The Chancellor.
The proofs before the surrogate established the identity of the respondent, as the son of the intestate, Isaac Wooster, beyond all doubt. The testimony of Dr. White, of Hudson, who performed the surgical operation upon him when he was a boy, and of Mr. Moseley, to whom he was apprenticed for three years, is 'of the most satisfactory and conclusive character.
I think the surrogate was right also in deciding that the proceedings in the probate court, of the parish of Bast Baton Rouge, could not affect the right of the respondent, to claim his share of the estate or succession of his deceased father, according to the laws of Louisiana. To understand the nature and effect of the proceedings in the parish court, it will be necessary to refer to the principles of the civil law, as it exists in Louisiana, in relation to the estate of a deceased person; called in the language of the civilians, the succession. But, in deciding this case, it is only necessary to refer to those principles in reference to intestate estates. By the law of Louisiana, all the' legitimate children of the intestate inherit equally, without distinction of sex or primogeniture, by heads, where they are of the same degree, and inherit in their own rights, and by roots where all, or any part of [446]*446them, inherit by representation ; subject to collation where any advancement or donation has been made to any of them, by the intestate. (Civ. Code of Louis. Art. 898, 1306.) But the heirs of the intestate do not, as with us, obtain the possession of the personal estate of the intestate through an administrator, where they accept the succession unconditionally; or,-in the language of the civil law, without benefit of inventory. For the succession, in such a case, is acquired by the lawful heirs, who are called by law to the inheritance immediately upon the death of the intestate; and the right to the possession of the property, which the decedent had, continues in the persons of the heirs as if there had been no interruption, and independent of the fact of their actual possession. The effect of this right, among other things, is to authorize such heirs to institute suits, in their own names, for the property of the intestate, or for debts due to him; and to continue suits commenced by him in his lifetime. It is true the rights of the heirs are in suspense, until they decide whether they will accept the succession or will reject it, or will accept it with the benefit of inventory. But when they do accept it unconditionally, they are considered as having succeeded to the decedent from the moment of his death; not only as to the part of the succession belonging to them in their own right as heirs, but also as to the part thereof which accrues to them by the renunciation of the succession by some of their coheirs. (Idem, Art. 934 to 942.) And where all the known heirs accept the succession without benefit of inventory, or a part of them accept, and the others renounce the succession absolutely, each heir who has thus accepted, may sue in his own name for his share of the property, or of an obligation which is susceptible of division; and may be sued by the creditors of the succession in the courts of ordinary jurisdiction, for his rateable proportion of each debt due from the intestate. (Idem, Art. 1376, 2107. Code of Pr. Art. 113, 120, 996. Saunders v. Taylor, 18 Mart. Rep. 522.)
Again; by the laws of Louisiana, where the succession opens in favor of a person who was once in esse, but whose continued existence is not known, the inheritance devolves exclusively on [447]*447those who would have a joint right with him, to the estate; or on those upon whom the inheritance would have devolved if such person was not in existence when the succession opened, by the death of the testator or intestate. But this does not affect the right of such absentee to claim his share of the inheritance; his right to which can only be barred by the lapse of time which is established for prescription in such cases. (Civ. Code of Louis. Art. 78, 79. Dupre v. Reggio, 6 Louis. Rep. 653.) The Code of Practice of Louisiana, which, perhaps, is not embraced in the stipulation in this case, gave to the appellant the right to sue for and recover, in his own name, in the courts of that state, the debt due to the estate of his father in law, whose succession his wife was supposed to have inherited, and to which succession she had been recognized as sole heir. (Code of Pr. 107.) The debts recovered by him, in the state of Louisiana, have therefore in law, as well as in fact, come to the hands of the appellant, and not to the hands of his wife. It may also be proper to state, in this connection, that by the law of Louisiana the heir who accepts the succession simply, without claiming the benefit of an inventory, does not give any security for the administration of the estate, or for the payment of debts, &c. unless he is required to do so by a majority in amount of the creditors of the succession, either present or represented, in the parish where such succession opened. But, by such unconditional acceptance, he renders himself personally liable for the debts of the decedent; and he may be sued in the ordinary tribunals for the recovery thereof, out of his own property. And he is entitled to have the effects of the succession immediately delivered to him, upon his signifying such acceptance to the probate court. (Civ. Code of Louis. 1005, 1049. Code of Pr. 996.) Where the heirs of the decedent are absentees, and are not represented by their attorneys at the place where the succession opens, the estate is to be placed under the care of a curator, appointed by the probate court. And if a part of the heirs are absentees, their respective shares of the succession are, in like manner, to be placed under the care of a curator. But if the absent heirs present themselves within the time limited by [448]*448law for that purpose, and accept the succession, or send their powers of attorney to claim it, and cause themselves to be recognized a's such heirs, the duties of the curators cease. And the heirs, in such case; are to be put into possession, with all the rights .which they would have had if they had appeared and claimed the succession before the appointment of such curator; except that the administration of the curator, so far as it had been rightfully proceeded in before the appearance of the heirs, is valid and binding upon them. (Civ. Code of Louis. Art. 1105, 1180, 1181. Idem, Art. 50.)
