Badillo v. Tio

The judgment of. the court was pronounced by Rost, J. The defendant is the residuary legatee of the late Augustin Macarty, and in possession of his estate as such. The plaintiffs, who are the heirs at law of Macarty, sue for the nullity of the will, and claim the property of the testator, with the fruits it has produced and damages, on the ground that — 130 — the defendant is a mere intermediary, interposed for the benefit of the following persons : CélesiePerrault, the concubine of the testator; Patrice Macarty, her natural son by the testator; Josephine Macarty, the natural daughter of the testator, by Victoria Wiltz, his first concubine, and herself the concubine of the defendant; and finally, the natural children of the defendant and Josephine. Phelonise Macarty is also named as another person to whose benefit the interposition was to inure: but as her incapacity has not been shown she may be left out of view. The defence is a general denial, and an averment that the defendant is not a person interposed but a Iona fide legatee. There was judgment against the defendant for the property of the succession in his possession, for the value of the portion which had been alienated, according to the appraisement in the inventory, and for the fruits it should all have produced since he took possession of it as executor. The defendant has appealed. We agree with Judge Preston that the evidence offered to prove the filiation of Josephine and Patrice was admissible; and that the decisions upon which he relies contain a correct exposition of the law on the point made: but so far as Josephine is concerned, we cannot agree with him that the evidence in the record proves her paternal descent. Art. 227, C. C., provides that proof of paternal descent may be made in either of the following ways : 1st. By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so. 2d. When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time the child was conceived. 3d. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such. There are no private writings in this case showing that the testator has acknowledged Josephine as his child, and no evidence of an express verbal acknowledgment, either public or private, of the fact that he caused her to be educated as his child. The plaintiffs’ witnesses prove, that Victoria Wiltz, the mother of Josephine, did not reside in his house when the latter was conceived, and it is shown that she was reared in the house of Marcos Tio, and as his child. The only fact to ascertain is, then, whether Macarty has given Josephine the name of his natural child in conversation, or more correctly, according to the French text of the code, dans ses discours. The only witness who testifies to this fact is the witness Brigitte, who represents herself as being also a natural child of Macarty by another mother. She testifies that Macarty always treated her and Josephine as his daughters, and called them by that name; that he called Josephine's children his grand-children, and they called him their grandfather. This witness from her condition is not entitled to full credit, and her credioility is further impaired by other statements she has made. In her direct examination, she stated that Macarty used sometimes to visit his natural daughters, that he made visits at Josiphine's, and that he visited there en passant. When pressed, on the cross examination, she stated, that her knowledge of that fact was derived from Josephine. But the plaintiffs subsequently admitted of record that the statement was untrue. This testimony, conflicting as it does with other much more entitled to credit, brings no conviction to our minds. Macarty had the pride as well as the failles of an hidalgo. Ceurcelle, one of his most intimate friends and his habitual companion, says, that he never beard him acknowledge the children of his mistresses, and that he always denied having any. He states, that on one occasion an individual told Macarty in his — 131 — presence, that he was his son-in-law; to which Macarty replied, You my son-in-law : I have no children. The witness subsequently told Macarty that the mulatress with whom this man lived claimed to be his daughter; to which he replied, I don’t know her. Had he visited his natural daughters, as Brigitte states, he would surely have known them and been informed of their domestic arrangements. Mr. Bacas, another witness, who has lived in the intimacy of Macarty since 1803, and who knew him before that time, says, that he bad in succession several mistresses who had children whom he refused to recognize. The testimony of these witnesses is corrobproted by the fact that in his correspondence with Patrice, who is proved to be his natural son, he does not once acknowledge his paternity, and invariably addresses him as mon ami. That correspondence is full of affection; and although he knew and felt that, he was Patrice'.s father, he never could bring himself to speak or to write that humiliating truth. The plaintiffs have produced an extract from the register of baptisms of free persons of color. It shows that Josephine was baptised under the name of Maria, and contains a.statement that her, father was a Mr. Macarty. Admitting that Augustin Macarty was the person meant, as he did not sign the act, and it is not shown that he was apprized of its existence, it can have no effect against him or his legal representatives. The plaintiffs have resorted to another kind of proof, which appears to have had great influence with the district judge. In the certificate of baptism of one of the children of the defendant by Josephine', bearing date in 1825, it is stated that his aternal mgrand-father is Augustin Macarty. This act of baptism was signed by the defendant; and the plaintiffs contend that it makes proof against him of the alleged paternity. Such an act could not affect Macarty if he were living. Josephine could not maintain an action upon it for alimony; and it is not perceived how it can affect the defendant, who is prima facie the legal representative of Macarty. The defendant signed the act as father of the baptised child, and it is thus far