Succession of Cottingham , 29 La. Ann. 669 ( 1877 )

Tho opinion of the court was delivered by

DeBlanc, J.

On the tenth of March 1877, the administrator of the succession of Thomas T. Cottingham, filed a provisional account, in which he acknowledges having received, for said succession, the sum of one thousand fifty-two'dollars and fifty cents, and having paid or classed to be paid, as privileges, twenty-four claims, amounting, in the aggregate, to §1703 70.

This account is opposed by the' firm of Rose & Co. and by Mrs. Cottingham, the widow of the deceased. That firm have alleged and proved that, by its efforts and vigilance, these fraudulent acts of the said Thos. H. Cottingham have been annulled and revoked, and the property described in said acts subjected, by a decree of this court, to the payment of their claim against the succession of their deceased debtor. They now claim, by preference, the proceeds of the sale of the property which was effected by a conventional mortgage revoked at their suit.

The widow complained in the lower court that, though under the provisions of the Code, her claim under the homestead law, should be paid in preference to all other debts, except those specially mentioned in the law, the administrator had classed it as the last privilege to be paid.

The opposition, of the widow was sustained, that of Rose & Co. dismissed. From the judgment of the lower court, the latter alone have appealed. They alone still urge their opposition to the administrator’s account, and, from the oral and printed argument of their counsel, that opposition is now limited to the preference allowed to the widow’s claim.

The creditor has an action to annul any contract made in fraud of his rights. In that action, what should be the judgment of the court? That all the property or money fraudulently taken from the debtor’s estate, be applied to the payment of the claim of the successful creditor.

The words “ taken from the debtor’s estate,” indicate that the lawgiver had reference to a case where there has been, apparently at least, a change in the possession of the property, and when, by the creditor’s diligence, by the exercise of his action, the asserted contract is partly or absolutely canceled. R. C. C. 1970, 1977.

By that action, a mortgage, as well as a sale, may be avoided; but a mortgage does not divest the title, does not change the possession, and though its cancellation entitles the suing creditor to a preference on the proceeds of the property described in the avoided contract, that preference does not, can not exclude any of the rights which, even if the mortgage had not been annulled, would have outranked the claim secured by that mortgage. The revocation of a mortgage gives to the creditor, at whose instance it was revoked, a preference over all the other creditors, with whom, otherwise, he would have been on a footing of equality. It converts into a superior right, that which, before the revocation and without it, was and would have remained a concurrent right. It gives, it creates a priority, but does not supersede or destroy an already existing priority.

It has been invariably held, by this court, that the privilege conferred on the widow and children in necessitous circumstances is superior to all other privileges, except that of the vendor and those incurred in selling the property.

Our Code has been revised, and, of the law which confers that extraordinary privilege, not a syllable has been changed.

When the succession amounts to one thousand dollars, the widow may take, less a fraction, the whole of the succession. R. C. C. 3252; 26 An. 166; 27 An. 560.

The fraudulent mortgage did not, could not, affect the priority of the widow’s claim, and the success of the creditor’s action against it, did not add to her right, did not regain, for her, an advantage which, otherwise, she might have lost. The rank and extent of her claim are fixed by law, and no mortgage, real or simulated, except the vendor’s, could or can change the rank, or reduce the amount of that claim.

In this case, and so far as concerns the revocation of the mortgage, the creditor’s diligence can not be rewarded.

The law is clear, imperative, and, as our predecessors, we must apply the law as we find it written. The widow’s claim surpasses, in legal dignity, not only conventional mortgages, but even the privilege securing the payment of the expenses of the last illness and of the funeral charges. When, as in this instance, she takes the whole of the succession, she must, out of the bounty allowed her, pay these expenses and charges. This, on her part, is more than a duty, it is an obligation.

By whom, generally, are such debts contracted ? Is it exclusively, by one chained to his bed by a mortal disease ? Is it by one whose lips are sealed and voiceless ? Is it by the future, the unnamed administrator ? Who sends for the physician ? Who orders the coffin ? Eor those debts, by whomsoever they may be contracted, the wife and the children are liable. Otherwise, many a parent and husband would die for want of proper assistance, and a few might have to be buried without a coffin.

In this case, it would be a strange injustice to compel the administrator, who has paid some debts contracted by the wife, or for which she alone is liable, to deliver to that wife the entire succession of the husband, without deducting therefrom what he has paid for her.

When the husband is alive and has no property, no means, the wife is bound to provide for the household expenses; when he departs this life, and she takes ah that he leaves, she is, morally and legally, bound to .pay for the last services rendered by their physician, the clothes in which he was buried, his coffin and his grave.

There is no error in the decree of the lower court, and that decree is hereby affirmed; the costs of the appeal to be paid by Rose & Co.