M., a planter of Louisiana, died in 1860, leaving as his heirs,
the minor children of his deceased daughter Julia, and the minor
grandson of his deceased daughter Ann. At the death of his wife in
1844, a large portion of the property then in his possession was
community property, in which she was entitled to a half interest.
Before his death he attempted, by sale and donation of specified
estates, valued and appraised by him, to give to his daughter Julia
(who was then living) her interest in the community property left
by her mother and three-fourths of his own remaining estate, and,
in a like way, to give to the grandson of his daughter Ann his like
interest in the community property and the remaining one-fourth of
his own estate. At his death, he left a will with similar
provisions. The parties each entered into possession of the
properties thus respectively assigned to them, occupying in
separate parcels,
Page 139 U. S. 389
without interference from the testamentary executor. But in
1869, the testamentary executor of M. made a simulated sale of all
the lands at the instance of one of the parties concerned. A
creditor of his estate then filed a bill on behalf of himself and
other creditors to set aside this sale as fraudulent and to subject
the lands to the payment of the testator's debts, and such
proceedings were had thereon that this Court at October term, 1883,
decided that the sale was fraudulent in fact and that the lands in
the hands of the heirs were liable for his debts.
Johnson v.
Waters, 111 U. S. 640. The
cause having been remanded to the circuit court for further
proceedings and to afford other creditors an opportunity to become
parties, the representatives of the heirs of Julia and of the heirs
of Ann, respectively, presented their claims as creditors for their
interest in the community property, and also filed bills in the
nature of supplemental or cross-bills, setting up that they were
not parties to the former decree, averring the validity of the sale
declared fraudulent, setting up their claims to the community
property, and claiming that they should be allowed for
improvements. The creditors' representative answered that the debts
for the community property had been fully paid from rents and
revenues, or, if not paid, had, under the laws of Louisiana, become
subordinated to the debts of ordinary creditors. Further evidence
was taken in addition to that in the original cause:
Held:
(1) That the decision in
Johnson v. Waters was right as
to the fraudulent character of the sale made in 1869, and that it
be affirmed.
(2) That the act of sale and donation to M's daughter Julia,
mentioned in
Johnson v. Waters, was void as a donation,
but valid as a sale to the extent of the consideration named
therein, to-wit, the debt due to her for her share in the community
property, aid the sum to be paid by her to the other heir.
(3) That any debt which may have been due from M. to either of
his heirs on account of the community property was more than
satisfied by their respectively receiving that portion of the
property which was intended by him to be a satisfaction of it, and
by the rents and revenues received since his death, and that such
portion in aliquot parts should be held by them free from the other
debts of the estate, but that the remaining portion should be sold
to pay said debts.
(4) That, being minors at the time they became heirs, they were,
under the law of Louisiana, heirs with benefit of inventory, and
not personally liable for the debts beyond the amount of the
property which was not received in satisfaction of their own claim
upon the community.
(5) That on equitable grounds they should have some allowance or
consideration, beyond the use of the property, for improvements
which they had placed upon it and for restoration of its condition
after floods and other devastations.
(6) That in view of the conflicting evidence and the difficulty
of arriving at an accurate adjustment of equities, this Court would
direct
Page 139 U. S. 390
that the respective interests of the heirs be increased as
indicated in the opinion.
(7) That there is nothing in the sections of the Civil Code of
Louisiana, referred to in the opinion, which conflicts with these
equitable conclusions.
In equity. The case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
These cases are supplementary to that of
Johnson v.
Waters, 111 U. S. 640,
decided by this Court on appeal from the Circuit Court for the
District of Louisiana in October term, 1883. In that case, William
Gay, a judgment creditor of Oliver J. Morgan, deceased, to the
amount of $33,250, besides interest, filed a bill on behalf of
himself and all other creditors of the deceased who might come in
and contribute to the expenses of the suit, to subject five certain
plantations in Carroll Parish, Louisiana, of which Oliver J. Morgan
had died possessed, to the payment of his debts and to set aside as
fraudulent and void a pretended judicial sale of said plantations
made to certain of the defendants in January, 1869. The plantations
were named Albion, Wilton, Melbourne, Westland, and Morgana, and
they lay together, the three former (the most valuable) fronting on
the Mississippi River. Oliver J. Morgan had died in October, 1860.
His wife, Narcissa Deeson, had died in 1844, and a large portion of
the property was community property in which she was entitled to a
half interest, though some of it was acquired after her death. In
1857, in a proceeding for partition of said property in the
District Court of the Parish of Carroll instituted by Oliver J.
