
    (121 So. 171)
    No. 29547.
    Succession of WILLIAMS. CARROLL et al. v. WILLIAMS et al.
    Feb. 25, 1929.
    
      Milling, Godchaux, Saal & Milling, of New Orleans, for appellants.
    Rusca & Cunningham and W. P. Cunningham, all of Natchitoches; for appellees.
   OVERTON, J.

J. H. Williams died, intestate, on January 19, 1925, leaving five major children, the issue of his first marriage, and a widow and four minor children, the issue of his second marriage. He also left a large estate consisting of both separate and community property.

The widow qualified as natural tutrix of her minor children, with the exception of one who, about that time, was fully emancipated. The widow also made application for the administration of the succession of her husband. Her application was opposed by the children of the first marriage. It was, however, finally agreed that the widow and G. H. Pierson, the husband of one of the children of the first marriage, should administer the succession jointlj'.

In the agreement, in which the foregoing provision was made as to the administration of the succession, provision was made for the settlement of the estate, for the appointment of arbitrators to determine what debts were community debts and what were the separate debts of the deceased, and what property belonged to the community and what to the decedent’s separate estate. The agreement contained no provision respecting the widow’s usufruct, nor as to the interest in the community property or in the separate, estate of the deceased that each child of the decedent should be recognized as entitled to, for the obvious reason that It was assumed that no dispute would arise concerning these matters.

Shortly after the foregoing agreement was entered into, the widoW, personally and as tutrix of her minor children, together with her emancipated child, and the five children of the first marriage, filed a joint petition, in which they set forth their agreement, and in which they prayed to he sent into possession of the property of the succession. The prayer •of the petition is as follows:

“Wherefore your petitioners pray that they be recognized as the sole and only heirs of J. H. Williams, deceased, that your petitioner, Mrs. Eliza Payne Williams, be recognized as the widow in community; that your other named petitioners, his children, be each recognized as such ; and that they each be recognized as owning an undivided one-ninth interest in the succession of the said J. H. Williams ; and that as heirs and as widow in community that they be sent into possession of all of the property belonging to the succession ; that your petitioner, the toidow in community, he sent into possession of the community property, one-half in her oivn right and, the other half as usufructuary; and your petitioners, the children, be sent into possession of the separate property of the said husband in indivisión and in the proportion of a one-ninth interest to each; that ^he property, both community and separate, be administered under the terms of the agreement until all debts due by the succession are paid; and that their prayer to be sent into possession of said property be subject to the administration of same by the said Mrs. Eliza Payne Williams and G. H. Pierson under the terms of the agreement to the extent of the payment of the debts, and also that all inheritance taxes due the United States and the State of Louisiana be discharged before any judgment is rendered sending them into possession of the said property.” (Italics ours.)

Judgment was rendered on the foregoing petition, in chambers, placing the widow and the heirs in possession, in accordance with the prayer of their petition — that is to say, the heirs were placed in possession of one-ninth each of their father’s half of the community, and one-ninth each of his separate estate, and the widow was. placed in possession of the remaining half of the community as owner, and of the half thereof,, inherited, by the children of both marriages, as usufructuary.

Some time after the widow and the heirs had been sent into possession under the foregoing judgment, counsel for the heirs of the first marriage discovered that there was an error in the. judgment rendered, although it was rendered in accordance with the prayer of the joint petition, in that the widow was given; not only the usufruct of that part of the community inherited by her children, to> which only, so far as relates to the usufruct,, she was entitled under the law, as is provided: by article 916 of the Civil Code, but the judgment also awarded her the usufruct of that part of the community, inherited by the children of her husband’s first marriage, to which, she was not entitled under the law.

Immediately after the discovery of this error, the children of the first marriage, through their counsel, undertook to correct the error amicably, but, failing in this, brought the present suit to construe the judgment to make it conform to what they allege was the intention of the parties, so as to limit the widow’s usufruct to that part of the .community, inherited by her own children, and, in the alternative, to reform the judgment.so as to make it conform to the intent of the parties by thus limiting the usufruct, or to annul the judgement so far as relates to the recognition of the usufruct.

The defenses to the suit are: First, res judicata; second, the prescription of one year; third, no cause of action, and, fourth, estoppel. All of these pleas were sustained by the lower court, and plaintiff’s suit was dismissed.

