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dation; and article 6, the lien and privilege during a lucid interval, where insanity of testa-
upon the mortgaged property. There is no trix bad been continuous for four years.
affirmative and specific allegation in the an-
swer challenging the good faith of the plain- 3. Wills Cw52(3) - Burden of showing that

will was not executed during lucid interval tiff or plaintiff's bona fide ownership of the

stated. note or that plaintiff had knowledge of the

While burden of proof is on those who atalleged failure of consideration.

tack a will to show it was not executed during [4] It is a well-recognized rule that the

a lucid interval, where habitual insanity is esdefenses available against the original payee tablished, burden shifts to proponents where of a note, such as want or failure of consid- will was not written by testator and evidences eration, cannot be urged against a bona fide sanity on its face because of its judicious proholder for value. As counsel for plaintifr visions. says in the brief:

4. Husband and wife 256, 262(1)-Property “The reason for the rule, which appears to acquired during marriage presumed comI have been adhered to by practically all of the

munity property. courts, is that, where a note is regularly in Presumption of law is that property bought dorsed, the holder is deemed prima facie to be during marriage in name of either spouse falls the owner.

It is well settled that into community, and, when husband buys in his presumptions can be overcome only by evi- oame as investment of separate funds for indence of an affirmative nature, and that evi- dividual account, such intention and character dence of this nature can be offered in such cas- of funds used must be stated in the act, or the es only under proper allegations."

property will belong to the community. [5, 6] Moreover, the burden of proving 5. Husband and wife 255-Property pur. failure or want of consideration rests upon chased by husband with funds borrowed on the party alleging it, and our appreciation wife's security held to belong to community. of the testimony in this case leads us to the Where husband when he married had no conclusion that defendants have failed to property at all, but bought land in his own satisfactorily meet this legal requirement. name with money borrowed on security given They are seeking to rescind a sale, but they by his wife, and the deed acknowledged the exhave not offered to restore the vendor to the istence of the community, but did not mention situation he was in at the time the contract character of funds, such property belongs to was entered into. Clover v. Gottlieb, 50 La.

community. Ann. 568, 23 South. 459.

6. Husband and wife w 249—Notes in set"The party who would disaffirm a fraudulent

tlement of first community held to belong to contract must return whatever he has received

wife's separate estate. upon it. This is on a plain and just principle.

Notes in payment of wife's interest in comHe cannot hold all or such part of the contract munity formerly existing between herself and as may be desirable on his part, and avoid former husband held to belong to wife's sepathe residue, but must rescind in toto if at all.” rate estate. Masson v. Bovet, 1 Denio (N. Y.) 74, 43 Am. Dec. 653.

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Appeal from Twenty-Second Judicial DisFor these reasons we find the judgment of trict Court, Parish of East Baton Rouge; L. the lower court correct, and it is affirmed at B. Aldrich, Judge ad hoc. appellants' cost.

Suit by Robert Rodriguez and another to

have declared invalid a nuncupative will of (156 La.)

Mrs. Margaret Muller McFettridge, deceased,
No. 25985.

opposed by Henry McFettridge, universal RODRIGUEZ et al. v. SUCCESSION OF legatee, and his curator ad hoc. Judgment McFETTRIDGE.

for defendant, and plaintiffs appeal. Re-
(Supreme Court of Louisiana. Feb. 18, 1924. versed and rendered,
Rehearing Denied by Division C

Dupont & Dupont, of Plaquemine, and Fred
May 5, 1924.)

G. Benton, of Baton Rouge, for appellants.
(Syllabus by Editorial Staff.)

Kernan & Wall and Jos. L. Brunot, all of 1. Wills Ow55(1)-Evidence held to require Baton Rouge, for appellee. finding that testatrix was wanting in testa.

W. G. Randolph, of Baton Rouge, Curator mentary capacity.

ad hoc. In suit to set aside nuncupative will by pri By Division B, composed of Justices DAWvate act, evidence held to show that testatrix KINS, LAND, and LECHE. did not have testamentary capacity. 2. Wills 52(3)--No presumption of execution of nuncupative will during lucid interval

LAND, J. This is a suit to have declared where not prepared personally by testatrix. invalid a certain nuncupative will, purport

Provisions of nuncupative will not prepared ing to be by private act, and which was exepersonally by testatrix cannot be relied on as cuted by Mrs. Margaret Muller McFettridge establishing presumption that it was executed on January 9, 1921.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