Morgan, a sale was
Page 139 U. S. 391
ordered and the said Oliver became purchaser of the different
tracts constituting the community lands, for the sum of
$362,201.80, one-half of which, after deducting an amount adjudged
to said Oliver for improvements, was due to the heirs of his said
wife, amounting to the sum of $134,991.40. There were two heirs,
namely Julia, the daughter of Oliver J. Morgan and his said wife,
who had married, first, one Keene, by whom she had several
children, and secondly Oliver T. Morgan, by whom she had a
daughter; the other heir was Oliver H. Kellam, Jr., a grandson of
Ann Morgan, deceased, another daughter of said Oliver J. Morgan and
his wife, who had married one Kellam, by whom she had a son Oliver
(then deceased), who was the father of said Oliver H. Kellam, Jr.
These two heirs, therefore, Julia Morgan, the daughter, and Oliver
H. Kellam, Jr., the great-grandson, were each entitled to one-half
of the said sum of $134,991.40, making due to each the sum of
$67,495.70. In the adjudication of sale by the sheriff, it was
expressed that Julia Morgan was present and by authority of her
then husband, Oliver T. Morgan, requested that the amount due her
should be left in the hands of her father, and it was also
expressed in the act that the amount due to the minor, Oliver H.
Kellam, Jr., was left in the hands of Oliver J. Morgan, his
grandfather, to be paid to his tutrix and mother, Mrs. Melinda
Kellam, when demanded.
Shortly after this sale, in March, 1858, the said Oliver J.
Morgan, by an act of sale and donation, transferred or attempted to
transfer to his daughter Julia three-fourths of all his property,
comprising the four plantations, Albion, Wilton, Westland, and
Morgana. The transfer was made subject to Mr. Morgan's own usufruct
for life, and Julia and her husband accepted the transfer by
joining in the act. The object and intent of the donor was
expressed in the act as follows, to-wit:
"Now, for the purpose of paying to the said Julia Morgan, wife
of Oliver T. Morgan, residents of this parish, she appearing and
making herself a party to this deed with the authorization of her
said husband, the said sum of sixty-seven thousand four hundred and
ninety-five dollars and 70/100 due as aforesaid, and at the same
time so to divide the entire landed estate of
Page 139 U. S. 392
this appearer, as well that purchased by him at the sale
aforesaid as all his other lands, so as to give to the said Julia
Morgan, wife of said Oliver T. Morgan, three-fourths of his landed
estate, and to the said Oliver H. Kellam one-fourth, in the event
that said Oliver H. Kellam survives this appearer, after paying
each of said heirs in lands according to the estimates put upon the
portions which may be conveyed to each, this appearer makes this
act of sale and donation unto the said Julia Morgan of the
following lands, and for the amounts of the estimated value beyond
the extinguishment of the debt aforesaid, to-wit ($67,495.70), this
act is a donation of the lands hereinafter described unto the said
Julia Morgan and her heirs forever: [Then follows a description of
the several properties transferred. The act then proceeds:] The
estimated amount of the lands hereby conveyed and donated exceeds
the amount of the debt due the said Julia Morgan to the amount of
two hundred and thirty-six thousand seven hundred and fifty-eight
dollars and 52/100 ($236,758.52). To the extent that it exceeds
three-fourths of the estimated value of the entire landed estate of
this appearer after the extinguishment of the debt aforesaid, she
is to pay over to the minor, Oliver H. Kellam, in the event that he
survives this appearer, to-wit, the sum of nine thousand five
hundred and thirty-[three] dollars and seventy-two cents, it taking
this amount to make up one-fourth of the lands, upon the estimate
now made, intended for the said Oliver H. Kellam, in extinguishment
of the debt due him, and beyond this payment of the debt, it being
intended that he should have the estimated value of one-fourth of
the land of this appearer, it being the intention of this appearer
that the said Julia Morgan shall have beyond the portion that she
would inherit as an heir all the portion that this appearer could
dispose of, so that his other grandchildren may get ultimately, as
near as may be, a portion equal to that which may fall to the said
Oliver H. Kellam as a 'forced heir' to this appearer."
