Anderson v. Cox

6 La. Ann. 9

• Court: Supreme Court of Louisiana
• Decided: January 15, 1851
• Status: Published

Opinion

The judgment of the court was pronounced by

Rost, J.

This is a suit upon a lost instrument, a curator’s bond, alleged to have been signed by the father of the defendant as surety of one J. F. Gray, curator of the succession of Thomas Anderson, on the 26th September, 1811.

The defendant denied the existence of the bond, and her liability under it, if it existed. She filed also a plea of prescription, which was sustained in the court below. The plaintiffs have appealed.

On the trial of the cause, the plaintiffs offered in evidence a large transcript which is entered in the note of evidence as proceedings in the succession of Thomas Anderson, deceased. It was received without objection from the defendant. That transcript purports to contain a copy of the bond sued upon ; and the plaintiff’s counsel insists that this copy being in evidence, it was unnecessary for him to make the proof usually required in cases of lost instruments.

The plaintiff’s petition was filed on the 3d January, 1849. They state in it that the original bond was placed, when given, among the papers of the succession of Thomas Anderson, but that it has since been lost or mislaid by the officers of the court; that they have caused a diligent search to be made, but without success, and that it cannot be found.

The transcript offered in evidence is certified by the clerk to contain true copies of all the papers on file, and of all the proceedings had in the succession: it bears date the 22d day of January, 1849, nineteen days after the filing of the petition. That certificate covers nothing more than copies of original documents and judicial proceedings on file at the time of its date. By the plaintiffs’ own showing, the bond had been lost and was not on file at that date. It is, therefore, not authenticated by the certificate, and there is nothing in the record to show its genuineness, or to dispense the plaintiffs from making the proof required in cases of lost instruments, which the answer of the defendant rendered indispensable.

But if the bond itself was in evidence, it is clear that the defendant would not be liable under it. By the same disposition of his will, Mr. Cox left his property jointly and in equal shares to his wife, Ann Barnes, and to his only daughter. On the 27th May, 1837, the defendant renounced the succession of her father by a notarial act in due form. Under article 1700, C. C., her half inured to the benefit of her mother by right of accretion. After the renunciation, she was no longer liable for the debts of Mr. Cox, unless she subsequently accepted the succession, notwithstanding the renunciation. The question is, whether such an acceptance has been shown.

In 1841, a petition signed by an attorney at law was presented to the court of probates in behalf of the defendant and her mother: it alleges that they are the sole heirs of Mr. Cox; and the prayer is that.they may be recognized as sole heirs of his estate, and that the curator of his succession be ordered to account, and to pay over to Mrs. Cox the assets in his hands. At the foot of the petition these words are written, “ 1 assent, Cora A. Slocomb.”

Nothing was done on this petition until 1847, when the court rendered the following judgment: “ It is ordered that Ann Barnes Cox and Cora Ann Sloeomb be recognized as heirs of Nathaniel Cox; and considering the renunciation and petition as aforesaid, it is further ordered, that the said Ann Barnes Cox be placed in possession of all the residue of said estate, and that the same be delivered to her.”

The judge bases his decree upon the renunciation of the defendant, which appears to have been in evidence before him. The object of the defendant, then, in this proceeding, so far from being to annul that renunciation was in futher-' anee of it. Under that state of facts, it cannot be urged against her that she assumed the quality of heir, or that she was adjudged to be such. All laws must receive a reasonable intepretation. The judicial proceedings meant by article 982, C. C., are those in which the heir appears to claim as such some right in the succession. But the petition in this case contains an express disclaimer of any right. The assumption of the quality of heir by the defendant, was utterly without object, and originated in the want of legal knowledge of the counsel who drew the petition.

It is true, the judge says in his opinion, that the defendant renounced the succession in favor of her mother. But the fact is not so. Her renunciation is unconditional and absolute ; and the error of the judge on this question of fact cannot affect her rights. The decretal part of the judgment recognizes her as an heir having renounced, and is based upon that renunciation. It cannot, therefore, have the effect of setting it aside.

We have tested the rights of the parties on the hypothesis that the assumtion of the quality of heir, in a judicial proceeding, after renunciation, amounts to an acceptance, and has the effect of annulling that renunciation. ■ But we do not wish to be understood as oxpressing an opinion on this question. The renunciation can only be made by an authentic act, and it might be that the subsequent act of acceptance which annuls it ought to be clothed with the same formalities.

For the reasons assigned it is ordered, that the judgment in this case be affirmed, with costs.