KENNON, Justice.
The judgment appealed from rests on an interpretation of Article 1022 of the Revised Civil Code.
Joseph Paline died intestate, leaving his widow and their two sons, Paul and Emile, and certain community property, title to part of which is at issue in the present suit. By authentic act, both sons renounced the succession and their mother was placed in possession of the entire estate — one half in her own right and one half by virtue of the childrens’ renunciation. Upon the widow’s death, she bequeathed to her two children (the ones who had renounced in her favor) the real property owned by the community. Emile Paline, plaintiff in this suit, through a partition with his brother, Paul Paline, acquired title to a 2.83 acre tract out of this property and on December 5, 1945, he entered into an agreement with Fred I. Heroman, Jr., the defendant to sell him this tract of land. This suit was filed for specific performance when Hero-man refused to accept plaintiff’s title to the property as merchantable. Mrs. Virginia Paline Sherrill, one of the five children of the plaintiff’s brother, Paul Paline, intervened in the suit, claiming as heir of Joseph Paline, her grandfather, an undivided one tenth interest in the property. The lower court rendered judgment in favor of defendant, Heroman, rejecting plaintiff’s demand for specific performance and recognizing intervener, Mrs.. Virginia Pa-
line Sherrill, as owner of an undivided one tenth interest in the property. Emile Paline appealed.
The question presented is whether the husband’s portion of the community property, after the renunciation of his children, passed to the surviving spouse in community or to the five children of the renouncing heir, Paul Paline, (Mrs. Sherrill, intervener, is one of these children.)
Plaintiff argues that when the two heirs of Joseph Paline renounced his succession, which consisted entirely of community property, title to his undivided one half interest in the property vested in his surviving widow in community under
the
provisions of Articles 915 and 1022 of the Revised Civil Code. Article 915 provides: “When either husband or wife shall die, leaving neither a father nor mother nor descendants, and without having disposed by last will and testament of his or her share of the community property, such undisposed of share shall be inherited by the surviving spouse in full ownership; In the event the deceased leaves descendants, his or her share in the community estate shall be inherited by such descendants in the manner provided by law. Should the deceased leave no descendants, but a father and mother, or either, then the share of the deceased in the community estate shall be divided in two equal portions, one of which shall go to the father and mother or the survivor of them, and the other portion shall go to the surviving spouse, who, together with father or mother inheriting in the absence of descendants, as provided above, shall inherit as a legal heir by operation of law, and without the necessity of compliance with the forms of law provided in this chapter for the placing of the regular heirs in possession of the succession to which they are called.”
Under Article 915 quoted above, the sons inherited (subject to their acceptance) all of their father’s portion of the community.
Section 2 of Chapter 6 of the Revised Civil Code deals with the manner in which successions are accepted, and renounced. The articles of this chapter dealing with the rights of creditors and heirs who benefit by the renunciation are numbers 1021, to 1928, inclusive. Article 1Q22 reads:
“The portion of the heir renouncing the succession, goes to his coheirs of the same degree; if he has no coheirs of the same degree, it goes to those in the next degree.
“This right of accretion only takes place in legal or intestate successions. In testamentary successions, it is only exercised in relation to legacies, and in certain cases.” '
Mrs. Sherrill, the intervener, contends that since Paul Paline and Emile Paline, who were all the coheirs of the same degree, renounced, the succession under the above-quoted article “goes to those in the next degree” and, therefore, she and her sisters and brothers, five in all, being all the grandchildren of the deceased, are
“those in the next degree” and inherit in their own right. The contention is based upon the theory that the phrase in Article 1022, R.C.C., “next degree” refers to persons who are related by blood in the next degree
to the renouncing heir.
At the time the Civil Code was adopted, only those who were kinsmen of the deceased were called to his succession and, hence, the word “degree” was generally conceded to be limited to people having blood relationship to the decedent. Article 915 was later amended to include the wife and as amended again in 1938 it provided that she “* * * shall inherit as a legal heir by operation of law, and
without the necessity of compliance with the forms of law provided in this chapter for the placing of irregular heirs in possession of the successions to which they are called.”
Thus, a study of Article 915 (as amended), the other articles in the chapter relating to renunciation of successions, and a careful analysis of Article 1022 leads to the conclusion that the expression in Article 1022 “those (coheirs) in the next degree” refers to the heirs of the de cujus who are next in rank or right to inherit in the succession which the heir has renounced, By this amendment, the wife was virtually- — -for succession purposes as set forth in Article 888 — placed in the same category as a blood relation to the deceased.
To hold that the effect of the 1938 amendment is to include the wife in the definition of “those in the next degree” in Article 1022, is not inconsistent with the dictionary given meaning of the word “degree”.
The first and second definitions of the word “degree” in Webster’s New International Dictionary, 2d Ed., are: ,
“1. a step, stair, or rung; now a step-like member of a series; a tier, bank, rank or the like.
“2. A step or station in any series; a point or stage.”
Also,
“4. A remove in the line of descent, determination in the proximity of blood; one remove in the chain of relationship; as a relation in the third degree.”
