Merrick, C. J.
We think the judgment of the the lower court ought to be affirmed. It is the duty of the courts of each State in this Union to give effect to all acts, deeds, "wills and obligations, lawfully executed in every other State, when brought in contestation, as far as can be done without the manifest infringment of the settled policy of the State where the contestation arises. [121]*121It is not pretended that the will of BenjaminJBlalce was not legal by the laws of Virginia, where it was executed and the'testator had his domicil, and that it did not operate upon his bank-stock and real and personal effects, which were sold in order to make a distribution 'under his will. Neither can it be denied that the obligation (the bond), which Susan E. Blalce executed for the return of the money at her death, was not valid by the laws of Virginia, nor will it be pretended that it would not be enforced in any other State of this Union, except the State of Louisiana.
The proposition that the courts of Louisiana cannot extend the usual comity of nations to enforce it, on account of the stringent provisions of her laws, involves a degree of singularity, that it behooves us to examine the grounds upon which it rests.
The supposed obnoxious clauses of Benjamin Blalce's will are in these words, viz:
“ I give to my daughters Susan, Catlmñne and Adeline,- thirty-five shares each of Virginia bank-stock, to be held in trust by my trustees hereinafter named, until each of my said daughters arrives at the age of twenty-one years or marries; and in the event of either of my said daughters dying without leaving chiljl or children living at the time of their death, the said bank-stock so given to them is to return back and be considered as my estate, and be divided equally among my other children.”
After the payment of certain particular legacies, the testator directs the sale of all his property, real and personal, to be divided equally among his six children, Frances, Susan, Catherine, Adeline, Benjamin and Jane Louisa Blalce, “ on the same conditions and limitations as directed and made with respect to the other devises to them in this my will.”
The will Wás written in April and admitted to probate on the 19th of September, 1831.
On the 19th of April, 1834, on the delivery of the thirty-five shares of bank-stock and five thousand dollars in cash to Susan Blalce, she, by her attorney-in-fact, under a power of attorney specially authorizing it, executed her bond, under seal, in the sum of $10,000, in favor of Austin Broalcenborough, the executor of the will and one of the trustees, to secure him against future debts of the estate and indemnify him on account of the delivery of the stock and payment of the money, in consideration of the legacies under the will. The bond recites the provisions of the will, and particularly that in case of the death of Susan Blake without issue, that the legacies should revert to the surviving children of said Blalce. The stock was transferred on the books of the bank to Susan Blalce, and sold for $3,605.
Austin Broalcenborough is a party to the suit individually and as authoriz. ing his wife, one of the children of Benjamin Blake. The defendant, Sarah Adeline Blake {Mrs. Nutt) forms against him a reconventional demand, and alleges that the whole of Susan Blake's interest in her father’s estate, has not been paid over to her and that said executor has refused to pay respondent her interest in her father’s, Benjamin Blalce, estate.
In considering the question arising under this state of facts, the point of departure is the receipt of the money and bank-stock by the legatee, the conversion of the bank-stock into money, and the obligation assumed by her expressly or tacitly on those occasions. The will being legal, where made with all its [122]*122dispositions, is withdrawn from our consideration, except so far as to ascertain how much of it the legatee has failed to execute under her contract.
Eor there can be no doubt that the exceptance of a legacy burdened with a modus, or lawful charges under a will, is itself a contract on the part of the person accepting, obliging him, impliedly at least, to comply with the conditions imposed by the will and to acquit the charges upon the legacy which he receives. C. C. 1602, 1606, 1751 No. 4, 1752, 1626, 1696; 3 Sav., sec. 129, p. 233. Then, under the Constitution of the United States, neither the State where this obligation is contracted, nor any other State can, by subsequent legislation, absolve the obligor from such obligation.
That the legacy in this case was accepted with all its burdens is shown by the power of attorney, authorizing the execution of bonds to refund and indemnify, the bond itself, the receipts and the acceptance of the residuary legacy under the will.
Is there anything in this obligation, (by which Susan Blaise assumed to retivrn these moneys at her death to the succession of her father,) which our courts ought to refuse to enforce? Ve think not.