The plea of res judicata urged is not tenable. The cause of action in this suit and the one in the suit in which the judgment rendered is now sought to.be interpreted, reformed, or annulled, are not the same, and therefore the plea of res judicata is not applicable. O. C. art. 2286; Edwards v. Edwards, 29 La. Ann. 597; Denegre v. Denegre, 33 La. Ann. 689; Lazarus v. McGuirk, 42 La. Ann. 194, 8 So. 253.

The plea of prescription of one year, pleaded, cannot be sustained, for, even assuming that the prescription pleaded is applicable here, which is not conceded, the evidence shows that the present suit was brought within one year after the discovery of the error. Therefore the plea should be overruled.

The exception of no cause of action should also be overruled, for we think that the allegations of the petition, showing the true intention of the parties, the error made, and the agreement set out in the petition upon which the judgment was rendered, to the effect that no one should be bound by the proceedings taken under which the judgment, here involved, was rendered, save in certain respects, of which the error, here complained of, is not one, disclose a cause of action. If the parties are not irrevocably bound by the fixing of the usufruct, certainly plaintiffs have a right to correct the error alleged by them. The agreement referred to above will be set out in full in passing on the plea of estoppel.

The plea of estoppel rests upon averments to the effect that plaintiffs were parties to the pleadings on which the judgment here involved was rendered; that the pleadings were approved by them; that the judgment was entered in accordance with the pleadings; that, by reason of the judgment rendered, respecting the usufruct, plaintiffs were required to pay a smaller inheritance tax than they otherwise would have been required to pay; and that, as plaintiffs have received the benefits of the judgment rendered, they are now estopped to question it.

It does not admit of question that plaintiffs, together with the widow and the children of the second marriage, specifically prayed for the particular judgment that was rendered, and that they, through their counsel, inspected the judgment before it was signed and took part in its preparation. It is also equally clear that, when those proceedings were had, plaintiffs were in full possession of all the facts upon which their right rested. Their error was one of law in supposing, which plaintiffs confessedly did, that the widow was entitled to the usufruct of the half of the community property inherited by the children of the deceased, whether all the children were her children or whether some of them were and some of them were not.

Where one makes a judicial declaration and judgment is rendered in accordance therewith, he cannot, to say the least, ordinarily revoke the declaration and attack the judgment under the pretense of having made an error of law. C. C. art. 2291. Nor does it seem to make any difference that the proceeding in which the declaration was made and the judgment rendered was a consent proceeding. Succession of Ruffin, 143 La. 828, 79 So. 421; Succession of Carter, 149 La. 189, 88 So. 788; Succession of Kranz, 162 La. 546, 110 So. 750. Therefore, if the case rested here, likely we should feel called upon to sustain the plea of estoppel. But the case does not rest here. There is an allegation in the joint petition upon which the judgment here involved was rendered which we think is fatal to the plea of estoppel. The joint allegation, which was the agreement referred to in passing on the exception of no cause of action, reads as follows:

“All of your petitioners [referring to both plaintiffs and defendants herein] here aver that the filing of the inventory herein and the listing of the debts due third persons shall in no manner affect the rights of the parties in interest herein to urge any claim that may be due by the community to the separate estate, or by the separate estate to the commanity, or any claim or demand which may exist in favor of either of the said estates against any of the heirs, and that the right on final partition of the estate to urge all such character of claims is expressly reserved by each and all of the parties hereto, and no one shall be estopped or bound by the filing of the inventory herein or the proceedings herein taken only to the extent of being bound by the designation of the property as to whether same is separate or community property, and as to the character of the debts as to whether same are separate or community debts, all in accordance with the terms of the said agreement.” (Italics ours.)

