Summary
■Appealfrom, St. Louis Circuit Court.
This was ejectment, in the St. Louis Circuit Court, brought by Cutter on the 1st of November, 1845, for a tract of one bj forty arpens of land in the Common Fields adjacent to St.. Louis, stating it to be the same tract formerly conceded tot Louis Lirette and by him sold to Jno. B. Yifvarenne, being; U. S- survey number 1479 in said Common Fields. Childress was the tenant of Bryan Mullanphy, of a lot of twenty-five by one hundred feet. Mullanphy caused himself to be a co-defendant, and on the 10th of January, 1850, a verdict was rendered against the defendants for two fifteenths of said lot of twenty-five by one hundred feet. A motion was made for a new trial, and overruled ; and defendants appealed.
The plaintiff gave in evidence documents as follows :■
1st. A concession on 17th July, 1769, of St. Ange-to-Louis Lirette, of a tract of one by forty arpens of land, situated in the prairie opposite the mound; bounded on one side by widow Mares chal, and on the other by Conde.
2nd. A survey by Duralde, taken from Livre Terrien No. 2,. of one by forty arpens, for Louis Lirette, in the prairie that touches the village (St. Louis) ; bounded on one side by the-domain of the king, and on the other by Moreau. This was made between 1770 and 1772.
3d. A conveyance by Louis Lirette before the lieutenant governor, Piernas, to John Baptiste- Yifvarenne, dated 20th August, 1774, of one by forty arpens; bounded on one side by tbe widow Maresehal, and on the other by the domain of the king or the land of Conde:.
4th. A confirmation by the recorder, being the usual tabular statement in his report. The quantity is one by forty arpen», and it states that notice to the recorder was by Lirette’s representatives. The decision is in these words, “ Confirmed forty arpens to be surveyed.”
5th. United States survey No. 1479 of the tract conveyed to Lirette, and confirmed as above; bounded north by Moreau, and south by Mullanphy, under Provenchere, executed on 19th October, 1826.
6th. Certificate of marriage of John Baptiste Yifvarenne and Genevieve Cardinal, on the 6th August, 1777.
7th. Certificate of burial of said Genevieve, on the 2nd of November, 1792.
8th. Certificate of baptism of Louis Yifvarenne, son of J. B. Yifvarenne (spelled Wivaren) and Genevieve, on 15th August, 1780.
9th. Certificate of burial of an infant of “Wivaren,” aged fourteen months, on 1st January, 1781.
The plaintiff claimed under sundry deeds from persons representing themselves heirs of J. B. Yifvarenne, and proved that J. B. Yifvarenne died many years before his wife died. He also gave evidence, tending to prove that Louis Yifvarenne, son of J. B. Yifvarenne, left St. Louis about the year 1800, and went to the lower country. He then gave depositions of sundry witnesses, stating, that at about that time, a person answering the description of Louis Yifvarenne, son of J. B. 'Vifvarenne, came to the parish of St. Landry, near Ope-lousas, in Louisiana, and remained there till he died, in 1818 ; that he went by the name of Louis Cardinal, and was generally known only by that name ; said he was from St. Louis, and mentioned to a person, on one occasion, that his name was Yifvarenne. Other circumstances were given in evidence, tending to show that he was Louis Yifvarenne, son of J. B. Yifvarenne.
1. Tbe defendants gave in evidence tbe marriage contract between John Baptiste Yifvarenne and Genevieve Cardinal, dated tbe 5th August, 1777. It provides, that they will perform tbe ceremony of marriage, as soon as either requires it of tbe other: “ That tbe said future husband and wife may be one and common in all property movable and acquisitions immovable, according and in conformity to the ancient .custom established in this colony, to which they subject themselves in respect to this contract; the said future husband and wife shall not be bound for the debts of each other, accrued before the celebration of said marriage; and should there be any, they shall be paid by him or her who contracted them, out of his or her property, without the other being responsible, or his or her property.
“ The said future husband and wife take each other, with their property and rights actually belonging to them, and that which shall come, descend, or belong to.them hereafter, whether by inheritance, donation, legacy, or otherwise; which property, from whatever source it may come to them, shall enter wholly (par le tout) into the community, without any reservation.”