If Susan Blaise had contracted upon any other valid consideration to pay the children of Benjamin Blaise or Austen Broelsenborough, executor, a sum of money, at her decease, in the event she died without issue, it would have been obligatory upon her estate, and would no doubt have been enforced by our courts.
Is it less obligatory because the consideration was a legacy under a valid will of a sister State, although the will might have been considered informal or illegal, if it had been made under our laws ? The rule is, the validity of the contract is to be decided by the law of the place where it was made. If valid there, it is by the general law of nations, jure gentium, held valid every where, by tacit or implied consent. Story’s Conflict, sec. 242, and authorities there cited. Then Susan Blaise made a valid contract by the law of the country where made, to leave at her death, if she died without issue, the money and bank-stock of the Bank of Virginia, which she had received from her father’s estate to his representative. She sold the bank-stock, and thus, by the laws of the country, where she lived (Mississippi), and the country where, the stock was payable and transferrable, she bound herself to account for the price in same manner.
Now, it is said, that our courts cannot enforce this contract, because it is a substitution and fidei-eommissum which are reprobated by our law, and therefore cannot be enforced by our courts.
As it has often been explained by this court, the object of these provisions of the Code is to prevent titles to property from becoming complicated, tied up and encumbered, so that the property cannot at all times be disposed of by the united action of those holding interests in and rights upon the same.
Now, what property is there here which is tied up or encumbered ? The bank-stock ? The domicil of that is Virginia, and having been sold, it is represented by its price, $3,505. But it is said, at her death,. Susan Blaise bound herself to return the money to the estate of her father ? Be it so. She did not promise to preserve it; to keep each identical dollar and return that to her father’s estate. On the contrary, she was to have the use of the money as long as she lived, and she contracted
Free access — add to your briefcase to read the full text and ask questions with AI
Merrick, C. J.
We think the judgment of the the lower court ought to be affirmed. It is the duty of the courts of each State in this Union to give effect to all acts, deeds, "wills and obligations, lawfully executed in every other State, when brought in contestation, as far as can be done without the manifest infringment of the settled policy of the State where the contestation arises. [121]*121It is not pretended that the will of BenjaminJBlalce was not legal by the laws of Virginia, where it was executed and the'testator had his domicil, and that it did not operate upon his bank-stock and real and personal effects, which were sold in order to make a distribution 'under his will. Neither can it be denied that the obligation (the bond), which Susan E. Blalce executed for the return of the money at her death, was not valid by the laws of Virginia, nor will it be pretended that it would not be enforced in any other State of this Union, except the State of Louisiana.
The proposition that the courts of Louisiana cannot extend the usual comity of nations to enforce it, on account of the stringent provisions of her laws, involves a degree of singularity, that it behooves us to examine the grounds upon which it rests.
The supposed obnoxious clauses of Benjamin Blalce's will are in these words, viz:
“ I give to my daughters Susan, Catlmñne and Adeline,- thirty-five shares each of Virginia bank-stock, to be held in trust by my trustees hereinafter named, until each of my said daughters arrives at the age of twenty-one years or marries; and in the event of either of my said daughters dying without leaving chiljl or children living at the time of their death, the said bank-stock so given to them is to return back and be considered as my estate, and be divided equally among my other children.”
After the payment of certain particular legacies, the testator directs the sale of all his property, real and personal, to be divided equally among his six children, Frances, Susan, Catherine, Adeline, Benjamin and Jane Louisa Blalce, “ on the same conditions and limitations as directed and made with respect to the other devises to them in this my will.”
The will Wás written in April and admitted to probate on the 19th of September, 1831.
On the 19th of April, 1834, on the delivery of the thirty-five shares of bank-stock and five thousand dollars in cash to Susan Blalce, she, by her attorney-in-fact, under a power of attorney specially authorizing it, executed her bond, under seal, in the sum of $10,000, in favor of Austin Broalcenborough, the executor of the will and one of the trustees, to secure him against future debts of the estate and indemnify him on account of the delivery of the stock and payment of the money, in consideration of the legacies under the will. The bond recites the provisions of the will, and particularly that in case of the death of Susan Blake without issue, that the legacies should revert to the surviving children of said Blalce. The stock was transferred on the books of the bank to Susan Blalce, and sold for $3,605.