The clause in the foregoing allegation, approved at the time by all parties to this litigation, including the widow in community, to the effect that no one shall be estopped or bound by the proceedings herein taken, save in certain specific respects, refers, inter alia, to any allegation or to the -prayer of the joint petition to be sent into possession, in which the allegation containing the- clause occurs, for that petition is a part of the 'proceedings taken. Hence, by virtue of that clause, plaintiffs are not estopped or bound by the prayer that the widow be'sent into possession as usufructuary of the entire half of thé community that belonged to her husband, for the clause excludes the binding effect of that part of the proceedings. We also think, because of that clause and the fact that the consent judgment rendered is entirely based on the petition, containing that clause, with the agreement for the settlement of the estate, attached thereto, that plaintiffs are not estopped from attacking and correcting that part of the judgment awarding the widow, in accordance with the prayer of the petition, the usufruct on the portion of the community property inherited by plaintiffs herein. It is true that the joint allegation or agreement containing that clause is not incorporated in the judgment. . However, it was not necessary to incorporate it there. The allegation contained nothing for the court to adjudicate upon. It amounted merely to an agreement fixing the effect of the consent proceedings taken by the parties.

It is not a sufficient answer to the foregoing to say, with respect to the clause under consideration, that it was not intended to have the effect here given it, for the reason that, if such were the case, the clause would result in the rendition of a judgment that, would have no binding effect among the parties, save in certain specified respects. The answer to this is that such was the kind of judgment the parties to the proceedings desired. The entire matter was an amicable ax'rangement among them. What they wanted was to have the inheritance taxes fixed and settled and to be sent into possession, preparatory to raising money with which to settle the debts of the succession and to partition its property. They did not care for a judgment binding in all respects.

For these reasons the judgment appealed from is annulled and set aside, the exceptions and pleas filed are now overruled, and this case is remanded to be proceeded with according to law.

O’NIELL, C. J.

(concurring in the decree). This is a suit to construe, or, in the alternative, to reform, a judgment which was rendered by consent, so as to make it conform to what the plaintiffs allege was the intention of the parties. The defendants pleaded, first, res judicata; second, the prescription of one-year ; third, no right or cause of action; and, fourth, estoppel. The district judge, after hearing evidence on the pleas, sustained all of them and dismissed the suit. The plaintiffs have appealed from the decision.

J. H. Williams died intestate, leaving a widow and four minor children. There are also five major children, issue of a previous marriage, who are the plaintiffs in this suit. The community property, according to the inventory, is valued at $132,344.03, and the separate estate of the deceased is valued at $123,210; and there is other property valued at $3,000, the ownership of which — whether it is community property or belongs to the separate estate of the deceased — is in dispute. The succession was thoroughly solvent, but owed some debts, and, as the estate consisted mainly of farms, which required administration, it was deemed urgent that an administrator should be appointed.

It appears that the widow’s application to be appointed administratrix was opposed by the major heirs, issue of the first marriage; but before the contest was submitted to the court for decision, the parties agreed that the estate should be administered jointly by the widow and G. H. Pearson, the husband of one of the major heirs. One of the minor children, issue of the second marriage, was emancipated, and the widow qualified and was confirmed as tutrix of her three other children. The agreement between the widow, for herself and on behalf of her children, on the one hand, and the five major heirs, issue of the first marriage, on the other hand, was reduced to writing, and it provided in minute detail for the administration and settlement of the estate. Provision was made for the appointment of arbitrators to determine what property belonged to the community and what belonged to the separate estate of the deceased, and what debts were community debts and what were the separate debts of the deceased. There was, of course, no doubt or dispute that the widow was entitled to half of the community property, and that each of the nine heirs was entitled to one-ninth of the other half of the community property and one-ninth of the separate estate of the deceased. It was also understood that the widow was entitled to the usufruct of her children’s share of the community property, but, through an unaccountable oversight on the part of the attorneys, it seems to have been assumed that the widow was entitled to the usufruct of half of the community property, not only of the four-ninths of the half, inherited by her children, but also of the five-ninths of the half, inherited by the major heirs, issue of the first marriage.

Accordingly, and in order to carry out their agreement, the widow, for herself and as tutrix of her three unemancipated children, and the emancipated child and the five major heirs, issue of the first marriage, filed a joint petition in court, setting forth their agreement, and praying to be sent into possession of the estate — the widow and her emancipated minor child and the five major heirs accepting unconditionally and- the tutrix accepting for her three unemancipated minor children under benefit of inventory — all in accordance with -the agreement which was attached to and made part of their petition. They prayed that the widow should be recognized as the surviving member of the community, and that -the nine other petitioners should be recognized as the only heirs, each entitled to one-ninth of the estate of the deceased. Through the error or oversight which we have mentioned, however, the petitioners prayed that the widow should bo sent into possession of the community property, as owner of one half and as usufructuary of the other half; whereas, according to article 916 of the Civil Code, she was entitled to the usufruct of only the four-ninths of the half, being the share of her children, and not of the five-ninths of the half, the share of the five major heirs. The judgment, as prayed for, was rendered and signed, not in open court, but at chambers. It is that judgment which the five major heirs are suing to reform, on the allegation that the admission and decree that the widow was entitled to the usufruct of one-half instead of only four-ninths of one-half of the community property was the result of a mutual error or oversight on the part of all parties concerned.