conclusive against him. But we are not prepared to say that it is equally conclusive of all the other statements it contains. We agree with his counsel, that a person signing such a paper could only be affected by it in one of two ways: because the recital was an extra judicial confessioá of a particular fact, or because it imported the renunciation of a right in his own favor, or the acknowledgment of one against himself in favor of another, and that the defendant cannot be presumed to have confessed a fact which he could not know, or to have renounced rights or acknowledged claims not then in existence. It is to be observed, that in the registry of baptism of his other children it -is stated that their maternal grand-father is unknown. If the testimony of Brigitte was credible, it would not establish the fact of paternity; it does not prove that Macarty called Josephine his child, in his habitual conversations with others, as we understand the expression dans ses discours to require; the name if given at all was given privately, and the habitual companions of Macarty never heard it. Macarty ceased all intercourse with Victoria Wiltz at about the time of Joséphine’s birth; and we are satisfied he had not the conviction that Josephine was his child, and that he never acknowledged her as such. He must, at the same time, have thought it probablethat she was; and this probability will have some bearing on another part of the case. It is-proved that Celeste Perraull was the concubine of Macarty fx’om 1799 to his death; and that she lived as such in his house when her son Patrice was born. Under art. 227, already referred to, we are — 132 — bound to consider Patrice as his natural son: and the question to which we will now direct our attention is, whether the defendant is a person interposed for the benefit of Celeste Perrault and her son. In order fully to understand the merits of this branch of the case, it is necessary to ascend to the origin of the laws concerning the social relations which have given rise to this controversy. It is a matter of history, that under the Roman Empire marriage fell gradually into disuse. Whether this was owing, on the part of the men, to looseness of morals, or, as some historians intimate, to their unwillingness to submit to the domestic tyranny which the matrons of the Sabinian race were wont to exercise over their husbands, the fact is undeniable; and neither the fines imposed upon bachelors, nor the giving, the seat of honor to married men in all public places, and exempting them to a great extent from the exactions of the fisc, had any effect in arresting the progress of the evil. It is stated, that the emperor on one occasion called all the bachelors in the city to his presence, ordei'ed them to mend their ways, and threatened them with the consequences of his displeasure if they did not. But although their fear of the emperor was great, their fear of matrimony prevailed, and despotic power had finally to yield to their obstinacy. As marriage fell into disuse, what was called in Rome unequal marriages superseded it and rose in importance, and it may be said in dignity. Unequal marriages were conventions by which a woman of inferior condition gave herself or was given by her relatives in presence of witnesses to a single man, to live with him in a state of concubinage. This was a serious contract, intended to be permanent, and the forms of which were established by law. The woman who entered into it did not lose caste; she retained the good opinion of her friends and relatives, and her children had capacity to inherit her estate and a portion of that of their father, either by will or ah intestato. This is no doubt the origin of the inorganic marriage as it now exists in some portions of Germany. The laws providing that a man could have but one concubine, and giving to his natural children the right to inherit from their father, were enacted by Justinian. L. 3. Dig. de concubin. L. 16, § 1. Dig. de ritu nuptiarum, L. 3. Codic. de natural. Liberis, Novel, eh. 18, § 5. si autem. It is probable, that these unequal marriages were of common occurrence in Spain, while that country formed part of the Roman Empire; as we find that the laws of Rome applicable to them were all rednacted by Alonzo the Wise, and form the subject of the 14th title of the fourth Partida. The rule under the Roman and Spanish laws, as stated by Gregorio Lopez, was quilibet non ordinatus nec conjugatus potest concubinam habere. By an express law of the Partidas, the governors of the provinces were forbidden to many, and authorized to have concubines. Partidas, loco citato. Such was the law of Louisiana after it came under the dominion of Spain, and as there were at that time in the colony but few women of the white race, and hardly any of equal condition with the officers of Government and of the troops statióned here, the inevitable consequence was that these gentlemen formed connections with women of color. ' This custom, coming as it did from the ruling class, soon spread throughout the colony, and was persevered in long after there ceased to be any excuse for its continuance. It was to remedy this state of things that the framers of the Code of 1808 first created the incapacities of which the plaintiffs claim the benefit. Macarty was a nobleman and an officer in the Spanish army. At the age of seventeen he dwelt with one of his uncles, also a Spanish officer, who lived with a woman of color. Augustin soon followed his example, and had in sue133 cession several liaisons with women of that class, until in 1799, he took Celeste Perrault, with whom he lived nearly fifty years, and until death parted them. She lived in his house, and her conduct was such as to enable her to retain his regal’d and affection to the last. Patrice was the issue of this connection; and the correspondence between him and his father clearly shows, that he and his mother were to Marcarly all that a legitimate wife and son could have been. In the latter part of his life he had no other society but that of Celeste, and no occupation save that of purchasing and sending goods and produce to