Then, after reserving the usufruct of all the lands during the
donor's own life, the act sets forth with particularity the basis
upon which the division of the lands was made, and the valuation of
the portion allotted to each heir, as follows:
Page 139 U. S. 393
Whole amount of community lands . . . . . . . $362,201.80
Lands acquired since the dissolution
of the community. . . . . . . . . . . . . . 75,760.00
-----------
Whole amount of land. . . . . . . . . . . . . $437,961.80
Deduct amount due to heirs arising
from sale of community lands on
the 18th of January, '58, to each
$67,495.70. . . . . . . . . . . . . . . . . 134,991.40
-----------
Balance divided by four . . . . . . . . . . $302,970.40
===========
Portion coming to Oliver H. Kellam. . . . . . $75,742.60
Amount due him as above . . . . . . . . . . . 67,495.70
-----------
Entire interest of Oliver H. Kellam
in estimated value of lands . . . . . . . . $143,238.30
Three-fourths interest for Julia
Morgan. . . . . . . . . . . . . . . . . . . $227,227.80
Amount due as above . . . . . . . . . . . . . 67,495.70
-----------
Entire interest of Julia Morgan . . . . . $294,723.50
===========
Value of land conveyed on this deed
to Julia Morgan . . . . . . . . . . . . . . $304,254.22
Deduct entire interest. . . . . . . . . . . . 294,723.50
-----------
Excess to be accounted as before
stipulated. . . . . . . . . . . . . . . $ 9,530.72
This estimate of the then value of the lands has never been
questioned by any of the parties.
On the 1st of May, 1860, Oliver J. Morgan made his will, and
after bequeathing some personal legacies as if apprehending that
the act of donation to Julia might not be valid, he disposed of his
property in substantially the same manner as he had done in said
act. The following disposition was made by the will:
"Fourth. I give and bequeath unto my beloved daughter, Julia
Morgan, one-half of all the residue of my estate, it being
Page 139 U. S. 394
my intention thereby to give to her all that portion of my
estate that I have a right to dispose of over and above the
portions going to my forced heirs, and in the event of my said
daughter Julia's dying before I do, then it is my will and I do
hereby bequeath unto her children, Narcissa Keene, Alexander C.
Keene, William B. Keene, Morgan Keene, and Julia H. Morgan, or such
of them as may be living at my death, the said one-half of my
entire estate as above, it being my will that my said daughter
shall have, inclusive of her forced heirship, three-fourths of my
entire estate, but in the event that should she die before I do,
then it is my will and the express intention of this testament that
those of her children who may be living at my death shall have the
said three-fourths of my estate."
The testator appointed Oliver T. Morgan, his nephew and
son-in-law, executor of his will, who proved the same in due
course, and in November, 1860, had an inventory of the estate
taken, which showed:
Real estate . . . . . . . . . . . . . $ 947,153.80
Slaves. . . . . . . . . . . . . . . . 196,961.00
Other personal property . . . . . . . 38,200.00
-------------
Total . . . . . . . . . . . . . . . $1,182,314.80
The representatives and heirs of Oliver J. Morgan went into, or
continued in, possession of his property in accordance with his
will and the intent he had expressed as to the undisposed portion.
The slaves were divided between them. Julia Morgan, his daughter,
died before he did, in May, 1860, leaving the children named in his
will, who were then minors. Her husband, Oliver T. Morgan, executor
of the will, and also executor of his wife's will, took possession
of the four plantations given to her, and then belonging to her
children. He managed the property in their interest, being natural
tutor of his own daughter, Julia H. Morgan, who was only two years
old at her mother's death. Narcissa Keene, the eldest of Julia
Morgan's children, and the only one of the Keene children
Page 139 U. S. 395
that seems to have survived childhood, says that she was
thirteen at her mother's death (May 1, 1860), and was married to
Matthew F. Johnson, December 27, 1860. Henry Goodrich, nephew of
Oliver J. Morgan, and at one time manager of the plantations, says
that in 1861 the mansion house at Wilton was occupied by Oliver T.
Morgan and Matthew F. Johnson. As stated in our former opinion,
"through the management of agents and in other ways,
considerable income was derived from the lands prior to the sale
which took place in 1869. The crop of 1860 was over 2,500 bales of
cotton, which must have produced at least $90,000 after General
Morgan's death. The sum of $21,800 was recovered from the
government for cotton collected under the superintendence of army
officers in 1862. The defendant Buckner, being examined as a
witness, states that"
"Montague had charge of and cultivated Melbourne and Wilton in
the year 1863, and H. B. Tebbetts had charge of some of the places
during 1864 and 1865. In 1866, H. B. Tebbetts rented Wilton and
Melbourne. Don't think he took Albion. He was to pay ten dollars
per acre rent for all the land that he cultivated. Tebbetts
promised Matt. F. Johnson and witness to pay ten dollars per acre
for such land as he should cultivate on Melbourne and Wilton in
1866. The most of the land was overflowed on Melbourne in 1866, and
witness don't know how much land was cultivated. Wilton was not
overflowed in 1866, to his knowledge. Witness states that Tebbetts
paid him $3,000 for the rent of Melbourne in 1866. Don't know how
much he paid Matt. F. Johnson for Wilton, but that the rent was
coming to Matt. F. Johnson from Tebbetts, according to the
contract. Matt. F. Johnson and Samuel L. Chambliss cultivated
Wilton in 1867 together -- that is to say, a portion of the place.
