by the payment of the bill, acquired a legal subrogation to the rights of the
Bank.
1. Clauses in a will limiting the testatrix's power to dispose of the legacies
after their reversion to herself, are nugatory, and do not amount to a substi-
stution. Barnes v. Gaines, 314.
2. Where a testatrix directed by her will "that in case any of the legatees
should die before her, the share of the deceased legatee shall go to his chil-
dren, their heirs or assigns," and this direction was not changed by her,
after the death of the legatee: Held, that this clause does not contain a
substitution; that the death of either of the legatees before the testatrix,
could not prevent her from disposing of her property as she pleased in favor
of any other persons; and that the right of the legatee, first instituted, not
having accrued, the children, the eventual legatees, would take under the
will, without reference to the previous institution. Ib.
I. Jurisdiction in matters of Succession.
III. Of Heirs and Legatees, and of the Acceptance of Succes-
IV. Claims against Successions.
V. Sale of Property of Successions.
VI. Tableau of Distribution, and payment of Debts and
Legacies.
I. Jurisdiction in matters of Succession.
1. Where a party has been put in possession of a succession, as testamentary
heir, by a decree of the Court of Probates, that court is divested of all con-
trol over the estate; and one who claims the property as the heir at law of
the deceased, must proceed before the courts of ordinary jurisdiction. Nor
is it requisite, before instituting such revendicatory action, that the claim-
ant should be recognized as heir by the Probate Court; this is only required
while the succession continues under the supervision of the court by which
the executor, administrator, or curator was appointed. Layre v. Pasco, 9.
2. Petitory actions, or actions of revendication, must be brought before the
ordinary tribunals, even when instituted against successions. C. P. 983.
Barnes v. Gaines, 314.
3. The commission of two and a half per cent allowed to executors by art.
1676 of the Civil Code, cannot be claimed on the value of waste, uncultiva-
ted land. Such land cannot be considered as a part of the productive pro-
perty of the succession. Succession of Milne, 48.
4. Neither the validity of a will under which a plaintiff holds the appointment
of a testamentary executor, nor the certificate of his appointment from the
Court of Probates, can be inquired into collaterally, in a controversy be-
tween the executor and a debtor of the succession represented by him.
The court cannot look beyond the certificate of his appointment, or letters
testamentary; and until the will be regularly annulled, which cannot be done
in the absence of those having an interest under it, he will be entitled to
exercise the powers conferred on him by law. Maskell v. Roupel, 500.
IH. Of Heirs and Legatees, and of the Acceptance of Succes-
sions.
5. The State can only take a succession where there is no one entitled to the
inheritance, or where it is not claimed by any one having a right thereto.
C. C. 477, 911, 917, 923. Such was the case under the code of 1808, and
under the Spanish laws. Layre v. Pasco, 9.
6. Natural brothers and sisters will inherit from each other, where their
father and mother died before the child from whom the estate descends.
C. C. 917. Article 923 of the Civil Code does not exclude the idea of
natural brothers and sisters being entitled to inherit. It must be construed
with reference to the preceding articles. Arts. 923 and 917 must be re-
garded as one continuous act of legislation in pari materia. Ib.
7. Where one claims, as the heir of his mother, against a third person in pos-
session, property which belonged to the community of acquêts existing be-
tween his parents, he must show that his father had such a title, at the dis-
solution of the community, as would have enabled him, in his own right and
as tutor of his son, to maintain a petitory action for the property; for if any
contracts or engagements were entered into by the father, during the exis-
tence of the community, which were binding on him, showing that his ap-
parent title was not a real one, whether evidenced by private writings shown
to exist, and proved by extrinsic evidence to have a real date, or by authen-
tic acts, they must have been binding on the community, and descended to
the heir of the wife as a necessary burden upon his inheritance, estopping
him from disturbing a title derived from the community.