Patrice, who kept a shop in Pensacola. His letters to his relations show that he was completely estranged from them, and disclose a strong desire on his part to convince them that he was poor and that they had nothing, to expect from him. About the time these letters were written to relatives residing out of the State, he made his will, by which, after making some -inconsiderable legacies, he appointed the defendant his universal legatee. The defendant is not shown to have had any social or business relations with him. Their position in life, education and habits of thought were too dissimilar to induce the belief that much sympathy could exist between them; and we can discover no apparent motive for making the bequest, except that the defendant lived with a woman whom Macarty had some reason to believe was his daugther, and that he was besides the confidential friend and agent of Celeste Perrault. We have come to the conclusion, that nothing prevented him from making a donation to Josephine. But he was not, probably, aware of this, and may have been induced to select the defendant as the instrument to be used for the transmission .of his property in fraudem legis. It is not to be believed that Macarty failed to provide for Celeste Perrault, who, with her son, engrossed all his affections ; or that if the dispositions of the will had been intended to be real, he would not have given her all that the law authorized her to receive. According to the ideas and manners of his time, C&leste was, in his eyes, what a kind and dutiful wife would be in ours; and his omission to provide for her is unaccountable, on any principle of human action. These circumstances raise a violent presumption, that the defendant was not the real object of the testator’s bounty. The fact of interposition involving a question of fraud, there is no doubt that it may be proved by simple presumptions. But there must be several presumptions leading to the same conclusion; and, in order to make proof, they must all be graves, precises et concordantes. C. C. 1842, 2267. The presumptions to which we have referred would not be sufficient to prove the interposition alleged. But if they are corroborated by the acts and conduct of the defendant after the death of Macarty, no reasonable doubt of his interposition can exist. It is in evidence, that the defendant suffered Celeste Perrault to retain possession of a portion of the property long after she ceased to have a right to retain it under the will; that she contracted in relation to it as if it had been hers; and that the slaves on the Carrollton property were sold by her orders and according to directions given by her. These facts, taken in connection with her sudden increase of wealth after the death of Macarty, by which she was enabled to travel in Europe during eighteen months, raise almost an irresistible presumption, that the proceeds of the property sold were paid over to her. But even these, taken in connection with’ the other presumptions, would perhaps be still insufficient. When, however, it is further shown that the defendant has conveyed to her five of the slaves which he received from Macarty, there is no room left for doubt. When interposition is made probable, if the party alleging — 134 — it shows the return of the property to the incapable person, he has nothing else to show. When the return has been made under the form of a sale, the legatee must prove the reality and good faith of the transfer: and as this proof has not been made in this case, we are forced to conclude that the slaves were returned to Céleste Perrault in execution of the jidei commissum. Chardon, De la Fraude, p. 56, 58. We agree with the district judge, that the effect of that proof necessarily is to give a controlling force to the numerous other presumptions in the case which fend to the same conclusion, and, by its union with them, to destroy all confidence in the entire bequest to the defendant. Had he stated in his answer the portion of the estate which he felt himself bound to return, the question might arise whether, under the evidence, the disposition in his favor would be valid for the remainder. But as he has not enabled us to discriminate, we are bound to believe that it was not in his power to do so, and that no portion of the property was to be retained by him. It is urged, that the price of these slaves is less than Macarty might have given to Céleste Perrault. This is true; but jidei commissa are not reducible to the disposable portion ; they are absolutely null, and the property covered by them returns to the heirs at law. We concur, however, in opinion with the district judge, that the legacies to Patrice and to Céleste Perrault must, stand until annulled contradictorily with them; and we are not prepared to say, that the declaration of Macarty, that the furniture in his house belonged to Céleste Perrault, may not be considered as a legacy. The fact of interposition being proved, the defendant must necessarily be considered in bad faith; but his bad faith only commenced at the time he was'put in possession as the universal legatee under the will. It is no justification for him to say, that he was bound by his oath to maintain and execute the will until the nullity of it was pronounced at the suit of the heirs. The testator could not give him authority to commit a fraud ; and the oath that he took, that he would consummate it, can surely be of no avail to him. Those who lend their names to jidei commissa, says Domat, are viewed, in all cases, as spoliators; and so far from being bound to return, the property placed in their hands to the incapable legatee, they contract no other obligation than to restore it to the heirs at law, with the fruits and interests accrued, even before demand. Domat, b. 5, tit. 3, no. 6. (1. 