The contract provides, that said Vifvarenne endows her with the sum of six hundred livres, to be a charge on all his property. It then further provides, that the survivor of them shall be entitled to four hundred livres out of the property of the community.
Defendants also gave in evidence the following :
2. Certificate of baptism of John Baptiste Yifvarenne, son of said J. B. Yifvarenne and Genevieve Cardinal, showing that the ceremony was performed on the 3d of May, 1779.
3. Certificate of baptism of Francis Yifvarenne, also a son of J. B. Yifvarenne and Genevieve, showing that he was born on the 6th of April, 1782.
4. The deed of Toussaint Mareschal and Charles Mareschal (sons of said Genevieve, by Jacques Mareschal by second marriage) to Pierre Chouteau, conveying, as heirs of Genevieve Yifvarenne, their mother, the said one by forty arpens of land, dated 11th October, 1817.
5. The deed of said Chouteau and wife to John Mullanphy, dated 30th October, 1819, conveying to him, in fee, one hundred and twenty arpens, composed of the Lirette field lot, in question in this suit, and the two adjoining on the north; to wit, one in the name of Moreau, and the other in the name of Vien, the original claimants. This deed was acknowledged and recorded, 1st November, 1819.
6. Inventory and appraisement of the property of Genevieve Cardinal, widow of John B. Yifvarenne, and her two minor children. This document is dated 19th August, 1782. It sets forth that it was done by the lieutenant governor, Cruzat, and in consequence of said Genevieve’s having left the place. (Plaintiff objected to the admission.)
7. Sale of the property, real and personal, of said Genevieve and her two children, contained in said inventory and '■appraisement, on the 6th of October, 1782, by the same lieutenant governor, to pay the creditors of said Genevieve.
8. An extract from the parish register of St. Landry, in 'Louisiana, as follows : “In the year 1813, and the 24th of the month of August, I, the undersigned, Michael Bernard Barriere, priest, officiating in this parish of St. Landry of Ope-lousas, buried-in the cemetery of this parish, the body of Louis Vifvarenne, an adult of about thirty-three years, native of St. Louis, of Illinois, and natural son of Louis Yifvarenne and Margaret Metive. He died from sickness, and at the house of Pierre Bellevue, in the Grand Prairie. He was not married, died.poor, and did not receive the sacraments, not being aware .that he was going to be sick. He lived in this parish about jtwelve years.”
The present priest of that parish and keeper of its records swears to the above copy, and the custom of the church, to keep such registers, &c. In the margin, of the above entry on .the parish record, is a memorandum, as follows, in the same handwriting: “Louis Yifvarenne. He was better known under the name of Louis Cardinal.”
It was proved, that the whole entry was in the handwriting of Barriere, then the parish priest, who has since died.
The defendants gave evidence tending to prove, that Genevieve, widow of J. B. Yifvarenne, married Jacques Mares chai soon after the death of Yifvarenne; that the two Mares chais, who made the deed to Mullanphy, were her only heirs : that as early as 1820, at least, Mullanphy built a brick house on the south line of the Yien field lot and north line of the Moreau field lot, being partly on both of those tracts, and surrounded the same by an enclosure, the eastern part of which was on the eastern line of the field lots ; that the house stood back from the eastern line a hundred feet, more or less, and the enclosure was extended south, then, or in a year or two after, so as to reach the Lirette field lot and take in a portion of it. The testimony, as to its extent to the south, was conflicting ; some witnesses thinking it comprehended" the common field lot in question, in whole or in part; and others, that it did not.
9. The defendants also gave in evidence the confirmation, by the board of commissioners, on 18th November, 1809, to John Mullanphy, of two by forty arpens, being the common field lot lying immediately south of and adjoining the south field lot, which is in controversy in this action.
It appeared in evidence, that John B. Yifvarenne had two sisters and no brothers : that one of those sisters married Joseph Labuxiere, and had numerous issue, from some of whom, in the second or third generation, the plaintiff derived title: that the other sister married Sans Souei, and had issue still living, whose title was not in the plaintiff.
