
    Succession of Benjamin Story.
    Partitions between minors to be valid must be made in conformity to the order of courtj and in the manner advised by the family meeting.
    The heir who purchases property at a succession sale, has a right to keep it as a portion of the share coming to that heir; and it is legal in effecting a subsequent partition, to form a lot for that heir in which the indebtedness is included. O. C. 1265.
    In effecting partitions the law forbids the cantling of tenements, where it can be avoided. C. O. 1287.
    There is no exception to the rule, that in effecting a partition where there are more than one minor interested, and all represented by the same tutor, a special tutor must be appointed for each minor. C. 0.1201.
    A judge in ordering a partition, before referring the parties to a notary, should regulate it in the manner which shall appear to him most convenient and most advantageous to the interests of the co-heirs. C. G. 1259.
    
      The rule to be deduced, from the conflicting articles of the code for conducting partitions, is, that the lots should be drawn, so far as it is practicable, without depriving any of the heirs of their legal lights, or affecting injuriously the value of the property.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.
    
      Benjamin and Micou, for appellees,
    contended : 1st. A tutor can compromise respecting the rights of the minor, if authorised by the judge on the advice of a family meeting. C. C. 348. 2d. Heirs of age may make partition as they please. The article 1289 C. C., requiring lots to be drawn for by the heirs, is intended to secure the rights of minors. An agreement that the tutor of a minor shall choose a share before any of the heirs of age, if authorised by the judge and a family meeting, is for the advantage of the minor. Rights are thereby secured to him superior to those provided by law. It would be a perversion of the spirit of the law to interpret a provision made for the minor’s protection, in such a manner as to put the minor in duriori cam. 3. The French code contains articles similar to those in our code. Code Napoleon, arts. 466, 834. The interpretation of these articles by the French courts and jurists is the same as that for which we contend. Vaudreuil v. SaUonier Tamnay, 15 Sirey, 1,404. 12 Dalloz, Jurisprudence Genérale, 509. 4Toullier, No. 428. Vazeille, Successions, art. 834, No. 2, vol. 1, p. 305. Pousol Successions, art. 834, No. 3, Chabot Successions, vol. 3, p. 155.
    
      L. Peirce for appellants,
    contended : The estate consists of many and valuable properties; it is of importance to all the heirs that the title to them should bo indisputable. In making the partition, it was desired by the tutrix of the three minor heirs that she should make choice of their lots, and that they should hold such in common, that is, that there should be but partial partition. The object to be obtained was a final partition, and it was doubted by the major heirs that this could be effected under our laws.
    It was, however, represented by the very able and experienced counsel of the minors, that it was in the power of the tutor, with the advice of counsel, to make a compromise or transaction; and as there was a claim for various sums of money urged by the minors against one of the major heirs, which, though dismissed by the inferior court, was subject to an appeal, that in consideration of abandonment of all claims against him, the family meeting could so authorise the allotment as to malee the partition final. It is certainly of advantage that this allotment should be allowed, and there is an authority in the reports of the court of cassation of the year 1815 that would seem to support it; but, as the question is something new in Louisiana, and appears also to be very rare in France, no other authority having been directly in point, it is respectfully submitted to the court, on the part of the opponents, that by article 1246, Civil Code, it is enacted, that if there be among the heirs, minors, or persons interdicted, the partition shall be made judicially and in the form hereafter prescribed.
    That article 1259 says, That the judge who decides on a suit for partition, and the mode of effecting it, has a right to regulate this mode, as may appear to him most convenient, and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions, &c., one of which, to be found in article 1286, is as follows : “ When the deductions have been made, and those to whom the collations were due have received them, the notary divides what remains into as many equal lots as there are heirs, or roots entitled to a share.”
    1289. The lots are formed by experts, chosen for that purpose, and sworn by the notary charged with the partition, and are afterwards drawn for by the co-heirs.
    1291. If there are several heirs having opposite interests in the partition, and who have the same tutor, there shall be appointed to each of them a special tutor, whose functions shall cease, as soon as the partition has terminated.
    1294. Partitions made agreeably to the above rules by tutors or curators of minors are definitive, but they are only provisional, if the rules have not been observed.
    1295. When the partition is only provisional, minors, &c., may, if they find themselves injured thereby, demand that another be made. A minor may institute this action, even before he attains the age of majority.
    