In the Winston Dictionary, Encyclopedia Edition, the first definition of the wo-rd “degree” is a step or grade in a series.
It is in full conformity with its dictionary meaning to hold that “next degree” in Article 1022 can mean those (coheirs) who are next in rank or order among those entitled to inherit under the provisions of Article 915.
The renunciation made by Paul Palinc and Emile Paline cantains the following language: “They now make public, express and formal renunciation of and to the succession of the deceased, Joseph Pa-line, to be used and to serve and avail as the occasion shall require”. Immediately following this renunciation.in the ad
mitted statement of facts, it is set forth that Mrs. Denise Granier Paline was recognized in the succession proceedings as surviving spouse and sole heir at law of all the property belonging to the community of acquets and gains.
Free access — add to your briefcase to read the full text and ask questions with AI
KENNON, Justice.
The judgment appealed from rests on an interpretation of Article 1022 of the Revised Civil Code.
Joseph Paline died intestate, leaving his widow and their two sons, Paul and Emile, and certain community property, title to part of which is at issue in the present suit. By authentic act, both sons renounced the succession and their mother was placed in possession of the entire estate — one half in her own right and one half by virtue of the childrens’ renunciation. Upon the widow’s death, she bequeathed to her two children (the ones who had renounced in her favor) the real property owned by the community. Emile Paline, plaintiff in this suit, through a partition with his brother, Paul Paline, acquired title to a 2.83 acre tract out of this property and on December 5, 1945, he entered into an agreement with Fred I. Heroman, Jr., the defendant to sell him this tract of land. This suit was filed for specific performance when Hero-man refused to accept plaintiff’s title to the property as merchantable. Mrs. Virginia Paline Sherrill, one of the five children of the plaintiff’s brother, Paul Paline, intervened in the suit, claiming as heir of Joseph Paline, her grandfather, an undivided one tenth interest in the property. The lower court rendered judgment in favor of defendant, Heroman, rejecting plaintiff’s demand for specific performance and recognizing intervener, Mrs.. Virginia Pa-
line Sherrill, as owner of an undivided one tenth interest in the property. Emile Paline appealed.
The question presented is whether the husband’s portion of the community property, after the renunciation of his children, passed to the surviving spouse in community or to the five children of the renouncing heir, Paul Paline, (Mrs. Sherrill, intervener, is one of these children.)
Plaintiff argues that when the two heirs of Joseph Paline renounced his succession, which consisted entirely of community property, title to his undivided one half interest in the property vested in his surviving widow in community under
the
provisions of Articles 915 and 1022 of the Revised Civil Code. Article 915 provides: “When either husband or wife shall die, leaving neither a father nor mother nor descendants, and without having disposed by last will and testament of his or her share of the community property, such undisposed of share shall be inherited by the surviving spouse in full ownership; In the event the deceased leaves descendants, his or her share in the community estate shall be inherited by such descendants in the manner provided by law. Should the deceased leave no descendants, but a father and mother, or either, then the share of the deceased in the community estate shall be divided in two equal portions, one of which shall go to the father and mother or the survivor of them, and the other portion shall go to the surviving spouse, who, together with father or mother inheriting in the absence of descendants, as provided above, shall inherit as a legal heir by operation of law, and without the necessity of compliance with the forms of law provided in this chapter for the placing of the regular heirs in possession of the succession to which they are called.”
Under Article 915 quoted above, the sons inherited (subject to their acceptance) all of their father’s portion of the community.
Section 2 of Chapter 6 of the Revised Civil Code deals with the manner in which successions are accepted, and renounced. The articles of this chapter dealing with the rights of creditors and heirs who benefit by the renunciation are numbers 1021, to 1928, inclusive. Article 1Q22 reads:
“The portion of the heir renouncing the succession, goes to his coheirs of the same degree; if he has no coheirs of the same degree, it goes to those in the next degree.
“This right of accretion only takes place in legal or intestate successions. In testamentary successions, it is only exercised in relation to legacies, and in certain cases.” '
Mrs. Sherrill, the intervener, contends that since Paul Paline and Emile Paline, who were all the coheirs of the same degree, renounced, the succession under the above-quoted article “goes to those in the next degree” and, therefore, she and her sisters and brothers, five in all, being all the grandchildren of the deceased, are
“those in the next degree” and inherit in their own right. The contention is based upon the theory that the phrase in Article 1022, R.C.C., “next degree” refers to persons who are related by blood in the next degree
to the renouncing heir.
At the time the Civil Code was adopted, only those who were kinsmen of the deceased were called to his succession and, hence, the word “degree” was generally conceded to be limited to people having blood relationship to the decedent. Article 915 was later amended to include the wife and as amended again in 1938 it provided that she “* * * shall inherit as a legal heir by operation of law, and
without the necessity of compliance with the forms of law provided in this chapter for the placing of irregular heirs in possession of the successions to which they are called.”
Thus, a study of Article 915 (as amended), the other articles in the chapter relating to renunciation of successions, and a careful analysis of Article 1022 leads to the conclusion that the expression in Article 1022 “those (coheirs) in the next degree” refers to the heirs of the de cujus who are next in rank or right to inherit in the succession which the heir has renounced, By this amendment, the wife was virtually- — -for succession purposes as set forth in Article 888 — placed in the same category as a blood relation to the deceased.
