Delogny vs. Creditors. mortgage creditors they are entitled to the mortgage first in rank, it is stated by counsel for Mrs. Brickell, that she is a creditor as holder of four promissory notes, secured by mortgage, recorded prior to the claim of J. H. Laws & Co.; that the judgment of the District Court recognizes her claim and ordered them to be paid pro rata with the claims of Laws & Co.; that the rank of these claims is correctly set forth on the account; that there is error, however, in ordering a pro rata payment. The position is correct, save as to the note for four thousand dollars. The mortgage in favor of Mrs. Brickell, securing this note, is dated January 19, 1884; it was inscribed on the 22d day of that month and never reinscribed; that is, after diligent search, we have not found evidence of reinscription in the voluminous record. More than ten years had elapsed from the date of the inscription to the insolvent's surrender of her property. The mortgage as to this amount had perempted, and the mortgagee as to third persons became an ordinary creditor from the date of the peremption. John H. Laws & Co. became, in so far as relates to that amount, prior creditors, in rank, and the mortgagee only has recourse in concurso, as an ordinary creditor, for the amount of this mortgage. In consequence of this peremption, Mrs. Brickell's claim is reduced to nine thousand dollars and interest. It ranks to that amount as first mortgage, and the other mortgage creditor is second as to rank. The distribution can not, between them, be pro rata. It was urged by Laws & Co. in argument that the syndic owes more interest than he has acknowledged as being due. The syndic during the trial below admitted that interest was due upon the notes he held representing the credit portion of the purchase price. Under the terms of the judgment of the District Court he will have to account for that interest without the necessity of amending the judgment. They also object to the item charged: "Newspaper publication included in auctioneer's." This item was not opposed in the lower court, and is not mentioned in the answer on appeal as one that should be rejected. The appellees, John H. Laws & Co., object to the payment of the following in the manner proposed, that is, that two hundred and nineteen dollars and twenty cents be paid to the auctioneers. Delogny vs. Creditors. The following agreement in regard to this claim was entered of record during the trial: "Macon, Denis and Kernaghan, six hundred and two dollars and five cents, and one hundred and fifty-nine dollars and twenty cents are not opposed, but it is agreed that out of that sum the amount of two hundred and nineteen dollars and twenty cents shall be paid to J. H. Laws & Co.; they having paid the amount to Mr. Macon." It devolves upon the syndic to carry out this agreement and pay the amount to the respective creditors and no amendment is needed to that end. It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed Mrs. W. E. Brickell from thirteen thousand dollars to nine thousand dollars, with interest thereon as stated in the account; that the claim of John H. Laws & Co. be reduced by deducting from it the sum of seven hundred and seven dollars and thirty-three cents and interest thereon at eight per cent. since November, 1893, and by deducting the difference in interest on the account (49) from and including the item of one thousand and fifty dollars to items or item of date amounting in principal and interest to twenty thousand two hundred and ninty-nine dollars and twenty-six cents on March 4, 1892, at eight per cent. per annum and from the interest as calculated on the creditor's last account after these deductions, the remainder is secured as to its payment by mortgage second in rank. It is further ordered, adjudged and decreed that the account be further amended by striking therefrom the pledge allowed to John H. Laws & Co. of the bounty granted by the government, and their demand as alleged pledgees of that amount is rejected; the said amount of bounty and the amount set aside to pay the mortgage not reinscribed are ordered to be distributed as an asset of the insolvency without reference to any alleged pledge and without reference to the four thousand dollars mortgage perempted. The judgment appealed from is further amended by striking therefrom that portion of the decree ordering a pro rata payment to Mrs. Brickell and John H. Laws & Co. After payment of privileges and mortgaged recognized, the remainder is to be distributed pro rata among the creditors whose claims are not secured by privilege or mortgage. After these amendments the judgment appealed from is affirmed at appellee's costs. 48 496 c1161014 Marionneaux vs. Dupuy, Executor. No. 11,969. CALVIN W. MARIONNEAUX VS. VALIERE P. DUPUY, EXECUTOR. Legitimate children only fall under the provisions of the law relative to forced heirship. The law divides children into three distinct classes, legitimate, illegitimate and legitimated. Legitimate children are those who are born during the marriage; illegitimate children those born out of marriage. Illegitimate children may be "legitimated" in certain cases in the manner prescribed by law, but illegitimate children are not by "legitimation" transformed into "legitimate" children. Legitimated children take "the rights of legitimate children" only by force of affirmative provisions of law to that effect. By Art. 199 of the Civil Code children legitimated by a subsequent marriage of the parents have the same rights as if they were born during marriage. This special exceptional privilege throws legitimation resulting from any other cause outside of the purview of the law maker under the rule affirmatio unius est exclusio alterius. A PPEAL from the Fourteenth Judicial District Court for the George Wailes and Guy Hebert for Plaintiffs, Appellants. Sims & Gondran for Defendants, Appellees. Argued and submitted December 19, 1895. The