      1300. The form in which the notary is directed to make the partition, is not a matter of such strict law that nullity results from the act, in case of this officer making any change in the form ; provided lhat all the provisions of the law relating to the formation of the accounts between the parties, the deductions, the composition of the mass of the succession, the appointment and oath of experts, the making and drawing of lots, have been observed in the partition.
    These authorities are very stringent in terms, and as there is but little said in our law upon the powers and authority of family meetings, we must leave the matter to the discretion of the court, if they can exercise legal discretion where the law is so positive.
    The opponents find but one article that we think may authorise a decision against them, for they are desirous of an approbation of all that has been done: it is in article 1441, “ but after the partition, or the act operating the same effect, the action of rescisión can no longer be admitted against a compromise made to put an end to disputes arising in consequence of the first act, although there should be no suit .commenced on the subject.
   The judgment of the court (Slidell, J. dissenting) was pronounced by

Rost, J.

This is an appeal from a decree homologating the partition of the succession of the late Benjamin Story, It was made in conformity with a transaction entered ipto between the heirs, by the authorization of the judge given on the advice of a family meeting of the minors.

Henry Story, one of the heirs, being indebted to the succession in a sum exceeding his hereditary rights, elected to collate by taking less, and become a debtor of the site,cession for the difference ; five lots of equal yalne were formed out of the remainder of the succession by experts duly appointed and sworn: the tutrix of the three minor heirs selected three of these lots, with the understanding that they were to remain in common between them. Mrs. Maclcie, another of the heirs, who had purchased a large amount of property of the succession; took the lot in which the claim against her was included, and Sidney Story, the other heir, received the remaining lot. The partition was homologated as made, and Sidney and Henry have appealed.

The appellants allege, that under article 1289, C. C., the lots made by the experts should have been drawn by the heirs. That under article 1291, C. C., when there are minor heirs, having adverse interests in a partition, who have the same tutor, special tutors must be appointed to them, whose functions cease as soon as the partition is terminated. They urge that neither of these formalities have been fulfilled ; and that under article 1300 ot the code, the partition is illegal, and void, by reason of these omissions.

It has been attempted, in this case, to evade the formalities required in judicial proceedings to which minors are parties, by resorting to a transaction between the heirs, under article 348 of the code; and in support of this mode of proceeding, the appellees rely on the case of Vaudreuil v. Sallonier Tamnay, 15 Sirey, 1st part, 204, decided by the court of cassation, under dispositions of law similar to ours. If we were otherwise disposed to recognise the authority of that case, the appellee could not claim the benefit of it, because the partition has not been made in the manner advised by the family meeting, and authorised by the court.

“The tutrix was authorised to make’,choice for the minors out of the effects of the succession, to the amount coming to them according to the appraisement in the inventory, and to select the same in an undivided mass for their common benefit. She had the right to take all the best property of the succession.”

We are bound to presume, that all the lots formed were composed of equal portions of the various kinds of property found in the succession, and on that hypothesis the lots selected for the minors could not have been exclusively composed of the most desirable property.

The case of Vaudreuil is not at all analagous to the present; it involved the settlement and partition of several direct and collateral successions, and the separate enjoyment by the heirs, of some' of those successions, and of portions of others: rents due those successions had been reimbursed in depreciated paper money ; the heirs had moreover, a great number of litigious claims against each other. The settlement of their accounts, and the formation of lots in the manner prescribed for judicial partitions,- if at all practicable, would have led to endless litigation, and have been ruinous to them. Some of the heirs besides were in possession of separate portions of the property to be divided; the report of the case does not inform us under what title they possessed. They may have had the right of retaining the' property as a portion of their shares, and in that case the drawing of lots may not have been practicable without a cant-ling of the tenements, which the law forbids. C. C. 1287.