To hold that the effect of the 1938 amendment is to include the wife in the definition of “those in the next degree” in Article 1022, is not inconsistent with the dictionary given meaning of the word “degree”.
The first and second definitions of the word “degree” in Webster’s New International Dictionary, 2d Ed., are: ,
“1. a step, stair, or rung; now a step-like member of a series; a tier, bank, rank or the like.
“2. A step or station in any series; a point or stage.”
Also,
“4. A remove in the line of descent, determination in the proximity of blood; one remove in the chain of relationship; as a relation in the third degree.”
In the Winston Dictionary, Encyclopedia Edition, the first definition of the wo-rd “degree” is a step or grade in a series.
It is in full conformity with its dictionary meaning to hold that “next degree” in Article 1022 can mean those (coheirs) who are next in rank or order among those entitled to inherit under the provisions of Article 915.
The renunciation made by Paul Palinc and Emile Paline cantains the following language: “They now make public, express and formal renunciation of and to the succession of the deceased, Joseph Pa-line, to be used and to serve and avail as the occasion shall require”. Immediately following this renunciation.in the ad
mitted statement of facts, it is set forth that Mrs. Denise Granier Paline was recognized in the succession proceedings as surviving spouse and sole heir at law of all the property belonging to the community of acquets and gains. Thus, it seems that it was the clear intention of the renouncing children to vest full, complete, and irrevocable title in their mother to all property of whatever nature left by their father, and to do so to the exclusion of their own children.
The interpretation that the beneficiary of a renunciation under Article 1022 is, when all the coheirs entitled to the succession in the first instance renounce, the heir next called to the succession by operation of law rather than the kinsman next in kin is indicated by a sentence under the discussion of “Seizin of Heirs”, page 199 of the Alfred Bonomo Edition of Saunder’s Lectures on the Civil Code: “* * * Now if the heir who is called to accept, renounces then the seizin goes
to the heir in next order of right.”
This interpretation of Article 1022 gives meaning to the provisions of the preceding Article (1021) which sets forth the rights of creditors of a renouncing heir. The third paragraph of that article reads: “If, therefore, after the payment of the creditors, any balance remain, it belongs to his coheirs who may have accepted it, or if heir who has renounced be the only one of his degree, it goes to the heirs who come after him.”
The article does not mention “those in the next degree of blood relationship”. The expression “the heirs who come after him” is consistent with the interpretation of Article 1022 that “those in the next degree” refers to “those in the next category or rank” (as heirs of the decedent).
Article 946 declares that if an heir rejects (renounces) the succession, he is considered as never having received it, and it follows that the rights of other heirs become the same as if the renouncing heir had never been an heir, in fact, as if he had never existed. Nor can the grandchildren inherit by representation the portion renounced by the living sons, as there can be no representation of a living person. Article 899, R.C.C.
The case of Jacob v. Falgoust, 150 La. 21, 90 So. 426, which involved the renunciation of the community by the descendants of the deceased (the wife) is to some extent applicable here. The plaintiffs were the nieces and nephews of the deceased, who, as in the present case, claimed their right of inheritance by accretion under the provisions of Article 1022. The fact in that case that the heirs renounced the community and not the succession makes no difference in the present case as the Pa-line succession and entire estate consisted only of community property and there were no debts. The Court held that the renunciation of the children gave the nieces and nephews no interest in the community property; that the portion which the heirs
of the wife renounced belonged to the surviving partner in community. It was also held that the renunciation of a community by the heir of the wife, has, like that of a succession, a retrospective effect; the heir of the wife who renounces the community is considered as never having had any interest in it.
Reading and considering together the provisions of Article 915 which deals with the rights of heirs to inheritance of community property and sets forth as recipients, first descendants and secondly, ascendents and surviving spouse as coheirs, and Article 1022, which states that the portion of renouncing heirs goes “to those in the next degree”, we conclude that since all the children of the deceased spouse renounced the succession, the surviving widow (in the absence of parents) became recipient of the accretion as she is the heir in the next rank or degree, under the provisions of Article 915, R.C.C.
For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Emile Paline, and against the defendant, Fred I. Heroman, Jr., ordering the specific performance of the contract aforesaid and ordering defendant to accept title to the property involved in accordance with the agreement entered into by him and plaintiff on December 5, 1945. It is further ordered that upon plaintiff’s tendering to defendant a deed to the said property valid in form, the defendant is adjudged and decreed the owner thereof and indebted to the plaintiff in the full sum of $7,000, and that there be judgment in favor of plaintiff and against defendant for $5,600, and recognizing plaintiff as entitled to receive the deposit of $1,400, with recognition of plaintiff’s vendor’s lien and privilege on said property to secure the payment of the unpaid portion of the purchase price.
It is further ordered that there be judgment in favor of plaintiff, rejecting intervener’s demands. Costs of both courts to be paid equally by defendant and intervener.
FOURNET, J., dissenting.