Austin Broalcenborough is a party to the suit individually and as authoriz. ing his wife, one of the children of Benjamin Blake. The defendant, Sarah Adeline Blake {Mrs. Nutt) forms against him a reconventional demand, and alleges that the whole of Susan Blake's interest in her father’s estate, has not been paid over to her and that said executor has refused to pay respondent her interest in her father’s, Benjamin Blalce, estate.
In considering the question arising under this state of facts, the point of departure is the receipt of the money and bank-stock by the legatee, the conversion of the bank-stock into money, and the obligation assumed by her expressly or tacitly on those occasions. The will being legal, where made with all its [122]*122dispositions, is withdrawn from our consideration, except so far as to ascertain how much of it the legatee has failed to execute under her contract.
Eor there can be no doubt that the exceptance of a legacy burdened with a modus, or lawful charges under a will, is itself a contract on the part of the person accepting, obliging him, impliedly at least, to comply with the conditions imposed by the will and to acquit the charges upon the legacy which he receives. C. C. 1602, 1606, 1751 No. 4, 1752, 1626, 1696; 3 Sav., sec. 129, p. 233. Then, under the Constitution of the United States, neither the State where this obligation is contracted, nor any other State can, by subsequent legislation, absolve the obligor from such obligation.
That the legacy in this case was accepted with all its burdens is shown by the power of attorney, authorizing the execution of bonds to refund and indemnify, the bond itself, the receipts and the acceptance of the residuary legacy under the will.
Is there anything in this obligation, (by which Susan Blaise assumed to retivrn these moneys at her death to the succession of her father,) which our courts ought to refuse to enforce? Ve think not.
If Susan Blaise had contracted upon any other valid consideration to pay the children of Benjamin Blaise or Austen Broelsenborough, executor, a sum of money, at her decease, in the event she died without issue, it would have been obligatory upon her estate, and would no doubt have been enforced by our courts.
Is it less obligatory because the consideration was a legacy under a valid will of a sister State, although the will might have been considered informal or illegal, if it had been made under our laws ? The rule is, the validity of the contract is to be decided by the law of the place where it was made. If valid there, it is by the general law of nations, jure gentium, held valid every where, by tacit or implied consent. Story’s Conflict, sec. 242, and authorities there cited. Then Susan Blaise made a valid contract by the law of the country where made, to leave at her death, if she died without issue, the money and bank-stock of the Bank of Virginia, which she had received from her father’s estate to his representative. She sold the bank-stock, and thus, by the laws of the country, where she lived (Mississippi), and the country where, the stock was payable and transferrable, she bound herself to account for the price in same manner.
Now, it is said, that our courts cannot enforce this contract, because it is a substitution and fidei-eommissum which are reprobated by our law, and therefore cannot be enforced by our courts.
As it has often been explained by this court, the object of these provisions of the Code is to prevent titles to property from becoming complicated, tied up and encumbered, so that the property cannot at all times be disposed of by the united action of those holding interests in and rights upon the same.
Now, what property is there here which is tied up or encumbered ? The bank-stock ? The domicil of that is Virginia, and having been sold, it is represented by its price, $3,505. But it is said, at her death,. Susan Blaise bound herself to return the money to the estate of her father ? Be it so. She did not promise to preserve it; to keep each identical dollar and return that to her father’s estate. On the contrary, she was to have the use of the money as long as she lived, and she contracted to return as much other coin only in the event she should die without issue. If that is a fidei-corrmissum [123]*123or a prohibited substitution, then the thing which the depositary receives and promises to preserve and return to the depositor, or the sum of money which my friend receives from me and promises to return in one week or ten years, are fidei-commissa and substitutions. See 5 Toul., No. 24; 3 Marcadé, 460 ; Zacharise, part 2, book 2, sec. 694.
