
    
      SENNET vs. SENNET’S LEGATEES.
    
    Natural children can only inherit one half of the estate, when the father leaves brothers or sisters.
    
      Porter, for the plaintiff.
    In this case it appears by the statement of facts, that the appellees are the acknowledged natural children of Sennet, deceased, that . their father by will has left them the whole of his es- , , , , . ... . ., . tate, real and personal, having living at the time of. his decease brothers and sisters. This distribution of his property the appellant, as one of the collateral heirs, conceived illegal, and brought his suit in the Court below to have the will set aside, or that the bequest to these persons might be reduced to its legal , amount. The District Judge, however, confirmed the testamentary distribution, and it is to reverse the decree given by him, that this appeal is taken.
    West. District.
    
      August 1814.
    This question must be decided by the positive regulations enacted by the legislature. And they are fortunately so clear on this subject, as to render a recurrence to any other code of laws unnecessary.
    The first provision, necessary to be cited in this case, is found in the Civil Code, 212, article 21. It is there enacted that, where a man has no legitimate ascendants, or descendants, he may dispose of his property to its whole amount.
    The statute gives the power of disposal. But the law, without violating this privilege, has been anxious to prevent certain persons from being able to take under it, this will appear clear from citing other passages of the Code.
    It is declared, page 208, article 4, that all persons may dispose or receive by donation inter vivos or mortis causa, except such as the law has expressly declared incapable. In the chapter, which is entitled “of the capacity necessary for disposing and receiving donations inter vivos or mortis causa,” we find several classes of persons expressly prohibited, v. g. slaves, adulterine children, etc., and, natural children acknowledged are only permitted to take to a certain amount in a case like this, one half of the property, Civil Code, 210, 
      article 14. These regulations do not in the smallest degree clash with each other. The first says he may dispose, if he pleases of all his property: the latter only prohibits him from giving it to persons whom public policy requires to be excluded. If he steers clear of these individuals, he may still will all his estate away.
    To construe the first article cited, as a power not only to give away all his property by testament, but also to give it to whom he pleases would enable a testator to bequeath to his slave all his estate, real and personal.
    The powers of the one to give, and the other to receive, are quite distinct in their nature: the restraining the rights of the latter, does not at all impair the privilege of the former.
    In this case, it is hoped, from the authorities cited, that the court will be of opinion, the decree of the District Court must be reversed, and the testamentary disposition reduced to the one half.
    
