Tulane University of Louisiana v. Board of Assessors

• Citation: 40 So. 445,115 La. 1025
• Decision Date: 18 December 1905
• Docket Number: 15,665
• Court: Supreme Court of Louisiana
• Parties: TULANE UNIVERSITY OF LOUISIANA v. BOARD OF ASSESSORS et al

40 So. 445

115 La. 1025

TULANE UNIVERSITY OF LOUISIANA v. BOARD OF ASSESSORS et al

No. 15,665

Supreme Court of Louisiana

December 18, 1905

Rehearing Denied January 15, 1906.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Suit by the Tulane University of Louisiana against the board of assessors and others to enjoin the assessment of certain taxes. From a decree for complainants, defendants appeal. Amended and affirmed.

Francis Charles Zacharie, for appellant state tax collector.

George Hitchings Terriberry, for appellant board of assessors.

Henry Garland Dupre, Asst. City Atty., for appellant city of New Orleans.

Charles Payne Fenner, for appellee.

PROVOSTY J. BREAUX, C.J. and NICHOLLS, J., concur. MONROE, J. recused.

OPINION

PROVOSTY, J.

The Tulane University enjoins the revenue officers from proceeding to enforce the collection of state and city taxes assessed against the succession of A. C. Hutchinson, deceased. The ground of the injunction is that plaintiff is the universal legatee of the succession, and as such is owner of the property assessed, and that its property is exempt from taxation under the Constitution.

There is no dispute as to the facts. A. C. Hutchinson died in November, 1902, leaving a will and no forced heirs. The will was probated in the same month, and the executors, who by the will were given seisin of the estate, at once qualified and took possession. There were particular legacies of money, and also one of specific property. The plaintiff university was universal legatee. Owing to litigation the settlement of the succession was delayed, and the executors still had possession of the entire estate when the assessment of 1903 was made, and of the entire estate less the particular legacies when the assessment of 1904 was made. The entire estate was assessed to the succession in 1903, and the entire estate less the particular legacies in 1904. For that part of the estate embraced in the legacy of specific property the taxes have been paid; for the remainder of the estate the taxes are enjoined. There is no denial that the property of Tulane University is exempt from taxation under the Constitution.

The case resolves itself into the question of how far, at the time these assessments were made, the property of the succession belonged to Tulane. In so far as it did so belong it was exempt. On the part of defendant it is contended that at the time these assessments were made the entire estate was vested in the succession, and none of it in Tulane; on the part of plaintiff it is contended that all of it was vested in Tulane subject to the charge of the particular legacies, which were nothing more than mere debts of the universal legatee. The lower court correctly held that the part represented by the particular legacies did not belong to the universal legatee, but that the remainder did, and rendered judgment accordingly, maintaining the assessment of 1903 up to the amount of the particular legacies $ 219,601.88, and annulling it for the remainder, and annulling in toto the assessment of 1904. But the court failed to allow the statutory damages of 10 per cent. attorney's fees on that part of the taxes which was thus found to have been improperly enjoined. With an amendment on this last point, we shall affirm the judgment, recasting it, however, as a matter of greater convenience in statement.

Our Code leaves no room whatever for doubt or surmise as to the fact of the property of a deceased person being transmitted directly and immediately to the legal heir, or, in the absence of forced heirs, to the universal legatee, without any intermediate stage when it would be vested in the succession representative, or in the legal abstract called "succession." The law on that point is so explicitly stated in the Code, and has been so frequently applied, that nothing more is needed here than to give the numbers of the articles of the Code bearing upon the point, and the pages of the Reports where a few of the very numerous decisions are to be found: Articles 940, 941, 942, 943, 944, 945, 946, 947, 1609, 1611, and 1671; Womack v. Womack, 2 La.Ann. 341; Frazier v. Hills, 5 La.Ann. 114; Addison v. Bank, 15 La. 529; Succession of Dupuy, 4 La.Ann. 571; Burbridge v. Chinn, 34 La.Ann. 681. Therefore the property forming the subject-matter of the universal legacy became at once the property of Tulane, and as such exempt from taxation.