It further appeared that Genevieve Cardinal had a number (six) of brothers and sisters, all of whom but one left issue, so that Louis Yifvarenne or Cardinal, who died near Opelousas, if he were the son of Yifvarenne and Genevieve Cardinal, had collateral kindred through his two paternal aunts, and also through his maternal uncles and aunts, and also left two half brothers, by the mother’s side.
The defendants then asked the following instructions :
1. If the jury find from the evidence, that the marriage contract, read in evidence in this case, by defendants, was executed by John Baptiste Yifvarenne and Genevieve Cardinal, at the time of its date, and that the said John Baptiste and Genevieve were immediately thereafter married, according to the stipulations of said contract, at St. Louis, in the year 1777, they will then consider the property owned by said Vifvarenne, at the time of the marriage, as put into and forming a part of the community created by said contract, and that the land in controversy, if it then belonged to him, became, also, a part thereof; and further, that by virtue of tire community so created, the one undivided half of said land, in fee, was the property of said Genevieve, if the jury find that said Yifvarenne died under the Spanish government, in the province of Louisiana, leaving said Genevieve, his widow, surviving.
2. If the jury find that the said marriage contract was made before the lieutenant governor, by said John Baptiste Yifva-renne and Genevieve Cardinal, at St. Louis, in the year 1777, and that thereafter, in the same year, they -were married ; and that afterwards, and during the existence of the Spanish government in Louisiana, said Yifvarenne died, and Genevieve, his widow, married Jacques Mareschal; that she died in 1792, leaving three children by said Mareschal, and one surviving, by ■her first husband, Yifvarenne ; and that said son, by Yifva-renne, died in 1818 without issue, — then the jury are instructed, that all interest or title in the land in question, belonging to said Genevieve, at her death, descended in equal portions to her said four children, and all the interest and title in said land, owned by her son by Yifvarenne, which descended to him from her, upon his death, passed, in equal portions, to the children by Mareschal, or to such of them as were then living.
8. If the jury find that J. B. Vifvarenne, the father, left several children at the time o£ his death, and that he died while the Spanish government existed in Louisiana, then all lands owned by him at the time of his death, and which could descend to his heirs, vested in those children in equal portions ; and if such children, or any of them, died before their mother, while the Spanish authority remained in force, then the portion of such child or children passed to and vested in the mother.
4. If Louis Cardinal, alias Louis Yifvarenne, was the lawful son of John Baptiste Yifvarenne, and if he died in the year 1818, owning an interest in the land in question, descended to him as heir of his father, without leaving issue, or father or mother or wife surviving, then such interest passed to his collateral kindred; that is, his uncles and aunts, both on father’s and mother’s side, if any, surviving, and to the issue of such as were dead, in equal portions ; such issue to take such portion as their ancestor, the said uncle or aunt, would have taken, if alive.
5. That the inventory and appraisement, purporting to have been made on the 19th of August, 1782, of the property of Genevieve Cardinal, wife of the deceased, John Baptiste Yifva-renne, and of her two minor children, is evidence that she then had two children living, if the jury find the same was executed by the proper Spanish authority, at its date.
6. That the document given in evidence, purporting to be a sale, by the lieutenant governor, of the property of Genevieve Cardinal and her two minor children, is evidence tending to establish the fact that there were two minor children of said Genevieve then living, if the same was duly executed before the, proper Spanish authority, at its date.
7. That the document given in evidence, as a certificate of interment, made by Pierre Bernard Barriere, is evidence tending to show that the said Louis Yifvarenne, therein mentioned, was the natural son of JohnB. Yifvarenne, by Margaret; provided, the jury believe, from the evidence, that the original entry, of which said document purports to be a copy, was made at the time of its date, in the register of the parish, by the officiating priest of that parish, who performed the burial service on the interment of said Louis.
8. If the jury find from the evidence, that the deed, given in evidence, purporting to be the deed of Pierre Chouteau and wife to John Mullanphy, was duly executed by.the grantors therein, at its date, and that it embraces the forty arpent tract, of which the land in controversy in this suit is a part, and that said Mullanphy and those claiming under him have had possession of a part of said forty arpent tract ■ since the year 1819, for twenty years before the commencement of this suit, under said deed, and claiming the whole, then there can be no recovery in this action in favor of the plaintiff, for any share or interest in the land sued for in this action, which, at the commencement of said twenty years’ possession, was owned by a person then residing in the Territory or State of Missouri, and not then a minor or married woman.