In the case under consideration, the appellant’s father in law left no heir at the place where he died, and where his succession opened according to the law of his domicil. A curator for the absent heirs of the vacant succession was therefore appointed. And I am satisfied it was done in due form; although the appellant may not have intended to give in evidence the code of practice, to show the jurisdiction of the parish judge in the case. But I have looked into that code of practice, as I supposed the stipulation between the parties was intended to embrace that part of the code of Louisiana, as well as the civil coue. • By a reference to the code of practice, I find that the parish judge is ex officio judge of the court of probate of the parish for which he is appointed.
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The Chancellor.
The proofs before the surrogate established the identity of the respondent, as the son of the intestate, Isaac Wooster, beyond all doubt. The testimony of Dr. White, of Hudson, who performed the surgical operation upon him when he was a boy, and of Mr. Moseley, to whom he was apprenticed for three years, is 'of the most satisfactory and conclusive character.
I think the surrogate was right also in deciding that the proceedings in the probate court, of the parish of Bast Baton Rouge, could not affect the right of the respondent, to claim his share of the estate or succession of his deceased father, according to the laws of Louisiana. To understand the nature and effect of the proceedings in the parish court, it will be necessary to refer to the principles of the civil law, as it exists in Louisiana, in relation to the estate of a deceased person; called in the language of the civilians, the succession. But, in deciding this case, it is only necessary to refer to those principles in reference to intestate estates. By the law of Louisiana, all the' legitimate children of the intestate inherit equally, without distinction of sex or primogeniture, by heads, where they are of the same degree, and inherit in their own rights, and by roots where all, or any part of [446]*446them, inherit by representation ; subject to collation where any advancement or donation has been made to any of them, by the intestate. (Civ. Code of Louis. Art. 898, 1306.) But the heirs of the intestate do not, as with us, obtain the possession of the personal estate of the intestate through an administrator, where they accept the succession unconditionally; or,-in the language of the civil law, without benefit of inventory. For the succession, in such a case, is acquired by the lawful heirs, who are called by law to the inheritance immediately upon the death of the intestate; and the right to the possession of the property, which the decedent had, continues in the persons of the heirs as if there had been no interruption, and independent of the fact of their actual possession. The effect of this right, among other things, is to authorize such heirs to institute suits, in their own names, for the property of the intestate, or for debts due to him; and to continue suits commenced by him in his lifetime. It is true the rights of the heirs are in suspense, until they decide whether they will accept the succession or will reject it, or will accept it with the benefit of inventory. But when they do accept it unconditionally, they are considered as having succeeded to the decedent from the moment of his death; not only as to the part of the succession belonging to them in their own right as heirs, but also as to the part thereof which accrues to them by the renunciation of the succession by some of their coheirs. (Idem, Art. 934 to 942.) And where all the known heirs accept the succession without benefit of inventory, or a part of them accept, and the others renounce the succession absolutely, each heir who has thus accepted, may sue in his own name for his share of the property, or of an obligation which is susceptible of division; and may be sued by the creditors of the succession in the courts of ordinary jurisdiction, for his rateable proportion of each debt due from the intestate. (Idem, Art. 1376, 2107. Code of Pr. Art. 113, 120, 996. Saunders v. Taylor, 18 Mart. Rep. 522.)
