Succession of Hardesty

Ludeling, C. J. On the fourteenth day of May, 1868, the executor-of the last will of Mrs. Eliza B. Hardesty filed an account and tableau of distribution, wherein ho proposed to distribute the amounts-collected among the heirs of the deceased. This account and tableau was duly advertised from the twenty-first of May, 1868. The Baptist Church of Clinton, and the St. Andrew’s-Church, legatees under the will, acknowledged service of the accpunt and petition, praying for the homologation thereof. Ou the fifth of June, 1868, the Baptist Church of Clinton filed an. opposition to the account and tableau, claiming a legacy of two-thousand dollars, and to bo paid by prelercnco over the heirs and universal legatees. Ou the twelfth of December, 1868, the heirs and universal legatees filed their answer to the opposition of the Baptist Church of Clinton.. They represent that the disposition of the will, in favor of the Baptist Church of Clinton, is null and void, because, at the time of the death of the testatrix, there was no corporation hearing that name, or having, any legal existence, which had the capacity to take. The heirs subsequently filed au amended answer to the opposition,, which we deem unnecessary to notice. In January, 1869, the case was taken up for trial, the evidence was adduced, the arguments were made, and the case was taken under advisement by the judge. On the fifteenth of March, 1869, the St. Andrew’s Church, offered to file an. opposition to the account and tableau of the executor; to this, objection was made on the ground that it came too late. The objection was-overruled and the opposition was permitted to he filed. Wo think the judge a quo erred. It is true, as a general rule, that “ when an act is to be done within a given time, it may he done afterwards, if nothing occurs to prevent it. Thus, if a judgment by default has not been taken, an answer may ho put into the merits, although more than ten days have elapsed from the service of citation. 7 La. 344. But in this case something had occurred to prevent it. The case had been argued and submitted for decision nearly two mouths before the offer to file333 tho opposition was made. See 14 La. 240, Long et al. v. Their Creditors; 3 An. 383, Succession of McCarty ; C. P. 1004; 4 La. 300; •9 La. 48, 59. Tho opposition of tho St. Andrew’s Church should not have been permitted to be filed. Had the Baptist Church of Clinton the capacity to receive at the ■opening of succession of tho testatrix ? The evidence in the record proves conclusively that it had not. Tho testatrix died on the thirteenth day of January, 1866. A number of individuals had associated themselves together, under the name ■of the Baptist Church of Clinton; and they had a house in which they worshipped, in the tóvn of Clinton, but they were not incorporated until after tho death of the testatrix. It is clear tho association had not the legal capacity to receive on tho opening of the succession. C. C. 1459; 19 La. 528; 3 An. 494. Nor can the individuals, who composed the association at the death •of tho testatrix, take the legacy. No private advantage was intended for them. Besides, no one but the Baptist Church- is claiming tho ■bequest. Did tho subsequent incorporation of tho association give it tho capacity to receive tho legacy? We believe it did not. The legacy was made inprwsenti. If the legatee had not the capacity to take when the succession was opened, tho property, by law, was transmitted to the heirs; and tho subsequent incorporation of the society could not divest their rights. See succession of Franklin, 7 An. 414; 4 Wheaton 28. Baptist Association v. Hart’s Executors. It is therefore ordered and adjudged that the judgment of the court a qua be amended by rejecting the demand of the Baptist Church of Clinton, and dismissing the opposition of the St. Andrew’s Church, at their costs; and that in other particulars the judgment be affirmed. It is further ordered that the appellees pay the costs of this appeal. Rehearing refused.