
    155 So. 446
    Succession of HARRIS.
    No. 32703.
    April 23, 1934.
    Rehearing Denied May 21, 1934.
    
      Quintero & Ritter, of New Orleans, for appellant Robert S. Link, Sr.
    William B. Grant, of New Orleans, for appellants Richard B. Harris, Frank S. Harris, Thomas J. Harris, Mrs. Kate Harris Link, Mrs. Carrie Harris Simpson, Richard Harris Parker and Lawrence Parker, Jr.
    William O. McLeod, of New Orleans, for appellants Mrs. Edna Cobb, wife of Ramon Slate, and Miss Solveig Kellaway, particular legatees.
    Robert S. Link, Jr., of New Orleans, for appellants Robert E. Simpson, Jr., Jack H. Simpson, Lawrence 0. Parker, Jr., Richard H. Parker, Suzanne J. Link, Jack I-I. Dink, Anne Frances Harris, Richard N. Harris, Jr., and Robert S. Dink, Jr.
    
      John J. Kenny, of New Orleans, for Richard N. Harris, executor of Mrs. Susie Jackson Harris’ estate.
    Milling, Godchaux, Saal & Milling and Lawrence K. Benson, all of New Orleans, for appellee Mrs. Jessie M. Maceo.
   ROGERS, Justice.

Oakley B. Harris died in New Orleans, his domicile, on March 11, 1928, leaving an estate consisting of property in Louisiana and Alabama. The property in Louisiana was appraised as of the date of his deáth at $426,-533.27 and the property in Alabama was valued at $30,006. The deceased was survived by his mother, Mrs. Susie Jackson Harris, a resident of Lawrence county, Ala., five brothers and sisters, and two nephews, issue of a predeceased sister.

Under his nuncupative will by public act executed on February 26, 1926, after making three particular legacies (one of which has been renounced), the testator directed that the residue of his estate be converted into cash and divided into ten equal shares to be distributed one share to each of his ten nieces and nephews. The testator made no provision whatsoever for his mother, notwithstanding she was a forced heir to the extent of one-fourth of his estate. The will was duly recognized and ordered probated, and the Hibernia Bank & Trust Company, in accordance with its terms, qualified as executor and proceeded to administer the succession.

On his deathbed, the decedent attempted to make another will, leaving to Miss Jessie McBride $50,000, to Mrs. Edna Slate $150 a month, and to his mother the residue of his property. This will was void for want of form and was not offered for probate, thus leaving in full force and effect the prior will executed in nuncupative form by public act.

Mrs. Susie Jackson Harris died at her home in Alabama, on January 2, 1930, while the succession of her son Oakley B. Harris was still under administration in this state. The decedent left surviving children and grandchildren, some of whom are residents of Louisiana. She also left a will disposing of her property in Alabama and a codicil to that will in which she bequeathed to Miss Jessie McBride, now Mrs. Sam Maceo, $50,-000.

The will of Mrs. Susie Jackson Harris was probated in Alabama, and her son Richard N. Harris duly qualified as executor under the will. Subsequently, Richard N. Harris qualified as his deceased mother’s testamentary executor in Louisiana.

On January 13, 1932, the surviving three sons and two daughters of Mrs. Susie Jackson Harris, and two grandsons, issue of a predeceased daughter, intervened in the succession of Oakley B. Harris, asking for the recognition of Mrs. Susie Jackson Harris as the mother and forced heir of Oakley B. Harris, and as such entitled to her légitime óf one-fourth of the property, left by her predeceased son and for the reduction of all testamentary donations made by him to the extent they infringe the légitime to which Mrs. Susie Jackson Harris was entitled. The following day, Richard N. Harris, as testamentary executor of Mrs. Susie Jackson Harris, intervened in the proceeding, claiming possession of his mother’s légitime of one-fourth in the succession of Oakley B. Harris and demanding a reduction of the testamentary dispositions made by Harris. Subsequently, Mrs. Sam Maceo (the former Jessie McBride) intervened, claiming $50,000 as legatee of Mrs. Susie Jackson Harris from her légitime of one-fourth and demanding the reduction of the special legacies so far as they might encroach on the légitime.

Exceptions of no right or cause of action were filed to the interventions of Richard N. Harris, testamentary executor, and Mrs. Sam Maceo, legatee, of Mrs. Susie Jackson Harris. The exceptions were overruled, and the issue being joined, the district court ordered that all the testamentary dispositions of Oakley B. Harris be reduced to the extent they encroach upon the légitime of Mrs. Susie Jackson Harris in the succession of her predeceased son, and also that the property comprising the légitime be delivered to Richard N. Harris, testamentary executor of Mrs. Susie Jackson Harris, to be administered under her will in accordance with the laws of Alabama. The universal legatee and particular legatee of Oakley B. Harris, the legal heirs of Mrs. Susie Jackson Harris, and Robert S. Link, Sr., applicant for letters as dative testamentary executor, also an intervener in the proceeding, have appealed from the judgment.

Shortly after the succession of Oakley B. Harris was opened in the civil district court for the parish of Orleans and the executor named in the will qualified, a power of attorney executed in regular form by Mrs. Susie Jackson Harris to her son Thomas J. Harris, of - New Orleans, was placed of record in the proceeding. Under the terms of this instrument Thomas J. Harris was authorized to represent his mother in the succession of Oakley B. Harris and to demand, receive, and recover for her account any property coming to her from the succession by inheritance or otherwise.

The will of Oakley B. Harris contained a bequest of $10,000 to Solveig Kellaway and also directed the executor to take from the estate “a sufficient amount in cash and invest it in an annuity paying one hundred dollars a month for account of Edna Oobb, known as Mrs. Raymond Slate.” ,

On October 13, 1928, the Hibernia Bank & Trust Company, executor, filed a provisional account placing thereon for payment all priv-' ileged and ordinary debts as well as the particular legacies to Miss Solveig Kellaway and Mrs. Edna Slate. This account was published according to law, and in due course it was homologated and a distribution of the funds made in accordance therewith.

