
    
      ROMAN CATHOLIC CHURCH vs. MILLER.
    
    Appeal from the court of the seventh district.
    The judge of probates may certify the record at any time after judgment.
    A legacy of so much money in a drawer, is only good for the sum found there at the decease of the testator.
   Martin, J.

delivered the opinion of the court. The plaintiffs claim $500, under a legacy of that sum (in the will of the late D. Garcia,) "enclosed in a letter and deposited in my (the testators) armoir, or cloths press, in a drawer marked No. 2.” The curator of the estate refused the demand on the ground of the legacy being a nullity, the money not being found in the drawer at the death of the testator. The plaintiffs had judgment, and the defendant appealed.

West'n Dis'ct

October, 1826.

The appellees prayed for a dismissal of the appeal for want of a statement of facts, done in due time. There is no statement of facts, but a certificate of the judge of probates, several months after the judgment, attesting the record contains all the proceedings and evidence adduced on the trial.

We think this suffices: The act of 1820 requires that all the testimony given at the trial of a cause in the court of probates, shall at the time be reduced to writing, to serve as a statement of facts. This being the case, and there appearing depositions of witnesses, we must conclude that all the evidence was reduced to writing. And the transcript of the record duly certified, enables us to examine the merits of the case, and this certificate may be made after the judgment.

It appears that on opening the will, on the day the testator was buried, one hundred and seventy dollars and two cents, only, were found in the drawer marked No. 2, but upwards of seven hundred dollars were found in this and the other drawers.

The plaintiff’s legacy is a particular one. The legacy of the property I possess in such a place, is a particular one. 5 Toulier 487 & 5 4. And the nature of the legacy is not varied because a sum of money is bequeathed. A legacy of one hundred reals, which I have in such a box, is good for so much as the testator has there, up to that sum. 1 Febrero e. 2, § 2, p 24. And we have received from Spain a positive legislative provision on this respect. Part 6, 9, 18. Mor. & Car. 962.

We think the judge ought to have restrained the legacy to the money found in the designated drawer.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and that there be judgment in favor of the plaintiffs for one hundred and seventy dollars and two cents, with interest from the judicial demand, with costs in the court below. The costs of appeal to be paid by the appellee.

Rost & Johnston for the plaintiff, Fennesey for the defendant.  