Charles Atkins cultivated a small portion of Melbourne in 1868 as
witness' agent and manager. Very little was made on the place in
1868. Witness don't remember who cultivated Wilton and Albion in
1868."
It thus appears that at no time after the death of Oliver J.
Morgan, except as they may have been interrupted by the presence
and depredations of troops during the war, did his
Page 139 U. S. 396
heirs cease to occupy and enjoy his property, but always in
separate parcels, Oliver T. Morgan and Matthew F. Johnson, for the
heirs of Julia Morgan, occupying the Albion, Wilton, and two
outlying plantations, and Buckner, for the Kellam heirs, occupying
Melbourne. And this condition of things continued until the
receiver in the Gay suit took possession of the property at the end
of 1884. Oliver T. Morgan died in August, 1873, and from that time,
or before, Matthew F. Johnson seems to have acted as the head of
that branch of the family in behalf of his wife and as tutor of her
sister, Julia H. Morgan. Henry Goodrich, nephew of Oliver J.
Morgan, says that he took charge, as manager of Wilton and Albion
plantations "in behalf of the heirs" in December, 1868, and
continued in charge until about April, 1873, when he was succeeded
by C. M. Tilford in behalf of the same parties. Tilford says that
he became manager and agent of Wilton and Albion plantations for
Matthew F. Johnson in February, 1873; that the contracts made by
him with the laborers were in the name of "Matthew F. Johnson,
tutor for the minor children of Julia Morgan," and that he
continued agent for 1873, 1874, and 1875, when he was succeeded by
J. W. Erwin. Erwin states that he came to take charge of the Wilton
and Albion plantations in behalf of "Matthew F. Johnson, and the
heirs of Julia Morgan," and had continued in charge until the time
of giving his testimony. These witnesses were examined in March,
1878, and it is clear that if the character of executor or dative
executor was ever assumed by Oliver T. Morgan or Matthew F.
Johnson, it was a mere matter of form, and that they really
possessed and managed the property for the heirs. The will was
substantially and in effect carried out in this respect.
As to the interest of the other heir, Oliver H. Kellam, Jr.,
that was managed by his mother, Melinda Kellam, as his natural
tutrix, and her second husband, John A. Buckner, whom she married
in April, 1859. They continued in possession of the Melbourne
plantation, one of the most valuable in the lot, representing the
heir, just as Oliver J. Morgan had intended they should do. There
is no doubt that (with the
Page 139 U. S. 397
$9,530.72 payable by Julia) the value of that plantation at that
time was abundantly equal to the amount due to Oliver H. Kellam,
Jr. ($67,495.70), and, in addition thereto, equal to the one-fourth
part of Oliver J. Morgan's proper estate of which said Kellam was
forced heir. It was so estimated by Mr. Morgan himself, and, as the
subsequent inventory showed, the estimate was a low one, and the
parties interested acquiesced in it.
As things then stood, therefore, the estate was liable and
subject, in the hands of the heirs and executor, to the debts of
Oliver J. Morgan except such portions thereof as were received by
the heirs in payment of the debts due to them on account of his
wife's interest in the community property. The portion so received
by Julia Morgan's heirs was valued at $67,495.70, due to her, and
$9,530.72, to be paid by her to Oliver H. Kellam, Jr., in all
$77,026.42 out of the $304,254.22 worth of lands allotted to her,
or 25.32 percent of those lands. The portion so received by Oliver
H. Kellam, Jr., or those acting for him, was valued at $67,495.70
due to him, less the sum of $9,530.72 to be received from Julia's
heirs, which would leave $57,964.98 out of $133,707.59,
* the valuation
placed on the Melbourne plantation, or 43.35 percent of that
plantation. These portions of the lands, respectively, received by
the heirs by way of payment were justly free from the claims of
Oliver J. Morgan's creditors, supposing them not to have been
personally liable (being minors), by reason of the portions
received by them, respectively, as heirs or legatees. This was
substantially the view which we entertained, though not fully
expressed, in the case of
Johnson v. Waters.