Miss Kellaway and Mrs. Slate, answering the interventions, after their exceptions of no right or cause of action were overruled, pleaded the interveners were estopped to contest their legacies, because Mrs. Susie Jackson Harris had acquiesced in the executor’s account and had ratified the payment of the legacies, and the interveners could assert no greater rights than she could, if she were living. After the case was submitted, but before the time allowed for filing briefs had elapsed, alleging that he had just learned of the instrument, the attorney for Miss Kellaway filed a supplemental answer in her behalf, alleging as an additional ground of estoppel the execution by Mrs. Susie Jackson Harris, acting by her agent Thomas J. Harris, prior to the filing of the executor’s account, of a notarial act wherein she bound herself not to oppose the payment of Miss Kellaway’s legacy. However, on motion of the attorneys for Mrs. Maceo, the supplemental answer was disallowed.

The Hibernia Bank & Trust Company, testamentary executor, in its answer to the interventions, also pleaded estoppel by record and by conduct to interveners’ attack on its account and the judgment homologating the account.

The exceptions of no right or cause of action filed by Miss Kellaway and Mrs. Slate are predicated on the absence of any allegation in'the interventions that the payment of their legacies encroach upon the légitime of Mrs. Harris. And the argument is made on behalf of these particular legatees that until such allegation is, or can be, made they should not be compelled to discuss a purely moot question. There appears to be considerable force in the argument, but we shall pass all consideration of the legatees’ exceptions, because we think the pleas of estoppel are well founded and should be maintained.

Mrs. Maceo contends that as no personal notice was given Mrs. Harris of the filing of the executor’s account, she is not concluded by the judgment of homologation.

It is well settled that a judgment homologating the account of an executor or administrator is not binding on the heirs unless they were cited or appeared in the proceeding. Miguez v. Delcambre, 109 La. 1090, 34 So. 99.

But a forced heir may ratify a testamentary disposition made to his prejudice, and such ratification will thereafter estop him from contesting the validity of the donation. Nolan v. Succession of New, 31 La. Ann. 552.

The interest of Mrs. Harris in the succession of Oakley B. Harris was that of a forced heir. Her action in appointing her son Thomas J. Harris as her agent with such broad powers was for the purpose of asserting and protecting that interest. The record shows that Thomas J. Harris, as the mandatary of his mother, was fully aware of the filing and publishing of the executor’s account and the proposed payment of their legacies to Miss Kellaway and Mrs. Slate. His knowledge was that of his principal. He made no objection to the payment of the legacies and neither did Mrs. Harris. So far as the legacy to Miss Kellaway is concerned, it was acknowledged and ratified by a formal notarial act executed on June 20, 1928, by Mrs. Harris, through her agent, and by the other heirs of Oakley B. Harris. We think the court below erred in not allowing it to be pleaded on behalf of Miss Kellaway as an additional ground of estoppel. But the instrument is incorporated in the transcript, and we have considered it for whatever it may be worth.

The testamentary disposition in favor of Mrs. Maceo was not executed by Mrs. Harris until about a week after the executor’s account was homologated. It is clear at that time it was not in the contemplation of Mrs. Harris that the particular legacies which had been paid prior thereto should be returned to the succession of Oakley B. Harris. Her unbroken silence from March, 1928, when her action to redu.ce the legacies accrued, until January, 1930, when she died, together with the acts of her mandatary, convinces is that it was her intention to ratify the legacies to Miss Kellaway and Mrs. Slate, which were merely -reducible, and the reduction of which so far as her légitime is concerned she alone could legally have demanded and obtained.

Having disposed of the question arising on the legacies of Miss Kellaway and Mrs. Slate, we shall proceed to discuss the major question involved in this ease, viz.: The demand of the testamentary executor of Mrs. Susie Jackson Harris, in which Mrs. Jessie McBride Maceo joins, that Mrs. Harris be recognized as the forced heir of Oakley B. Harris; that all donations (except those to Miss Kellaway and Mrs. Slate) be reduced to the extent they infringe on her légitime; and that in due course the testamentary executor of Oakley B. Harris be ordered to deliver to the testamentary executor of Mrs. Susie Jackson Harris all the property which Mrs. Harris was entitled to receive as a forced heir of Oakley Bl Harris, to the end that said property may be administered according to the laws of the state of Alabama. This demand ignores the right of the heirs of Mrs. Harris, her children and grandchildren, to impose their légitime upon the légitime of Mrs. Harris in the succession of Oakley B. Harris.

Article 491 of the Civil- Code declares that persons who reside out of this state cannot dispose of property which they possess here, in a manner different from its laws. But the interveners contend that the article has no application to personal property, which has no situs, that happens to be within the state at the death of a nonresident testator. And they argue that Mrs. Susie Jackson Harris inherited nothing more than a right of action for her légitime which is a movable and descends according to the laws of Alabama. Per contra, her heirs contend that the succession of Oakley B. Harris was still under administration in Louisiana when Mrs. Harris died, and her right of action to the extent of two-thirds of her one-fourth interest in the succession of her son descended to her heirs as an immovable under the laws of this state.

The interveners, appellees, stress the failure of Mrs. Susie Jackson Harris to judicially exercise her right to claim her légitime, and, as a consequence, the transmission of that right to her heirs and assigns under her will. And the appellees argue that the institution of testamentary heirs by Oakley B. Harris was not null, -but only reducible. That Mrs. Harris owning no part of the estate, and not having sued to reduce the donations, transmitted by her will no portion of the estate of her deceased son, but transferred thereby only an incorporeal right of action to reduce his testamentary dispositions. Appellees, in support of their argument, cite articles 940, 1502 and 3542 of the Civil Code and the cases of Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175; Miller v. Miller, 105 La. 257, 29 So. 802; Jordan v. Filmore, 167 La. 725, 120 So. 275.

