NICHOLAS YOUNG v. NOTLEY YOUNG. A wife may acquire separate property by the bond fide investment of her paraphernal As a general rule, property purchased by either husband or wife during the existence of When slaves are purchased by a husband in a State where they are personal property, with A PPEAL from the District Court of Vermillion, Voorhies, J. J. W. Walker, for plaintiff. E. C. Brent, for defendant. The judgment of the court was pronounced by SLIDELL, J. The plaintiff is the son of the defendant and of Eliza Gradinigo, who were married in 1814 or 1815. The mother died in 1821. In the inventory made of her succession, the slaves which have given rise to this controversy were not included. The defendant owned, before his marriage, a negro girl. She was sold during the marriage for the sum of $600, which sum the defendant some months afterwards gave to his agent, who purchased for him at Washington, in the District of Columbia, by verbal sale and delivery, the slave Rachel, and her two children Eliza and Lucy. The plaintiff now claims an interest in these slaves and their natural increase, as constituting part of the acquests and gains of the community. The defendant owned other female slaves previous to his marriage. Their increase born during marriage is claimed as community property. The articles 64 and 67, p. 336, of the Code of 1808, are, with a slight change of phraseology, the same as the articles 2371 and 2374 of the Code of 1825. It may be conceded, that although the general rule established by these Codes® is, that purchases made during marriage, by either of the spouses, belong to the community; yet, that a wife may acquire separate property by the bona fide Te-investment of her paraphernal funds, of which her husband had not the administration. See Broussard v. Her Husband, 11 R. R. 446. And it may also be conceded that, upon principles of equality and reciprocity, property purchased by the husband, with his separate funds, and under circumstances manifesting a distinct and clear intention to invest them for his separate account, should be considered his separate property. But if this be the proper rule, the defendant has not brought himself within it; for the intention to re-invest for his separate benefit does not appear. The defendant, however, is entitled to charge the community with the $600. It was argued, that as the purchase was made at Washington, the rights of the defendant should be controlled by the law of that place. The slaves were personal property at the place where they were purchased; so was the money used in their purchase. The rights of the husband and wife touching the money and the acquisition were, in our opinion, controlled by the law of Louisi YOUNG v. YOUNG. ana, the place of this matrimonial domicil, to which also the slaves were intended to be and were immediately brought. With regard to the children born during the marriage from female slaves, the separate property of the defendant, we are of opinion that they did not fall into the community of acquests and gains. We recently had occasion to consider this question, in a case controlled by the Code of 1825. Childers v. Patten, 5th Ann. The course of reasoning there adopted must lead to a similar result in the present case. Indeed the point is involved in less difficulty under the code of 1808 than under that of 1825, as may be seen by referring to article 62, 334. After what was said in Mrs. Patten's case, it is sufficient to refer to the articles of the Code of 1808 pertinent to the question, without citing them at length or enlarging upon them. See art. 24, p. 40; art. 4, p. 102; art. 12, p. 112; art. 50, p. 332. See also Gonor v. Her Husband, 11 R. R. 527. Frederic v. Frederic, 10 M. R. 188. The judgment of the district court is therefore affirmed, with costs. HEIRS OF LANDRY v. HEIRS OF DUARON. Where, upon the death of the husband, the wife retains possession of the entire community, (there being no issue of the marriage,) she is responsible to the heirs of the husband for the rents and profits of their share of the community from the date of his decease. A PPEAL from the District Court of Lafayette, Overton, J. C. H. and E. Mouton, for plaintiffs. Crow and Greig, for defendants. The judgment of the court was pronounced by ROST, J. Jean Landry, the husband of Ursule Duaron, died without children or descendants, in 1835; his wife remained in possession of his succession, which was composed exclusively of community property, until April, 1839, when an inventory was made in presence of his heirs. After this inventory, Ursule Duaron still retained possession of the entire succession until her death, which occurred on the 13th of March, 1842. An inventory of her succession was then made, and all the property in her possession was sold by consent of the heirs of Jean Landry. An administrator was subsequently appointed to her succession, who, in the course of his administration, filed a tableau of distribution among the heirs of Jean Landry and of Ursule Duaron, dividing the assets in his hands, after payment of the debts, in two equal parts. To this an opposition was made by the heirs of Jean Landry; they aver that at his death they became seized in full property of his share of the community; that his widow took possession of it, and enjoyed the revenue thereof; in consequence of which her succession is accountable for the rents and revenues during her possession. They ask to be credited, 1st, for one half of the proceeds of the property. 