Not so with that part of the estate covered by the particular legacies. It became, in a sense, the property of the particular legatees, "from the day of the testator's death." Civ. Code, art. 1626. It stood in the hands of the executors to be delivered, not to Tulane, but to the particular legatees. Civ. Code, art. 1630. It had to be deducted from the estate before Tulane could take anything under the will. Civ. Code, art. 1634. Indeed, not only did the ownership not pass to Tulane, but even the possession did not. The will did not provide that it should; and the law expressly provided that in case the executors were divested of the seisin by the universal legatee there should be left in their hands "a sum sufficient to pay the movable legacies." Civ. Code, art. 1671. Therefore this fund formed no part of the property of Tulane, and was not exempt from taxation.

The learned counsel for defendants contend that, pending the administration of the succession, the ownership of the property is vested in the succession; and in support of that contention they cite the cases of City v. Stewart's Estate, 28 La.Ann. 180; State v. Brown, 32 La.Ann. 1020; Carter v. City, 33 La.Ann. 816; and Succession of Levy (La.) 39 So. 37, ante, p. 377.

If these decisions went counter to the doctrine expressed by the maxim, "Le mort saisit le vif," whereby the ownership of the property is transmitted directly and immediately from the testator to the heir, or to the universal legatee, as the case may be, they would be in the teeth of the Code, and would simply have to be brushed aside. Far from it, they are to the contrary effect. Thus, in the case cited from 32 La.Ann. 1020 (State v. Brown), the court expressly says:

"The maxim, 'Le mort saisit le vif,' is expressly embodied in our Civil Code, and excludes the interposition of any temporary and qualified ownership, such as that of administrators, between the deceased and his heirs. Civ. Code, art. 940 et seq.'

These decisions do not mean to hold, and do not hold, that the abstract being called "succession" is owner of the property in the sense of excluding, or affecting in the slightest degree, the ownership vested in the heir or in the universal legatee. When these decisions speak of the succession being owner, they mean, as a matter of course, that it is holding for the true owner, and merely for the purposes of administration. Nothing that is said in them is intended to detract in the slightest degree from the recognized ownership of the heir, or of the universal legatee, as the case may be, and from the substantial rights (such as that of exemption from taxation) flowing from such ownership. This is very clearly expressed in Cross on Successions, § 35, as follows:

"The seisin of the succession representative operates merely to protect his title as detainer of the property for the purpose of his administration; while the seisin of the heir, conflicting in no respect with the other, operates as the sign of his title as owner of the estate, subject to its liquidation under administration. The former has actual control of the estate under the legal conditions prescribed; but it is the heir or universal legatee, as the case may be, who reaps all the proprietary advantages of possession, such as accretion, prescription, perception of fruits, etc. So, Toullier (IV, 582) says: 'The seisin of the executor does not interfere with that of the heir of blood, or of the universal legatee, in the case where the latter has seisin. It is always the heir who has the veritable possession; he is alone seised as proprietor. The executor possesses only as depositary in the name of the heir, or universal legatee, who can put an end to the seisin by offering to turn over to the executor a sufficient amount to pay the movable legacies, or by giving security for their payment, and that, even when the testator had charged the executor to sell all his property.'"

The case of Succession of Levy (La.) 39 So. 37, ^[1] was decided from considerations peculiar to an inheritance tax, and which can have no application in the instant case. This inheritance tax was held to be due notwithstanding that under the provisions of the Code the ownership of the property passed to the heirs. The maxim, "Le mort saisit le vif," was expressly recognized. A like recognition in the instant case would be decisive of the controversy, for the exemption extends (Const. 1898, art. 255; Act No. 43, p. 52, of 1884 § 5) to "all the property of Tulane University of Louisiana of whatsoever character." And the recognized purpose of the...