Hooke v. Hooke , 14 La. 22 ( 1839 )

Rost, J.,

delivered the opinion of the court.

In 1821, Moses Hooke, being- then married to Harriet Hooke, and residing with her in the state of Mississippi, purchased, on credit, certain vacant lots in the city of New-Orleans. He died in the course of that year, leaving his widow and six children. The widow paid for the lots, but Was reimbursed by the succession of her husband. She married Frederick A. Browder, in 1826, and died in 1830, leaving a child, Jane Butler Browder, by her last marriage. Browder and his wife, in their lifetime, resided in the state of Louisiana, and their daughter has continued to reside in the state since their death.

An action for a partition and a judgment in the Court of Probates, fixing the rank and portion of heirs inheriting a succession, is res judicata, ■when not appealed from, and no one of them can be deprived of his share in a subsequent suit. Where two out heirs of the after the inhm'it-anee is fixed, leaving an heir of the half, she one-tenthof'the theftSS*common mother. born and resides proceeds3of the property sitúa-sold "to effect á reat1Ü°and vriií descend to^the toouriaws. “

An action was instituted by one of the heirs of the first marriage, against the others and Jane Butler Browder, for a partition of the town lots aforementioned. Jane Butler Browder, was admitted to be one of the heirs in her mother’s half, and the decree of the Court of Probates recognized her as such. That decree never was appealed from. The lots were sold under it, and after the sale, the parties were referred to the notary to proceed in the partition.

In this stage of the proceedings, some of the children of the first marriage instituted an action against the tutor of Jane Butler Browder, alleging that she was not one of the heirs ; and that the said lots of ground were not community property, never having belonged to their mother. Mrs. Shepherd, one of the heirs of the first marriage, to her credit be it said, joined the minor and resisted the pretensions of her brothers and sisters. The court of the first instance, determined that so long as the decree of partition recognizing the lots as community property, and acknowledging Jane Butler Browder as one of the heirs in her mother’s share, remained ¡n force, it formed res judicata between the parties, and fixed ... , their rights irrevocably.

The decision is well founded in law, and has moreover the a<lvanlage of doing justice between the parties, a result which would have been more creditable to the plaintiffs in that case, if it had originated in their own sense of right.

Two °f the six children of the first marriage having since died, Jane B. Browder claims, as the heir of the half blood, onettenth of their succession. The Probate Court allowed it, anc* we think justly. She was bom and resides in the state of Louisiana, and the proceeds of the property sold are real, and must descend to the heirs, according to our laws.

A licitation made to effect a j^íe a" team! ^ie ^ie^rs-> ar*d does not change the character of partaken t0The estateerepresent it, anil are really.

The licitation made to effect a partition, although it vested the title in the purchaser, was not a sale as between the heirs; it was merely one of the acts of the partition. That act did not change the nature of the property to be divided, and as the children of the first marriage died while that . , . property still remained in a state of indivisión, the rights of the defendants were the same, as if no licitation had taken ola.ce ** * '

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be aifirmed, with costs. '