of 1842, according to the laws and usages of the Republic, as far as he knows them, and that they lived together afterwards as man and wife, until the husband’s death, leaving one child, issue of the marriage. The marriage took place to the personal knowledge of Mary A. Saunders, and other witnesses corroborate the fact. A duly authenticated copy, of the marriage license, and return of its execution by the minister, is produced. It was issued by the deputy clerk of Harrison county; but then it is authenticated by the clerk and chief justice of the county court, as a record of the court; and the whole recognized by the Secretary of State of the State of Texas; and this record, in connection with the testimony of the minister, who must have had some knowledge of the laws and usages of Texas, as to the celebration of marriages, affords prima facie evidence that the marriage was legal, and that the parties were legally, as well as in good faith, man and wife. Their married state has never been impeached. The plaintiff shows, by a duly authenticated record, that he has been appointed guardian of the minor, in the Stale of Texas, and has given security in the sum of six thousand dollars, for his faithful administration. He is entitled, on complying with the requisitions of the act approved the 1st of April, 1843, to remove his ward’s property out of the State, and to the place of their residence. , "
We nre of opinion, therefore, that the minor, George Franklin Heard, should be recognized as the only heir of his decease_d half-brother, Thomas Smith Heard, and that the defendant, as curator of the vacant succession of the latter, is bound to render to the plaintiff his account, as curator, and deliver over to him the property of the succession, after paying the debts.
The judgment of the district court is reversed ; the minor, George Franklin Heard, is recognized as the legal heir of Thomas Smith Heard; and it is decreed, that the plaintiff, as his guardian, shall recover the estate of the deceased. The case is remanded for further proceedings according to law, and the defendant condemned to pay the costs of the appeal.