Marcenaro v. Mordella

Merrick, 0. J. A more complete statement of the facts of this case will be found in the learned opinion of Chief Justice Slidell, in the case of the plaintiff against Nicholas Bertoli, whose representative is now made a party to this suit. The case is reported in 2d An. R. 980. Eor the purposes of the present decision, it is sufficient to recapitulate the following facts: Anna Bardino had two children by her marriage with Angel Mordella. One, named Marie Pose Mordella, married Nicholas Bertoli, and resided with her husband, in this city. Her husband, Bertoli, having died in the year 1843, she was appointed, under his will, testamentary executrix and was also confirmed as tutrix to the children of their marriage. This suit is against her in those capacities. It appears, also, that the other child of Anna Bardino, was named Mina Isabella, and resided at Gibralter, in Europe, with her mother. It appears, also, that Angel Mordella, the first husband of Anna Bardino, . died prior to May, 1834, and that she remained a widow up to July of that year, when she married J. B. Marcenaro, the plaintiff, both being domiciled at Gibralter, where they continued to live until she died, which occurred on the 24th of December, 1834. The petition informs us that Gibralter is still the domicil of the plaintiff. Two months prior to the marriage of Anna Mordella with Marcenaro, (viz : in May, 1834,) Joseph, Bardino, the german brother of Anna Mordella, having previously made a will, died in the city of New Orleans, where he was domiciled. By his will he bequeathed to his sister, Anna Bardino, $2000. A considerable portion of his estate remained undisposed of by will, and, consequently, by our law, fell to his sister and a half-brother, Lorenzo Basso, the ger-man sister being entitled to three-fourths, and the half-brother the one-fourth ;_ the succession consisting of real estate in New Orleans, slaves, active debts, &c. No part of Anna Bardino’s interest in her brother’s succession was ever reduced to possession by Marcenaro during her life-time. It is, therefore, not necessary to notice, at length, the irregular proceedings under the power of attorney which was revoked by her death, or the decree of the Court of Probates, made in February, 1835, recognizing herand her brother, Lorenzo Basso, as the only heirs at law of Joseph Brndino, nor the irregular payment made by [776] Nicholas Bertoli and John L. Thieleu, as executors, to Messrs. Lizardi & Go., in March, 1885, under the power of attorney, made before her death, of $4628 87 cash, and $4205 in promissory notes. This irregular decree and payment, could hardly have had the effect of transferring the interest of Anna, in the succession of her brother, to Messrs. Lizardi & Go., as agents, not of herself, for she was dead, but of her heirs or husband. Ve think, therefore, it must be admitted that at the time of the receipt of these assets by Lizardi & Go., the interest of the succession of Anna Bar-dina, wife of Marcenara, in the succession of her brother Joseph, remained un-extinguished. The assets in the hands of Lizardi & Go., legally belonged to the succession of Joseph Bardino, as paid in error. In 1836 Nicholas Bertoli, (who with Thieleu were the executors of Joseph Ba/rdino, and responsible for these funds if irregularly paid,) took out letters of curatorship on the succession of his mother-in-law, Anna Bardino, the deceased wife of Marcenara. An inventory of her succession was made, which embraced but two items, viz: The real estate bequeathed by Joseph Ba/rdino to his sister, subject to the usufruct of Pabnire Berthier, f. w. c., appraised at - - - $5000 00 And the balance remaining in the hands of Lizardi & Go. to the credit of Anna Harcenaro. 2040 47 Total.$7040 47 After Bertoli's appointment as curator he received from M. de Lizardi & Go., in his capacity as such, the sum of $2498 95, stated as a balance growing out of the receipt of the cash and notes received by them in March, 1835. Bertoli also received of them the sum of $151 25, belonging to the succession of Joseph Ba/rdino, and also notes and accounts of the same succession amounting together to the sum of $887 89. Bertoli died in December, 1843, and as has already been stated, his wife a forced heir of Anna Marcena/ro, was appointed tutrix to his minor children, and executrix under his last will and testament. The suit of Marcena/ro against Bertoli was instituted in 1840, in the Commercial Court, for the $2498 95 above referred to, and was dismissed as in ease of nonsuit, by the Supreme Court, organized under the Constitution of 1812, and the decree afterwards affirmed by the court organized under the Constitution of 1845, on a motion for a re-hearing. The object of this suit is best explained in the language of the able counsel for the plaintiff, which is as follows:' “This suit is instituted for the recovery of $2498 95, claimed in the present action against Bertoli, and for three-fourths of the sum of $151 25, collected by M. de Lizardi <& Go., for the succession of Joseph Bardino, and paid to Bertoli, and for three-fourths of the accounts belonging to the succession of Joseph Ba/rdino, and delivered at the same time to him, and the right to recover is based by the plaintiff upon the allegation ‘ that by the common law of England, he was entitled as surviving husband of the said Anna Bardino, to become administrator of her estate, and by acting upon the said fund of $2408 95, and upon three-fourths of the $151 25 collected by the said M. de Liza/rdi & Go., for the succession of the said Joseph Bardino, and upon three-fourths of said accounts, amounting to $887 89, to reduce them to possession, and make them his own ; and that in the premises the said Nicholas Bertoli, in his capacity of the curator of the succession of the said Anna Bardino, peti [777] tioner’s deceased wife, as aforesaid, charged with the administration of the same, received the said sum of $2498 95, three-fourths of $151 25, three-fourths of the amount of said $887 89 of accounts which he collected or become accountable for by failing- to use due dilligence to collect the same, and held as trustee of and for petitioner, and was bound in law to pay over the same to him.’ ” The argument of the learned counsel for the plaintiff, who informs us that he sues for personal effects only, rests upon these two propositions: 1st. That the sums here claimed are movables, and choses in action, and the domicil thereof was that of Anna Bardino, at Gibralter. 2d. That by the act of marriage at Gibralter, all of the movable effects which the said Anna had in possession throughout the world, became ipso facto the property of her husband, and said marriage invested him with the right to reduce the choses in action, in all countries, into possession during coverture, and after her decease to take out letters of administration upon her estate, and collect such choses in action as had not been reduced to possession during the life-time of his wife, for his own benefit. Many authorities have been cited in support of these propositions, and we think it cannot be questioned that by the common law of England the husband has the right indicated, over all the personal effects of the wife, and choses in action situated, in fact, within the territories governed by the common law of England. But we cannot assent to either of the above propositions as appropriate to interests in successions under administration in Louisiana, particularly where the effect would be to impair the legitime as in the case before us. I. As to the domicil: At the death of Anna Bardino, as it has already been shown, she had an interest in the succession of her german brother, under administration, in the State of Louisiana, as heir for three-fourths of his estates, not disposed of by will, and as legatee under his will for $2,000. Now although, under the Common Law of England, an interest as to the personalty under administration is considered as a chose in action, and classed as personalty, the same consequence does not follow here. In England, personal effects alone are placed under administration, while the real estate descends at once to the heir, and cannot be charged in his hands with debts, except by specialty, etc. The personal effects are distributed to the next of kin. The real estate descends to the heir-at-law, who often inherits to the exclusion of others equally near in relationship to the ancestor. Here, immovables, movables and slaves are alike placed under administration, and they are inherited by the same persons, and in the same proportions. Article 463 of the Civil Code declares that an action for the recovery of an immovable, or an entire succession, is considered as an immovable from' the object to which it applies. It is clear, had an execution been levied upon the interest of three-fourths of Mrs. Anna Bardino in the movables belonging to the succession of Joseph Bar-dino, particularly describing them, and such interest were sold at Sheriff’s sale, nothing would have passed by the sale. The interest of one of the heirs is not in a particular thing or class of things belonging to the succession, but to the whole succession; and that interest can be enforced as against the wishes of the other heirs only by partition of the whole estate, in which the respective rights, of all the heirs and their collations can be contradictorily settled with each other. Such was the right which belonged to Anna Bardino at her death. This. [778] right, whether it he considered a real right, or a chose in action of the Common Law, has its domicil, we think, in Louisiana. The proceedings subsequent to the death of Anna Bardino, could not confer upon her husband any rights which he had not, upon her death. If he was not the owner or had not become the owner of her interest in her brother’s estate at her death, he did not become so by the subsequent proceedings. So far as it concerns the legacy of $3000, we do not deem it important to decide whether it is governed by the same rules or not, as it does not appear to be the object of this suit, and it is evident from the account rendered by M. de Li-zardi & Co., and the balance claimed on it by the plaintiff, that he has received more than that sum. 1 Marcadé, p. 56; C. C., 483. II. Neither are we by any means clear that, by the Common Law, the husband has a vested interest in the choses in action of his wife not reduced to possession during coverture, which would enable him to claim such interest after her death, in a country where the policy of the law was at all different. In a sister State, it was held that this inchoate right of the husband to the choses in action of his wife, not reduced to possession, was entirely defeated by the subsequent passage of an Act of the Legislature vesting in the wife, in her own name, her real and personal property. See Statutes of Mississippi as to the rights of married women, passed in 1839 ; the case of Price v. Sessions, 3 Howard’s U. S. Rep., 624. See, also, the case of Clark v. McCreevy, 12 Sanders and Marshall’s Rep., 317-352. Now if, in a Common Law State, whore the Legislature is pleased to change its policy, the courts refuse to enforce the imperfect rights of the surviving husband, who is one of her citizens, it can hardly be expected that the courts of a foreign country will do so where it is against the settled policy of that country, and defeats the rights of any of her citizens, particularly as to an interest so carefully guarded as that of the legitime. C. C., 1480, 1481, 1745,1746. We therefore conclude that there should be judgment for the defendant. It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant in the several capacities in which she is sued, and against the plaintiff, and that the plaintiff pay the costs of both courts.