(100 So.) The testratrix died in the city of Baton , irresponsibility that could be easily detected Rouge, La., on June 20, 1921, without ascend-by the casual observer. The witness also ants or descendants. ,

says that "she was absolutely not mentally The petitioners, Mrs. Sallie Daigle and Rob-responsible or possessed of such mental ert Rodriguez, are respectively the niece and soundness as would have enabled her to apnephew of the deceased, and her nearest rel- preciate the significance of a contract or give atives in the collateral line.

expression in any way to what may have been The will institutes Henry McFettridge, the her true will or wish." husband of the testatrix, as her universal Prior to this period petitioner had suffered legatee, and was probated and ordered execu a stroke of paralysis in 1914 or 1915, while ted by a judgment of the district court of the in the state of Texas. Dr. Wall attended her parish of East Baton Rouge rendered in July, during her second stroke in 1918, at the home 1921, and the legatee was sent into the posses- of Mr. Hochendale, in the city of Baton sion of the estate. The invalidity of the will Rouge. She suffered a third stroke in 1919 is based by petitioners upon three grounds: while at the Daigle home in Plaquemine. She

(1) Because three of the five subscribing was stricken the fourth time in 1920, while witnesses, namely Joe Bernstein, Edmund living at her home on Middle street in the Macey, and T. D. Newsham, were not resi- city of Baton Rouge, where she died from the dents of the parish of East Baton Rouge fifth and final stroke in June, 1921. wherein said will was executed, or even res The mental and physical degeneration of idents of the state of Louisiana, at the time the testratrix in 1919 is clearly shown also of the confection of said will.

by the testimony of Mrs. D. A. Patrick, who (2) Because the testatrix was insane at the operated a boarding house on Lafayette street time of the execution of the will, and wholly in the city of Baton Rouge, where testatrix incapable of understanding or appreciating stopped before purchasing her home in that the consequences of her act.

city; by the testimony of Mrs. McCormick, (3) Because said will was the consumma- real estate agent, and of Mrs. Bertin, the tion of a fraudulent scheme on the part of owner, who refused to sell this property to Henry McFettridge to defraud the deceased testatrix, without the consent of Mr. D. M. out of her property and the petitioners out of Reymond, vice president of the Louisiana their rights.

National Bank, who had taken a personal inDuring the pendency of the suit, McFet- terest in the management of the business of tridge became insane, and was committed to the testatrix, and whose testimony shows her the insane asylum at Jackson, La., under Act | mental incapacity. It is unnecessary to re253 of 1910, and a curator ad hoc was ap view the testimony of the relatives of the tespointed to represent him in these proceedings.tatris and of other witnesses, as it would be

[1] Pretermitting all of the grounds of at- nothing short of a miracle for a woman with tack upon the will, except that of insanity a softened brain in the year 1918, and clearly of the testatrix, it is clearly deducible from | mentally deficient at that date, to have rethe testimony in the case that, at the moment gained her normal mental condition by Janof the execution of the testament, January 9, uary 9, 1921, the date of her will, when two 1921, the mind of the relatrix was so im- additional strokes of paralysis had interpaired as to make it an untrustworthy vehi- vened and had been suffered by her between cle for the conveyance of her true will or these dates. wish.

We have the direct testimony of Mrs. Julia A correct picture of the mental condition Bertin, who sold the testatrix her home in of the testatrix during the period December, | Baton Rouge, as to the mental and physical 1918, to January 19, 1919, is shown by the condition of the testatrix on March 25, 1921, testimony of Dr. Sam D. Wall, the physician only several months before her death in June, In attendance during that time. The testa- | 1921, and only several months after making trix was in a comatose condition when she her will. This witness testifies that at this first came under his observation, from a date, March 25, 1921, “the old lady didn't stroke of paralysis, designated by him as have her right mind”; that "she was childmotor paralysis of arm and leg. She was suf-ish,” and “not capable of appreciating the fering from apoplexy and softening of the significance of a will”; that "she was parabrain. While the physical condition of the lyzed and she could hardly speak ; you could testatris improved, under the treatment, so hardly understand her at all. She held her that she could walk without support and was head down the whole time; she didn't have able to feed herself, her mental condition re- her mind at all." mained defective. The witness testifies that As this was the mental and physical con"she was mentally irresponsible at the time dition of the testatrix about two months and she passed from under my treatment (Janu- a half after the date of her will, and as her ary 19, 1919), my conclusion being based on mental condition was defective, on January her inability to converse intelligently or un 19, 1919, it cannot be reasonably presumed derstand a conversation between others," that she was of sound and disposing mind at and he states that it was a form of mental | the date of the making of this will, especially