It is apparent from the record that the reason why Mrs. Harris did not judicially exercise her right to claim her légitime was because there was no necessity for her to do so. That right was acknowledged by all the parties concerned. In an accounting and settlement with the inheritance tax collector, the one-fourth interest of Mrs. Harris in the succession of Oakley B. Harris was recognized and appraised, and the inheritance tax due thereon was paid. And Mrs. Harris, herself, exercised her right in fact by bequeathing out of that interest the sum of $50,000 to Mrs. Jessie McBride Maceo. In these circumstances, the fact that Mrs. Harris died before she was formally put in possession of her one-fourth interest in the succession of Oakley B. Harris by the perfunctory entering of a judgment to that effect ought not giye the interveners any greater rights than she could, or would, exercise if she were living. But, be that as it may, we shall proceed to the disposal of the issues raised by the appellees.

Article 470 of the Civil Code provides that incorporeal things, consisting only in a right, are not of themselves strictly susceptible of the quality of movables or immovables; nevertheless they are placed in one or the other of these classes, according to the object to which they apply and the rules hereinafter established. And article 471 of the Civil Code declares that the following are considered as immovable from the object to which they apply: The usufruct and use of immovable things. A servitude established on an immovable estate. An action for the recovery of an immovable estate or an entire succession.

Incorporeal things are such as are not manifest to the senses and which are conceived only to the understanding, such as the rights of inheritance, servitudes, and obligations. Civ. Code, art. 460; Succession of Sinnot v. Bank, 705 La. 705, 30 So. 233.

Appellees contend that Mrs. Harris had no right of inheritance in the succession of her deceased son, but only a right to demand the reduction of excessive donations. It is true that in the hereinabove mentioned authorities cited by appellees, it is said that a forced heir is nothing more than a legal heir, who by reason of his relationship to the deceased has had reserved to him by law the right to claim, if he so elects, a certain proportion of the property of the deceased which may have been disposed of to his prejudice. It is also true, as stated in the same authorities, that the action of a deceased person in disposing of his entire estate is not absolutely null, and if the forced heirs fail to claim their légitime within the prescriptive period the ownership conveyed by the will is maintained.

But, after all, a forced heir has a right to the legal portion coming to him out of the estate of the testator. The law establishes that right, which cannot be defeated in a proper ease. It needs only to be asserted to be allowed. The right to claim the légitime is merely a corollary of the légitime, itself, whether it be an inheritable or merely a reserved right. Without the légitime as fixed by law the right to claim it would be nonexistent.

We think that so far as Mrs. Susie Jackson Harris may have had an action for her one-fourth interest in the succession of her deceased son, her légitime being recognized, it was for the recovery or partition of an entire succession. Hence, under articles 470 and 471 of the Civil Code, hereinabove mentioned, the right of action from the object to which it applies was an immovable and, as such, subject to distribution according to the laws of this state.

The estate of Oakley B. Harris, at the time of his death as disclosed by the inventory, was composed of both movables and immovables and active debts. As long as the succession remains open and undivided it is an entirety. The one-fourth interest of Mrs. Harris is not in a particular thing or class of things belonging to the succession, but to the whole succession. That interest can be enforced as against the wishes of the other heirs only by partition of the whole estate in which the respective rights of all the heirs can be contradictorily settled with one another. Marcenaro v. Mordella, 10 La. Ann. 772.

The cited case of Marcenaro v. Mordella is particularly appropriate to the case at bar. There the facts, as set forth in the opinion of the court, were as follows, viz: Anna Bardino had two children by her marriage to Angel Mordella. One child — Marie Rose Mordella — married Bertoli, and resided with her husband in New Orleans. The other child — • Minna Isabelle — resided with her 'mother at Gibraltar, in Europe. After the death of Angel-Mordella, Anna Bardino married J. B. Marcenaro at Gibraltar, where they continued to reside until the death of Anna Bardino. Joseph Bardino, the german brother of Anna Bardino Marcenaro, died in New Orleans, his domicile, shortly before the marriage of his sister Anna Mordella with Marcenaro. By his will he bequeathed to his sister $2,000. A considerable portion of his estate remained undisposed of by will, and, consequently, under the law of this state, was inherited by his sister Anna Bardino Marcenaro and a half-brother, Lorenzo Basso; the german sister being entitled to three-fourths and the half-brother to one-fourth. The succession consisted of real estate in New Orleans, slaves, debts, etc.

Nicholas Bertoli, the husband of Anna Bardino Mordella’s daughter, Marie Rose Mordella, was one of the executors of Joseph Mardino. He also obtained letters of curator-ship on the succession of his mother-in-law, Anna Bardino, the deceased wife of- Marcenaro. On Bertoli’s death, his wife, a forced heir of her mother, Anna Marcenaro, was appointed tutrix of their children and executrix of her husband’s will.

The suit was brought by Marcenaro, surviving husband of Anna Bardino, to recover from Bertoli three-fourths of certain funds alleged to have been collected by Bertoli for account of the succession of Joseph Bardino. Plaintiff alleged that under the common law he was entitled as surviving husband of Anna Bardino to be administrator of her estate and to reduce the funds claimed to his possession and make them his own.

