HANDY, UNDER-TUTOR, &c. vs. PARKISON ET AL., 10 La. 92

Bullard, J., delivered the opinion of the court. The appellants having recovered judgments against Henry Flower, caused executions to be levied on a lot of cotton in bales, which had been raised on a plantation belonging to his minor-children, which they inherited from their deceased mother, and is administered by their father and natural tutor. The under-tutor of the minors obtained an injunction to prevent the sale of the cotton thus seized, alleging that it belongs to them, being the produce of their land and of the labor of their slaves.

The defendants justified the seizure, by alleging that the cotton is the property of the father, as usufructuary of their land and slaves.. The question thus presented is, whether, according to the existing law, the surviving father is entitled during the minority of his children to the usufruct of the property belonging to them by inheritance from their deceased mother. The seizing creditors, whose pretensions depend on sustaining the affirmative of this proposition, having failed below,- have appealed to this court. They rely mainly on

article 239, taken in connection with article'532 of the Louisiana Codé, and upon the Spanish law.

The first of these articles declares, that “ fathers- and mothers shall have during marriage the enjoyment of the estate of their children, until their majority or emancipation.” The latter declares, that the usufruct to which the father is entitled on the estate of his children during the marriage, is a legal usufruct.” We are acquainted with no rule of construction of statutes which would authorize us to reject as surplusage such important words of limitation as “ during marriage,” in both these articles; on the contrary, we are. bound to give effect, if possible, to every word.

By the first article, the usufruct of the father and mother is dependent on .two conditions: the minority of the children, and the continuance of the marriage. By another provision of the Code, this usufruct accrues-to the benefit of the party at whose suit a separation has been pronounced.

If the father be entitled to enjoy the property of his children as usufructuary, after the dissolution of the marriage, it appears to us-clear he must .derive that right from some other part of the Jaw,' and that the articles in question, being perfectly clear and free of ambiguity, are not susceptible of such a construction as to confer it. According to the father is en-minority ToThf usufruct of tire periy of Mochil-bound‘^account for the fruits and revenues. jjg can never be ehiidf as*S ulS only on bis death tutorslnpbegins.

He may, by tes-iTtutor, even To the mother°n °f According to the Louisiana ving husband fructuary ofthé children”^ Ta torsbip com-dissolutipnoftbe deatiTof either party, and the tied'to the tutor-tutor aS TheTh-ligations of tutor, in relation to the property Prescribed11’ by awP Is But, it is contended, that these provisions of the existing Code are not inconsistent with the existence of such a right, and that the Spanish law, which recognized this usufruct as belonging to the. father during the minority of his children, ^ Still ill .Í0ÍC6* We do not doubt that by the law of Spain, the father is entitled during minority to the usufruct of the adventitious property of his children.

He was .not bound to account for the fruits and revenues ; but there is an obvious and striking difference between the Spanish law and that of Louisiana as * to tutorship. In Spain, the father can never be the^ tutor his own child it is onty on his death that tutorship begins, and he may by testament appoint a tutor, to the . . i rl ... exclusion of the mother: as the paterfamilias he enjoys during the minority of his children the usufruct of their property, unc^er certain restrictions.

By our Code, on the contrary, the tutorship commences on the dissolution of the marriage by the death of either party, and the survivor is entitled to the tutorship as natural tutor. The surviving father becomes tutor, and his obligations as such in relation to the property 0^ PUP^> are pointed out by the Code. He is not bound, it is true, to give security for his faithful administration, but iQ other respects we find no difference between the obliga-h°n ^ie natural and the dative tutor.

They are equally bound by law to account for the revenues of the property of the pupil, subject to the expenses of their education according to their means and condition in life. These obligations and responsibilities are wholly inconsistent with the rights of . Usufructuaries. But even supposing that this part of the Spanish law .was not tacitly abrogated by the Code of 1808, or by that of 1825, yet by the 25th

section of the act of 1828, it is enacted, that “ all the civil laws which were in force before the promulgation of the Civil Code, lately promulgated, be and are hereby abrogated, except so much of title tenth of the Civil Code, as is embraced in its third chapter, which treats of the dissolution of communities or corporations.” This court has always considered this

section of the act of 1828, as express- ,. * Iy repealing the whole body of the Spanish law, which remained in force after the promulgation of the Code of 1808. The Civil Code itself was repealed, except so far as relates to the

chapter above mentioned. The Spanish tedinLouiSanaj hythe: 25th sec-lion ot the act of is28. This view of the merits of this controversy, renders it unnecessary for us to examine some minor questions, relating to the proceedings in the court of the first instance. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.