9. That possession of part of a tract of land, under a deed for the whole, with a claim to the whole, is such possession as will bar the actual owner by a lapse of time under the statutes of limitation, in force from the year 1818 to the present time, in Missouri.
10. That the plaintiff cannot recover in this action, unless it appear, to the satisfaction of the jury, that he, the plaintiff, his ancestor, predecessors, or grantor was seized or possessed of the premises in question, within twenty years before the commencement of this action.
11. That if the jury find, as in the fifth instruction asked by defendants, they are then instructed that said document therein mentioned, as an inventory and appraisement, is evidence tending to prove that John Baptiste Yifvarenne, the father, was dead at the date of said inventory, viz., in the year 1782.
Of the said instructions, the court refused to give all except the eighth and ninth; to which refusal of the court the defendants excepted.
The, plaintiffs then asked the following, viz. :
1. If the jury believe Nom the evidence, that John Baptiste Yifvarenne left more than one child surviving him, and that said child died before his or her mother, and after his father, and that Genevieve Cardinal was married the second time, to Jacques Mareschal, she was bound, on such second marriage, to restore the inheritance to the children of her first husband, living at the time of such second marriage, if the jury shall believe the premises in question were originally derived from said John Baptiste Yifvarenne, and no estate of inheritance in the case, supposed in this instruction, rested in said Genevieve after she became the wife of said Mareschal. Such is the general rule, and if it is claimed by the defendants, that John Baptiste Yifvarenne died before his wife attained the age of twenty-five years, and that, therefore, she could take from any deceased child or children of the first marriage, the jury are instructed that this is one exception to the general rule ; and it is for the defendants to prove the facts upon which the exception is founded; and in the absence of any proof satisfactory to the jury on this point, they will disregard the exception, and find according to the general rule.
2. If the jury believe from the evidence, that John Baptiste Vifvarenne was seized of the premises in question before his marriage with Genevieve Cardinal, and that he died before his said wife, then, upon his death, the estate descended to his heirs; and if the jury believe Louis Yifvarenne was his only surviving child, and that he died in 1813, or about that time, unmarried, and not having had any legitimate children, then the premises went to his paternal kindred; and if the jury believe that the wife of Joseph Labuxiere, the elder, and the wife of Sans Souci, were aunts of said Louis, and his nearest kindred on his father’s side, they or their heirs took the estate in exclusion of any brothers of the half blood on the mother’s side; and if the jury believe that Pierre Pallardie, Antoine Pallardie, Noel Pallardie, Michael Pallardie, Mary L. Pallardie, and Celeste Thibeau were descendants of said Joseph Labuxiere and wife, and their grand-children; and that Mary Lamar che, Denise Lamarche, and John Baptiste Dorlaque were also descendants and great grand- children o£ Catharine, wife of said Joseph Labuxiere, senior, and that Mary Janis, Andre Beauch-emin, Joseph Beauchemin, and Louis Beauchemin were also great grand-children of said Catharine and her husband, Joseph Labuxiere; and that Gabriel Labuxiere, Eugene Labuxiere, Henry Labuxiere, Joseph Labuxiere, Marcellette Letamps, and Odille Letamps were also descendants and grand-children of said Catharine and Joseph Labuxiere, and that deeds, given in evidence from these persons, were duly executed by them and by the husbands of said Marcellette and Odille, to the plaintiff in this suit, they will find for the plaintiff such portion of the premises of which defendant was in possession, as these persons would be entitled to as lineal descendants ; and assuming the said Catharine and wife of said Joseph, if she had survived said Louis Yifvarenne,. would have been entitled to one half of said premises, that in ascertaining said portion, if they believe Antoine, son of the said Catharine last mentioned, died unmarried, intestate, and without children, the portion he would have taken went to his brothers and sisters and their descendants ; that if they believe Charles Beauchemin has been absent from the State more than seven years, and no tidings have been had of him, his death will be presumed, and his share go to his brothers and sisters ; and if they believe Louis Beauchemin dead, intestate, and without children, his share went to his wife and brothers and sisters.