On these facts, this court held that Marcenaro could not, in virtue of the right with which he was invested by the common law in his wife’s movable property, cldim, after her death, her movables in course of administration in this state, to the prejudice of those whose right thereto flowed from our own statute of distribution. The court, in the course of its opinion, pointed out that in England personal effects alone are placed under administration, while the real estate descends at once to the heir and cannot be charged in his hands with debts, except by specialty, etc. The personal effects are- distributed to the next of kin. The real estate descends to the heir at law, who often inherits to the exclusion of others equally near in relationship to the ancestor. While in this state immovables and movables are alike placed under administration, and are inherited by the same persons and in the same proportions. And the court referred to article 463 (article 471) of the Civil Code, providing that an action for the recovery of an immovable, or an entire succession, is considered as an immovable from the object to which it applies. Consequently, the court held that the interest of Mrs. Anna Bardino Marcenaro was in the whole succession of her deceased brother Joseph Bardino, and not in a particular thing or a class of things belonging to the succession. That the only right of action vesting in Mrs. Marcenaro was one for a- partition in which the rights of all the heirs could be settled contradictorily with each other. And that this right, whether it be considered a real right or a chose in action of the common law, had its domicile in this state.

By substituting the name of Marcenaro for that of Mrs. Maceo and the Alabama executor, Anna Mordella for that of Mrs. Susie Jackson Harris, and that of Joseph Bardino for that of Oakley B. Harris, the analogy between the cases is complete.

In the case of Bone v. Sparrow, 11 La. Ann. 185, this court again had occasion to pass upon the point, and to apply the provision of article 471 of the Civil Code. There the court, approving Marcenaro v. Mordella, held that the laws of Louisiana must control the distribution of the residuary interest of a succession under administration in this state; the right of action for the recovery of the same being immovable from the object to which it applies. And in Williams v. Pope Mfg. Co., 52 La. Ann. 1417, at page 1437, 27 So. 851, 860, 50 L. R A. 816, 78 Am. St. Rep. 390, the court referred approvingly to Bone v. Sparrow, as follows, viz.: “In Bone v. Sparrow, 11 La. Ann. 185, it was held that by the laws of Pennsylvania and Maryland, if the husband has not, during his life, reduced to possession the ehoses in action of his wife, they will pass to her representatives; and the court applied that rule to rights, credits, and ehoses in action which were assets of the estate of a decedent which were partly situated in Mississippi and partly in Louisiana.”

Again in Weber v. Ory, 14 La. Ann. 537, as shown by the syllabus, this court held: “The right of action of an heir, to compel a partition of the immovables and slaves belonging to the succession, in order that his portion may be set off to him, as owner, is an immovable — and when such a right is conveyed by last will, the instrument must conform to our laws, or it cannot have any effect.”

Mrs. Susie Jackson Harris never reduced to possession her one-fourth undivided interest in the succession of Oakley B. Harris. The estate at the time of her death was under administration in this state, and still is. The only property owned by Mrs. Harris and composing her succession in Louisiana is her interest in the succession of her deceased son. Reduced to its last analysis, the object of the Alabama executor and of Mrs. Maceo in this litigation is to obtain possession of that interest. Their action is not one merely for the reduction of excessive donations which is not contested, but its main purpose is to recover and reduce to possession of the Alabama executor for distribution according to the laws of Alabama, to the prejudice of the forced heirs of the de eujus, the interest of Mrs. Harris in the succession of her deceased son, which is resisted. A right of action to reduce an excessive donation is wholly distinct from a right of action to recover or partition an estate. The effect of reducing the excessive donations contained in the will of Oakley B.'Harris is to formally establish the one-fourth interest of his mother in his succession. This interest is an undivided one. It is an entire thing — an entire estate — not to be confused with any particular object or case of objects belonging to the son’s succession. That is the thing in dispute. The action of the Alabama executor, in which he is joined by Mrs. Maceo, to recover and reduce it to his possession, is an incorporeal immovable. It is for the recovery of an entire succession. Cf. White v. White, 50 La. Ann. 104, 23 So. 95. Hence the right of action herein asserted by the appellees must be governed by the laws of Louisiana, and not by the laws of Alabama. The will made in Alabama cannot destroy the légitime of the appellants in the testatrix’ estate in Louisiana.

To hold otherwise would present the legal anomaly of a different order of distribution for the interest of a nonresident forced heir from that of a resident forced heir in a Louisiana succession.

Appellee, Mrs. Maceo, in support of her contention, cites articles 1756, 1757, 1758, and 1759 of the Civil Code, to the effect that a natural obligation although unenforceable by action is binding on the party who makes it in conscience and according to natural justice; and that a natural obligation rests on those Who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only. Also article 2274 of the Civil Code, which provides that: “The confirmation, ratification, or voluntary execution of a donation by their heirs or assigns of the donor, after his decease, involves their renunciation to oppose either defects of form or any other exceptions.”

Appellee, Mrs. Maceo, argues that Mrs. Harris was under a natural obligation to execute the donation of $50,000 which Oakley B. Harris on his deathbed attempted to make to Mrs. Maceo, which donation was void for want of form. And that it was in order to discharge that obligation Mrs. Harris executed the codicil to her will, the codicil reciting, substantially, that whereas Oakley B. Harris had endeavored to bequeath Mrs. Maceo $50,000, which bequest was invalid, and being desirous that the wishes of her deceased son should be carried out-, and also being desirous that she and her grandchildren should pay the debt, she provided for the specific manner in which the debt should be paid.

The legacy of $50,000 contained in the void will of Oakley B. Harris was an intended gratuity which never became operative because the will was null for want of legal form. Hence, the intended legacy never became a debt or obligation of the estate of Oakley B. Harris, and if the donation of $50,000 by Mrs. Harris to Mrs. Maceo was made in order to fulfill a moral obligation to execute the invalid donation of her deceased son, the donation is payable out of her individual estate and not out of the estate of her deceased son.

Whatever may have been the motive of Mrs. Harris for making it, the donation contained in the codicil to her will is nothing more than a testamentary disposition in favor of Mrs. Maceo for $50,000. Mrs. Maceo, herself, recognizes this, because her intervention in this proceeding is based on her claim that she is a legatee of Mrs. Harris. This clearly appears from article 9 of her petition, wherein she expressly alleges that she “is a legatee of the said Mrs. Susie Jackson Hands to the extent of fifty thousand ($50,000.00) dollars, and is entitled, as such, to be paid said amount by preference from the proceeds of the estate of the said Susie Jackson Harris, deceased.” Manifestly, the legacy to Mrs. Maceo cannot be discharged to the prejudice of the forced heirs of the testatrix.

