
    Succession of Guillemin.
    Tlie term absentee embraces persons residing abroad who have never'Been dómiciüated'’ in this State, as well as- those who, having once resided here, have since left the State.
    The-prescription of five years, established by art. 3505 of the Civil-Code as to bills of exchange, applies to actions upon the instrument itself, for breaches of the contract of which it is the evidence.
    
      Quoad creditors, the wife or her heirs must show, Otherwise than by the confession or acknowledgment of tlie husband*in the marriage contract, tlie origin and payment of tlie dowzy. By the frenchlaw, the receipt of the'husband to a person by whom the dowry was due, although by private act, provided its date be certain and anterior to suit by the creditors, is sufficient evidence of payment, subject to the right of the latter to controvert the receipt and prove its simulation; hut the acknowledgment, is not received- as proof when, the dowry purports to have been constituted by the wife herself, the legal presumption being that" e'est donner á sa femme que de reconnaitre en avoir recu quoique ce soitf in such a case the acknowledgment of the husband is not even binding on him or his heirs — the wife1 must prove the origin of the money, and the trath of the receipt. Aliter, as to the acknowledgment by the husband in the marriage contract of the estimated value of clothing, linen, andjewelry broughtby the wife into the marriage, to an amount suitable to her con ditionj the presumption is that she had such things.
    
      Where a father resides iii this State, he will, though a foreigner, become of right? the tutor of his children, on the death of their mother, and a legal mortgage will attach, in favor of his minor children, on real property owned by him here.
    Aforeigner residing in this State may be appointed a tutor by our courts.
    It is the duty of a tutor, immediately after appointment, to reduce the property of his wards into possession, to render it productive, and to administer it as a prudent father of a family administers his own affairs.
    In settling the accounts of a tutor he will not be allowedto make a donation to his wards, at the expense of his creditors.
    Appeal from the Second District Court of New Orleans, Canon, 7.
    
    
      Si. Paul, for O. Guillemin, appellant. Filié and Le Gardeur, for De la Paqueraie, appellant. Castera and Soule, for the appellees.
   The judgment of the court was pronounced by

Rost, J.

This litigation.arose upon the account rendered'by the administrator of the succession of the .late 1. F. A. Guillemin, .and has its origin in the following facts-:

The marriage,contract entered into .in Paris, in.the year 1812, between the deceased and Caroline de Pier-ray, his first wife, contains this clause:

“La future épouse apporte au dit manage, et se constitueen dot .tousles biens et droits & elle appartenant, consistent en une -somme de 25j000 francs, argent comptant, -et-en ses habits, hardes, linge, et bijoux, de-valeur de 5,000 francs, ainsi qu’elle en a justifié au futur époux, qui consent á demeurer charge de tout envers elle, .par le seul fait du mariage.” The marriage took .place at the date of the contract. In 1817, the deceased came to this place, with.his wife and three.children, who are the appellees in .this suit. A .few months after their arrival, Caroline de Picrray died, and, .in .1821, the deceased married Hártense Arnaud, a native of Louisiana, .who brought into -marriage, as her dowry, two slaves, and various .sums of money, amounting together .to $6,856. In 1825, Hortense Arnaud died, leaving two children, the .survivor of whom, Onñda Guillemin, in her own .right, and as.administratrix of the late Hortense Guillemin, her sister, is one of the appellants. In 1830, the deceased -Guillemin was entrusted, .at his own request, by Martin de la Paqueraie, who resides in Paris, with sums of money to be invested in Louisiana, and at his death, which occured in the.city of Havana,,in 1834, he-was .indebted to Hela Paqueraie, on that account, in the sum of $10,407 41.