3. The inventory and account of sale of the effects of John Baptiste Yifvarenne, or his widow, are not evidence of any facts stated therein, as to the survivorship or number of children of John Baptiste Yifvarenne.
4. The certificate of burial from the parish of St. Landry, Opelousas, in Louisiana, is not to be received by the jury as evidence of the question of legitimacy of Louis Vifvarenne.
5. To enable the defendant to avail himself of the statute of limitations, it must affirmatively appear to the jury, by proof, that his possession of the land in controversy, or of a part thereof, with a claim to the whole, as already stated, or that of those under whom he claims, commenced and continued, without interruption or intermission, for twenty years before the commencement of this suit, under a deed purporting to convey the legal title thereto; if, therefore, the jury shall believe from the testimony, that defendant, or those under whom he claims, had not such a possession of the land sued for as commenced and continued without intermission for twenty years before the beginning of this suit, under a deed purporting to convey the title thereto, they will find for the plaintiff, on the defence raised under the statute of limitations. Which instructions the court gave ; to the giving of which, and each of them, the defendants excepted. The court having refused to give instruction numbered three (3), asked by the defendants, modified and gave the same, with an addition to it, as follows : “ That if the jury find that J. B. Vifvarenne, the father, left several children at the time of his death, and that he died while the Spanish government existed in Louisiana, then all lands owned by him, at the time of his death, and which could descend to his heirs, vested in those children in equal portions; and if such children, or any of them, died before their mother, while the Spanish authority remained in force here, then the portion of such child or children passed to and vested in the mother, absolutely, except as stated in the instruction next following” : to the giving of which defendants excepted. This instruction was followed by No. 1 of plaintiff’s, as explanatory of it.
I. By the marriage contract of John Baptiste Vifvarenne and Genevieve Cardinal, the wife took an interest of one half in the land in question, absolutely. 10 Mo. Rep. 312. Broussard v. Bernard, et al., 7 Lou. Rep. 220. 3 Vol. Recop. lib. 10, tit. 4, law 6. 3 ib. p. 425, lib. 10, tit. 4, laws 1, 2, 3, &c. 2 Coutume de Paris, pp. 2, 3, 40, 41. Analyse du Droit Franqais, p. 654, art. 229, p. 344, 351, 350, 528. 1 Science des Notaires, 261, 263, 291. Louisiana Code, Articles 2314, 2315. 17 La. 238. 7 La. 222. 1 White, p. 61, sec. 2. 3 Febrero, p. 117, No. 6, p. 129, Nos. 23, 24, 25, and 26 ; p. 138, Nos. 44 and 47; p. 140, Nos. 48 and 49 ; p. 141, No. 50; p. 153, No. 8.
II. On tbe death of J. B. Vifvarenne, his half of the property descended to his issue.
lvol. Febrero, p. 200, Cap. 6, secs. 1, 2, &c., that descendants inherit if there be no will. 1 White, 115 (Asso y Manuel, 120-1-2) ; 3 vol. Partidas in Spanish, 248 (Post. 6 tit. 13, law 3) to same effect. 4 Febrero, 42, Nos. 17,18, &c.
III. On the death, under the Spanish government, of any of Vifvarenne’s children without issue, their mother, if living, inherited. Such was the general law.
1 Febrero, 89, No. 54, that father and mother, grandfather and grandmother, &c., in the ascending line, are heirs, instead of collaterals. 3 vol. N. Recopilación, p. 524 (lib. 10, tit. 20, laws 1 and 2. 1 White, 116, Asso y Manuel, 120-1-2.
IV. On the second marriage, if Madame Vifvarenne became a widow over twenty-five years of age, she was bound to restore what came to her from her husband, directly or by inheritance from any of his children, to the surviving children or issue; but this restoration did not take place till her death, as she had a life estate in the property, nor did it then take place in favor of any others than the descendants of the first husband.