We held in that case that the act of sale and donation made by
Oliver J. Morgan to his daughter Julia in March, 1858, was void as
a donation, and that if it could be held good as a sale, it could
only be for the part which went to pay her the amount due from her
mother's estate, together with the amount she was directed to pay
to Oliver H. Kellam, Jr., but whether good as a sale in part we did
not then decide, though inclined
Page 139 U. S. 398
to think that it was. The court below seems to be of opinion
that it was not. But we have seen nothing to change the impression
which we then had, especially as the donor expressly declared in
the act itself that he intended it as a sale in part and a donation
in part -- a sale to the extent of the amount due his said daughter
and a donation as to the residue. This view makes still stronger
the position that the part which was received by way of sale was
free from the debts of Oliver J. Morgan. We have given careful
attention to the argument made on behalf of the heirs of Julia
Morgan in favor of the validity of the donation, but adhere to our
former view on that subject. It is unnecessary to go over the
subject again. Counsel is mistaken in supposing that any importance
was attached to the designation of the consideration of that act as
a "charge." In that regard we only held that, even if it was a
charge, it was not sufficient in amount to make the donation an
onerous one.
That Julia Morgan and her heirs were concluded by the
dispositions made by her father seems clear, for she and her
husband joined in the act of donation and sale, and the will did
not change the destination of the estate. It is contended, however,
that Oliver H. Kellam, Jr., being then an infant, and not
represented in the judicial proceedings taken, or in the acts
executed by Oliver J. Morgan, was not bound thereby. Even if that
were so, we do not see that the position of things would be
substantially changed. The fact was that Mr. Morgan's arrangements
had long been in contemplation and had been partially carried out
before his death. He had put the Kellams in possession of the
Melbourne plantation several years before, and intended that
plantation as going to make up their share of the whole estate, and
his daughter Julia and her family lived with himself, and her
husband had special charge and possession of Westland (if not of
Morgana), and came into possession of all except Melbourne on Mr.
Morgan's death. After that, both parties continued in possession in
accordance with the disposition made by him. Each heir had the
portion intended for him or her, and, if the debt which he formally
incurred to them for his wife's community property
Page 139 U. S. 399
was not technically paid, nevertheless they received that
identical property in specie in the shape of the lands which were
allotted to them. The proceedings instituted by Mr. Morgan for
obtaining his wife's interest in the community property were more
of a transaction on paper than a real one, and produced no change
in the devolution of the estate. The heirs obtained all that they
would have been entitled to in any event, and whether they received
the portion coming from their ancestor, Narcissa Deeson, by way of
inheritance from her, or by way of payment for that inheritance, it
all came to the same thing in an equitable point of view. In either
case they were entitled to hold it free from the debts of Oliver J.
Morgan, and had no claim as creditors against his other property.
The attempt now to set up those debts, or either of them, for the
purpose of defeating the just claims of the real creditors is
clearly inequitable. This was out view in the former case, and it
is not charged by anything that has been shown in the cases now
under consideration
The bill in the case of
Johnson v. Waters was specially
directed to set aside as fraudulent and void a pretended sale of
all the lands of Oliver J. Morgan made in January, 1869. John A.
Buckner, one of the plaintiffs in the present case, had applied to
the Parish Court of Carroll Parish for a sale of all of said lands
to pay the debts of the estate, and particularly the pretended debt
of $67,495.70, due to his daughter Mollie Buckner as heir of Oliver
H. Kellam, Jr., alleging that it was a judgment debt, and had a
preference over other claims, and Oliver T. Morgan, as executor,
intervened in the petition in aid thereof. An order of sale was
accordingly made, a sale followed, and John A. Buckner became the
purchaser of the Melbourne, Wilton, and Albion plantations at three
dollars per acre, and the other two plantations were sold for the
same price, one to J. W. Montgomery, one of the lawyers in the
case, and the other to F. M. Goodrich, another of the lawyers
therein. The facts with regard to this transaction are fully stated
in the opinion in
Johnson v. Waters, 111
U. S. 655,
111 U. S. 669.
Suffice it to say that we were satisfied from the evidence that the
sale, and all the proceedings that resulted in the sale, were
Page 139 U. S. 400
fraudulent in fact and conceived and carried out for the sole
purpose of defrauding the real creditors of Oliver J. Morgan,
deceased, and of getting in the title for the benefit of the heirs
without paying any of the debts. We accordingly concurred with the
circuit court in setting aside the said sale as fraudulent and void
for fraud in fact, and not on the ground, as, in the bill of
complaint in one of the present cases, is ingeniously, if not
ingenuously, surmised, that the fraud consisted in Buckner's
pretending to be, as tutor of his daughter, a creditor of the
succession of Oliver J. Morgan for the sum of $67,495.70 with
preference, though the setting up of that debt in the manner in
which it was done was one of the means employed for carrying out
said fraud. The evidence on this subject is quite fully set forth
in the opinion in
Johnson v. Waters, and need not be
further adverted to. It is all introduced in the present cases by
stipulation, and we find nothing in the evidence taken in these
cases to alter our opinion. It is unnecessary to notice the
pretended judgment of Buckner, as tutor of Oliver H. Kellam, Jr.,
against the estate of the latter, as it can have no effect on the
rights of the parties in these suits, being in any event
subordinate to the claims of Oliver J. Morgan's creditors. The
assertion in the brief of counsel that said judgment was the debt
sought to be recovered by the probate proceedings and sale in
1868-69 is contradicted by Buckner himself in his bill filed in
these cases.