2d. For the rents and profit of their share from the death of Landry until that of Ursule Duaron in 1842. 3d. That the sum of one thousand and sixty-seven dollars and ninety cents, credited to the heirs of Duaron as brought into marriage by the deceased Ursule, be disallowed. 4th. That the sum of one hundred dollars, credited as paid by her in her lifetime, be rejected. The district court sustained the opposition, and the administrator has appealed. It is contended, on behalf of the heirs of Ursule Duaron, that by the last will of Jean Landry, made in 1829, his widow was entitled to the usufruct of all the property left by him during her natural life, and that her title to the same has been acknowledged, acquiesced in, and assented to by the heirs of Landry. They further urge, that if the disposition of Landry is not valid as a will, it is valid as a donation inter vivos. They plead the prescriptions of one, three and five years. A testament is without effect until it has been duly proved, and the execution ordered by competent authority. L. C. 1637. Stewart, Curator, v. Row, 10 L. R. 533. The will alleged in this case never was probated; it can therefore have no effect upon the rights of the parties in this suit. It was not intended as a donation inter vivos, was not accepted, and never took effect as such. It is true that no particular form is required to create a usufruct; but when it is created by will, the form of wills and the mode of their execution will be followed. We are satisfied from the evidence in the record, that the will was null; but if it had been in due form, its non-execution during the lifetime of Ursule Duaron would be fatal to the pretensions of her heirs. She retained possession of her legacy of her own authority, and she is bound to restore the fruits received by her. L. C. 1622. The district judge allowed one hundred and thirty-three dollars and fifty-cents, proved to have been brought into marriage by Ursule Duaron. There is no evidence to sustain the claim of one thousand and sixtyseven dollars and ninety cents, made by her heirs; and the district court properly rejected it. We are satisfied that there is no error in the judgment appealed from. Judgment affirmed, with costs. HEIRS OF v. HEIRS OF DUARON. Executors of L. B. COMPTON v. JOHN COMPTON. Where a party sells an interest in a plantation for $100,000, payable in twenty annual installments, with interest at seven per cent, and takes notes for the principal and also for the interest, the interest runs after the maturity of the notes only on the notes for the principal sum; and does not run on the interest notes. A stipulation that the interest notes shall bear ten per cent interest after maturity does not render the original contract usurious. There is no distinction as to whether interest be usurious or not, between the interest stipulated upon the price for which property is sold and the interest which may be stipulated for the loan of money. Payments are to be imputed to the debts which the debtor has the greatest interest in discharging, and to those which bear interest in preference to those which do not. A PPEAL from the District Court of Rapides, Cushman, J. Hyams, for plaintiff. The judgment of the court was pronounced by ROST, J. Leonard B. Compton and John Compton were partners in planting, and owned in common several tracts of unimproved land. On the 3d of February, 1836, they dissolved the partnership. Each retained a certain number of slaves; and Leonard sold to John the undivided half of the remainder of the property. The act states, that the sale is made for, and in consideration of, the sum of $100,000, payable in twenty equal payments, from the 1st of March, 1837, with interest at the rate of seven per cent per annum, payable in advance. The purchaser gave his notes, forty in number, for the annual installments of the principal and the stipulated amount of interest due each year. The gross amount of these notes for the principal and interest was $173,500. They were *Hon. GEORGE EUSTIS, C. J., was not present during this term. |