because of the nature of the disease of the , tic act of date May 19, 1920, for a consideratestatrix, softening of the brain. The pres- tion of $300 cash and the balance in six promsure of the blood clot, resulting from cere- issory notes, each for $112.50, payable in bral hemorrhage, being the cause of paraly- from 1 to 6 years. sis, it is clear from the repeated strokes that The deed is made by Henry K. Farrar to this clot had never been dissolved or removed "Henry McFettridge, married to Mrs, Marat any time, prior to the death of the testa- garet McFettridge, born Pope, with whom he trix. That mental improvement is not possi- is now living in the parish of East Baton ble under such conditions, where the effect of Rouge, said state, here present, accepting, any preceding stroke is to impair both mind purchasing and acknowledging delivery and and body, is a conceded medical fact. See possession for himself and his heirs and astestimony of Dr. J. J. Robert, the only phy- signs." sician who testified as an expert.

Henry McFettridge was married to his [2, 3] The metal condition of the testatrix' present wife July 19, 1919. At the date of is therefore shown to have been habitual, or his marriage he had no means whatever. continuous, from the year 1918. The will in From the beginning he took charge of the this case was not written by the testatrix; property and funds of his wife and adminisit was not prepared personally by her. Its tered the same. provisions, therefore, cannot be relied upon [4] The presumption of law is that property as establishing a presumption that it was ex- bought during the marriage in the name of ecuted during a lucid interval. We do not either spouse falls into the community. “But well see how such proof could be produced at when the husband, during marriage, buys all under the circumstances of this case. property in his name, intending it as an inWhile the burden of proof is on those who vestment of his separate funds, to be held attack the will to show that it was not execu- for his individual account and not that of ted during a lucid interval, yet where the the community, it is essential that some incondition of habitual insanity is established, dication of this intention, and of the charthis burden shifts to proponents, where the acter of the funds used, be given in the act.”. will has not been written by the testator, and Succession of Burke, 107 La, 82, 31 South. evidences sanity upon its face because of its 391; Hero v. Bloch, 44 La. Ann. 1036, 11 judicious provisions.

South. 821. Kingsbury v. Whitaker, 32 La. Ann. 1055, No mention whatever of the character of 36 Am. Rep. 278; Chandler v. Barrett, 21 La. the funds used is made in this deed, but the Ann. 58, 99 Am. Dec. 701; Succession of existence of the community of acquêts and Morere, 114 La. 513, 38 South. 435; R. C. gains is expressly acknowledged in the same. L. vol. 28, p. 99, par. 50.

This sale, therefore, does not come within the Petitioners allege that the succession of exception announced in the succession of Mrs. Margaret Muller McFettridge owes no Burke, above cited, but falls within the gendebts, making an administration unnecessary, eral rule that where the husband buys propand that they desire to accept said succession erty in his own name, during the marriage, purely and simply, and to be placed in the such property belongs to the community. possession of its effects. They pray for judg. The cash payment on the purchase price of ment in their favor against Henry McFet- this property was made with money borrowed tridge, universal legatee in possession, vacat- by Henry McFettridge on security given him ing and annulling the order of the district by his wife. This fact, however, is not recourt authorizing the registration and due cited in the deed, but appears aliunde. execution of the last will and testament of [5] We conclude, therefore, that the 15 Mrs. Margaret Muller McFettridge, declaring acres in controversy belong to the community said will null and void, and annulling the of acquêts and gains formerly existing bejudgment rendered by said court placing tween Henry McFettridge and his wife, and Henry McFettridge in possession of all the that a half interest in said property is owned property, real and personal, belonging to said by the succession of Mrs. Margaret McFetsuccession. Petitioners also allege that a tridge, deceased. certain improved tract of land, consisting of Petitioners also allege that five certain 15 acres, located in the fourth ward of the promissory notes in the possession of Henry parish of East Baton Rouge, and purchased McFettridge should be inventoried as a part by Henry McFettridge, after his marriage, of the succession of Mrs. Margaret Muller Mcfrom Henry K. Farrar in the year 1921, con- Fettridge. Each of these notes is for the sum stitutes a part of the separate estate of Mrs. of $1,000, is of date September 1, 1920, and is MeFettridge, and should be inventoried as made payable to the order of Mrs. Margaret such in her succession, as same was pur- McFettridge. The first note matures one year chased by Henry McFettridge with the sep-after date, and each of the others upon the arate and paraphernal funds of his wife, ac- same date of each succeeding year. These cumulated by her industry and inheritance notes were executed by Chas. J. Muller, Jno. prior to her marriage.

