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Barbour & Rexford and Robert B. Lines, for appellants.

Jas. T. Keena (Don M. Dickinson and Henry M. Duffield, of counsel), for appellees.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

Having stated the case as above, SEVERENS, District Judge, delivered the opinion of the court.

The complainants seek to maintain their suit upon the theory of a constructive trust cast upon the legal title, which they admit to be in the defendants, by the fact that Wedge obtained the land claim of their ancestor, Joshua Garrett, by means of a fraud upon those who had inherited the claim from him, which trust, it is alleged, attached to the lands upon the issuance of the patent by reason of the fact that the successive assignees from Wedge, to and including the defendants, took the claim or the products of it with notice of the trust. The soundness of this deduction is controverted by the defendants.

We shall not stop in this case to examine the sufficiency of the grounds, in the abstract, upon which this proposition is based, but, for the purposes of our decision, will assume that, if the allegations of law and fact upon which it rests are made out, the consequences claimed would follow. The complainants deny the validity of the proceedings in the parish court of La Fayette parish in the matter of Garrett's succession. The substance of the argument made in support of the attack made upon the proceedings of the parish court of Louisiana consists in these propositions: First, that the court was without jurisdiction, because the succession of Garrett was not vacant; second, that it had not jurisdiction, because, as they allege, Garrett did not die in, nor was he, at the time of his death, domiciled in, that parish; third, that there was no jurisdiction, because there were no debts against the succession; and, fourth, because, if in other respects the court had jurisdiction, it was not lawfully exercised as against the heirs of Garrett, for the want of notice to them of the contemplated proceedings.

We will answer these propositions in their order as thus stated.

1. It is insisted that the acceptance which the bill alleges the heirs of Garrett made of his succession upon his death displaced all authority of the parish court to appoint an administrator, or in any manner deal with the property of the succession. The provisions of the law of Louisiana upon which this result is claimed to ensue, as well from the first as from the second of the propositions above stated, are found principally in the following articles of the Revised Civil Code of that state of 1870:

“Art. 871. (867.) Succession is the transmission of the rights and obligations of the deceased to the heirs.

"Art. 872. (868.) Succession signifies also the estates, rights and charges which a person leaves after his death, whether the property exceeds the charges or the charges exceed the property, or whether he has only left charges without any property.

"Art. 873. (869.) The succession not only includes the rights and obligations of the deceased, as they exist at the time of his death, but all that has accrued thereto since the opening of the succession as also the new charges to which it becomes subject.

"Art. 874. (870.) Finally, succession signifies also that right by which the heir can take possession of the estate of the deceased, such as it may be.”

"Art. 934. (928.) The succession, either testamentary or legal, or irregular, becomes open by death or by presumption of death caused by long absence, in the cases established by law."

"Art. 940. (934.) A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds.

"Art. 941. (935.) The right mentioned in the preceding article is acquired by the heir by the operation of the law alone, before he has taken any step to put himself in possession, or has expressed any will to accept it.”

"Art. 946. (910.) Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he de cides whether he accepts or rejects it.

“Art. 947. (941.) The heir, who accepts, is considered as having succeeded to the deceased from the moment of his death, not only for the part of the succession belonging to him in his own right, but for the parts accruing to him by the renunciation of his co-heirs in the succession of the deceased."

"Art. 987. (981.) The effect of the acceptance goes back to the day of the opening of the succession."

But the rights secured by these provisions are subject to the general power of the probate court having jurisdiction over the succession. As we shall hereafter see, whether those powers are rightly exercised in the particular case is a question to be determined in that case by challenge in that court or in some other to which an appeal may lie.

