
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    SUCCESSION of KATHERINE ROSCHA, Widow by first marriage of Henry Thompson, and by second marriage of Martin Polke.
    No. 7604.
   0 I I I I 0 I

Meat Plnkolsplel. Judge.

KAIHERIHE BOSCHA¿ widow by first marriago of Honry Thompson and widow by sooond marriage of Martin Rolle», dio a in this city, bar domicile, on Deoember 83, 1917, loarlng a last will and toot*» moni in the nunoupatlre form by pabilo aat boforo Bollx Joooah Bair. Hotary, of data Horember 9, 1915. y) The will in quo at ion roads as follows:

" "My name is Katharine Basoha. I am tho widow by first marriage of Honry Thompson and the widow by aoeond marriage of Harbin folleo.
"dll the proparty that I now hare was bought with money acquired during the oommunlty between myself and Hart in felfee.
"I loare and bequeath to my son Honry Thompson, the sum of Six hundred Sellars.
"The balanoe of my property 1 loare and bequeath to my two ohildron William felfee and Junio felfee wife ef Henry Hoyar, oonstitutlng them my unlrersal legatees.
"I appoint Hr. See. Oasanora, exeoutor of this my last will and testament with full seisin."

In the petition filed before the Clrll Bistriot Court, amongst other allegations of tho petition for probate, was the following: "That deceased left as her sole and only legal heirs her three children, Henry Thompson, William felfee and Annie felfee, wife of Henry Heyer, all of this elty and of full age." She left In tho will B8 her testamentary oxooutor Coorgo Oasanora, Who, in due course, qualified, and subsequently prayed for an lnrentory of the suooesslon, Which lnrentory, filed, showed that the only property that deoeased left- was a certain lot of ground in this elty, appraised for the sum of $8500.00. Subsequently, through orders of the court, this property was sold and produeed the sum of $8515.00, and there was added to this sash in Hlnth Street Branoh of Commereial Trust & Savings Bank $1.00, making a total of $8316.00 as the entire gross wslme of the deeedent's property.

Subsequently an aeoount «as filad toy tha executor, oharging himself with tha fond in question, and aftar the payment of debts, funeral charges, notarial and Ian faaa and other necessary expanses, and aftar paying legacy to Henry J. H. Thompson, son of tha daeaasad, of #600.00 provided for in tha last Kill and testament, or a total of #1036.28, there was left a net toalanoe of #1379.65, which was to toe distributed to the residuary legatees SB follows: Annie Pelke, wife of Henry Meyer, daughter of the deceased, #639.82-1/2, and a like amount to William Pelke, the son of the deoeased.

This account was opposed toy Henry J. H. Thompson, olalming, amongst other allegations of his opposition, that the ezeeutor, George Casanova, never qualified within ten days, under his appointment toy will, therefore his appointment was a nullity; that he had no right as ezeeutor to file any account or represent this estate as ezeoutor in any manner, and his acts and orders of the oourt thereon were null and void. The opposition further contended that in oaae the first opposition was overruled, then, in the alternative only, opponent opposes the distribution under the said will, as the same is null and void, and the heirs other than opponent are not entitled to any part of this estate, for the reasons stated toy opponent in the suit filed toy him on the _ day of January, 1918, and made part hereof:

1. That the said alleged last will and testament, it is therein stated that all of the property of the deoedent was purchased with the funds belonging to the community of aequets and gains existing between the deoedent and Martin Pelke and her husband pre-deoeased.
2. That the said last will and testament is null and void and of no effect, in that it was not dictated toy the deoedent nor read to her in the presence and hearing of the witnesses, nor were the other forms of law followed out in the making of said will and testament; that de-eeased was old and infirm, almost totally deaf, totally inoapahle of testamentary disposition; that she was altogether under the lnfluenoe of Mrs. Annie Pelke, wife of Henry Meyer, who undoubtedly and illegally exercised her oontrol oyer the said decedent at the time of the making of the said last will and testament; that during the making of said will William Pelke, one of the sons of the decedent, came into the house and in front of the room where decedent was making said last will created a disturbance by insisting that he should benefit to the same extent as his sister, Mrs. Annie Meyer, aforesaid, and that this was done and was suoh an interruption as is prohibited by law. In oonsequenoe of the foregoing the said last will and testament is null and void. Opponent also alleges, also in the alternative, that should the said last will and testament be held to be good and valid, in that event, that the property left by the decedent constituted her own separate estate and was no part of any community whloh heretofore existed between the said deee-dent and her late husband, Martin Pelke; that opponent should inherit as one of the forced heirs of the said decedent, in accordance with the foregoing; that of the . said other legal heirs, William Pelke and the said Annie Meyer, they were without right or authority to receive any portion of the estate as such heirs as legatees, because of the faot that they have not disclosed in the Inventory herein, but oonoealed, certain money whloh the said Mrs. Annie Pelke, wife of Henry Meyer, had in her possession at the time of the death of the deoedent, at the tifeing of the inventory, and more particularly the sum of $470.00 withdrawn from the bank by the decedent, whloh was in the house at the time of the death of said deeedent, sad the whereabouts of shirt aha was familiar with, and eartain household furniture and Jewelry belonging to said daaadant, valuad at about $860.00, and othar proparty not parsonally known to patitionar in suffioiant datail, but which is rasarvad by patitionar by supplamantal patition to be filad harain. Wherafora they pray that the parties hereunto ba oltad to appear and answer this patition, and that there be judgment in favor of patitionar and against said defendants decreeing the last will and testament to ba null, void and of no effaet; likewise the probata, registry and ezeoution thereof; and that, in the alternative, should the said last will and testament ba held to ba valid, in that event the property left by daeedant to be declared to ba frae from any claims of the second oommunlty as is sat out in the said last will and testament, and decreed to belong to the separata estate of the decedent, and the said Mrs. Annie Pelke, wife of Henry lleyer, and William Pelka, be debarred from inheriting either as foraed heirs or as legatees, and that petitioner ba recognized as the sola legal hair of daaadant and ba put in possession of her entire estate.

An azaaption was filed to opponent's olalms, on the ground that same showed no causa of action. Subsequently, and without trial of this azception * Which seems not to have been pressed - opponent disclaimed relief from all feas, law charges and other items filed by the ezeoutor, leaving the sole question at issue whether or not undue influence had been used and whether or not the faots oontended for by the opponent were true.

She authorities sited by counsel for opponent, ffhempagn, - Article 1041 R.C.C., together with the Sueeession of Gusman, found in the 36th An., 407-6, - have no application whatever to the facts as presented in this oase.

The oast finally asm» to trial, and, amongst other things, tht testimony of all the witnesses in this ease proved beyond the peradventure of a donbt 'the verity of the aooount’, as filed by the executor, There was no ooneealment of any hind or oharae-ter of either money, furniture or other property; but, on the contrary, the aooount of the executor presents absolutely, in our opinion, a truthful, honest, honorable statement of the true situ* ation in this suooesslon.

It was oontended first by the opponent that, admitting, for the sake of argument, the facts to be as stated, nevertheless, that the two helra, lira. Meyer and William Pelke, had not reoelved anything beyond their virile share as foroed heirs, just as opponent did, in this ease. The law on this subjeot is as follows:

"The cardinal objest of the oollatlo bonorum is equality in the partition, in order to prevent jealousy and bickering among heirs about property. The law would fall of its objeot if heirs were made to sollate unless upon ample proof that oollation is due."
La. Digest, Vol 2. (Citing King v. King, 107 La. Reports, 437.

Article 1231, R.C.O., under the head of "Express Exclusion of Collation," provides:

"But things given or bequeathed to children or other descendants by their ascendants, shall not be collated, if the dohor has formally expressed his will that what he thus gave was an advantage or extra part, unless the value of the objeot given exoeed the disposable portion, in whloh ease the exoess 1b subjeot to collation." (Referring to 16 An., 294).

The case of Miller v. Miller, 105 La. Reports, 257, is a full expos! of the subjeot matter of oollation as it is presented in this reoord.

Te have carefully scrutinized and olosely examined the subjeot matter Involved in this controversy, without aid la the way of brief or argument for the oppoaant in this oase, and we are unhesitatingly forced to the oonoluslon that opponent, Henry Thompson, has not in any manner presented any issue or any evldense to sustain hi» «auso; nor is thoro any law bo to 4o.

June . 1919.

JTOSUENT AFFIRMED.

H»w Orloans,  