8. A legatee of mortgaged property cannot require to be proceeded against as
a third possessor, where it is not shown that she has been put in possession
of the property. Succession of Porter, 96.
9. There is a difference between the obligations of co-heirs, and of joint ob-
ligors by contract. The law apportions among the heirs, all the charges
of the inheritance, and each heir may, perhaps, be sued, separately, for his
virile share. C. P. 120. C. C. 1370, et seq; aliter as to co-obligors by
joint contract, all of whom must be sued together. C. C. 2080 et seq. In
the one case, it is a condition of his inheritance that each heir shall pay his
share of the debt; but, in the other, no one of the obligors can release him-
self at will. Duggan v. De Lizardi, 224.
10. The assumption of the quality of heir in an authentic act, is an uncondi-
tional acceptance of the succession. C. C. 982. Greig v. Muggah, 473.
IV. Claims against Successions.
11. Art. 986 of the Code of Practice, does not apply to a liquidated claim se-
cured by a special mortgage. A mortgage creditor is not bound to bring a
suit against the succession, before calling on the curator or administrator
for the payment of the debt. A simple order from the Probate Judge is
sufficient. Succession of Porter, 96.
12. Unliquidated claims against a succession, need not be presented to the ad-
ministrator for his approbation, before commencing an action therefor. C.
P. 984, 986. Succession of Jacobs, 270.
13. The owner of an unliquidated claim against a succession, cannot obtain
judgment therefor, by a rule to show cause taken against the administrator.
The action must be brought in the ordinary manner, before the Court of
Probates in which the succession was opened. Ib.
V. Sale of Property of Successions.
14. Mortgage creditors of a succession, though it be insolvent, are not bound
to wait; they may require the sale of the mortgaged property to be made
for cash, provided its appraised value be obtained; and their wish must
always prevail, in this respect, over that of the other creditors. C. C. 1163,
1663. C. P. 990, 991, 992, 995. Succession of Porter, 96.
15. Where a probate Judge orders the sale of mortgaged property to be made
for cash, it is not necessary that he should insert in the order the condition
imposed by law, that its appraised value be obtained. The law itself fixes
the amount the property must bring, when the sale is for cash; and unless
the appraised value be obtained, there can be no adjudication. Ib.
16. A rule in the Court of Probates on an executrix, to show cause why
mortgaged property should not be sold for cash, taken by the mortgagor, is
a summary case, the trial of which is provided for by arts. 1034, 1035 of the
Code of Practice. Succession of Porter, 96.
VI. Tableau of Distribution, and Payment of Debts and Le-
17. No part of the property or funds of a succession should be applied to the
discharge of legacies, until the creditors are satisfied.
Succession of Porter, 96.
18. The usual publication in the newspapers, calling on all whom it may con-
cern, to show cause, if any they can, why a tableau of distribution of the
effects of a succession should not be homologated, is sufficient notice.
citation, or actual notice is necessary. Arrieux v. Dugas, 453.
1. The act of 13th March, 1837, ch. 94, relative to the roads, and levees, in
front of the property of non-residents in the parish of Plaquemines, providing
a summary mode of disposing of the property of absent proprietors, the pro-
ceedings under it should be closely scrutinized. Jeannin v. Millaudon, 76.
2. A rule in the Court of Probates on an executrix, to show cause why mort-
gaged property should not be sold for cash, taken by the mortgagor, is a
summary case, the trial of which is provided for by arts. 1034, 1035 of the
Code of Practice. Succession of Porter, 96.
1. Suretyship must be stipulated expressly. It cannot be presumed. C. C.
3008. Erwin v. Greene, 70.
2. Where the lessors of property, without the consent of the sureties of the
lessees, take back a part which had been occupied by the lessees as a dwell-
ing, and relet it to a third person, the sureties will be released, the contract
being materially altered without their assent. Per Curiam. It must be
presumed, that the sureties consented to bind themselves in relation to the
situation of the whole property at the time of the lease, and in consideration
of the subrogation to which they were legally entitled to the lessors' rights
and privileges, among others, upon the furniture which existed in the dwell-
ing house. C. C. 2675, 2676, 2677, 2679, 3030. Penn v. Collins, 213.