By article 988 of the Revised Civil Code, it is declared that the acceptance by the heir may be either “express or tacit.” “It is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding. It is tacit, when some act is done by the heir, which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir." Assuming, what probably could not be conceded, that the effect of an express acceptance would preclude the exercise of jurisdiction by the parish court over the succession, it is to be observed that the bill in this case does not allege any formal or express acceptance by the heirs, but alleges what under the Code would amount to a tacit acceptance; that is to say, one to be implied from acts in pais. It was a question of fact whether such acceptance had taken place or not. to inquire into the facts and determine whether the succession had been accepted was vested in the parish court. It would be absolutely necessary that the authority to judicially determine such a question should be vested in some court, and, by the system established in every state in the Union, Louisiana among them, such authority is devolved upon the probate court, by whatever name called in the respective states. The failure to vest authority over such questions would leave them open to uncertainty, and to contest at the instance of anybody and upon any occasion where it might be for his interest to bring on a dispute about the fact. The petition presented to the parish judge contained a representation of every fact necessary to confer jurisdiction. It was so held in Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, where the peti

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tion in the proceedings brought collaterally under the consideration of the court was in the same language as the petition now being considered. An examination of the constitution, statutes, and judicial decisions of Louisiana shows that full and exclusive jurisdiction of the opening and settling of successions within the state is conferred upon the parish courts, and that the powers vested in those courts are substantially coextensive with those generally exercised by the probate courts in other states. The parish judge is the judge of the probate court, and the court is one of general jurisdiction of all matters relating to the estates of deceased persons. It is alleged in the bill that the land claim in question was part of the succession of Garrett.

The petition of the public administrator of the parish represented that Garrett “departed this life in said parish many years since, leaving some property, consisting of an old deferred land claim against the United States, No. 44, of date 1789.” “That said property should be inventoried, appraised, and sold according to law, and that petitioner is entitled to the administration of the said estate, being less than $500 in value.” The petitioner thereupon prayed that he might be ordered to take charge of the estate, that an inventory might be made, the property sold according to law to pay debts, that an attorney might be appointed to represent the absent heirs of said estate, if any there were, and that a commission issue to the sheriff to sell the property. On this petition the parish court ordered that after 10 days' notice, if there was no opposition thereto, the public administrator take charge of and administer the estate, that the property be inventoried and appraised, that W. C. Crow be appointed to represent the absent heirs, that in due time the property be sold for the purpose of paying debts and settling the estate, and that a commission issue to the sheriff to sell it. Crow filed an acceptance of the appointment of attorney for absent heirs, and waived citation and service. The property, consisting of the said land claim, was appraised by the legally appointed appraisers at $40, and was sold by the sheriff at public auction to Wedge for the same sum. We cannot doubt that, for the purpose of testing the jurisdiction of that court, the fact that the succession was vacant was conclusively established by the determination of the order appointing an administrator. This subject will be further discussed in dealing with the next, to which it is closely allied.

2. The next objection to the validity of the proceedings is that the parish court of La Fayette parish had no authority to appoint an administrator, because, as it is alleged, Garrett died in St. Mary's parish, and not in La Fayette. But the petition, as we have seen, stated that he died in La Fayette parish. That, too, was a question of fact. It might depend on disputed testimony. By whom and when should such a question be determined ? Manifestly, by that parish court of Louisiana to whom regular application for administration should first be made. Suppose that court, upon an allegation that the deceased died in that parish, so finds upon inquiry into the facts, and proceeds to administer the estate. Would it be competent to reopen the question by an application to the parish court of an adjoining or other parish, and try it over again, upon an allegation that the question of the decedent's domicile was not rightly decided in the parish proceedings? And may that question again be decided by another judge upon the evidence that shall now be adduced? If that can be done, the second judgment is no more conclusive than the first. The question could be tried over again in every parish in the state, with the possibility of as many different conclusions.

The laws of Louisiana, by certain peculiar additional safeguards, lessen the danger of occasional hardship resulting from the lack of notice by providing, as they do by articles 607 and 611 of the Code of Practice, that, in addition to the right of appeal, an action of nullity may be brought in the same court within a prescribed time against the judgment, where it has been obtained by fraud or ill practices by the party procuring it; and by providing for the appointment by the court of an attorney to represent the absent heirs (Rev. Civ. Code, arts. 1210,1211), and by awarding him fees for his services (Id. art. 1219), and thereby making him responsible to any party suffering by his want of diligence.