The case has. not been tried on its merits, having been dismissed on the pleas of res judicata, prescription, no right or cause of action, and estoppel. The evidence which was introduced was objected to by the defendant’s attorney, but I agree with the district judge that it was admissible for the purpose of showing that the suit was brought within a year after the error was discovered, and that therefore the action was not barred by prescription. The evidence leaves no doubt that the error was only discovered within the year previous to the filing of the suit and the service — or waiver of service— of citation. There was ample opportunity for the plaintiffs’ attorneys to discover the error from the moment it was made; for the petition, in which the error appeared, was passed back and forth for inspection and correction by and between the attorneys for the major heirs and the attorneys for the widow and minor heirs, and none of them observed that the widow was being given the usufruct of a larger share of the community property than the share which she was entitled to the usufruct of. The undisputed fact is that the attorneys forgot that article 916 of the Civil Code allowed the widow the usufruct of only her own children’s share of the community property. The reason for the oversight, manifestly, was that the settlement which was being made was altogether amicable; there was nothing at issue; everybody intended that each should have what the law allowed him or her.

Inasmuch as the suit was brought within the year after the error was discovered, the plea of prescription is not well founded. The plea of res judicata is, of course, not well founded, because, in an action to annul or to reform a judgment, a plea that the judgment complained of cannot be pleaded as res judicata, would be a begging of the question — an arguing in a circle. Edwards v. Edwards, 29 La. Ann. 597; Holbrook v. Holbrook, 32 La. Ann. 13; Heroman v. Louisiana Institute, 34 La. Ann. 805; Anderson v. Benham, 40 La. Ann. 336, 4 So. 454; Lazarus v. McGuirk, 42 La. Ann. 194, 8 So. 253.

The plea of estoppel was based upon the fact that, by subjecting half of the community property to the widow’s usufruct, the tax collector charged a smaller inheritance tax on the plaintiffs’ share of the community property that he would have charged if only four-ninths of the half of the community property had been subjected to the widow’s usufruct. The evidence shows — and it would be quite certain without such evidence — that the plaintiffs did not give the widow the usufruct of their share of the community property for the purpose of saving or reducing the inheritance tax. The amount of the inheritance tax which they will have saved amounts to nothing in comparison with the loss which they will sustain if the error is not corrected. The correct amount of inheritance taxes may be paid yet if the error is corrected. The plea of estoppel is not well founded.

The only remaining question is whether the plaintiffs have a right of action and have set forth a cause of action. I have had some doubt about that because the error complained of seems to have been an error of law more than an error of fact. If the judgment .which is sought to be reformed had been rendered as the result of a contest between the parties, the plaintiffs would not have a right or cause of action to reform it. But the judgment is in fact nothing more than the judicial sanction or evidence of what is supposed to have been an agreement between the parties, and the plaintiffs are entitled to have the judgment show truthfully what their agreement was. If none of the parties to the agreement intended that the major'heirs were conceding or should concede to the widow anything more than the law allowed her, it would seem very unjust to burden their share of the community property with an usufruct in her favor, in consequence merely of a mutual error or oversight on the part of all parties to the transaction. An error of law, as well as an error of fact, will invalidate a contract, where the error of law was the only cause or the principal cause for the doing of what was erroneously done, or for the agreement to what was erroneously agreed to. Rev. Civ. Code, art. 1846; Philippine Sugar Estates Development Co. v. Government of Philippine Islands, 247 U. S. 385, 38 S. Ct. 513, 62 L. Ed. 1177; Sims v. Jeter, 129 La. 262, 55 So. 877. There is nothing in the record now to show that the rights of third parties have been affected by the alleged error. Por these reasons I agree that the plaintiffs are entitled to a hearing on the merits of this suit  