Succession of Waters

Merrick, O. J. Article 1023 of. the Civil Code is in those words: “The faculty of accepting or renouncing an inheritance becomes barred by the lapse of time required for the longest prescription of the rights to real estate.” The French text of the Article and Article 789 of the Napoleon Code are identical. The French commentators are much divided as to the meaning of the Article, so much so that Marcadé, after examining the opinions of Delaporte, Malville, Vazeille, Duranton and Malpel, says that of the other authors who have taken part in the controversy, their systems may be reduced to three. He however adds his own, making a fourth. The interpretation of the article in question is forced upon us by the issues in this case, and we thus perceive at the outset that the French authorities with so much discord among them can furnish but little assistance in the present inquiry. Did the Article read simply, the faculty of accepting an inheritance becomes barred by the lapse of time required for the longest prescription of the rights to real estate, it would present no difficulty, and we could have no hesitation in concluding that the heir who should suffer thirty years to elapse without evincing his intention to accept a succession then opened would lose his right of accepting, and the inheritance could not be claimed by him into whose hands soever it might have gone. The prescription, however, purports to be a bar not only to the faculty of accepting but also that of renouncing. Now if a party who has not accepted the succession within the thirty years cannot afterwards accept it, it would seem that he had effectually renounced the succession. Therefore, the difficulty of the interpretation arises in our endeavour to ascertain whether the legislature may not have intended something more by the limitation of the period in which the heir may renounce. But if the Article is to be taken literally then he who is called to the succession, being seized thereof of right cannot renounce after thirty years, he is therefore unconditional heir, but not having accepted the succession he has also lost the faculty of accepting it, and, therefore, at the same time he is not heir — which is absurd. Some writers, however, endeavor to reconcile even this difficulty by supposing that the person called to the succession must be considered as heir as it respects the creditors, for he cannot renounce; and that he is not heir as it respects those in possession, for he cannot accept. But this violates one of our rules of interpretation, because it distinguishes where the lawgiver does not distinguish, and it violates the equitable maxim: Qui smtit onus commodum debet sentire. Marcadé, who from his late position and the force of his reasoning, has recently exercised a great influence upon the jurisprudence of France, and whose arguments have not been without weight on many questions on this side o'f the [98] Atlantic, deserves to be quoted on this question, he says, vol. 3 103, “Pour nous, ces interpretations multipliées et si contradictoires nous ont toujours étonné, et le vrai sens de PArticle nous a toujours paru facile. L’Article, en effet, déclare que le successible, aprés trente ans, depuis l’ouverture de la succession, aura perdu définitivement la faculté W accepter ou de répudier, c’est-ádire le droit de choisir entre I acceptation et larenoneiation: ensorte que, aprés ce délai, il ne peut plus opter et sa position est irrévocablement arrétée. Et quelle est cette position? rien de plus simple ce nous semble. Par le fait máme de la mort du défunt, le successible s’est trouvé revétu de titro d’hériticr, il a été saisi de la succession: seuloment il avait le choix ou de rendre cette position irrévocable par une acceptation, ou de s’cn dépouiller par une renonciation. Or, la loi dit qu’aprés trente ans de silence, il n’a plus ce choix : done il reste alors m statu quo, c’est-a-dire qu’il demcure héritier sans qu’il lui soit désormais possible de renoncer.” This interpretation, which appeared so easy (facile) to Mr. Marcadé, seems to us full of difficulty when applied to the Code of our own State. Eor, if the Article only means that by the silence .during the thirty years the person called to the succession has lost the right to renounce, and has become absolutely fixed as heir; the other portion of the Article concerning the faculty of accepting, as Mr. Zacharie justly observes, is obliterated. Again, it is not to be supposed that the legislature, if that were its intention, would have expressed its meaning so obscurely or would have placed so prominently in the sentence the words “ the faculty of accepting,” and which in the context would strike almost every reader as the most prominent and therefore the principle object of the Article of the Code in question, and he would