There are several other questions raised in the ease which we do not deem it necessary to discuss or mention.

For the reasons assigned, it is ordered that the judgment herein appealed from be annulled. And it is now ordered that there be judgment recognizing Mrs. Susie Jackson Harris as the mother and forced heir of Oakley B. Harris, and, as such, entitled to her légitime of one-fourth of the property or estate left by Oakley B. Harris; and that there be judgment reducing the dispositions mortis causa (except the legacies to Miss Solveig Kellaway and Mrs. Edna Slate, which are maintained), to the extent they infringe on the légitime to which Mrs. Susie Jackson Hands is entitled in the estate of Oakley B. Harris.

It is further ordered that the intervention of Richard N. Harris, Frank S. Harris, Thomas J. Harris, Mrs. Kate Harris Link, Mrs. Carrie Harris Simpson, Richard Harris Parker, and Lawrence Parker be maintained and they are recognized as entitled to a légitime of two-thirds upon the légitime of one-fourth of Mrs. Susie Jackson Harris in the succession of Oakley B. Harris.

It is further ordered that the successions of Oakley B. Harris and Mrs. Susie Jackson Harris be administered according to the laws of this state and to the views and judgment herein set forth.

It is further ordered that, with the exception of their demand for the recognition and enforcement of the légitime of Mrs. Susie Jackson Harris in the succession of Oakley B. Harris, the demands of the interveners Richard N. Harris, testamentary executor of Mrs. Susie Jackson Harris, and Mrs. Jessie McBride Maceo, be rejected, with full reservation to urge whatever rights they may possess in the succession of Mrs. Susie Jackson Harris upon the final liquidation and settlement of the succession of Oakley B. Harris, except as to such rights and claims as are herein adjudicated and settled.

All costs of this proceeding are to be paid by the succession of Oakley B. Harris.

ST. PAUL, J., absent.

BRUNOT, J., concurs in decree.

O’NIELL, O. J., is of the opinion that the judgment appealed from is correct, and will assign his reasons therefor.

O’NIELL, Chief Justice

(dissenting).

My opinion is that the judgment appealed from is correct.

Oakley B. Harris died in New Orleans, where he had his residence and domicile, leaving an estate then valued at $426,533.27, but now worth very much less. He was survived by his mother, Mrs. Susie Jackson Harris, who resided in Oourtland, Ala., and by five brothers and sisters, and two nephews, the children of a deceased sister. 1-Ie left a will, in which he gave special legacies to two of his brothers and to three outsiders (one of whom has renounced the legacy), and gave the entire residue of his estate to ten nephews and nieces, including the two nephews who, because of their mother’s death, were among his collateral heirs. Oakley B. Harris was shot to death, and, while he lay dying, he dictated and signed a will, in which he bequeathed $50,000 to Miss Jessie McBride (who is now Mrs. Maceo), and $150 a month to Edna Slate, and the residue of his estate to his mother. That will, however, was invalid for want of legal form, because, although it was signed by the testator, it was not written by him, but was written by an attending physician. The previous will, therefore, in which the mother of the testator and Miss Jessie McBride were not mentioned, was the only valid will of Oakley B. Harris, and was probated as such, the Hibernia Bank & Trust Company taking possession and administering the estate as the executor named in the will. The will which the testator had made when he was mortally wounded was filed in the record, but was not offered for probate, because it was plainly invalid for want of form.

The mother of Oakley B. Harris was his heir at law for a fourth of his estate (Rev. Civ. Code, arts. 903, 911), and, being a forced heir, she had the right to demand a reduction of the dispositions of his will to the disposable portion, three-fourths, of his estate. Succession of Greenlaw, 148 La. 255, 86 So. 786; Rev. Civ. Code, art. 1502. She- desired, however, to carry out the wish of her son to leave $50,000 to Miss Jessie McBride. She, therefore, made a codicil to her will, in which she declared that there was a natural obligation on her part, to the extent of one-fourth, and on the part of the residuary, legatees (her nephews and nieces) named in the valid will of Oakley B. Harris, to the extent of three-fourths of the obligation, to allow the legacy of $50,000 to be paid to Miss Jessie McBride — notwithstanding the disposition was invalid for want of form. Prom the wording of the codicil which Mrs. Susie Jackson Harris made to her will, it appears that she had in mind the fourth paragraph of article 1758 of the Civil Code, which puts the “natural obligation” of an heir — either legal or testamentary — to carry out the donations or other dispositions of the deceased, “which are defective for want of form only,” in the same class with the “natural obligation” to pay a debt that is prescribed, viz.:

“4. There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only.”

The mother of Oakley B. Harris, in the codicil of her will, undertook to assume the obligation to pay to Miss Jessie McBride the whole legacy of $50,000, out of the fourth interest in the estate, inherited by the mother of Oakley B. Harris, if the residuary legatees of Oakley B. Harris declined to pay three-fourths of the $50,000. She stipulated, therefore, in the codicil of Her will, that the residuary legatees of the estate of Oakley B. Harris should pay three-fourths of the $50,000 to Miss Jessie McBride, and that, if they failed so to do, the share of any one of them so failing or refusing should be deducted from his or her inheritance from the succession of the mother of Oakley B. Harris, or from the inheritance of the parent of the grandchild refusing to contribute to the payment of the $50,000.