Again; by the laws of Louisiana, where the succession opens in favor of a person who was once in esse, but whose continued existence is not known, the inheritance devolves exclusively on [447]*447those who would have a joint right with him, to the estate; or on those upon whom the inheritance would have devolved if such person was not in existence when the succession opened, by the death of the testator or intestate. But this does not affect the right of such absentee to claim his share of the inheritance; his right to which can only be barred by the lapse of time which is established for prescription in such cases. (Civ. Code of Louis. Art. 78, 79. Dupre v. Reggio, 6 Louis. Rep. 653.) The Code of Practice of Louisiana, which, perhaps, is not embraced in the stipulation in this case, gave to the appellant the right to sue for and recover, in his own name, in the courts of that state, the debt due to the estate of his father in law, whose succession his wife was supposed to have inherited, and to which succession she had been recognized as sole heir. (Code of Pr. 107.) The debts recovered by him, in the state of Louisiana, have therefore in law, as well as in fact, come to the hands of the appellant, and not to the hands of his wife. It may also be proper to state, in this connection, that by the law of Louisiana the heir who accepts the succession simply, without claiming the benefit of an inventory, does not give any security for the administration of the estate, or for the payment of debts, &c. unless he is required to do so by a majority in amount of the creditors of the succession, either present or represented, in the parish where such succession opened. But, by such unconditional acceptance, he renders himself personally liable for the debts of the decedent; and he may be sued in the ordinary tribunals for the recovery thereof, out of his own property. And he is entitled to have the effects of the succession immediately delivered to him, upon his signifying such acceptance to the probate court. (Civ. Code of Louis. 1005, 1049. Code of Pr. 996.) Where the heirs of the decedent are absentees, and are not represented by their attorneys at the place where the succession opens, the estate is to be placed under the care of a curator, appointed by the probate court. And if a part of the heirs are absentees, their respective shares of the succession are, in like manner, to be placed under the care of a curator. But if the absent heirs present themselves within the time limited by [448]*448law for that purpose, and accept the succession, or send their powers of attorney to claim it, and cause themselves to be recognized a's such heirs, the duties of the curators cease. And the heirs, in such case; are to be put into possession, with all the rights .which they would have had if they had appeared and claimed the succession before the appointment of such curator; except that the administration of the curator, so far as it had been rightfully proceeded in before the appearance of the heirs, is valid and binding upon them. (Civ. Code of Louis. Art. 1105, 1180, 1181. Idem, Art. 50.)
In the case under consideration, the appellant’s father in law left no heir at the place where he died, and where his succession opened according to the law of his domicil. A curator for the absent heirs of the vacant succession was therefore appointed. And I am satisfied it was done in due form; although the appellant may not have intended to give in evidence the code of practice, to show the jurisdiction of the parish judge in the case. But I have looked into that code of practice, as I supposed the stipulation between the parties was intended to embrace that part of the code of Louisiana, as well as the civil coue. • By a reference to the code of practice, I find that the parish judge is ex officio judge of the court of probate of the parish for which he is appointed. And such probate courts have exclusive jurisdiction, among other things, to appoint curators to vacant estates and absent heirs; to-make the inventories and sales of the property of successions, which are administered by curators or testamentary executors, or in which the heir prays for the benefit of inventory; to decide on claims, for money, which are brought against successions administered by curators, testamentary executors, or administrators of successions to establish the order of privileges and the mode of payment; and to ordain and regulate all partitions of successions in which minors, or interdicted or absent persons are interested, or even those which are made by authority of law, between persons of lawful age and residing in the state, when such persons cannot agree upon the partition and the mode of making it, (Code of Pr. Art. 924, §§ 4, 5, 13, 14.) By another provision of this code, when the heirs or other [449]*449persons, entitled to successions which are administered by curators appointed by a judge, or by testamentary executors, shall present themselves or send their powers, to reclaim such successions, within the year allowed to the curator to administer, the judge of the probate court is to pronounce on the claim in a summary manner. And if he discovers that the petitioners are entitled to the succession, he is to put them in.possession of it; and is to direct the curator or executor to account. The probate court, therefore, was the proper tribunal to receive the claim of the appellant, in right of his wife, to be admitted as heir to the succession, and to supersede the curator who had been appointed while the succession was vacant. But there is nothing in the civil code or in the code of practice, which I have been able to discover, that makes the decision of the probate court, recognizing the person claiming in such a case as the sole heir, conclusive upon the rights of other persons who were not in fact heard before such court. And the decision of the supreme court of that state, in the case of Benoit v. Benoit’s Heirs, (8 Louis. Rep. 231,) appears to be an authority for a contrary conclusion. Making the decision of the probate court conclusive upon the respondent in this case,, would also be in direct conflict with the articles of the civil code which devolved the inheritance exclusively upon the only heir whose continued ex-.l.iMxoe was known, but subject to the right of the absentee, whose existence was then unknown, to claim his share of the inheritance in case he should subsequently appear. Thé 80th article of the civil code, was not intended to give the person put in possession of the inheritance, the right to the proceeds of such inheritance absolutely, even when received in good faith and without any knowledge of the continued existence of the absen-' tee; but only to give the person- thus put in possession the right to retain the proceeds of the inheritance, received in good faith, until such absentee appears.
