Succession of Ducloslance

2 La. Ann. 98

• Court: Supreme Court of Louisiana
• Decided: January 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

Rost, J,

Jean Ternoir, the surviving husband, not separated from bed and

board, of Eulalie Ducloslange, who died leaving neither descendants

* nor legitimate relations, asks to bo put in possession of her succession, under-ait. 918 of the Civil Code. The natural brother and sisters of the deceased, together with the minor children of one of the sistei’s of the deceased, resist his application, and claim the succession in their own right, under art. 917 of the Code. The court of the first instance decreed the succession to the surviving husband, and the other parties have appealed. The case of Victor v. Tagiasco’s Executor, relied on by the appellee, is in point. 6 La. p. 644. The court there, upon an issue in all respects similar to the present, sustained the claim of the surviving husband. After mature consideration, we are satisfied that, the opinion in that case contains a correct exposition of the law of irregular successions. Our Code divides successions into testamentary, legal and irregular, and establishes for legal and irregular successions the order of descents. In legal successions, the children and other lawful descendants are first in rank; in irregular successions, the surviving husband or wife takes precedence of all other classes of persons called to tho inheritance. C. C. arts. 871, 883, 911. Even the natural children of the father, duly acknowledged, are made to give way to the survivjng wife, and take the succession to the exclusion of the State only. C. C. art. 913. An exception is made to the preference given to the husband by the provisions of art. 918, that he shall not inherit from his wife, if she has left natural children; but the appellants do not comp within the exception, and must therefore be submitted to the rule that, natural fathers, mothers, brothers and sisters, take rank after the surviving husband.

Art. 923 provides that, in default of lawful relations, or of a surviving husband or wife, or acknowledged natural children, the succession belongs to the State. This article again gives precedence to the surviving husband or wife, and would seem to exclude natural brothers and sisters. In the case of Laclotte’s Heirs v. Labarre, 11 La. p. 179, the late Supreme Court, construing it with art. 917, had to invoke the legal maxim, in dubiis semper contra fiscum, in order to sustain the claim of the natural brothers and sisters against that of the State. This decision is undoubtedly correct, but it is far from supporting the pretensions of the appellants. It settles the principle clearly resulting from the oi'der of irregular successions established by the Code, that natural brothers and sisters, and their descendants, exclude the State and the State only. The ne, cessary inference from that principle is, that they are excluded themselves by all the other classes of persons called to the inheritance, except the State.

In the order of irregular successions established by the NapoJéon Code, natural children and other natural relations stand first; the surviving husband or wife comes next; and, in default of surviving husband or wife, the State inhe. rits. All the commentators upon that Code agree that tlie surviving husband or wife excludes the State only, and is excluded by all other classes of irregular heirs. See 2d Delvincourt, p. 24 and notes. 4th Toullier, no. 269. With us, natural brothers and sisters, and their descendants, occupy the same position which the sux-viving husband or wife occupies in France, .and it is equally true of them that they are excluded by all Save the State.

The petition of Philippe Ducloslange to be appointed administrator of his sistex’’s estate, was properly dismissed, an.d tji.ere is no error in the judgment appealed fronj. Judgment affirmed,

Nor ascendants.