Dolhonde v. Lemoine

ON REHEARING. DeBlanc, J. It was not proven, and we cannot presume that Eugene Lemoine is dead, and — as it stands uncontradicted — we cannot disbelieve the sworn assertion that he was alive when Blineau died •, and — nevertheless—it was on the faith of an adverse assertion, that his co-legatees claimed and were allowed the joint legacy from Blineau to them. Presuming — as they did — that Eugene Lemoine had died before Blineau, the executors of the latter’s will did not cahse him to be represented, in the proceedings which resulted in the delivery of the deceased’s legacies, and — though he was then alive — -the share to which he *259 was entitled under said will, passed to, and is now in the possession of his co-legatees. His wife, who was regularly appointed and has qualified as his-curatris, brought this suit to recover the property embraced in the legacy from Blineau to him, and her demand is resisted by the co-heirs of the absentee, on several grounds, one of which has been urged but since-we granted their application for a rehearing of this cause, and it is. “ that, not being an heir, legatee or creditor of the absentee, Mrs. Le-moine is without power to accept and claim the legacy already-referred to.” Testamentary dispositions do not fall because the instituted heir or legatee happens to be absent, when the testator’s succession is opened'. C. C. 1700,1703,1705. Absence cannot — of itself — -be considered as an incapacity to receive by donation, and the executors of Blineau’s will, whose functions were to discharge the legacies, could not — by a proceeding in which Eugéne Lemoine, who survived the testator,-was not represented, transmit to his presumptive heirs his share of the deceased’s succession. As we are satisfied that Eugene Lemoine was seen and was alive after the death of Olivier Blineau, the legacy in his favor, which is one under a particular title, gave him, to the property bequeathed, a right which — from the death of the testator — he could have transmitted either by an act inter vivos or mortis causa, or by succession ; and that property- — his title to which never was divested — forms a part of his estate,, and was properly placed under the administration of his curatrix and wife, his partner in the matrimonial community. C. C. 1626 (1619); Marcadé, vol. 4, p. 87, 127 ; C. C. 64, (65); 47 (50); 48, (51). Were in true that — though the creditors of an heir can be authorized, to accept, in his name and stead, the inheritance which he renounces or refuses to accept, the wife and curatrix of an absentee is denied that, privilege, it would not follow that, on that account, the legacy to Eugene Lemoine has lapsed, and that, because of his absence — his inheritance has devolved upon those who had a concurrent right to a joint legacy.. It is, however, useless to discuss this point. The Civil Code provides “ that the curator of an absentee is bound, with respect to his administration, by the same obligations and responsibility by which tutors are bound, and the tutor may accept legacies, donations and other advantages made to his ward.” Besides, the paramount object of legislation is to protect and preserve for all — as well for an absentee as for the child who is yet in his mother’s womb — the rights which spring from its. enactments. . C. C. 50, (53); 354, (349); 29, (29); C. P. 109. *260 The only doubt which induced us to re-examine this important cause, has been dispelled by the last trial, and — notwithstanding the able and remarkable defence twice presented by appellant’s counsel, we still believe that the judgment of the lower court is correct. . It is, therefore, ordered that our former decree remain undisturbed.