Tillery v. Fuller , 190 La. 586 ( 1938 )

In their applications for a rehearing, Mrs. Pearl Smith Tillery and Mrs. Lelia Spearman Buchanan, for herself and as tutrix for the minor child, Velma Allene Lowery, contend that the judgment rendered against them, sustaining the plea of prescription of thirty years under article 1030 of the Civil Code, is not consistent with the provisions of articles 352 and 977 of the Civil Code. The latter articles declare that it is not necessary for a minor heir to make a formal acceptance of a succession, because the acceptance is considered as made for the minor, with benefit of inventory, by mere operation of law, and has the same effect that a formal acceptance has. These articles, when read in connection with article 1030 of the Civil Code, mean merely that the law protects the minor heir, during his or her minority, against the consequence of a failure to formally accept the succession. But, when the minor arrives at the age of majority, he has only thirty years from that time in which to accept the succession, or his failure to accept will inure to the benefit of any coheir or coheirs who may have accepted, or of any heir next in degree who may have accepted, by going into possession of the estate. If this were not true, the right of an heir who is a minor at the time when the succession falls to him, to elect whether to accept or to renounce the succession, would never prescribe, even though a major coheir has accepted the succession by going into possession of the estate. We adhere to our opinion that the prescription of thirty years against the right of an heir to elect whether to accept or renounce a succession is only suspended during the minority of the heir, and commences to accrue when the minor reaches the age of majority. Article 1007 of the Civil Code, which provides that, if a person who is entitled to an inheritance dies before having expressly or tacitly accepted or rejected it, his heir shall have the right to accept it under him, is not in conflict with our opinion that the prescription of thirty years against the right of an heir to elect whether he will accept or reject the succession is only suspended during the minority of the heir, if the heir be a minor at the time when he becomes an heir.

Mrs. Lelia Spearman Buchanan, as tutrix for the minor child, Velma Allene Lowery, claims that the child is entitled to share with Mrs. Nancy Lilla Tyson the benefit of the prescription of thirty years, which bars the right of action of all of the Spearman heirs except Mrs. Tyson. In the original opinion which we rendered in this case we observed that the prescription of thirty years against the right of a regular heir to accept a succession inures to the benefit only of a coheir who has accepted, or of an heir next in degree who has accepted the succession. Velma Allene Lowery was not a coheir with Mrs. Tyson. In fact Velma Allene Lowery is not an heir at all of Samuel W. Spearman, or of Dempsey Susan Spearman, or of Lucy Spearman Wilson. Velma Allene Lowery's grandfather, Travis H. Spearman, was the heir of Samuel W. Spearman and Dempsey Susan Spearman, and of Lucy Spearman Wilson. When Travis H. Spearman died, on March 24, 1894, he transmitted to his two daughters, Mrs. Buchanan and Mrs. Lowery, his interest in the succession of his father and mother, and of his sister, Lucy, with such right as he had to accept their successions. When Mrs. Lowery died, February 11, 1935, she transmitted to her daughter, Velma Allene Lowery, such right as she, Mrs. Lowery, had, to accept the succession of her father, Travis H. Spearman, and of his parents, Samuel W. Spearman and Dempsey Susan Spearman, and of his sister, Lucy Spearman Wilson. Velma Allene Lowery is the heir only of her mother, Mrs. Velma Spearman Lowery. All of this is explained in the Succession of Coco, 185 La. 901, 913, 171 So. 70, 74, construing article 944 of the Civil Code. Article 1022 of the Civil Code declares that the interest of an heir who renounces the succession goes to his coheirs of the same degree, or, if he has no coheirs of the same degree, to the heirs in the next degree. Applying that article to the case where an heir, instead of renouncing the succession, allows the thirty years prescription to bar his right to claim the succession from a coheir who has accepted, the article has no application to the case of Velma Allene Lowery, because she was not a coheir with Nancy Spearman Tyson, or an heir in the next degree. For the same reason, article 1026 of the Civil Code, which provides that accretion is for the benefit of the coheirs who have accepted, or who may accept, applicable to the case of Velma Allene Lowery. And, for the same reason, article 1027 of the Civil Code is not applicable to the case of Velma Allene Lowery. This article declares that the heirs to whom an interest in the succession comes by the renunciation of their coheirs, take it in the same proportion that they take the inheritance. We must bear in mind that the successions from which came all of the inherited interests in these suits were the Successions of Samuel W. Spearman and Dempsey Susan Spearman, and from them the Succession of Lucy Spearman Wilson. Velma Allene Lowery is not an heir of any of them.

Petitions for a rehearing were filed also by the heirs of George R. Spearman, and by the heirs of Thomas J. Wilson; but the contentions made in these petitions for a rehearing were answered completely in the original opinion rendered in this case.

With this explanation all of the applications for a rehearing are denied.

On Application to Correct a Clerical Error in the Decree. The attorneys representing Mrs. Lelia Spearman Buchanan, tutrix for the minor child, Velma Allene Lowery, have called our attention to a clerical error, which is a very obvious error, in the decree which we rendered in this case. And they ask for a correction of the error. As we explained on pages 699 and 700 of the opinion which we rendered, we reduced the interest which the judge of the district court had allowed the minor child, Velma Allene Lowery, to 5/1792 interest in the 20 acres of land described as N 1/2 of NW 1/4 of NW 1/4 of Section 13, in T. 23 N., R. 16 W., and to 15/3584 interest in the remaining 220 acres of land in contest. But, in the decree which we rendered, the remaining 220 acres of land in contest was described erroneously as being only the S 1/2 of NW 1/4 of NW 1/4 and all of the SW 1/4 of NW 1/4 of Section 13, in T. 23 N., R. 16 W.

The attorneys for the defendants in this case, in response to the motion of Mrs. Lelia Spearman Buchanan, tutrix, to correct the error which we have explained, have filed an admission that the error in the decree is merely a clerical error, and that it ought to be corrected by a decree of this court.

It is therefore ordered that the clerical error in the decree heretofore rendered in this case shall be and it is hereby corrected so that the minor child, Velma Allene Lowery, is declared to be the owner of 5/1792 interest in the 20 acres of land forming the N 1/2 of NW 1/4 of NW 1/4 of Section 13, in T. 23 N., R. 16 W., and of 15/3584 interest in the remaining 220 acres of land in dispute, being the 60 acres forming the S 1/2 of NW 1/4 of NW 1/4 and all of the SW 1/4 of NW 1/4 of Section 13, and the 80 acres forming the S 1/2 of SE 1/4 of Section 11, and the 80 acres forming the N 1/2 of NE 1/4 of Section 14, all in T. 23 N., R. 16 W., in Caddo Parish, Louisiana.