A year and nine months after the death of Oakley B. Harris, and while his succession was being administered by the executor in New Orleans, his mother died, at her residence, in Alabama. Meanwhile, she had appointed one of her sons as her agent and attorney in fact, to look after her interest in the succession of her deceased son, in Louisiana. She had not sued, however, to reduce the dispositions of the will of Oakley B. Harris to the disposable portion, three-fourths-of the estate. It is conceded, of course, that the mother of Oakley B. Harris was his forced heir, for a fourth of his estate, and, therefore, that she had the right to demand a reduction of the dispositions of his will to the disposable portion. If that were not true there would be no such lawsuit as we have now. But it cannot be said that the justness of the claim of the mother of Oakley B. Harris placed it in the same class as if it had been reduced to —or converted into — possession of a fourth of the estate of Oakley B. Harris.

The heirs at law of the mother of Oakley B. Harris are his five brothers and sisters and the two nephews, the children of his deceased sister. If the estate of Mrs. Harris should be distributed according to the inheritance laws of Louisiana, her heirs, being her sons and daughters and grandsons, are her forced heirs, to the extent of two-thirds of her estate. Hence they claim the right to reduce the legacy of $50,000 to Miss Jessie McBride, in the codicil of the will of the mother of Oakley B. Harris, in so far as the legacy may exceed one-third of Mrs. Harris’ légitime of one-fourth of the estate of Oakley B. Harris. On the other hand, if the right of action of Mrs. Harris, to reduce the dispositions of her son’s will to the disposable portion, was merely a chose in action, having its situs in Alabama, and was therefore transmitted according to the laws of Alabama, the heirs of Mrs. Harris have no right to complain of her having given $50,000 to Mrs. Jessie McBride Maceo out of the legitime of one-fourth of the estate of Oakley B. Harris.

I do not see any inconsistency in Mrs. Maceo’s claiming, primarily, that the estate of the mother of Oakley B. Harris should be distributed according to the laws of Alabama, where there are • no forced heirs, and her claiming, in the alternative, that, even if the claim of Mrs. Harris against the legatees named in his will should be dealt with according to the laws of Louisiana, where there are forced heirs, the forced heirs would have no right to complain of Mrs. Harris’ paying the $50,000 in settlement of a natural obligation. The basis of this alternative argument is that article 1759 of the Civil Code declares that, although a natural obligation cannot be enforced by lawsuit, it is a sufficient consideration for a new contract, and no suit will lie to recover what has been given or paid in fulfillment of a natural obligation. From this, and from the fourth paragraph of article 1758 of the Civil Code, there is considerable logic in Mrs. Maceo’s argument that, although she could not have compelled Mrs. Harris to pay her proportionate share of the natural obligation of the heirs of Oakley B. Harris, to allow the payment of the $50,000 legacy which was invalid only for want of form, neither could the heirs of Mrs. Harris— even if they are her forced heirs — prevent a fulfillment of the natural obligation. If the claim of Mrs. Maceo depended upon this alternative proposition, based upon the theory of the natural obligation recognized by Mrs. Harris, my opinion, very likely, would be that there was no natural obligation on the part of Mrs. Harris beyond her proportionate share, one-fourth, of the $50,000. She could not assume a natural obligation of the residuary legatees of Oakley B. Harris to the prejudice of her forced heirs — -if the claim of the estate of Mrs. Harris in the estate of Oakley B. Harris is subject to the law of forced heirship. I have some doubt, however, whether the fourth paragraph of article 1758 of the Civil Code was intended to be applied to dispositions mortis causa, or only to donations or other dispositions of property made by the ancestor during his lifetime. The grammatical expression in the article leaves some doubt about that. And it need not be considered further by me in this case, because my opinion is that the first proposition advanced by the Alabama executor of the estate of Mrs. Harris, and by Mrs. Jessie McBride Maceo, is well founded; that is, that the estate of Mrs. Susie Jackson Harris, including what she may receive from the succession of Oakley B. Harris, should be administered and distributed according to the laws of Alabama. It seems anomalous to me that the courts of Louisiana should be applying the law of forced heirship to a succession which is being administered and distributed according to the laws of Alabama. If the sons and daughters and grandsons of Mrs. Harris have the right, under the laws of Louisiana, to reduce the $50,000 legacy which Mrs. Harris bequeathed to Mrs. Jessie McBride Maceo to the disposable portion — which under the laws of Louisiana is one-third of the estate of Mrs. Harris — why reduce it to only a third of whatever Mrs. Harris may receive from the succession of her deceased son? If the validity or effect of the codicil of the will of Mrs. Harris, bequeathing $50,000 to Mrs. Jessie McBride Maceo, should be governed by the laws of Louisiana, the disposable portion would be one-third of the estate of Mrs. Harris, and the $50,000 legacy would not be subject to reduction for exceeding a third of only that part of the estate of the testator which she may receive from the succession of her deceased son, in Louisiana.

On this subject it is said in the prevailing opinion rendered in this case, in support of what the opinion holds; “To hold otherwise, would present the legal anomaly of a different order of distribution for the interest of a nonresident forced heir from that of a resident forced heir.” But the difference, which the majority of the members of the court seem to overlook, is not 'between the nonresident and resident forced heir; the difference which should be observed in this case, and in all cases, is between one who claims to be a forced heir to a so-called nonresident succession and one who claims to be a forced heir to a so-called resident succession. The prevailing opinion in this case appears to me to proceed upon the theory that, because the mother of Oakley B. Harris was his forced heir for one-fourth of his estate, and because her sons and daughters and grandsons are her forced heirs for two-thirds of her estate, therefore they are the forced heirs of Oakley B. Harris for two-thirds of one-fourth (being one-sixth) of his estate. But that is not so, because there is no forced heirship in the collateral line.

When Mrs. Harris died, she did not, literally, own an interest in the estate of Oakley B. Harris, in Louisiana. She had merely the right of action, accorded to her by article 1502 of the Civil Code, to reduce, to the disposable portion of his estate, the bequests which he had made in his will. The article ’provides:

“Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum.”