49 Dig. de hteredit. petit,) Schneider v. Ebert et al. Dalloz, Jurisprudence, 1830, part 1, p. 224. It is said, that the disposition to Tio cannot be distinguished in principle from a donation made directly to the incapablé parties. But we think there is no analogy between the two cases. It is the very fact, that instead of making the disposition openly in favor of the real legatees, indirection and concealment were resorted to, which constitutes the fraud to which the defendant has made himself a party. It is further urged, that the disposition was not fraudulent, because it would have been valid if the heirs had suffered the defendant to remain in possession during five years before bringing this suit. The vice resulting from fraud may, in all cases, be cured by lapse of time, under our laws. But the fraud exists nevertheless, until the expiration of the time required for prescription. The defendant must restore to the plaintiffs all the real property and slaves forming part of the succession of Augustin Macarty, now in his possession; he — 135 — must account to them, as executor, up to the 24th of April, 1846, when he was finally put in possession as testamentary heir. In doing so, the payments made by him, and approved by the court, will be held prima facie to be correct, and he will be entitled to charge commissions, the counsel fees paid by him as executor, and all other expenses incurred during his administration. From the 24th of April, 1846, the defendant must account for the rents of the real estate, deducting therefrom the taxes and premiums of insurance paid, the cost of repairs and all other useful expenses incurred on account of the said real estate. He must further account for the hire of the slaves Liza and Jackson, which have remained in his possession, making proper deductions for taxes, clothing, time lost, medical and other expenses. That portion of the case involving the settlement of these accounts must be remanded for further proceedings. The plaintiffs have asked, that the defendant be adjudged to pay the amount of the appraisement in the inventory of the slaves which are no longer in his .possession. He must be so charged in relation to Henrietie and her children. The other five slaves sold by him were appraised at $2850, and only brought at public auction, two years afterwards, $1715. It is not pretended that the sale was not real, or that a higher price could have been obtained for them. Under those circumstances, the defendant is not bound to account for more than he received. Legal interest must be allowed on these sums from the date of the respective sales. It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiffs recover from the defendant the sum of $1715, with legal interest from the 28th April, 1846, till paid; the further sum of $1500, with legal interest from the 26th April, 1846, till paid; and also the slaves Jackson and Liza. It is further ordered, that the plaintiffs recover from the defendant the following landed property, to wit: A certain lot of ground situated in this city, in the square comprised between Conti, Levee, Chartres and St. Louis streets, and measuring sixty-two feet front on Conti street, of which forty-one feet on the side adjoining the property of Mr. Dufilho, towards Levee street, have a depth of eighty feet, and the remaining twenty-one feet, adjoining Mr. Longpré, on the side nearest Chartres street, have a depth of one hundred feet; with the three story brick stores, with granite fronts, built thereon, and all other improvements thereon. Also, a certain portion of ground situated in the Second Municipality of this city", in the square comprised between St. Joseph, Defin'd, Camp and St. Charles streets, and the Tivoli square, and measuring in American measure one hundred and fifty feet, one inch front on Camp street, two hundred and fourteen feet eight inches and two lines front on St. Joseph street, eighty-seven feet four inches and five lines on a line perpendicular to St. Joseph street and parallel to St. Charles street, one hundred and six feet ten inches on a line separating said portion of ground from the property heinafter described, on a line parallel to Camp street, and one hundred and twenty-seven feet ten inches and five lines on the line parallel to St. Joseph street, and perpendicular to said Camp street. Said portion of ground being composed of lots numbers one, two and three, and part of lot number twelve, on the original plan of the faubourg Delord, drawn by Lafon, on the eighteenth day of July, eighteen hundred and seven, and deposited in the office of William Christy, notary, in this city; together with the frame dwelling house and other wood buildings thereon. Also, another lot of ground situated in the same square and faubourg, and measuring, in American measure, sixty-two feet four inches and five lines front — 136 — on Tivoli circle, by a depth of one hundred and thirty-eight feet on one side line, and one hundred and thirty-one feet six inches on the other side line, and one hundred and six feet ten inches in width in the rear. Also, a square of ground situated in the city of Lafayette, designated by the number twenty-four, on the original plan of the faubourg Lafayette, deposited in the office of the late Car-lisle Pollock, notary, New Orleans: said square having, -in French measure, three hundred feet front on Magazine street, two hundred and ninety-six feet five .inches front on Poplar street, and bounded on the fourth side by the lower line of suburb Livaudais, with a dwelling house and other buildings thereon. Also, nine squares of ground in the town of Carrollton, and designated on a plan drawn by Charles F■ Zimpel, deputy city surveyor, and deposited in the office then of Felix Grima, notary public, as squares numbers one hundred and fifty-five, one hundred and fifty-six, one hundred and fifty-seven, one hundred and fifty-eight, one hundred and seventy-two, one hundred and seventy-three, one hundred and seventy-four, one hundred and seventy-five, and one hundred and seventy-six. It is further ordered, that for all other matters not finally adjudicated upon the case be remanded, with directions to the district judge to cause the defendant to render an account of his administration as executor of Augustin Macarty, and for further proceedings in conformity with the views expressed in the opinion of the court. And it is further ordered, that the costs of this appeal be paid by the plaintiffs and-appellees.