In 1835, Julien Arnaud, the maternal uncle of Hortense and OnSida Guillemin, was appointed .their tutor, and -no steps were takenfor the settlement of the succession, till 1840, when the tutor caused himself to be appointed administrator. Several years after his appointment, the property of the succession was sold, and, in 1845, he rendered an account of his administration, showing a balance in his hands of $18,273 60, which he attempted to distribute as follows:

To the .children .by the second marriage, the amount of their mother’s dowry, - -- -- -- -- - .$9,136 80

To the same, for interest on said dowry, from the time of their mother’s death, 9,136 80

De la Paqueraie opposed the homologation of the account, and claimed the balance due him. The children of the first marriage also made opposition, alleging their right to be paid by preference 30,000 francs, the amount of their mother’s dowry. The court below having dismissed .the first opposition mid .sustained the last, He la Paqueraie and Oneida Guillemin appealed. The opiilion we have formed renders it necessary that the claim of Be la Paqueraie be first noticed.

I. His claim is resisted on the ground of prescription, and it is alleged to be barred by lapse of time, under .art. 3508 of the Code, which enacts that all personal actions are prescribed by ten years, if the creditor be present, or by twenty, if he be absent; and also under art. 3505, which provides that actions on bills of exchange and on all effects negotiable or transferable by endorsement or delivery, except bank-notes, are prescribed by five years, reckoning from the day when these engagements were payable. This claim originated in 1830, and the prescription of twenty years has not yet matured. It js contended that the prescription of ten years applies, because Be la Paqueraie is not an absentee in the legal meaning .of that word. That to be absent, one must have been present. '1 he french authorities relied on in support .of that position are not applicable to cases of prescription, even in France (Tropjong, Prescription, no, 864); and if they were, we could not take them as our guides in opposition to an express provision of our Code not inconsistent with the other dispositions contained in that body of laws in relation to absentees. C. C. 3522. 14 La. 445. 15 La. 81. It .cannot surely be said that Be la Paqueraie was present; and, as under the article last cited all persons not present are absentees, his claim is not barred by the lapse of ten years.

It is now contended that the funds were transmitted to Guillemin by means of bills of exchange drawn by him on Be la Paqueraie, with the previous authorisation of the latter; that he, Be la Paqueraie, subjected himself thereby to the responsibility and rules relative to the instruments he adopted- as a medium of transfer; and that, in as much as the gist of his action is the bills of exchange, his action must be barred by the prescription applicable to those instruments.

The argument of the .counsel for Be la Paqueraie, in opposition to this ground, has not been answered, and is unanswerable. Admitting De la Paqaeraie to be subject to the rules applicable to bills of exchange, he could not, under those rules, have sued himself upon bills of which he was the acceptor, nor could he haye brought suit on those bills against the drawer. He must have declared specially on the implied contract to indemnify, or for money paid to the drawer’s use. The prescription of five years applies to actions upon the instrument itself, for breaches of contract. Here there was no breach of contract. The bills were duly honored and paid. The obligations which arose between the parties by reason of their payment are subject to the general rule for the prescription of personal actions. 3 Kent’s Com. 86. Chitty on Bills, 334, 569, 648. Pardessus, Droit Commercial, vol. 2, pp. 184, 379, 402. Bailey on Bills, 343.

We have, therefore, come to the conclusion that the plea of prescription is not sustained by the authorities .adduced in support of it; and, jn ascertaining the rights of .other parties, we will deem it our duty to give De la Paqueraie the benefit of all deductions which Guillemin himself, or the tutor of the children of the second marriage, might lawfully claim in .a settlement with those children.

II. Be la Paqueraie and Oneida Guillemin both contend that nothing is due to the children of the first marriage, because they have failed to show, by legal evidence, the •origin and numeration of their mother's dowry. Under our jurisprudence it is well settled that, quoad creditors, the wife or her heirs must .show, otherwise than by confession or acknowledgment .of thpt husband, .the irigin and payment of the dowry. Curia Filipica, 420, nos. 27, 38. Gomez ad leges Tauri, law 53, no. 52. 4 Febrero, part 1, book 3, § 1, no. 4; book 3, ch. 3, no. 136. 7 Mart. N. S. 460.