1 Febrero, 235, chap. 8, No. 1. Ibid, No. 2. 3 Febrero, p. 407, No. 2. Ibid, Nos. 3, 4, and 8. 2 Febrero, 200, No. 1977. Ibid, p. 409-11-12-13. Ibid, p. 408, No. 4. Ibid, p. 203, No. 1993 (L. Lib). Ibid, p. 414, No. 27 & No. 28. 3 vol. Recop. Lib. 10, Tit. 4. 2 Febrero, p. 415, No. 31. 7 Mart. Rep. (N. S.) 655, 668-9. 4 Mart. Cond. Rep. 391. Deblanc v. Landry, 6 Mart. N. S. 31. 3 Cond. 732.
V. The first instruction given for the plaintiff below is erroneous : 1st, in asserting that Madame Vifvarenne was bound to restore the inheritance to the children of the first husband, upon, and at the time of her second marriage. 2nd, in assuming that no estate of inheritance vested in said Genevieve, after her second marriage. 3rd, in assuming that even if all of J. B. Vifvarenne’s children died before their mother, that still tie property could not vest in her nor descend from her. 4th, in assuming that a lawful child of J. B. Yifvarenne did survive the said Genevieve; and 5th, in assuming that there must be such restoration of the property, if it was derived from J. B. Yifvarenne, no matter how derived. 6th, in declaring that the restoration must be to the child or children, whether legitimate or not. 1 Febrero, p. 200, No. 1, that the legitimate descendants inherit, and page 98, No. 69, and illegitimate do not. 7th, in assuming that we, the defendants, were bound to prove an exception to the general law.
YI. On theideath of Louis Cardinal, alias Vifvarenne (if he was the lawful son of J. B. Yifvarenne and Genevieve, his wife), his estate in the land in question, so far as derived from his mother, went to his half brothers, the two Mares chais ; and so far as derived from his father, it went to his uncles and aunts, or their descendants, by both father and mother’s side. 1 Terr. Laws, 125, secs. 9, 10, 11, 12, andl4, at pages 130-1. Ibid, page 128, secs. 6, 7.
The twelfth section is a provision applicable to cases where there are half bloods, and the question is between them and other claimants of the whole blood, for the sole purpose of excluding half bloods of the one side from property descended on the other side. It is not an enactment that property shall descend to those only of kin to a remote ancestor from whom it originally came.
There are no half bloods back of the intestate; they are all whole bloods, as to him; his uncles and aunts, by mother’s side, are whole bloods, as much so as on the father’s side.
YU. The inventory and appraisement of the property of Genevieve Cardinal, widow of J. B. Vifvarenne, and of her two • minor children, and also the judicial sale of the same by the lieutenant governor, in 1782, are, each' of them, evidence tending to establish the fact that there were, then living, two minor children of said Genevieve and J. B. Vifvarenne. 1 Greenl. Ev. p. 134, secs. 115 and 116, that entries by persons in discharge of duty, official or professional, are evidence.
3 Barn. & Aid. 890, an attorney had endorsed on a paper that he had served it; after his death, held that this was evidence of service. Buller’s JYisi Prius, 282, an entry of a book-keeper, deceased, admissible. 10 East. 109 ; 1 Esp. 328 ; 6 Mees. & Wells, 153. In 10 East, above, it was held that the account book of the surgeon proved the day of birth of the child. 8 Wheat. 326, memorandums made in the course of business, are evidence; a fortiori, the acts of a public officer are admissible ; 1 Gxeenl. Ev. 134, secs. 115, 120. The opinion of Le Blanc, J., at p. 120, in 10 East, is to the point.
YIH. Said inventory is also evidence, that J. B. Yifvarenne was dead, at its date, and therefore the eleventh instruction of defendants should have been given. The inventory was officially and formally made before the lieutenant governor.
1. The bare fact of its existence, so made and found among the records of the country, proves the right and duty of the governor to make it.
2. Being a legal and official act, credit is due to it. 6 Pet. 724, 728, 729.
3. The authorities referred to, under the next head, show that said document was proper evidence of matters of pedigree, and pedigree embraces the fact of death as well as birth, &c.
