Preston v. Humphreys

5 Rob. 299

• Court: Supreme Court of Louisiana
• Decided: July 15, 1843
• Status: Published

Opinion

Martin, J.

The plaintiff seeks to recover the balance of the price of an undivided sixth part of a sugar estate, sold by his testator to the defendants’ ancestor. ■ They set up a claim under the will of the testator’s wife ; and aver, that all demands of the testator on their ancestor, or his estate, have been settled and discharged. The}r had a verdict and’judgment, and the plaintiff appealed. The clause of the will under which they claim is in the following words : “ My nephew, John B. Humphreys of Louisiana, having a legal title to one-third part of the estate bought by my husband on German Coast in Louisiana, consisting in land, negroes, sugar establishments, stock, and other property found thereon, and he, the said Humphreys having since purchased of my husband, one other sixth part of said estate, for which he has not yet received a legal title, I do will and devise to him, all my interest in such sixth part, and do authorize and request my husband to make him a deed for the said sixth, so that he may hold the said German Coast estate as partner, equal joint proprietor with my husband.” The sixth part of the estate spoken of in the above clause, is the same which was sold by the testator to the defendant’s ancestor, and for which the latter promised to pay eighteen thousand dollars, a sum which is admitted to have been reduced by partial payments, during the life of the testator.and since, to nine thousand dollars. The will bears date the 3d day of July, 1829 ; the act of sale, the 14th of May, of the succeeding year; and the testatrix died on the 20lh of October, of that year. The power of the wife to alienate any part of the real or personal estate of the community, or to put any obstacle to the disposition of it by her husband, during the existence of the community, can not be contended for. She has, however, that of disposing of her private estate, and consequently of that portion of the community property which, after her death, and the settleiftent of the community, may become part of her estate. If her husband had not, according to her desire, executed the act of sale before us, the affairs of the community being settled, and one-half of the undivided sixth part of the plantation fallen into her estate, there cannot be any doubt that the defendants could claim it under her devise. But that sixth part having been sold during the existence of the community, and before her death, there was an end to the devise; for a devise is an alienation, is ambulatory during the life of the testator, and has no/effect until the breath goes out of his body. At the death of the testatrix, therefore, she had no longer the power of alienating the land devised.

But it is contended, that the devise was not of the land itself, but of the testatrix’s interest therein ; that the defendants’ ancestor was the equitable owner of it, or rather had a right of-demanding a legal title on paying the price ; that her interest was therefore, in the price, and that it was her share of that price which she bequeathed. This may be undeniable, although the plaintiff’s counsel denies it. Admitting that it is, the part of the price bequeathed was a legacy which ought to be applied for to the testatrix’s executors. It cannot be retained, and withheld from the plaintiff, because it is a part of the assets of the community, on which neither the legatees of the husband, nor of the wife, can have any claim in,opposition to the creditors of the community, id est, until all its debts are paid. The defendants, after having complied with the obligations of their ancestor, by paying the price of the property he purchased, may enforce their rights under Mrs. Brown’s will against her executors, oil what remains of her estate after her creditors have been satisfied, provided such executors receive, on the settlement of the affairs of the community, a sum sufficient to discharge the legacy.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed, and that the plaintiff recover from the defendants, the sum of nine thousand dollars, with interest at the rate of five per cent per annum, from the 1st of January, 1834, the period on which the payment of the pride of the estate Was to be completed, with costs in both courts.