In France, where the contract was made, Zacharies lays down the rule on the subject as follows: “La femme n’est en gónéral admise d reclamar la res^ titution de sa dot, qu’d charge de prouver qu'elle a réellement apportée. Cette preuve doit se faire apre3 les principes du droit commun.” Fol. 3, p. 602, He states, however, that the receipt of the hnsband to the person who owes •the dowry, although by private act, provided its date be certain and anterior to the institution of the suit by the creditors, is sufficient evidence ; reserving to them the right to controvert the receipt and prove its simulation. But under the principes du droit commun, as settled by the jurisprudence of ithat country, the acknowledgment of the husband is not received as proof when the dowry purports .to have been constituted by the wife herself, by reason of the legal presumption prevailing there, as with us, c’est donner á sa femme que de reconnoitre en avoir repi quoique ce soit; and accordingly, the acknowledgment of the husband that he has received from his wife a sum of money as her dowry, is pot of itself binding even upon him or his heirs; the wife must in all cases prove the origin of the money and ihe truth .of the receipt. Cochin, tom 2, p. 580. Coquille, question 120. Roussilhe, De la Dot, pp. 103, 104.

The law of France applicable to this controversy is believed not to differ from that of Louisiana, and the children of the first marriage have complied with the requisites of neither, in relation to the 25,000 francs, alleged to have been renewed in money by (heir father. The acknowledgments of the latter have not even the force ofreceipts ; and we agree with the counsel for De la Paqueraie that, if the claim of the deceased against the Princess Ponialowski has any thing to do with the matters at issue, the evidence adduced in support of it raises a Strong presumption that the dowry of Caroline de Pierray was not paid. Should this outstanding claim be collected and its amount brought into court for distribution, a very different case would be presented. But w.e are constrained to say that, the ap pellees have failed to make out their rightt o receive the 25,000 francs mentioned in the marriage contract of their mother, out of the fund now in the hands of of the administrator. It is otherwise for the estimated value of the habits, hordes, Unges, et bijoux, brought by her into marriage. The legal presumption is, that she had those things to an amount suited to her condition ; ¡and the sum of 5,000 francs, at which they were appraised, is every way reasonable. It is not shown that at her death they were taken back by her heirs ; the succession must, therefore, account for their estimated value.

By the death of Caroline de Pierray, Guillemin became of right the tutor of his children. The succession was opened, and the tutorship commenced, in Louisiana. During its continuance, and before his second marriage, Guillemin ¡acquired nearly all tire property which he left at his death, and the circumstance of his not being a.citizen of the .country did not prevent a legal mortgage from attaching upon it in favor of the minors. The real property of the State is undoubtedly, as a genera} rule, subject to its laws. If the appellees were .deprived of the protection of those laws because their father was a foreigner, it is not easily perceived how Oneida Guillemin could claim to be paid by preference to De la Puqueraie, as a mortgage creditor.

In support of the ground that the appellees had not a legal mortgage in Louisiana on the -property of their tutor, the appellants have adduced the authority of Grenier, a french jurist, who lays down broadly the rule, that the law of France only speaks for french subjects, and not for foreigners. Troplong, another french commentator of high repute, denies this, and insists that the foreign minor, whether or not he resides in France, has a legal mortgage on the real property, which his tutor owns 'in that kingdom. Priv. et Hyp. vol. 1, p.247. However this maybe, our laws are not framed with reference to citizens alone. This count-ry was the first to recognise the right of expatriation as an essential element of constitutional freedom, and has at all times discharged towards foreigners the obligations, imposed upon it by the recognition of that right, to give them, not merely an asylum, but a home. Before they are per. mitted to exercise political rights, a few years of probation are wisely required. But so far as civil rights are concerned, the citizen and the foreigner residing here, are believed ,to be equal before the laiu. Appointments of foreigners residing here as tutors are of daily occurrence, .and their capacity has never been questioned.

The appellees are entitled to be paid, by preference, the sum of $952 .38. They have set .up no claim for interest; and we consider the earnest .desire expressed by their counsel in argument that De la Paqueraic should be paid, as an honest and sufficient motive for having abstained from doing so.