Our conclusion and decree then were:
1st. That the debt of Gay, the complainant, as represented by
his administrator, Waters (now by Mellen, administrator
de
bonis non), be established and confirmed.
2d. That the sales complained of, made in January, 1869, be
declared null and void as against the estate of Gay and the other
creditors of Oliver J. Morgan, deceased, and that it be referred to
a master to take and state an account of the assets belonging to
said Morgan's estate in the hands of the dative testamentary
executor, Matthew F. Johnson, one of the defendants, and to give
notice to creditors to come in and prove their debts.
3d. That if other assets were not sufficient to pay such
Page 139 U. S. 401
debts, the master should sell so much of the said lands as might
be necessary to pay them, dividing the proceeds
pro rata
if not sufficient to pay all the creditors whose debts should be
established after paying all the complainants' costs.
4th. That the master might apply for instructions, especially as
to whether the succession of Julia Morgan was entitled to any
portion of the proceeds arising from the sale of the lands, by
virtue of said act of donation and sale made to her by Oliver J.
Morgan in 1858, so far as said act was a sale and not a
donation.
The cause was remanded to the circuit court, a reference was
ordered according to the decree, and the matter was opened before
the master. On this reference the heirs of Julia Morgan and Buckner
as representative of the Kellam interest presented each their claim
for $67,495.70, and interest, as a debt against the estate of
Oliver J. Morgan, deceased, as if the reference included them and
was intended for their benefit, as creditors of his estate. But
said claim was presented with reservation of rights to be set forth
in the bills now before us, which they proposed to file.
Thereupon they filed the bills in the two cases now here on
appeal.
One of the bills is filed by John A. Buckner for himself and as
tutor of his minor child, Etheline Buckner, in the nature of a
cross-bill against Stephenson Waters (for whom Delos C. Mellen has
been substituted), administrator, etc., of William Gay, deceased,
and is in fact as it is styled, a bill in the nature of a
cross-bill to the said suit of Gay, referred to as
Johnson v.
Waters. By a strange fatality in the course of events, Buckner
and his daughter, the present representatives of Ann Kellam (nee
Morgan) and of her grandson Oliver H. Kellam, Jr., have not a
particle of Morgan or Kellam blood. Oliver H. Kellam, Jr., the last
of that line, died young, leaving as his heirs his mother, Melinda
Kellam, and his half brother and sister, children of his mother by
John A. Buckner. The mother and brother dying, the sister Louise
(or Mollie) and her father, Buckner, became the heirs. Louise
dying, left her father, Buckner, and her half sister by a second
wife of Buckner,
Page 139 U. S. 402
her heirs. So that the succession of the Morgan-Kellam line has
come to be represented by entire strangers.
The other bill is filed by Narcissa Keene, wife of Matthew F.
Johnson, and Julia H. Morgan, wife of George G. Johnson, their
husbands joining for the sake of conformity. It is filed as an
original bill in the nature of a supplemental bill and cross-bill,
against Stephenson Waters (for whom Delos C. Mellen has been
substituted), administrator, etc., of William Gay, deceased.
Narcissa K. Johnson is the only survivor of the Keene children of
Julia Morgan, and Julia H. Johnson is the daughter of Julia Morgan
by her second husband, Oliver T. Morgan.
The frame of the two bills is substantially the same. They first
assert that the complainants, in their character of heirs and
representatives of Ann Kellam and Julia Morgan, respectively, were
not parties to the suit of Johnson v. Waters, and are not bound by
the decree therein. This averment is in a measure true. That suit
was brought against Oliver T. Morgan, the executor of Oliver J.
Morgan (who made the fraudulent sale complained of), and John A.
Buckner, J. West Montgomery, and Ferdinand M. Goodrich, the
purchasers at that sale. While this is so, it is also true that the
real controversy in the whole case was stoutly litigated. Buckner,
one of the present complainants, was the principal and most
interested defendant, and Oliver T. Morgan was the executor both of
Oliver J. Morgan and his own wife, Julia Morgan. The bills then go
on to give the history of the estate of Oliver J. Morgan, and Nancy
Deeson's interest, the sale of that interest to Morgan, the act of
donation and sale to Julia Morgan, etc., referring to the printed
record in
Johnson v. Waters for the copy of the act.