G. Muller, Nora C. Muller, and Attie T. MulThe sale in question was passed by authen- ler, in settlement of the community existing

(100 So.) between Mrs. Muller and a former husband. , the last will and testament of Margaret MulThe evidence fails to show that McFettridge ler McFettridge, and declaring said will null paid any consideration for these notes, or and void, and annulling the judgment of the that he acquired title to them by donation or lower court placing the said Henry McFetotherwise. As he assumed the control and ad-tridge in the possession of all of the property ministration of all of the property belonging belonging to said succession. to his wife, his possession of these notes is It is further ordered that petitioners be not indicative of his individual ownership, recognized as the nearest living heirs of said but resulted solely from his taking charge of deceased, and, as such, that they be placed in the affairs of his wife. His title to the notes possession of all of the property of which she in question could emanate only from the last died possessed, including the four notes dewill and testament of his wife, and falls with scribed in the petition, and the balance of its invalidity, because of the insanity of the the first note retained in the custody of the testatrix at the date of its execution. All of lower court and also an undivided one-half the property of the succession of Mrs. Mar- interest in the 15-acre tract described in said garet Muller McFettridge, including these petition. The appellee to pay all costs of notes, was taken into the custody of the dis- this suit. trict court under a writ of judicial sequestra

Rehearing denied by Division C, composed tion.

of OVERTON, ST. PAUL, and THOMPBy virtue of an agreement of the parties,

SON, JJ. and by order of the district court, the note for $1,000 due September 1, 1921, was collected by the sheriff, and the Union Bank and Trust Company of Baton Rouge, which held said note as collateral, was paid the amount


(6 Div. 484.) of its debt, and the balance was ordered by the court to be retained by the sheriff to

(Court of Appeals of Alabama, April 22, await the outcome of this suit, or the further

1924.) order of the court. Tr. 47, 48, 49. The above agreement was made August 1,

Intoxicating liquors w254-General act pro

viding 'for payment of fees in enforcing prohi1922, and was approved by the order of the

bition law held applicable to Jefferson county: court August 2, 1922. This, agreement and

Gen. Acts 1915, p. 557, § 14, providing by order evidently took the place of a prior section 14 for payment of fees to officers makagreement and order in reference to the col-ing liquor seizures, is applicable to Jefferson lection of this same note made December 16, county, since Loc. Acts 1915, p. 374, placing 1921, and found at pages 24 and 25 of the Jefferson county officers on a salary basis, and transcript.

requiring fees to be turned over to county, was The second note did not fall due until Sep passed prior to the general act as an inducetember 1, 1922, and both of these agreements ment to activity by officers, and there being no and orders precede the date of maturity of constitutional provision preventing section 14 the second note. We find no further order of

from applying to Jefferson county. the court as to the disposition of the balance

Appeal from Circuit Court, Jefferson Counof the first note collected.

ty; Joe C. Hail, Judge. The judgment dismissing plaintiffs' suit, however, virtually has the effect of decreeing Action by Woodie Sandefer against Jefferthat McFettridge owned the first note and all son county to recover fees as deputy sheriff, of the remaining four notes, because of his Judgment for plaintiff, and defendant apinstitution in the last will of Mrs. McFet- peals. Affirmed. tridge as her universal legatee.

Matthews & Morrow, of Birmingham, for [6] As we have pronounced said will inval- appellant. id, the balance of the funds arising from this Joseph R. Tate and Robert G. Tate, both note, and the other notes belong to the sepa- of Birmingham, for appellee. rate estate of the testatrix, as all of these notes were given in payment of the interest of BRICKEN, P. J. The only question for Mrs. Margaret Muller in the community for consideration and decision in this case is merly existing between herself and her first whether or not a deputy sheriff of Jefferson husband, and no title to same in Henry Mc- county on January 13, 1923, could, under any Fettridge is disclosed by the evidence, other circumstances or conditions, be entitled to wise than by virtue of said testament. receive the fee provided for in section 14 of

It is therefore ordered that the judgment the act approved September 25, 1915 (Generappealed from be set aside and reversed, and al Acts 1915, p. 557), for seizing liquors un. that there be judgment in favor of the peti- lawfully held by any person. tioners and against Henry McFettridge, here- By amendment to the Constitution of the in represented by a curator ad hoc, vacating state of Alabama, which was proclaimed ratand anpilling the order of the lower court | ified on November 16, 1912, the following authorizing the registration and execution of I was provided:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

