
    
      BERNARDINE vs. DESPINASSE.
    
    Appeal from the court of foe parish and city of New-Orleans.
    whether an executor can do any act to defeat *he duties imposed on him by the will—guere. Collateral heirs settsng up, a c'airo to a succession, must 'hew thmVin r<th¡ havtT^c'eased
    a party who is neither ap-peUeeVanní’t meVnt aJend-" ed iu his fa-
   Porter, J.

delivered foe opinion of the court. The plaintiff claims her freedom from foe defendant, who asserts title to her in virtue of a purchase from the heirs of Galez, whom has cited in warranty. They appeared, and pleaded that foe plaintiff was their slave.

The facts of the cnse as they appear in evi-J 11 deuce are as follows. The plaintiff was born in the year 1781, in St. Domingo, the slave of . a family called Galez. She fell by partition? or otherwise, to one of foe daughters, who intermarried with a certain Antoine Goyffon.— At the period the negroes revolted in that Island, Goyffon and his wife fled. The plaintiff, whose attachment to them appears to have been great, swam after them and got on board the vessel in which they were escaping. She accompanied them to the Island of Cuba, and served them as a slave until the year 1809.— When forced to leave that country, she again followed them and came to Louisiana. ly alter their arrival here, her mistress died without making a will, but recommending to her husband, not to forget the attachment and long and faithful services of the plaintiff, and requested him to set her free. The husband survived the wife several years. Some time before his decease, he made his testament, in which he gave the plaintiff and her two children their freedom, and appointed the defendant his executor and residuary legatee.

The defendant accepted the trust. He applied to the court of probates to be confirmed in the appointment—he was confirmed in it; and he took an oath that he would well and faithfully perform the duties of the office.

However he may have discharged part of those duties, he neglected to perform that which was imposed on him in relation to the plaintiff. When requested to comply with it by persons taking an interest in her situation, he promised he would, but evaded an immediate compliance, on the ground that it was necessary the plaintiff should work for some time, before he could set her free, in order that she might reimburse him far monies he had ad-to her. After retaining her several vears in this situation, he finally refused to lib-J erate her, and set up a title in himself, in virtue of a purchase he had made since he was appointed executor, from persons styling themselves heirs of the wife of GoyfTon.

Whether an executor, or any other agent, can enter into contracts to defeat the discharge of the trust which he has undertaken for his principal, is a grave question, on which we do not now find it necessary to express an opinion. The defendant has called the heirs from whom he bought in warranty, and has thrown on them the burthen of proving a title to the plaintiff They have alleged, and proved, that they are the collateral heirs of Jeanne Augustine Galez, wife of GoyfTon, but this is not sufficient to prove their right to her. It is a well established rule of evidence, that where collateral relations set up a claim to the property of an inheritance, they must shew that the relations in the ascending line have ceased to exist. Upon this principle, the collateral heir was defeated in the case of Hooter's heirs, vs. Tippett, and we refer to the decision there, as containing the reasons on which this doctrine is founded. 12 Martin, 392.

No such proof has been administered here, and as the heirs cited in warranty have in shewing a right in themselves, they of course have failed in shewing they transmitted any to the defendant Lespinasse, and he stands before the Court without any legal defence to the plaintiffs’ demand.

If the case presented strong equitable claims on the pari of the defendant, and the warrant-ors, we might, under the powers given to this court, to remand whenever justice requires it, send the cause back fo” proof of heirship.—

But the view we have taken of the case, has brought us to the conclusion, that the justice and equity of it are most emphatically with the plaintiff: and with this conviction, we cannot aid the defendant in making out a harsh demand, which has no foundation but in the strict rules of law.

He has complained, that the judgment of the court below is erroneous in not giving him judgment against the heirs of Galez. Perhaps it is so, but we cannot go into that enqui-ry, as the cause now stands before us; for it is on the appeal of those heirs that the case has been brought before this tribunal. And though he has been heard in defence of his title, as making a part of the appellant’s case,' the judgment cannot be amended in his favor, for he is neither appellant, nor appellee.

Seghers for the plaintiff, Nixon for the de^ fendant.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.  