Buckner, in his bill, claims that the Melbourne plantation, when
given to the Kellams, was uncleared and unimproved, and the
ancestor of Oliver H. Kellam, Jr., cleared and improved it, and the
Kellams always treated it as their own property, with the assent of
Oliver J. Morgan. He refers to the proceedings in the parish court
in 1868-69, and the sale in January, 1869, as prosecuted in good
faith, and free from any fraudulent intent, but he admits that this
Court set aside the
Page 139 U. S. 403
said sale as fraudulent, and avers (though untruly) that the
Court declared that the fraud consisted in Buckner's pretending to
be (as tutor) a creditor of the succession of O. J. Morgan for
$67,495.70, with preference, when in reality and in equity there
was no such thing as a debt due from him to his grandson, because
the giving and setting apart of Melbourne plantation to the Kellams
was intended to be in satisfaction of their rights in the
succession of Narcissa Deeson, and in point of fact the succession
of O. J. Morgan owed no debt to Oliver H. Kellam, Jr. Adopting this
version of the decree of this Court, Buckner says that he is well
satisfied to accept said plantation on that basis, and abandon all
claim as creditor of O. J. Morgan, and offers to do so on the
rendition of a decree recognizing him and his child, Etheline, as
owners of said plantation, and prays for such a decree. Otherwise
he claims one-half of the community property in conjunction with
Julia Morgan's heirs. He mentions having presented his claim for
$67,495.70 before the master, with a reservation, and submits his
rights to the court.
He alleges that such are the complications of the rights of the
heirs in consequence of the action of Oliver J. Morgan, and his
representatives, and the creditors, that the aid of the court is
necessary to adjust the rights of all the parties, and hence he
files his bill for its direction in the premises, and for the
protection of his rights and those of his child Etheline.
The bill of Narcissa K. Johnson and Julia H. Johnson is similar
to that of Buckner, and prays similar relief.
The defendant Waters, administrator of Gay, filed answers to
these bills, in which he takes the ground that the plantations in
question became the sole property of Oliver J. Morgan by virtue of
his purchase of the same in 1858 at the sale of the community
property, but that the debt incurred for such purchase has been
fully paid to the heirs by their reception and enjoyment of the
revenues and profits of the lands; that they went into possession
of said lands as heirs of Oliver J. Morgan without benefit of
inventory, and thus became personally liable for all his debts, and
that if the debts due to them have not been fully paid, they have
at least become subordinate and
Page 139 U. S. 404
inferior to the debt due to the defendant, and have also become
prescribed by lapse of time, and they plead the prescription of
three, five, and ten years.
On the 5th of March, 1885, the solicitors of the respective
parties entered into a written agreement that the two causes should
be consolidated and tried together and considered as if the
complainants in each had been made defendants in the other, and
that Matthew F. Johnson, in his capacity of dative testamentary
executor of Oliver J. Morgan, should appear and become a party, and
that the bill in each case should be treated as an answer in the
other case. Johnson appeared accordingly as dative testamentary
executor, and filed a paper admitting the facts set forth in the
bills of complaint.
In July, 1885, the following stipulation, agreed to by the
solicitors of the parties, was entered into in the consolidated
case:
"The parties, by their solicitors, for the purpose of avoiding
delay and expense and of bringing these causes to a speedy trial,
stipulate as follows:"
"1st. The answers filed in these causes before consolidation
shall be taken and considered as the answers to the consolidated
causes, and apply to new parties introduced since they were filed
as well as to those then parties."
"2d. The causes shall be considered at issue as if replications
had been filed, and no further replications than the provisions of
this agreement shall be necessary."
"3d. A copy of the record in cause 6,612, referred to in the
pleadings in these causes, and numbers 297 on the docket of the
Supreme Court of the United States, as the same was printed for use
in the Supreme Court of the United States, shall be filed in
evidence. [This is the record in
Johnson v. Waters.] All
documents copied therein shall be taken and considered as if they
were separately authenticated by the proper officer, and without
other evidence of their authenticity than the fact that they are
found is said printed record."
"It is not intended by this agreement to waive any legal
objection to the introduction in evidence of any document or
depositions printed in said record which might or could be
Page 139 U. S. 405
made to the original depositions if produced and offered,
objections as to form being waived."
"4th. The judgment and decree of the Supreme Court of the United
States in said cause 6,612 (297 of that Court), as the same is
printed in volume 111 of the printed reports, may be used in
evidence without further proof or the production of a certified
copy thereof, but this agreement in this respect is intended to
waive form only, and not any objection to the admissibility in
evidence of said decree on other grounds, nor to its effect when
introduced in evidence."