find, moreover, on reflection that the heir who neglected to bring his action to re-vindicate a succession was barred by the lapse of thirty years; C O. 3312. That the heir who suffered his co-heirs to enjoy the succession separately for thirty years was also precluded iron his action of partition, O. C. 1228, and he might well suppose that the legislature intended the like provision in regard to the acceptance of a succession, which can hardly be distinguished from these two prescriptions. It seems, therefore, much more reasonable to give effect to what appears to us the pi’incipal object of the Article 1023 than to annul it altogether, and carry into effect that which appears only to be secondary, and certainly occupies only a second place in the sentence. It is true that Art. 1007 of the Code declares that he who is called to the succession, being seized thereof in right, is considered the heir as long as he does not manifest the will to divest himself of that right by renouncing the succession.” The seizin here spoken of is only by relation to the acceptance. If the heir accepts, he is considered as always having been heir; if he renounces, he is considered as never having been heir, O. O. 981. Moreover, during the period in which the heir neither accepts nor renounces the succession, it is subject to prescription in favor of third persons, and to all lawful acts done with the administrator or curator, (C. C. 1024, 3492; 2 An. 408,) consequences which are inconsistent with a real seizin. We, therefore, conclude that the legislature intended to declare in one part of the Article, that if he who is called to an inheritance is silent for thirty years, and does no act, evincing his acceptance of the succession, he is barred by prescription. We do not find it necessary to put any construction upon [99] the second portion of the Article. It will be in time to consider the difficulties presented by it whenever the case arises in which their explanation, if possible, is required. The facts to which the foregoing conclusion applies are the following: Mrs. Ann Waters, widow Zaahcme, died previous to the 19th day of September, 1822, leaving several children and a last will and testament, in which she appointed James W. Zuchw'ie, her son, and Richard, Relf, her son-in-law, executors. The will was admitted to probate, and letters of executorship issued on the 24th, and the executors qualified by taking the prescribed oath on the 25th of September of the same year, 1822. Louisa Om'oline Adelina Zachwrie, one of her daughters, was married to the present opponent. By that marriage there was issue, one child. Mrs. Shields died on the 9th day of October, 1823, and her child, on the 9th day of March, 1824, just five months afterwards. By the death of his wife and child, as heir to his child, he acquired the right by transmission to his wife’s interest in her mother’s estate. That estate the executors represented as insolvent. The opponent contends that it was solvent. The difference arises from the respective constructions which the two parties putupon the sale of the plantation andslaves. The one party contending that, in addition to the price bid ($100,000) the purchaser bound himself to pay certain outstanding mortgages, amounting to $72,000, the other party denying the justness of this conclusion. The present proceedings were commenced by the opponent on the 11th day of May, 1854, it being the first act-on the part of the opponent, so far as we can learn from the record, showing an intention to accept the succession of his child, his wife and of her mother. A period of more than thirty years had therefore elapsed between the time opponent was called to the successions of his child, wife and mother-in-law, and the commencement of this suit. We are, therefore, not embarrassed with the one year in which the seizin of the executors continued, to wit: from the 25th day of September, 1822, to the 25th day of September, 1823, nor the five months during which the child might be supposed to have been a minor. It may, however, be proper to remark that the will contained no clause continuing the powers of the executors, and that, therefore, under the Code of 1808, they had no power longer to represent the succession ; Old Code 244, Art. 100 ; 4 M. R. 340, 009 ; 1 N. S. 243 ; 16 L.R. 344. Theh acts after that period must be viewed as those of negotiorum gestores. If the construction which we have placed upon Article 1023 of the Civil Code is correct, it must follow that Theodore Shields, by his silence and inaction for more than thirty years, is barred from the prosecution of this suit. The question standing at the threshold of our inquiries being thus decided adversely to the pretensions of the opponent, it is idle to pursue our investigations further. The judgment dismissing the opposition is affirmed.