Here, by the discharge of the curator, and the delivery of the-succession to the appellant as sole heir, in right of his wife, without benefit of inventory, and by the removal of the whole of the effects of the succession beyond the jurisdiction of the state, the [450]*450probate court lost all jurisdiction, if it ever had any, to compel the partition and division of the succession, between the rightful heirs, upon the re-appearance of the one whose existence was not known at the time such curator was discharged. And the appellant’s counsel is under a mistake, in supposing that the discharge of the curator was in the nature of a decree for the distribution of the estate, by an ordinary administrator here, upon the final .settlement of his accounts, after the administration of the estate has terminated. But the appellant’s rights in the property are the same, and no greater, than if the curator had never been appointed, and the appellant and his wife had appeared, before the probate court, and had claimed and accepted the succession without benefit of inventory, in the first instance.
The right of the respondent was not barred by prescription ; as there never was a time, after the appellant received the portion of this estate which belonged to the respondent, in which any suit could have been instituted by the latter, for the recovery thereof, in any of the courts of Louisiana. Nor could the possession of the property be said to have been obtained in good faith, in reference to the laws of Louisiana. For if the fact that the intestate once had a son, who was not known to be dead, had not been concealed, provisional possession only as to his share of the succession would have been decreed; and upon giving security therefor. (See Civ. Code, art. 58, 66.) The laws of that state also recognize the general rule, that the prescription of actions is to be governed by the laws of the place where they are brought. And the appellant having brought the funds of the succession into this state, and inventoried them as a part of the personal estate of the intestate in his hands, as administrator here, it was a renunciation of the benefit of the prescription, if it ever existed in Louisiana. And he may therefore be compelled to distribute the property, in his possession as such administrator here, according to the rights of the heirs of the decedent therein.
The inventory made here is not absolutely conclusive evidence that the property, specified therein as having come to the hands of the administrator in money, was in fact property of the [451]*451estate; for which he was accountable as administrator. But as there was no .doubt of the right of the respondent to the money,'legally as well as equitably, I think the surrogate was right in compelling the administrator to account for the fund received by him from Louisiana, while he was the rightful administrator here; as well as that part of the fund which he collected from debtors residing in this state.
The amount of $2068, for the cheek of $500 and the Remsen rum and sugar, and the amount received of Booth, appear to have been properly collated, or brought into hotchpot, by the surrogate, in ascertaining the share of the estate to which the respondent was entitled by the law of his father’s domicil. By that law, collation must take place as to all advances made to one of the children, by way of gifts, or marriage portions, in the nature of a dowry, or to establish such child in business, &e. The articles of the code which declare that marriage presents are not subject to collation, nor things given by a father or mother or other ascendant, by their own hands, to one of the children for his pleasure or other use, (Civil Code of Lou. art. 1322, 1323,) only relate to such inconsiderable presents as parents are in the habit of giving to their children from time to time; or as mere marriage presents, and without any intention of making advancements to them as provisions towards their establishment or support in life. But a gift from a parent to his child, which gift is intended as a marriage portion as contradis-tinguished from a mere marriage present, is subject to collation. (1 Dom. Book 2, § 3, art. 7, Partida 6, tit. 15, L. 3.) Indeed the rule of the civil law is substantially the same as ours on this subject; except that, by the civil law, the parent is not permitted to exclude from collation, even by an express declaration of his intention on the subject, advances which have been made beyond the portions of his estate which he would be at liberty to dispose of by will. And collation is due of every gift.of a parent, to a child, as a portion or an advancement, unless the donor has in terms exempted it from such collation. (Civil Code of Lou. art. 1308.)
There is no evidence that the Delafifeld debt was a gift to the [452]*452appellant. And it was a sura of money due to the intestate, at the time of his death, which the appellant received in his character of administrator. He was therefore properly charged with it, as a part of the assets in his hands to be administered. Even if the appellant’s statement of the contents of the decedent’s letter could be considered as evidence in his own favor, it did not prove that the money, which by such letter he was directed to receive from the Delafields, -was intended as a gift. But' the decedent probably intended the appellant should receive the money as his agent; or perhaps as a loan until he should call for if.
The appellant was also properly charged with interest from the time of the demand of the respondent’s distributive share of the estate. After that, he continued to hold the money in his own wrong; and he could not, in equity, be permitted to deprive the respondent of the interest, while he was keeping him out of his share of the estate by a protracted litigation. Indeed, by the Louisiana civil code, the heir who is put into provisional possession, of the property of a person whose continued existence is not known, is bound to account for a portion of the interest, of the fund, which accrues before such absentee appears to demand the same. {Art. 69.) The appellant was also properly charged with that portion of the costs of the litigation to which the respondent was subjected, after he had furnished such evidence of his identity as ought to have been satisfactory.
The sentence and decree appealed from must therefore be affirmed, with costs. And the appellant must also pay to the respondent the interest, upon the amount of the decree, from the 12th of July, 1841, the time fixed by the surrogate for the payment of such decree; which interest is awarded to him as his damages for the delay and vexation caused by this appeal.