Succession of Zeller

PROVOSTY, J. The testatrix left two wills, one disposing of her property in Switzerland, and the other of her property in the United States. The latter will gave to religious and charitable uses real estate situated in the state of Mississippi. A statute of that state declares that any such bequest “shall be null and void, and the heir at law shall take the property so devised as though no testamentary disposition had been made.” Code 1906, § 5090. The heir at law, Mrs. Ellen S. Koy, claims under this statute. The Charity Hospital of New Orleans- is residuary legatee under the will. It contends that by a correct interpretation of said statute the said lapsed legacy falls back into the general estate, and passes with it to the residuary legatee. We are not advised what interpretation has been placed upon this statute by the courts of Mississippi. Does the expression “as though no testamentary disposition had been made” have reference to the entire will, or only to the reprobated disposition. In the one case the heir at law would take; in the [451] other the property would pass to the residuary legatee by operation of the will. We shall accept the statute as it is written, and hold that no testamentary disposition means none at all; that the heir takes as if no will at all had been made. The decedent resided and died in New Orleans; and her succession was opened and the said wills probated here. In order to avoid the expense of subsidiary succession proceedings in the state of Mississippi, an agreement was entered into between the testamentary executor and the heir at law for selling the said Mississippi property at private sale. This was done under a power of attorney given by the heir at law, and the price of the sale went into the hands of the testamentary executor. By an express clause of this agreement the rights of the heir at law were not to be prejudicially affected by this arrangement. This express agreement controls, as a matter of course; and even in its absence the mere consent that the. property be sold at private sale instead of in the course of regular succession proceedings could not have affected the rights of the heir at law, and she therefore continued to be entitled to receive the price of the sale of this property; this price merely standing in the place of the property itself. The only debt left by the decedent consisted of $10, plus funeral expenses amounting to $147, and a drug store bill of $2.90. Her succession, exclusive of the Switzerland and Mississippi properties, amounted to $5,351.65. The proceeds of the Mississippi property amounted to $1,027.14. The executor in his account treated these proceeds as ordinary assets of the succession; in other words, attributed same to the payment of the legacies and debts. There was left a balance of $128.76. This balance his account gives to the heir at law, Mrs. Koy. And the account contains the statement that some money, amounting probably to $400, will be received from Switzerland, and that this amount also will have to go to the heir at law. Due notice of the filing of the account was published ; but no notice or citation was served on the attorney appointed to represent absent heirs. And Mrs. Koy, the heir at law, who lived in Texas, was not cited, but a copy of the account was mailed to her by the executor, and she was advised by letter that, if she had any objections to make to its being approved by the court, she would have to file an opposition in court within ten days. She-wrote in answer that she was entitled to the entire proceeds of the Mississippi property, less its pro rata share of the debts. The Charity Hospital of New Orleans filed an opposition claiming, as residuary legatee, the balance of $128.76, and also the $400, or whatever the amount might be, to come from Switzerland. The court homologated the account iñ so far as not opposed; and the executor paid the debts and the legacies, retaining only the balance of $128.76. Thereafter Mrs. Koy, the heir at law, filed an opposition, claiming, the proceeds of the Mississippi property, and also the amount to come from Switzerland. The court sustained her opposition in so far as the amount to come from Switzerland was concerned, but otherwise rejected it. It sustained the claim of the Charity Hospital to the $128.76, but otherwise overruled its opposition. Since then the amount to come from Switzerland has been received, and has proved to be $500. We do not understand the executor as contending that Mrs. Koy is bound by the judgment by which the account was homologated in so far as not opposed; or, in other words, that her opposition was filed too late. If such contention were made, it would be without merit, as the said judgment was rendered without citation either of her or of the attorney for absent heirs. Miguez v. Delcambre, 109 La. 1094, 34 South. 99; Mullen v. King, 10 La. Ann. 674. [453] We have already shown that the proceeds of the Mississippi property, consisting of the price of sale and rents, must go to the heir at law as if the succession were intestate. And the amount received from Switzerland must go to her in like manner, subject only to its bearing, like the Mississippi property, its pro rata share towards the payment of the debts. No part of it can go towards the payment of the legacies, for the legacies are expressly made payable only out of the property situated in the United States. The will reads: “This is my last will and testament with reference to any property I may own in the United States. Out of whatever I now or may hereafter possess in the United States I give and bequeath, as follows.” Then follow the legacies. This $500 came into the United States after the death of the decedent, and was therefore never owned by her in the United States; and, as a consequence, the legacies are not payable out of it. The account will therefore have to be recast so as to make the several funds, namely, the proceeds of the Mississippi property, the $500 received from Switzerland, and the proceeds of the Louisiana property, contribute pro rata towards the payment of the debts of the succession, including in the debts all the costs of administration, except those, if any, incident to the sale of the Louisiana property, and giving to the heir at law the remainder of the said funds after deduction of said pro rata. Mrs. Koy was one of the legatees under the will, and, like all the other legatees, was paid the amount of her legacy in full. When the account is recast in accordance with the views expressed in this opinion, there will not be enough to pay the debts and special legacies in full. Mrs. Koy has therefore been paid as a legatee more than she was entitled to. The surplus amount thus overpaid to her will therefore have to be deducted from the amount coming to her under the new statement of the account. The judgment homologating the account is therefore set aside, and the-case is remanded to be proceeded with according to law, and in accordance with the views expressed in this opinion, the costs of the appeal to be paid by the Charity Hospital, and all other costs to be paid by the succession. O’NIELL, J., dissents. SOMMERYILLE, J., takes no part.