      Brent, for the defendants.
    The decision of the Court below was in conformity with justice and in obedience to the laws of our state. In conformity with justice, because the testator gave his property to his acknowledged children, who had the first claim upon his care and the best natural right to what belonged to their father. In obedience to the laws, because none has been violated by the will of the testator, but 0n the contrary, he exercised a right given him by the which govern us, and which give to the defendants, appellees, the property left them by their father.
    There are no provisions in the statutes of the state which take from the testator, in this case, the right to will his property to the appellees, his acknowledged and natural children. It is admitted, that if the testator had legal descendants, or ascendants, he could not have exercised the right; but he has neither, and the statute of the state, Civil Code, 212, article 21, declares that “ where there are no legitimate ascendants or descendants, donations inter vivos and mortis causdt, may be made to the whole amount of the property of the disposerThis provision of the statute, then gave the power to the testator to make his will as he did, without it had been repealed by some subsequent law, or negatived in such terms as to take away the power ; neither of which has been done.
    It is insisted by the plaintiff and appellant that the power of the testator was restricted by the Civil Code, 210, article 14, which enacts that “when the natural father has not left legitimate children, or descendants, the natural child may receive from him” to a certain amount: this provision of the statute does not destroy in the testator the power to give the whole of his property to his natural children, which is subsequently secured to him by the Civil Code, page 212, article 21. There is nothing in the clause of the law upon which the appellant relies, which negatives the power given . ,. . . . , . to dispose of the whole of his property. The words of the law are, he may receive to a certain amount. The law does not say that he shall receive no more. The two clauses of the law are not contradictory. The clause, upon which the appellant relies, declares that the testator may leave to his natural children to a certain amount, but does not say he shall not give more, this clause is formal, Civil Code, 210, article 14, and in the same work, 212, article 21, written after the clause relied upon by the appellant, the said last mentioned provision in the law extends the power to a testator /if willing all his property to any person whom he may think proper. This clause being the last mentioned in the statute, and not negatived by the clause relied on by the appellant, is the law which now exists, and which gave the power to the testator to will all his property to the appellees. If one clause in a statute can negative another positive clause in the same statute, without being so expressed, by implication only, it is clear that the article 21, page 212, under which the testator made his will, negatived the clause which had been previously written in article 14, page 210. Taking the statute together, the power exercised by the testa- . tor was in obedience to the laws of the state. The Court below acted under those laws and did not err in the judgment rendered.
    Upon another ground, suppose the statute to be absurd, inexplicable or contradictory, the previous law of the land, the Spanish law, clearly gave the power , , , , , . to the testator. Its books breathe no other principle. And if the statute should be considered by the court as contradictory, or not sufficiently plain or eXpianatory5 ⅛ ⅛ the previous existing law of the state, like the common law of England, unaltered by statute, which must govern and direct: and this is in favor of the appellees.
    This will is also opposed upon the ground of immorality. It is not one of those contracts to be invalidated for the immoral consideration. The idea is as novel as ingenious, the law is so far from discountenancing, for moral reasons, the natural child from possessing the property of its natural father, that it expressly enacts and declares, Civil Code 154, article 43, that natural children shall be called to theun-heritance of their natural father, who has acknowledged them, when he has left no descendants, nor ascendants, nor collaterals, nor wife, to the exclusion of the state.
    
    It is admitted, that the appellees were acknowledged natural children. Upon a full view of the case, the Court must confirm the proceedings had in the Court below.
   By the Court.

In this case it is admitted, that J. B. Sennet, about whose inheritance the present contest arises, did bequeath to his natural children all his property, although he, had three i • • , , , . .. . legitimate brothers and a niece living at the time of his death. , '

By the laws of our state- a person, wjho leaves no legitimate descendants or, ascendants, has indeed á right to bequeath the whole of his property and, the deceased J. B. Sennet could exercise that right. But by the same laws it is provided (’Civil Code, 210, book s, tit. 2,, chap. 2,art. 14+) that “when the natural father has not lest 'legiti- “ mate children or descendants, the natural child “ or children, acknowledged by him, may receive “ from him bydonation. inter vivos or mortis *■ cdvsd, to the amount of the following proportions “to wit : of the third part of his property* “ if he leaves no legitimate ascendants ; of the “ half, if he leaves legitimate brothers and sisters ; “ and of three fourths, if he leaves collaterals below “ brothers and sisters ; &c.” (

"It has been argued that these' provisions would be contradictory, if the latter should be considered as prohibiting the testator from leaving to' his natural children more than .the part which the law says tfey may receive. But, it appears to the Court that the article fixing the portions, which natural children mayreceive from'their father, in certain cases, does clearly and unequivocally establish that they shall receive nothing beyond that amount; and that this provision is not at variance with the general disposition which permits testators, who leave neither descendants nor ascendants. ’ . to bequeath ail their property, but is only.a modification of that general rule, in consequence of which, Sennet had a right to leave one half of estate to his natural children, and the other half to whomsoever he should have pleased. Having not done so, but bequeathed the whole to his natural children, the legacy must be reduced to the amount limited by law ; and his legitimate heirs must inherit the rest.

It is, therefore, adjudged and decreed that the judgment of the District Court be reversed ; and that judgment be entered for the appellafit for one eighth part of the neat amount of the estate of the deceased I. B. Sennet,, to wit, six* hundred and sninety four dollars and twenty-five cents, with costs.  