
    NO. 7698.
    MRS. WM VON DROZKOWSKY, ET AL VS THOMAS J. KILBRIDE, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0 I B I 0 N.

St. Raul, Judge.

This is a petitory action. The property in controversy belonged to the late John G. Seifer, who was married twice. _Jt was purchased just twenty days after his second marriage for 11150, of which one half was paid in cash, and the other half in one year.

Seifer had no children by his second wife, who died before him (1887) and whose nearest of kin are shown to be her mother, since deceased (1893), one sister, and the children of a predeceased sister and brother.

But though Seifer had no right of¿(t»sufruct on his wife's share of the community (Suco, of Lee, 9 An 398), yet he retained possession of this property until his death; and thereby doubtless recouped the amount of the cash payment thereon.

When Seifer died (1912) his two daughters by a former marriage (his sole heirs) found in his possession the pieoe of real estate involved in this controversy and another also belonging to the second community.

These (and other properties) they partitioned in kind between themselves. The property in controversy, then ^■,,2500, was taken by his daughter !.lrs. Uixon; and the other, then appraised ¿2000, by his daughter Mrs. Staiper. liaoh warrantod the titlo of the other.(1912)

In 1915, lira. Staiger purchased from the jiator and other helr3 of the second Mrs. Seifer, the plaintiffs here, their interest in the other property.

On July 1st 1914, Mrs. Mixon sold this property to l'homas J. and Anna M. Kilbride, the defendants here, with full warranty and with substitution to all claims arising out of previous warranties (if any).

The Kilbrides have called iñ warranty their own author Mrs. Mixon, now an absentee, and herein represented by a ourator ad hoo; and have also called her author (for one half), viz, Mrs. Staiger^now represented by her four children.

Reither the Succession of the second Mrs. Seifer, nor that of her mother, was over formally opened, and henos their heirs have never been "recognized and put in possession by judgment of court"’; nor have they ever been in actual (i. e. physical) possession of the property herein sued for»

I.

The defendants pleaded the proscription of ten years, which however is not insisted upon, and for which we see uo basis whatsoever. They also sot up an exception of "no cause of action", thereby challenging petitioners right to bring this suit; and as the foundation thereof, they now urge the ruling in Blum vs Allen, 145 La...... 81 Southern 760, that "Hairs have no standing to sue for the reoovery of the property inherited by them until they shall have been recognized by a judgment obtained contradictorily with the inheritance tax collector, putting them im Dossession and fixing the inheritance tax". Siting Act 109 of 1906; Succ. of Pavey, 124 La 525; Coreil's Estate, 127 La 702.

The only difference between that case and this is, that in the former the da oujus died after the act of 19o6, whereas in this the da quorum, Mrs. Seifer and her mother, both died before it.

That act, passed for revenue purposes, effected however a radical change in the ancient laws of this state, and ordinarily would not be thought retroactive. For prior to the first inheritance tax law (1904) the maxim "la mort saisit le vlf" prevailed in this state, and it was accepted law that the rights of heirs, i. e. the inheritance, vested at the moment of death; so that it might seem at first that to give that statute retroactive effect, offerred pertain constitutional objections.

But in Succession of Levy, 115 La 377, our Supreme Court virtually rejectee' the doctrina of si:tr.tr. q-? right as a pure fiction, and (in effect) adopted that of the Old Common law, exemplified in the maxim "Hon jus sed seisins facit stipitem" (Blackstone, Vol 2,1 p 209; Kent, Vol 4, p 385-086); a doctrino discarded in England since the statute of 3 & 4 William IT, chapter 106, and long ago repudiated by every other state in the Union. 4th Kent 387.

So that the question of vested rights having thus been disposed of, there appeared no longer any constitutional objection to giving the statute of 1904 a retroactive effect. Cahn vs Brewstel, 203 U. S. 552 (The same case).

In Succession of Stauffer, 119 La 66, the same question arose once more; this time under the act of 1906. Again the Supreme Court rejected the doctrine "le mort ralsit le vif," declared the statute retroactive, and denied any vested right in the heir unless and until actually, i. e. physically, in possession of the property.

As the act of 1906 is retroactive, it follows that the ruling in Blum vs Allen, supra, ought to prevail in this case.

But we do not think the act of 1906 literally applicable to a purely contingent claim or mere right of notion; for section 3 authorizes an heir, even before recognition, to do all suoh acts as may be "necessary to preserve the property from.LOSS." Otherwise the aot would in effeot quiet avery spoliation; and the greater the spoliation the more certain the confirmation.

Nor do wo think the ruling in Blum vs Allen, should be takeh too strictly. All that the oourt meant was simply that the helra could nox obtain nuaseasIon of the estate without paying the inheritance tax that might he due thereon for that was all the statute intended.

iTe think it would suffice for that purpose that the inheritance tax collector he made a party to the suit, to the end that the tax might he fixed in the very judgment which gives the heir actual possession; and we think this case may properly he remanded for that purpose.

The judgment appealed from is therefore reversed, and the case is now remendad to the court a qua there to he this prowoeded with in accordance with opinion and according to law; the costs of this appeal to he paid hy plaintiffs, and all other costs to await the final judgment.

New Orleans La, February 1920

OH REHEARING

O P I H I O H.

St. Paul, Judge.

The facta of the case are stated in our first opinion; and there would then have been judgment in favor of plaintiff^ had we not thought ourselves bound to follow herein the ling in Blum vs Allen, 145 La.

But we had overlooked the ruling in Succession of Westfeldt, 122 La 836 (843), that the provisions of the Constitution touohing liability for an inheritance tax, and the statutes carrying them into effect, do not reach back to conditions anterior to the Cbnstitution itself, which looked only to the prseent and future and not to the past.

I.

The nit revenues of the property from judicial demandd to March bth 1919 were $219.10; and plaintiffs must also have judgment for one half thereof, with reservation of their right to claim one half the net revenues after that date.

II.

The demand in warranty between the appellees cannot be entertained in this appeal (7 Orleans App 420; 9 Orleans App 299). Moreover they were not passed upon by the judgment appealed from.

Our former decree is wherefore sbt aside and the judgment appealed from reversed; and it is now ordered that there be judgment in favor of plaintiffs recognising then as joint owners (in the proportions dlainufl by than.} of one undivided half of the propart^tai in cantroT»’nrj ¿ end further judgment against the defendants Thomas J. and Anna ~ti. Kilbride for the sum of ^10^.55 with legal interest from March 5th 1919, and with reservation of plaintiff's right to recover one half of the net revenues of said property from said date until delivery; and for their costs in both courts.

New Orleans la, April 19th, 1920  