No such difficulties were presented by this case. There was but one succession to divide: one of the heirs had received his share; another heir, Mrs. Maclde, had purchased property of the succession, which, under article 1265 C. C., she had the right to keep as a portion of her share; and it was legal and proper to form a lot for her, in which her indebtedness to the succession was included. The other four heirs owed nothing to the succession; their rights and chances were, in all r-espect equal, and no motive 'can be assigned for not drawing their lots. So far as there were' differences between the heirs, as to their respective claims, the transaction entered into was proper, and is binding upon them ; but, there was no question between them as to the mode of selecting the lots of the minors, or the manner in which they should be represented in the partition, and, consequently, no ground for a compromise on those subjects; the course adopted by the tutrix Was unasked, uncalledfor, and injurious to all parties. It subjected the' minors to the vexation, delay, and expense of a second partition among themselves, and the heirs of age to warranties under that partition to which they could not be parties.

The warranty which the heirs are to give' each other in final partitions, makes it necessary that 'the share of each should be determined and fixed contradictorily with the others, and, accordingly, the rule is, that a partition made by roots, is not definitive, unless the share coming to each root, has been sub-divided among the parties to whom it has descended.

There is no exception to the rule, which, in a case like this, requires a special tutor to be appointed to each of the minors ; the common tutor cannot represent even one of them, unless he is especially authorised to do so. The mixing up of the shares of the three minors, after going through all the formalities and expenses of a partition, is an unheard of proceeding; the partition as made does not preclude the necessity of another; in the case of Vaudreuil, there was but one minor, and her tutrix had the undoubted right to represent her.

Henry Story was paid in full; under article 1265 of the code, Mrs. Maclde was entitled to take her indebtedness to the succession, in part payment of -her share, and as there was not a sufficient amount of money to give to each of her co-heirs a like sum, there was but two ways of determining her share : either the other heirs were each to receive in property a sum equal to her indebtedness, and the remainder of the property of the succession was to be formed into five lots and drawn, or one was to receive by attribution a lot of which her indebtedness should form a part, and the remaining lots were to be drawn among the 'other heirs. Either mode complies, as far as practicable, with the law; but, as a general rule, the second mode is to be preferred, as less liable to be attended with a cantling of the tenements.

The rule to be deduced from the conflicting articles of the code on this subject is, that lots should be drawn when it is practicable, and as far as it is practicable to do so, without depriving any of the heirs of their legal rights, or affecting injuriously the value of the property, or the separate shares of the heirs. For instance, a father leaves four children, and bequeaths to one of them the disposable portion of one-third, he is entitled to one-half of the succession, and each of the other heirs to one-sixth; if it consists of property which can be conveniently divided into six lots, it must be so divided, and the preferred heir will draw three of them. 38 Sirey (I. 216.)

If six lots cannot be formed without injury to the property, or if the preferred heir should have a manifest interest that the property composing his share should be contiguous, and it can be so given to him, without injury to the others, ope-half of the property of the succession is to be formed into a lot, in the manner that lots are formed, and adjudged to him by attribution, and the other half is to be divided into three lots, which the other heirs will draw. The mode of making partitions varies with the facts of each case; and before referring the parties to the notary, the judge having cognizance of the succession, should regulate it, in the manner which shall appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity with the principles recognised in this opinion. He is expressly authorized to do so by article 1259 C. C.

For the reasons assigned, it is ordered, that the judgment homologating the partition in this case be reversed, and the partition set aside. It is further ordered, that the case be remanded for further proceedings, with directions to the district judge to cause to be appointed and sworn, a special tutor for each of the three minor heirs of the late Benjamin Story, and to refer the parties to Hilary Breton Cenas, notary public, to proceed in the partition of the succession, with directions to him to cause the experts he shall appoint to form and assign to Mrs. Maelcie, a lot equal in value to her share, and of which her indebtedness to the succession shall form a part; and to form with the remainder of the property four equal lots, which shall be drawn by the four remaining heirs. It is further ordered, that the share of Henry C. Story be compensated with an equal amount of his indebtedness to the succession. It is further ordered, that the partition be made on the basis of the compromise, entered into between the heirs, so far as it is not inconsistent with the decree. It is further ordered, that the costs of this appeal be paid by the appellees.  