Article 940 of the Civil Code provides 'that the rule, by which a succession is acquired by the heir immediately at the delath of the one from whom he inherits, applies also to testamentary heirs, instituted heirs, or universal legatees. And article S86 declares that it is only when there is no testamentary heir, or instituted heir, or universal legatee, or where the institution of an heir or universal legatee is null or without effect, that the succession goes to the heir at law immediately at the death of the one from whom he inherits, and by mere operation of law.

Therefore, at the death of Oakley B. Harris, his universal legatees — the ten nephews and nieces named in his will — inherited his estate; and all that his mother had was the right of action, which she might or might not have availed herself of at any time within five years, to sue the legátees named in the will of Oakley B. Harris for a reduction of the legacies to three-fourths of his estate. Article 3542 of the Civil Code limits the right of action “for the reduction of excessive donations,” along with other personal rights of action, to the period of five years.

In the prevailing opinion in this case it is held, as I understand, that the right of action which Mrs. Harris had, to demand a reduction of the legacies in the will of Oakley B. Harris, is “considered as immovable”, and as having its situs in Louisiana, on the theory that it is “an action for the recovery of * * * an entire succession”; because article 471 of the Civil Code declares that “an action for the recovery of an immovable estate or an entire succession” is, like the usufruct of an immovable estate, or a servitude on an . immovable estate, “considered as immovable from the object to which they apply.” But article 3548 puts such an action in an entirely different class from “that for the reduction of excessive donations,” by providing that: “All actions for * * * an entire estate, as a succession, are prescribed by thirty years.”

The law on this subject is well settled b3 the decided cases, particularly Miller v. Miller, 105 La. 257, 29 So. 802, 804; Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175; and Jordan v. Filmore, 167 La. 725, 120 So. 275.

In Miller v. Miller, it was said:

“It will be observed that articles 1493-1495 of the Revised Civil Code do not purport to make any change in the ownership of the property of the testator, and simply prohibit him from disposing of it to a certain extent ‘to the prejudice of heirs’ holding certain relations to the deceased. He is at liberty to dispose of the whole property, subject, however, to the right of these heirs, if they feel themselves aggrieved, to have the will set aside to the extent necessary to secure to them, as forced heirs, the legal portion coming to them. They are at liberty to make this claim only if they think proper to do so. If they do not make the claim, the ownership conveyed 'by the will is maintained. It is often supposed that by the term ‘forced heirs' the law has created a special kind of heirs, separate and distinct from the three kinds of heirs mentioned in article 879 of the Revised Civil CMe, so that that article ■should read: ‘There are four (not three) kinds of heirs, which correspond with four (not three) species of succession, to wit: Testamentary or instituted heirs; legal heirs or heirs of the blood; irregular heirs; forced heirs.’ This is a mistake. What are termed ‘forced heirs’ are nothing more than certain legal heirs 'who by reason of their relationship to the deceased have had i'eserved to them the right to claim, as heirs, if they so elect, a certain proportion of the property of the deceased, and which he may have disposed of ‘to their prejudice.’ Article 1495, in referring to these heirs, simply declares that they are called ‘forced heirs,’ and assigns the reason for their being so called. They are not forcedly made heirs by the law, nor is the action of the deceased in disposing of his entire property forcedly and absolutely null. His action in so doing is only subject to successful attack by these forced legal heirs, under proper conditions and circumstances, when legally claimed and established.”

In Cox v. Von Ahlefeldt, 105 La. 579, 30 So. 175, 213, it was said:

“The rule le mort saisit le vif is thus expressed in the Revised Civil Code: ‘Art. 940. A succession is acquired by the legal heir, who is called by law to the inheritance immediately after the death of the deceased person whom he succeeds. This rule applies also to testamentary heirs, to instituted heirs, and universal legatees, but not to particular legatees.’ It will be observed that the application of this article is not confined to legal heirs, and still less to forced heirs, but that it applies as well to testamentary heirs, other than particular legatees, from which it follows, construing its provisions with those of articles 1502, 1504, and 3542, that the testamentary donation of an entire estate, including the légitime of the forced heir, confers a title upon the donee, which may be reduced pro tanto at the suit of the forced heir, or of his heirs or assigns, provided such suit is brought .within five years.”

I respectfully submit that the decisions cited in the prevailing opinion in this case are not at all appropriate, because in none of them was there a claim to reduce a donation or testamentary bequest to the disposable portion of the estate of the donor or testator.

For example, in Marcenaro v. Mordella, 10 La. Ann. 772, the only question was whether the husband of Anna Bardino Marcenaro, who died in Gibraltar, where she and her husband resided, or the daughter, Mrs. Bertoli, who resided in New Orleans, should inherit the interest of Anna Bardino Marcenaro in the succession of her brother, Joseph Bardino, who had died in New Orleans, where he resided, and whose succession was being administered when his sister, Anna Bardino Marcenaro, died in Gibraltar. It was said: “No part of Anna Bardino’s interest in her brother’s succession was ever reduced to possession by Marcenaro [her husband] during her life-time.” It was held, of course, that Anna Bardino Marcenaro’s daughter inherited Anna Bardino Marcenaro’s interest in her brother’s succession, in New Orleans. But the difference between that case and this is that Joseph Bardino, who died in New Orleans, 'and whose estate was inherited by his sister in Gibraltar and a half-brother in New Orleans, did not leave an instituted heir, or universal legatee; and so the sister, in Gibraltar, inherited, absolutely and immediately, three-fourths of his estate, in concurrence with the half-brother, who inherited one-fourth of the estate. Rev. Civ. Code, art. 913. The ruling in that case, therefore, is not at all pertinent to the case before us.