The dowry of the second wife, exclusive of the two slaves which have returned to the possession of Oneida Guillemin, is admitted to be .as stated in the marriage contract, $6,856. By a settlement made by Guillemin with .the father of his wife, in January, 1823, .the latter remained indebted to his son-in-law, on account of said dowry, in the sum of $4,091 2.0, on which he agreed to pay him interest at the rate of ten per cent per annum. The capital and interest were both paid in 1828 ; and the appellant Oneida Guillemin claims the sum of $1,392 06, being the portion of the interest which accrued after the death of her mother. It is in evidence that, from that .time to that of the payment, she and her sister lived with their grandfather, and that no provision of any kind was made for them by their father. Under these facts we consider the appellant entitled to the interest she claims. Her father could not have compensated that interest against the subsequent expenses of the minors.

From the date of the settlement in 1828, to the death of Guillemin, in 1834, the two minors resided with him; and it is clearly shown that the income of their property was not sufficient to defray the expenses incurred for their maintenance and education. Whether or not their father intended to charge them for those expenses, to the full amount of their income, is immaterial. He had the right to do so, and De la Paqueraie must have the bonefit of that right. Up to the death of their father, the appellees have no claim for interest. As soon as the tutor was appointed, it was his duty to reduce to possession the property of his wards, to render it productive, and to administer it as .a prudent father of a family administers his own affairs. His failure to do so subjected him towards the minors to damages, at least equal to the interest of the amount due them. Ten years had elapsed since his appointment as tutor, when he filed the account of his administration. The property was sold for upwards of $22,000, It consisted of slaves, houses and lots. It apppears also that, at the death, of. Guillemin, he owned som® stock, and one hundred thousand' cigars are mentioned in the inventory. The administrator does not state whether the cigars ever came into his possession, and renders no account Whatever of the rents and profits of the property since 183‘4. It appears that he has defrayed the expenses of his wards during that time, and although he does nof so state it in his account, we must presume, in justice to him, that those assets, if received by him, have gone to pay those expenses ; and that, if he did not receive them, and suffered the property to remain unproductive,- he defrayed the minors’ expenses by way of reparation for his negligence.

Had Oneida Guillemin ma'de opposition and' required the administrator to account for the missing assets, and for damages caused by his mal-administration, he would have had the right to compensate the expenses incurred by him on account of the minors against the share of the rents, profits and damages coming to them. Considering that the’tutor cannot make a donation to his wards at the expense of an honest creditor, we will give effect to this compen. sation, for the benefit of He la Paqueraie. The interest on the sum due the minors would have been barely sufficient to pay their personal expenses ; and-, being of opinion that those expences must be held to have been paid by the succession, we are satisfied that Oneida Guillemin has no claim- for interest since the death of her father.

We have not gone into the enquiry whether the new Code has made any change in the former laws requiring the tutor to pay interest on the sums that come to his hands from the day he receives them. Supposing the Jaw to be unchanged, the appellant On&da Guillemin has not shown herself entitled to receive interest since 1828.

For the reasons assigned, it is ordered that the judgment in this case be reversed.- It is further ordered that the opposition of Mrs. Andry, Mrs. Knight, and Auguste Guillemin be sustained for the sum of $952 38, and that they be paid said sum by preference as creditors by the first mortgage. It is further ordered that Oneida Guillemin, in her name, and as administratrix of the succession of her sister Hortense Guillemin, be placed-on the tableau for the sum of $8,248 06.

It is further ordered that Martin de la Paqueraie, be placed on the tableau for the sum of $10',407 41, to be paid as far as the assets will permit, after the other two claims, and all expenses in this suit and in the settlement of the succession generally, are' satisfied. It is further ordered that the costs of the court below, and one-half of those of this appeal, be paid by the administrator; the other half of the costs of this appeal-to- be paid by the' three appellees. 
      
       The counsel for the appellant De la Paqueraie, cited in support of this position, in .addition to the authorities in the text, 14 Toullier, no. 275. 2 Benoit, Traité do la Dot, p. 233. 3 Zachariæ, p. 602. Lucket v. Lucket, 11 La. 245. Fennessy v. Gonsoulin, Ib. 425. Dimitry v. Pollock, 12 La. 296. Nores v. Carraby, 5 Rob. 295. Dimitry v. Pollock, 5 Rob. 350.
      
     