Mason v. Mason's Widow & Heirs

Bullard, J., delivered the opinion of the court. This is an action of partition among the co-heirs of W. Mason, deceased, and the widow who was made a party is appellant from a judgment by which she was refused her marital portion, and the full amount claimed by her in lieu of dower in certain lands in the state of Alabama, sold by her husband. One of the appellees has prayed that the judgment may be reformed, so far as it compelled her to collate the value of a slave, of which the deceased, her grandfather, made her a donation during the life of her mother, whom she represents in the succession.. The attention of the court is first drawn to a bill of exceptions, which shows that the court below refused to allow the appellant to amend her answer. In her original • answer she had not denied the allegation in the plaintiff’s petition, that most of the property was not common, but had alleged, that the community property, amounted only to about six thousand dollars, and thereupon based her claim to her marital portion. The amended answer alleged that the whole property left by the deceased, belonged to the community. It does not appear to us the judge erred, although he may not have given a legal reason , for refusing, the amendment. The first answer contained important admissions which the party could not fairly retract, and drive her adversary to prove a fact admitted expressly therein., to wit: that the husband’s separate property amounted to thirty-one [594] thousand seven hundred and ninety-three dollars and fifty-three cents. Where the answers to facts and articles touching the law of another state in relation to interest, show that there is a statute law on the subject, the statute must he produced as the best evidence. In the absence of legal proof of a foreign law concerning interest, the court will be governed by .the law of Louisiana in allowing interest. Interest is considered inlieu of fruits, and it forms a part of the price, for which the vendor has a privilege, as well as for the principal sum. It is next urged, that the court erred in not allowing interest on the price of the tract of land in Alabama, at eight per cent, from the time it was due, according to the law of the state, in order to ascertain the amount to which the widow was entitled, she having elected to take one fourth of the value of the land at her husband’s death, in lieu of her dower. One of the heirs who had purchased the land before his father’s death, was interrogated on facts and articles touching the law" of Alabama, in relation to interest. He answered that there is a statutory provision in that state; as he has understood and believes, by which interest at eight per cent may be charged on promissory notes after due, without being expressed therein. But as to other debts, he believes the Supreme Court of Alabama, has decided that interest is not chargeable without being expressed. We think the evidence insufficient to show what the law of Alabama is on this subject, because the statute ought to have been produced, and we are left ignorant whether the obligation to pay the price as expressed in the contract, would be regarded by the law of Alabama as a promissory note, on which interest could be recovered at eight per cent. In the absence of such evidence of the foreign law, we must be governed by our own, and the debt being for the price of land, would bear an interest at five per cent, from the time it became due. This interest we have holden to be in lieu of fruits, and it forms a part of the price for which the vendor has a privilege, as well as for the. principal sum. See Caldwell vs. His Creditors. 9 Louisiana Reports, 265. Instead, therefore, of one fourth of eleven thousand dollars, we think the widow was entitled to add interest at five per cent., from the time the instalments became due respectively, until her portion be paid. The claim of the appellant for a marital portion, did not appear to the court below well founded, according to a just interpretation of article 2359 of the Louisiana Code, and according to the view heretofore taken by this court, of such [595] questions, we are not enabled to say it erred. See 6 Louisiana Reports, 110. The widow in the present case, takes her share of the property acquired in the state, together with nearly three thousand dollars, in lieu of her dower, in lands in Alabama, where the parties previously resided. The disproportion between those sums, and the amount to be divided among three children, does not appear to us such as to authorize us to say that she is in necessitous circumstances, and entitled to a further allowance. Where the widow receives her share of the community property and a sum of money in lieu of dower, and the disproportion between these sums and the amount to be divided among three children does not authorize the court to say she is in necessitous circumstances, she will notbe allowed a marital portion. A minor grand child inheriting* in right of its mother, jure rs-presentaiiones, is not bound to collate the value of a slave given to it, by the deceased grandfather, before the death of its mother. The last question presented for our solution is, whether the minor grandchild, who inherits in the right of her deceased mother, jure representationes, be bound to collate the value of a slave given her by the deceased before the death of her mother. Articles 1316 and 1317 of the Louisiana Code, appear to us to leave no doubt on this point. They declare, that to make legitimate descendants liable to collation, they must .appear in the quality of heirs to the succession of the ascendant, from whom they have immediately received the gift or legacy; and, consequently, grandchildren to whom a donation is made after the death of their father or mother, are liable to collate, when called to the succession of the donor jointly with the grandchildren or their uncles and aunts. But that gifts made to a grandchild by the grandfather during the life of the father, are always reputed to be exempt from collation, because while the latter is alive there is no legitimate portion due to the grandchild in the estate of the grandfather, in anticipation of which the gift may be presumed to have been made. In these particulars, the judgment of the Court of Probates must be reformed. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, so far as it restricts the claim of the widow, on account of her dower in lands in Alabama, to the sum of two thousand seven hundred and fifty dollars, without interest, and so far as it condemns the minor Darecott, to collate the value of a slave given her by the deceased in the life of her mother, be reversed • that the [596] widow be allowed the aforesaid sum of two thousand seven hundred and fifty dollars, with interest, at five per cent, on ‘one half, from the 1st of March, 1837; and on the other half from the 1st of March, 1838, until paid; that the claim for said collation be dismissed and rejected ; and it is further adjudged and decreed, that in all other particulars, the judgment below be affirmed, and that the case be remanded for further proceedings according to law, the costs of appeal to be paid out of the estate.