Adams v. Routh

8 La. Ann. 121

• Court: Supreme Court of Louisiana
• Decided: April 15, 1853
• Status: Published

Opinion

Rost, J.

This is an appeal by John South and Samuel W. Dorsey, executors of Wm. Adams, jr., from so much of the judgment, rendered in this case, as annuls and declares void the provision in the will of Adams emancipating the slave Nancy, and bequeathing her a sum of money, the watch and furniture of the testator. John South has also appealed from a judgment rendered against him individually, but as the amount for which the judgment .was rendered, is left in blank in the record, and we have no means of supplying the defect, that portion of the' appeal must he dismissed.

The plaintiff and appellee has prayed that the judgment be amended in his favor, by setting aside two legacies of $1000 each to two bastard children of the testator, which the District Court has allowed, on the ground, that the legatees had not been legally emancipated, and if they had been, that the aeknow-' lodgment of the father in the will is insufficient to give them capacity to take the legacy.

The right of the plaintiff to oppose the emancipation of the slave Nancy is undeniable. He is the forced heir of the one undivided fourth of his son’s estate, this slave included; and may, as such, contest the validity of the testamentary disposition under which she claims her freedom.

It is proved that the testator had lived in open concubinage with this woman, and under the disposition of Article 1468, he could only give her movables equal in value to one tenth part of his estate. Admitting that the emancipating a slave by will should, in favor of liberty, be considered not as the donation of an immovable, but as a donation to the slave of his own value, yet that value must not exceed the disposable portion. Nancy is valued in the inventory at $1000, and the property which legally belonged to the testator, without including her, at $4750. The disposition is, therefore, excessive, and as it cannot be reduced, the District Judge properly set it aside.

The appellee is entitled to receive one-fourth of the entire succession of the testator, and to enforce a partition of it in kind or by licitation, as the case may he ; but as after he has received his share sufficient assets will remain in the hands of the executors to pay the legacy of $1000 to each of the children of the testator, he has no interest or standing in Court to contest the validity of those legacies; and as the residuary legatees have Hot prosecuted their appeal from the judgment, it must remain undisturbed.

It is ordered, that the appeal of John South individually be dismissed.

It is further ordered, that the judgment be otherwise affirmed, with costs.