3. Where the lessors of property, having sued the lessees for the rent due,
and to come due under the contract, and caused property, on which they
had the lessors' privilege, to be seized to an amount equal to the rent due,
and to come due, abandon the seizure without a trial, the sureties of the les-
sees will be discharged. Ib.
4. Though the obligation of an endorser or surety cannot be enforced till after
the event on which it becomes absolute, it exists from the time when it was
contracted, for it is susceptible of being compromised, released or trans-
ferred, and of passing to heirs, &c. So the rights of the endorser, or surety,
against the maker or principal, exist before the obligation of the former be-
comes absolute. Wiggin v. Flower, 406.
5. The provision of art. 2130 of the Civil Code, which declares, that “an ob-
ligation may be discharged by any person concerned in it, such as a co-
obligor or a security," recognizes the right of a co-obligor, surety, or any
person, like them, concerned in the obligation, to pay, before his obligation
becomes absolute; and the subsequent clause of the same article, which
provides that payment by a person in no way concerned in the obligation
does not give rise to subrogation, virtually declares that payment by a co-
obligor, surety, or other person concerned in it, does create such subroga-
tion. Ib.
6. Endorsers and sureties are, under the Civil Code, conditional obligors of
the creditor of the maker and principal, and at the same time, conditional
creditors of the latter. Though no conservatory acts can be exercised
against the conditional debtor by endorsement, until his obligation becomes
absolute, both the endorser and the surety, may, under art. 2037 of the
Civil Code perform all acts conservatory of their respective rights, even
before their own obligations have become absolute.
7. A surety can claim nothing more than indemnification. Ib.
8. The rights of a surety subrogated to those of a creditor, whether payment
was made before the obligation of the surety became absolute, or after, re-
sult from his original contract with his principal, and are restrained by it.
Those of an endorser, not for accommodation, in the same situation, are
under no restraint from his original contract with the maker, or acceptor,
to wit, that the whole amount of the bill should be paid to him, or his order.
Aliter, as to an accommodation endorser, who, being viewed as a surety,
will be restricted to the sum actually paid by him. Ib.
9. Ordinary endorsers are not placed on the same footing as sureties; nor
can they, like the latter, claim the benefit of discussion. Ib.
10. The statute of the State of Tennessee, authorizing sureties who have
paid the debt of their principal, to obtain judgment against the latter, by
motion, without notice to him, and on the verdict of a jury convened to try
the fact of suretyship, can only operate, within that State, on citizens or re-
sidents thereof. It cannot empower citizens of that State to obtain judg-
ments against non-residents. McNairy v. Bell, 418.
11. The interest of the party by whom property is held as security, is an in-
surable one. Hence the right of agents, consignees and factors, to insure
the goods of their principals.
Bell v. Western Marine and Fire Insurance Company, 423.
12. Where a debtor has made a cessio bonorum, all his debts, whether payable
then or at a future period, are placed on the same footing, the latter being
reduced in proportion to the distance of the day of payment. All the cre-
ditors, including those whose debts were payable at a future time, are en-
titled to a voice in fixing the terms of sale; nor will the consent of a cre-
ditor to the sale of the property on a credit, be considered an extension of
the time of payment, so as to release others bound with the insolvent as en-
dorsers or sureties. Légér v. Arcenaux, 513.
Natural and well ascertained objects must control in the location of claims to
land. Specified courses and distances must yield to them, if they cannot
be reconciled. Le Breton v. Lewis, 479.
Neither the wife, nor her heirs, are third persons as to the husband, in rela-
tion to acts done by him as the head of the community. Domestic papers
admissible against the husband, are so against the wife, or her heirs.
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