opinion of the court was delivered by NICHOLLS, C. J. This case was before us in 1895 on exceptions and was remanded for a trial on the merits. The facts and pleadings will be found in the 47th Annual, page 943. Plaintiffs now bring it up on appeal from a judgment in favor of the defendants. A very brief reference to the facts will be here given. On the 30th of August, 1893, Silvert Marionneaux appeared before a notary public in the parish of Iberville and two witnesses and acknowledged the present plaintiffs as his natural children. The authentic act evidencing this acknowledgment closed with the words that "he" (appearer Marionneaux) "further declared that it is his intention in making this declaration to legitimate said children." On the same day and place, and fifteen minutes after the act of acknowledgment was passed, Marionneaux executed his last will and testa Marionneaux vs. Dupuy, Executor. ment before the same notary and three witnesses, two of the witnesses being the same as those in the first act. The will opens by the announcement made by Marionneaux that he left no forced heirs. The testator proceeds to make to the different plaintiffs herein special legacies of particular lots of ground, willing that after these special legacies and his debts should have been paid, the residue of his estate should be divided into twelve equal parts and pass to his nephews and nieces as indicated in the testament. He refers to these relatives as his heirs, while in each of the successive legacies before mentioned he refers, as each is made, to the children as being simply his " acknowledged child." The plaintiffs, claiming that the first act to which we have referred legitimated" them, and by so doing gave them the status and rights of "forced heirs" of Marionneaux, brought the present action, in which they prayed that judgment be rendered in their favor decreeing them to be owners of the undivided two-thirds of all the property belonging to the succession of Silvert Marionneaux, and that all the legacies made to other parties in the will be reduced to the disposable portion, and that they be placed in possession upon paying the debts against it. In our opinion remanding the case, after quoting the provisions of the will, we said that that particular instrument, upon its face, would negative the claim advanced by the plaintiffs; that it was the clearly expressed intention of the testator to dispose thereby of his entire estate, and to direct that the plaintiff should take nothing from it beyond the specific legacies made to each. We held that the two acts were so closely connected that they really form one and the same transaction and were to be read together; that in matters of testamentary dispositions, the will of the testator was to be carried out if possible; that where a term which the testator has used is susceptible of two meanings, and it is shown by the testator's contemporaneous acts and conduct that the meaning which would have been accepted, in the absence of such acts and declarations, was not the one intended by him, we felt ourselves authorized to go into the inquiry as to what the testator's real purpose was; that it was quite probable that neither the notary nor Marionneaux understood the significance of the word "legitimate;" that, so far as the will itself would show, it was clear that Marionneaux himself did not. We therefore said that on the return of the cause to the Dis Marionneaux vs. Dupuy, Executor. trict Court this whole question should be left to be disposed of as one of the issues on the merits. The case comes back very much in the same situation in which it was before; the only new testimony bearing upon the point is that of the notary who drew up the two acts, who declared that he copied the first act (that of acknowledgment) from a paper prepared and written out, not by Marionneaux himself, but by Samuel Mathews, his general attorney. No explanations or discussions seem to have taken place in regard to the instrument. Mathews died before the case was tried in the District Court. Defendants maintain that even had Marionneaux intended to have given to plaintiffs the status of legitimate" children his purpose would have failed by reason of his having referred to them in the act as "his natural children." This declaration would of itself (they contend) do away with "legitimation" as the consequence of the act. They refer us to Sec. 2173 of the Revised Statutes, wherein it is said: "Another way of legitimating natural children is, where a father declares by writing executed by his own hand or which he causes to be executed by a notary public and attested by three witnesses that he acknowledges such a one for his son, designating him expressly by name. But in such acknowlegment the father ought not to say he is his natural son, for if he does the legitimation will have no effect." Plaintiffs reply that this section of the Revised Statutes was repealed by Act No. 68 of 1870, which in its first section enacts that "natural fathers and mothers shall have power to legitimate their natural children by acts declaratory of their intentions made before a notary public and two witnesses; provided, that there existed at the time of the conception of such children no other legal impediments to the intermarriage of their natural father and mother except those resulting from color or the institution of slavery," and in its second section that "all laws or parts of laws in conflict with the provisions of this act, except an act entitled an act relative to marriages, approved November 5, 1868, be and the same are hereby repealed; and in the third section makes the law take effect from and after its passage. They claim that though Act 65 of 1870 was approved March 15, 1870, none the less the special statute controls in matters of conflict under the provisions of Act No. 50 of 1870 and the decision of this court in the Succession of Colwell, 34 An. 269. |