The next case cited in the prevailing opinion in this case is Bone v. Sparrow, 11 La. Ann. 185. In that case, the court referred approvingly to the decision in Marcenaro v. Mordella, which, as I have explained, has nothing at all to do with the present case; but all that the court decided in Bone v. Sparrow was that the daughter, and not the husband, of a woman who had resided in Pennsylvania and died in Maryland, inherited her interest in the succession of her father, which was under administration in Louisiana. The court said, referring to the husband, who had transferred his interest in the succession of his wife, whose father’s succession was under administration in Louisiana when she died in Maryland: “By the laws of Pennsylvania and Maryland, if the husband has not, during his life, reduced to possession the choses in action of his wife, they will pass to her representatives.” Having so decided the case according to the laws of Pennsylvania and Maryland, the court adverted to Marcenaro v. Mordella as authority for this proposition: “that the laws’of Louisiana must control the distribution of the residuary interest of a succession under administration in this State — the right of action for the recovery of the same being immovable from the object to which it applies.” But that, of course, has nothing to do with the right of action of a nonresident forced heir to sue the universal or residuary legatees in Louisiana, for a reduction of the legacies.

In the next case cited in the prevailing opinion in this case, Williams v. Pope Manufacturing Co., 52 La. Ann. 1417, 27 So. 851, 50 L. R. A. 816, 78 Am. St. Rep. 390, all that was decided was that the right of action of Mrs. Williams, for herself and on behalf of her minor child, for damages for an unlawful arrest and malicious prosecution in Louisiana, she being a resident of Mississippi, was not community property, and might be exercised by her, not only in her own behalf but also for the use and benefit of her child, the father having abandoned the matrimonial domicile' and his whereabouts being unknown. Surely that decision has nothing to do with this case.

' The next case cited in the prevailing opim ion in this case, Weber v. Ory, 14 La. Ann. 537, is authority only for the proposition that a right of action of a nonresident heir to compel a partition of real estate [and slaves] belonging to a succession under administration in Louisiana is considered as an immovable, and thex-efox-e could not be conveyed by a testament made contx-ary to the laws of Louisiana. The decision has no relation whatever to a right of action of a nonresident forced heir to demand a reduction of a bequest or donation made in Louisiana.

In the next and last case cited, White v. White, 50 La. Ann. 104, 23 So. 95, all that was decided was that a suit by the heirs to recover from the succession of their father their intex-est (which he had received) in the succession of their mother was not a personal action, and therefore not barred by the prescription of five yeai-s or ten years, but, being an action to recover an entire succession, was subject only to the prescription of thirty years. That was merely a restatement of articles 471 and 3548 of the Civil Code, and has nothing whatever to do with the question presented in this case.

It is plain, therefore, that in all of the eases cited in the prevailing opinion in this case —except in the suit for damages for unlawful arrest, and malicious prosecution — the contest was over a succession under administration in Louisiana and governed by the inheritance laws of Louisiana. In this case the contest is over the succession of Mrs. Susie Jackson Hax-ris, which is under administration in Alabama and is subject to Alabama’s laws of descent and distribution. The sons and daughters and grandsons of Mrs. Hax-ris, who are seeking to reduce the legacy of $50,000 which she bequeathed to Mrs. Jessie McBride Maceo, are not heix-s at law of Oakley B. Harris, and do not claim anything or any right by inheritance from him. Their demand is merely to reduce the legacy of $50,000, in the will of Mrs. Harris to what would be the disposable portion of' her estate if her will were governed by the laws of Louisiana. I do not believe that the courts of Louisiana have authority or jurisdiction to apply the law of forced heirship to the will of a person who was domiciled and died in Alabama, leaving a will disposing of her estate, consisting of property in Alabama and a chose in action against residents in Louisiana. If the courts in Louisiana undertake to apply the law of forced heirship to the will of Mrs. Harris, to what extent will the coux-ts go in determining what was the disposable portion of her estate? The disposable portion was not limited to a third of the chose in action in Louisiana, but was limited, if limited at all, to a third of the whole estate of the testatrix. According to article 1505 of the Civil Code: “To determine the reduction to which the donations, either inter vivos or mortis causa are liable, an aggregate is formed of all the property belonging to the donor or testator at the time of his decease; to that is fictitiously added the property disposed of by donation inter vivos, according to its value at the time of the donor’s decease, in the state in which it was at the period of the donation.” That ai-ticle further provides that the sums due by the estate are to be deducted from the aggregate amount and the disposable quantum is to be calculated on the balance. Articles 1505 to 1518, inclusive, prescribe additional rules for calculating the disposable portion of-an estate, and the légitime reserved to forced heirs. How can a court in Louisiana apply these rules to a will that is governed in its validity or effect by the laws of another state?

It is said in the prevailing opinion in this case that the reason why Mrs. Harris did not exercise judicially her right to claim her légitime in her son’s estate in Louisiana was that her right was recognized in an accounting with- the inheritance tax collector, and the tax was paid, and that she herself “exercised her right in fact by bequeathing out of that interest the sum of $50,000 to Mrs. Jessie McBride Maceo.” The important fact, however, is that, when Mrs. Harris died, she had not acquired a title or possession of any property in Louisiana. All that she had in that respect was the right of action to demand from the legatees named in the will of her son a reduction of the legacies to the disposable portion of his estate; which right depended upon the many contingencies and calculations set forth in articles 1505 to 1518 of the Civil Code. And all that the sons and daughters and the two grandsons of Mrs. Harris are claiming here is the right to reduce the legacy of $50,000 given to Mrs. Jessie McBride Maceo to the disposable portion of the estate of Mrs. Harris. The fact that the right of action of Mrs. Harris was “recognized” by the executor of the succession of Oakley B. Harris, in paying the inheritance tax on his estate, and the fact that Mrs. Harris herself “recognized” her right by bequeathing to Mrs. Jessie McBride Maceo $50,000, to be paid out of such sum as Mrs. Harris might obtain from the estate of her son, are matters of no importance whatever in determining whether the courts of Louisiana have jurisdiction to order a reduction of legacies or donations made by one who lived and died in Alabama, and whose succession is under administration there.  