LOWERY vs. KLINE, 6 La. 380

Martin, J., delivered the opinion of the court. The petition states that the plaintiff’s son, whose forced heir she is, left several lots, slaves and some personal estate, of which the defendant Kline is in possession, and to which she claims title as universal legatee, except as to a slave, which is in the possession of the defendant Hall. The legacy is alleged to be null, because her son lived in open concubinage with the legatee, and because she left a mother and forced heir.

By his will, which is annexed to the petition, the plaintiff’s son acknowledges, on the 13th of August, 1830, that all the property in his and Kline’s possession, was made by their joint exertions, and one half thereof belongs to her. He adds that it consists of two slaves, Joe and Charity., two horses, a cart, dray, gig, stock of hogs, some household furniture, and the note of one Durell for two hundred and fifty dollars.

He gives a small legacy to a nephew, and bequeathes the rest of his estate to Kline, in consideration of the care and trouble she took for him, and the expences she incurred during his protracted illness. The defendant Kline pleaded the general issue, denied that the lots mentioned in the petition were the property of the testator, and that he possessed any property except that which he owned jointly with her, as stated in the will. She averred that the legacy to her was a mere nominal donation, as she had paid, as his executrix, debts of his to a larger amount than had been realised by the sale of the property.

The defendant Hall denied that the deceased had any title to the slave Joe, and he pleaded the general issue. There was judgment for the plaintiff against the defendants, and for the defendant Hall against the defendant Kline, whom he had called in warranty as the vendor of the ¿lave Joe. From the the two judgments against her, the defendant Kline, appealed. The plaintiff has prayed that the judgment be amended, so as to allow her the slave Charity, and by increasing the amount recovered.

The counsel for the appellant has contended that the first judge erred in reduciug the legacy to one tenth of the personal property only, and ought to have allowed one tenth of both the real and personal property; and in considering the testator’s declaration that Kline was the owner of one half oí the property of which they were in joint possession, as disguised donation, and an attempt to elude the provision of the law, incapacitating a concubine from receiving more than one tenth part of the testator’s property. b™u3-wníofthe'Sl in amount tho one movables and imrnnvftKl immovables of ‘the estate of the testator. property5'1'6 be5 ruriv¿^íeg£ tee, is liable to be attacked, though the sale was in e°°d ?hith> ,'f » reduction of the The counsel furthe complains that the first judgment erred in charging her on the warranty with the price she received for Joe, sold to Hall, and complains of overcharges against her, and the reduction of her own bill made.

It has appeared to us that the claim of the .appellee to an amendment of the judgment, so as to allow her the price of the slave Charity, cannot be considered, as this slave was claimed from the defendant Hall; and this claim disallowed. As Hall is not a party to the appeal, the decision of the judge below as to that slave, is not properly before us. We are of opinion that the District Court erred 'in cing the universal legacy to one tenth of the personal estate; it was only reducible to one tenth of the value of the estate; In the r rench text, de la valeur totale des oiens. La. Code, ' 1468.

The appellant’s counsel has further argued, that as she was on the face of the will the universal legatee, Hall, her vendee, acquired a good title to the slave Joe under her sale; a title, which it is contended, cannot be attacked, he being in good faith, by a subsequent claim to the reduction of the •, legacy, lo this the answer is, that the price of the slave is ^ A received from her by her co-defendant Hall, who .called her J 7 in warranty, that as to him not being before us, prevents us from considering the judgment he has obtained against her, and has to the appellee, the merits of the case are against her, as she sold a slave which she would be compelled to restore, if it was in her possession.

The reciprocal complaints of both appellant and appellee as to overcharges and rejection of items, depend on the evidence offered below, and as it is not very clear that the inferior court was mistaken, it is not our duty to doubt the judgment. The appellant is entitled to a reduction of the sum received from her by the appellee, of one tenth of the value of the two slaves, or one hundred and ten dollars.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as far as it concerns the recovery of the appellee from the appellant, be annulled, avoided and reversed, and that the former receive from the latter the sum of one hundred and forty-seven dollars, with interest at 5 per cent, till paid, with costs in the District Court, and that the appellee pay costs in this court.