IX. The certificate of interment of Louis, by the parish priest, stating that he was the natural son of his father, Louis Yifvarenne, and a half breed woman, named Margaret, is evidence tending to prove that he was an illegitimate child; and the seventh instruction of the defendants should have been given. 1 Greenl. Ev. 117, secs. 104, 105, 107, “Pedigree ■embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened. Also, identity, 5 Har. & John. 51, at p. 55-6. 4 Mason 268, recital in a deed, other than a family deed, corroborated by possession, admitted to prove heirship : Hub-back, 514, 516, 517, 518, 519, 653, &c.
Depositions of deceased witnesses, taken between other parties, and with whom tbe new parties are no way privy, may come in as hearsay evidence of pedigree : 4 Wash. C. C. 186. 3 Wash. C. C. 248.
8 John. 128, 131, 5 Cowen, 237, hearsay of those not relatives, is admissible to prove pedigree. 1 Harr. & Mc-Henry, 281; 5 Har. & John. 51 ; 1 Wash. 124 ; 2 Hen. & Mnn. 193. 10 Pick. 515, letters of administration prove death. 15 John. 226, birth and marriage proved by town records of another State.
I. The first point raised by plaintiff below is this : The premises in question being the sole property of Yifvarenne, at the period of his marriage with Genevieve Cardinal, on the dissolution of the community, by his death, the land descended to his children.
The marriage contract between those parties did not at all change the then existing law, so far as this property was concerned. The law then prevailing has been well laid down by this court, and settled in Louisiana : Dawson v. Ripley, 17 La. Rep. 238. Picotfs case, 10. Mo. R., 312.
H. Upon the death of Louis Yifvarenne, this estate went to his paternal relatives, to the exclusion of his brothers and sisters of the half blood. He died in 1813 or 14, and the succession must be determined by our territorial act, 1807 : 1 Yol. T. L. p. 130, particularly secs. 12, 14.
The Mareschals are excluded from inheriting from Louis Vifvarenne, the property that came to him by his father. In Deu v. Jones, 3 Halsted, 340, where statute is similar, court held the construction contended for. His aunts, Mesdames Labuxiere and Sans Souci, or their descendants, would take the estate.
HI. The third instruction asked by defendants, and given, and the first asked and given, on the part of the plaintiff below, embrace this proposition.
That if more than one child survive the father, and one of these die before the mother, she would inherit, unless she had married the second time, not being a widow under twenty-five years of age, in which case she was bound to restore the inheritance coming from the first husband, to his surviving child or children. If, at the time of the death of any such child, the mother were married, she could not inherit, but his portion descended to or passed to his surviving brother or brothers and sisters.
The general rule of descents, under the Spanish law, and usually in countries adopting the civil code, is not disputed. The estate goes, first, to descendants ; in default of them, to ascendants, and if no relatives in the ascending line, then to collaterals. In the case supposed, the mother would have inherited, if she were under no disability, created by.the laws of Spain. She was, however, married the second time, was twenty-five years old, and not a widow, under twenty-five, in 1T84 ; and if the youngest child (Framjois) survived his father, he was, in all probability, dead before this second marriage. If so, upon her marrying Mares chai, she was bound to restore the inheritance, and by law it became and was vested in Louis, the only surviving child. The authorities cited, leave no doubt, it is submitted, as to this rule of the Spanish law. S Mart. R. 446. 6 ib. N. S. 38. 7 ib. 665. Ib. 10 tit. 4 Lex. 7 White’s Compilation.
The second instruction given for plaintiff below, however, presents an exception to this rule, and correctly states the onus proban di.
It has been said, that this rule related only to arras, and not to property inherited. For the rule as to arras, as well as other property, see the citations from the Institutes of-., translated by Judge Johnson, of Trinidad, 'and found in White’s Compilation, from which the references are made.
IV. The instruction given, as to the effect of the inventory and account of sale of the property of the widow,' was correct.
V. The certificate of burial, from the parish of St. Landry, Opelousas, was not admissible for any purpose ; much less could any statement affecting the legitimacy of the decedent, contained in said certificate, be admitted. This comes from the State of Louisiana, and is not even shown to be evidence there. Before a paper of this kind, from a foreign State, can be read (if it ever is admissible), it must be proved that, by the law of the State or country whence it comes, such certificate is evidence. Our statute applies only to such evidence within our own State, and the admission of foreign certificates rests upon the general common law rules of evidence. Hubback, 492.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