In the matter before us, there is no property tied up, and no estate encumbered so that a good title cannot be made to any immovable, movable or slave, and no promise to preserve the thing. The only encumbrance is a debt, once conditional, now absolute, which can be discharged at any time by payment, release, or any of the modes in which debts are discharged.
But it is said, that the will of Benjamin Blalce was never recorded in Louisiana. It was not necessary. It operated upon property in Virginia and was carried into effect there. There is no more need of its being recorded in Louisiana to enable plaintiffs to recover, than there would have been if plaintiffs were suing to recover slaves given them under the will, and which some person had illegally taken from their possession and removed to Louisiana.
On this branch of the plaintiff’s demand, we see no reason to depart from the conclusions of this court in the case of Hayden v. Nutt, 4 An. 70, although we admit, as contended for by defendant’s counsel, that the judgment in that case has not the force of the thing adjudged between these parties.
On the other branch of this case, wherein the plaintiff’s claim that they are the heirs-at-law of Susan E. Blalce, and that the pretended will under which the defendant holds is a nullity, we are of the opinion that the defence must prevail.
It is objected to the will, that it was admitted to probate in the parish of Carroll, when the domicil of Susan E. Blalce was in the parish of Madison, and, therefore, the Probate Court of the parish of Carroll was without jurisdiction, and the order admitting the will to probate was a nullity. The proof makes it probable that the residence of Dr. Nutt was that oí the testatrix, at the time of her death. It further shows, that the residence of Dr. Nutt was in the parish of Carroll, up to the promulgation of the Act of the Legislature, approved March 14th, 1839, by which that portion of the parish of Carroll, which embraced Dr. Nutt's dwelling, was added to the parish of Madison.
The will was admitted to probate on the 21st day of May, 1839. It was, therefore, the duty of the plaintiff to show that the Act of 14th March, 1839, had been promulgated on the 21st day of May, 1889, in the parish of Carroll. See Acts of 1827, p. 172, and Acts of 1855, p. 341, sec. 2. In the absence of this proof, we are bound to conclude that the Probate Court of the parish of Carroll had not been divested of jurisdiction.
It is not necessary to determine the question whether, if the Act had been promulgated, it would have also been encumbent upon the plaintiff to show that the boundary line had been surveyed or was otherwise well defined and known. In this form of action, plaintiffs cannot raise the question whether the will was admitted to probate upon sufficient proof
The plaintiffs claim interest at the rate of five per cent, on the amount received by Susan E. Blalce from the succession of Benjamin Blalce, from the date of her death, on the ground that Mrs. Nutt received what was not due to her, and that there was a want of good faith on her part, and, therefore she is bound, under Articles 2279 and 2289, to restore the capital and interest from such date.
[124]*124By Susan M Blalce's will, the defendant was made her universal legatee, Mrs. Suit, therefore, cannot be charged with bad faith in taking possession of the succession of her sister. The claim of the plaintiffs was hat a debt due by the succession, which was required to he presented and liquidated like any other demand, as is evident from what we have already said. There is then no ground upon which to rest a claim for interest on account of bad faith.
The only remaining question to be considered, is the plea of prescription. At the time the action accrued, the prescription applicable to all the plaintiffs except Mrs. Orones, (they being absentees) was twenty years. By the Act of of 14th March, 1848, the prescription was reduced to ten years. This Act was promulgated on the 4th day of April, and was in force in the parish of Carroll on the fourth, or, at the farthest, on the fifth day of May of that year. Consequently, according to the rules of computation established by this court, five years, six months and seven days were needed, in 'order to accomplish the period of prescription, from the 4th of May, 1848. The suit was commenced on the 17th day of June, 1853, just five years, one month and thirteen days from the promulgation of the statute, consequently prescription had not run as to such of the defendants as were non-residents of the State of Louisiana.
As to Mrs. Orones, who resided in Louisiana, prescription did not run. She could not have been, under any circumstances, more than a few months over twenty-one years of age at the date of the institution of this suit. The ten years’ prescription did not run against her during her minority. C, C. 3487, 3508, 3506, 3507.
Judgment affirmed,