“The Legislature of Alabama may hereafter, , 14 from applying to Jefferson county, and from time to time, by general or local laws, since this act is subsequent to said local act, fix, regulate and alter the costs, charges of and since this allowance was evidently made courts, fees, commissions, allowances or sal.

as an inducement to activity on the part of aries to be charged or received by any county officers in the enforcement of said prohibiofficer of Jefferson county, including the meth- tion law, we are of the opinion that it was od and basis of their compensation."

the legislative intent that this provision of By virtue of this amendment, which freed law should apply in Jefferson county as well Jefferson county from the yoke of section 96 as elsewhere. The said local act of 1915, reof the state Constitution, the Legislature quired only the fees then authorized to be passed a local act (Local Acts 1915, p. 374) paid into the county treasury. The fee in providing for placing county officers on a question was not then authorized, but was salary basis, and providing:

subsequently authorized by said general act,

which also provided that it should be paid "That when this act goes into effect, the cost, charges of courts, fees and commissions over to the officer making the seizure. This now authorized by law to be collected and re

view of the matter is fully sustained by the tained by the several officers of Jefferson coun

following case: Waldrop v. Henry, 207 Ala. ty above named, shall continue to be collected, 128, 92 South. 425. but shall be paid into the county treasury by

Affirmed. the officer collecting the same, as other moneys belonging to the county are paid."

SAMFORD, J. (concurring). I concur in

the conclusion affirming this case solely and Sheriff's fees were included in “the fees, alone by reason of the decision of the Sucosts,” etc., above referred to; the fees, preme Court in Waldrop v. Henry, 207 Ala. costs, etc., above referred to were such as 128, 92 South. 425. It is made mandatory were provided for at the date of the passage by the statute creating the Court of Appeals and approval of said act, to wit, September that its decisions conform to the decisions of 14, 1915.

the Supreme Court. On September 25, 1915, the Legislature passed, and the Governor approved, a general act, section 14 of which (General Acts 1915, p. 557) is as follows:

DOLCITO QUARRY CO. et al. v. CRUSE"That when an officer arrests any person in CRAWFORD MFG. CO. (6 Div. 317.) possession of an unlawful quantity or quantities of prohibited liquors, or of such liquors (Court of Appeals of Alabama. ' April 22, under conditions prohibited by law, then on the

1924.) conviction of such party of a violation of a city ordinance or state law, whether in the record-- 1. Appeal and error Om 1008(1)-Effect of er's court, or state court possessing jurisdic

findings by court, tion, a fee for making the seizure of the liquors Where court has tried case without jury, shall be taxed up against the defendant, and and has made special finding on facts, the only paid to such officer as a part of the costs of office of a bill of exceptions is to present for the case, as follows: If a seizure is made of review rulings of the court and erroneous adnot more than five gallons of such liquors, the mission or exclusion of evidence which might fee shall be three dollars; if the seizure be of have influenced court in making special more than five gallons, and less than twenty finding, and in rendering a judgment it might gallons, the fee shall be five dollars; and if not otherwise have rendered, thereby raising more than twenty gallons be seized, the fee presumption of injury. shall be ten dollars."

2. Appeal and error 1008(1)-Appellate

court will ascertain whether findings sustain It may be, as contended by counsel for ap

judgment but not whether findings are suspellant, that the Legislature, in passing the

tained by extrinsic evidence. said local act had in mind, among other

Under Code 1907, § 5361, the appellate things, the prevention of abuses which some court will review trial court's special finding times arise under a system of paying officers of facts to ascertain whether the finding susin fees earned by them; but, when several tains the judgment, but will not pass on cordays later said general act for the enforce- rectness of special finding under extrinsic ment of prohibition was passed, providing evidence. therein for the payment of this extra sum 3. Railroads w260—Company liable for neg. to the officer for arresting a person in the ligence of another permitted to use tracks. possession of prohibited liquor and seizing Generally a railroad company permitting the liquor, it is our opinion that the Legis- another to use its tracks is liable for damage lature had in mind the use, rather than the caused by the other's negligence. abuse, of the fee system, and rather enlarged 4. Railroads 260-Company held liable for upon the usual compensation allowed for la- negligence of employee of quarry company bors of similar arduousness and danger. permitted to use tracks. There is no constitutional provision which Where railroad company permitted stone would prevent this provision of said section quarry company to use tracks under arrange

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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