We think the law is settled in Louisiana, as well as elsewhere, that a collateral attack on a judicial determination of this character cannot be permitted. The supreme court of Louisiana, in its decisions relating to the character of the local probate jurisdiction and the conclusiveness of the judgments thereof when indirectly brought in question, very clearly and positively affirms the rule above stated, and which is maintained in the cases hereinafter cited from the reports of the supreme court of the United States. The cases are very numerous, and we cite only a few of the more recent: Sizemore v. Wedge, 20 La. Ann. 124; Woods v. Lee, 21 La. Ann. 505; Duson v. Dupre, 32 La. Ann. 896; Webb v. Keller, 39 La. Ann. 58, 1 South. 423; Linman v. Riggins, 40 La. Ann. 761, 5 South. 49; Gale v. O'Connor, 43 La. Ann. 717, 9 South. 557; Grevemberg v. Bradford, 44 La. Ann. 400, 10 South. 786; Succession of Theze, 44 La. Ann. 47, 10 South. 412.

It is not necessary to canvass all these cases. It will be sufficient to refer to two of recent date, which state the result of the previous decision, so far as they apply to the present case. In Duson V. Dupre, 32 La. Ann. 896, an action was brought by the curator of a succession, and the attorney for the absent heirs thereof, to recover land belonging to it. The plaintiffs derived their authority from the parish court of St. Landry. The defendants alleged that their appointment was a nullity, because the decedent whose succession they were appointed to represent was not a resident of St. Landry, but resided in the parish of Orleans. They also alleged another reason for the invalidity of the appointment, a reason which is relied upon here, namely, that the decedent left heirs in Louisiana, and so the estate was not vacant. We say it was the same reason, because there the law raised the presumption that the heirs had accepted the succession, while here the bill alleges that they did so. The district court held these defenses to be good. But the supreme court reversed the judgment, holding neither of them to be good, saying that:

“The parish court of St. Landry had probate jurisdiction, and was exclusively competent to grant and issue letters of administration in all successions properly opened in that court. Defendants contend that this succession was not properly opened in that court, for the reasons urged in their exceptions. This denial presents a question of fact; that the deceased was not a resident of this parish; and that, having left heirs who were residents of this state, his succession was not vacant so as to necessitate or justify the appointment of a curator. * * * These questions can be looked into and adjudicated upon only in a direct action before the same court, or before the tribunal now vested with original probate jurisdiction in the parish of St. Landry. No principle of our jurisprudence is more firmly established than the following: 'Letters of administration make full proof of the party's capacity until they be revoked. They must have their effect, and the regularity of the proceedings on which they issued cannot be examined collaterally.' This rule was laid down in the early days of our jurisprudence, and has been sanctioned, confirmed, and consecrated by an unbroken line of decisions of this court down to the present day.”

This case is cited and quoted in Simmons v. Saul as an important one in the exposition of Louisiana law upon the subject in hand, and the statement of the doctrine therein contained was approved as correct. In the recent case of Grevemberg v. Bradford, 44 La. Ann. 400, 10 South. 786, the supreme court had before it a case in many respects like the present. It was a petitory action by the heirs of one who had held a like confirmed land claim in Louisiana to recover lands which had been located by one who derived his title to the claim through almost exactly similar proceedings to those which took place in Garrett's succession. Some of the facts differed, and so the case cannot be said to be exactly analogous, but in deciding it the court referred to Duson v. Dupre, supra, quoted the language thereof as above, and said:

"That decision is but the reannouncement of what is the settled jurisprudence of this court. * * * Evidently, had Duson, curator, made a sale of the property of the Le Blanc succession in the parish of St. Landry, and the heirs had contested the validity of the title conferred on the purchaser, who, like the present defendant, was a stranger to the succession, this court, acting on the authorities therein cited, would unquestionably have denied their action, and affirmed the validity of the sale."

The case supposed in this extract from the opinion of the court presents exactly the case now before us. As was said in Simmons v. Saul, there are many cases in the Louisiana Reports where objections of the nature here taken were successfully maintained. But quite generally those were cases where the proceeding was either upon appeal or directly by a practice permitted by express statute, for the purpose of annulling or correcting the former judgment. No case has been referred to by counsel, nor have we been able to find any where it has ever been held that the jurisdiction can be questioned in such circumstances as these, and in a proceeding wholly independent and collateral.

We are bound to give the proceedings in the parish court the same credit as they would have in the state from which the record comes. The proceedings, the validity of which is here disputed, however open to question in the original jurisdiction to correction or annulment, were not subject to impeachment or collateral attack there, nor are

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