The parties thereupon took further evidence. A certificate of
the clerk of the District Court for the Parish of Carroll,
custodian of its probate and succession records, showed that Oliver
T. Morgan, executor of the succession of Oliver J. Morgan, never
filed or rendered any account of his administration of said
succession except one purporting to be a final account filed 8th
February, 1870, and as executor of Julia Morgan, never filed or
rendered any account whatever, and that Matthew F. Johnson, dative
testamentary executor of the succession of Oliver J. Morgan, never
filed or rendered any account or any bond. The final account of
Oliver T. Morgan, referred to by the clerk, was a mere perfunctory
one, exhibiting an exact balance of receipts and disbursements; the
receipts consisting of the bids for the property at the fraudulent
sale of January, 1869, and the disbursements consisting of credits
on the pretended claims of the bidders, Buckner and the lawyers,
and certain creditors whom they professed to represent. The truth
is, as before intimated, that there never was any
bona
fide administration of the estate, but each of the two sets of
heirs, or their tutors for them, took and kept possession of the
respective portions of the real property intended for them by
Oliver J. Morgan, and divided between themselves and took
possession of the slaves and other property of the estate. The
complainants, Narcissa K. Johnson and Julia H. Johnson, testifying
as witnesses in the case, allege that they never received anything
from the estate. But this is hardly consistent with the fact that
Oliver T. Morgan, the father of one of them and step-father of the
other, lived with them on the
Page 139 U. S. 406
property, and on his death Matthew F. Johnson, the husband of
Narcissa, was appointed dative testamentary executor, and in that
nominal capacity had control of all the property not occupied by
Buckner or by the lawyers who bid off the Westland and Morgana
plantations, until the said Julia married, when she and her
husband, George G. Johnson, were put into possession of a portion
of it. They have lived on the property as their own, and have
received and enjoyed whatever it was capable of yielding. This is
shown by the testimony of Goodrich, Tilford, and Erwin before
referred to, and there is much more evidence in the case to the
same purport.
The same thing is true with regard to the occupation of
Melbourne by the Kellam branch of the family -- namely, by Oliver
H. Kellam, Jr., with his mother and natural tutrix, and by John A.
Buckner and his children. The only pretension of their being unpaid
creditors of the succession was made as a part of that fraudulent
scheme which resulted in the sale of January, 1869, which we have
already decreed to be void and with regard to which we still hold
the same opinion.
The testimony of John A. Buckner himself, taken in the original
cause, substantially corroborates this view of the case. In
addition to what has already been quoted from his examination, he
then said:
"Witness says that he has never had corporeal possession of
Wilton or Albion plantations. Since the war, Matt F. Johnson has
had the actual control and management of Wilton and Albion
plantations, as he, witness, supposed, in interest of his wife, one
of the heirs, and the other heirs of Julia Morgan. Matt. F. Johnson
and the heirs of Julia Morgan have never set up any adverse claim
to witness in regard to Melbourne plantation."
"They have confined their pretensions to Wilton and Albion, and
have had the control of said plantations ever since the war, though
Oliver T. Morgan, as executor, has exercised some authority over
the property. . . ."
"Matt. F. Johnson, in behalf, as witness supposes, of the heirs
of Julia Morgan, has exercised full control over the property, and
leased and controlled the property and exercised the
Page 139 U. S. 407
rights of ownership over the same ever since the war, except
that Oliver T. Morgan, executor, exercised authority several years
after the war. . . ."
"Witness says that the heirs of Julia Morgan have always claimed
a greater share of the property than they considered him entitled
to, as representing one of the heirships. There were two heirships
to Judge Morgan's estate. One witness represents and the other the
heirs of Julia Morgan represent. The following question is
propounded by counsel for complainant:"
"In the distribution of the property among the heirs of Oliver
J. Morgan, wherein the heirs of Julia Morgan took Wilton and Albion
and restricted witness, representing another heirship, to
Melbourne, why did the heirs require such an unequal division? Was
it or not on account of the extraordinary pretensions they set up
as heirs of Julia Morgan, or why was it?"
"Witness says it was because they claimed three-fourths of the
estate. He does not know upon what their claim is based. Witness
refers counsel to the records; says that there has been no final
division between the heirs.
The heirs of Julia Morgan have held
possession of the land they had before the war, and witness has
held possession of the land he had before the war. Witness
does not hold the property in common; there is only a temporary
division."
"Witness has held possession of Melbourne ever since the war,
and the heirs of Julia Morgan have held possession of Wilton and
Albion, except that the heirs recognized Oliver T. Morgan as
executor, but he did not require of them any account of the rents
and revenues."
"Witness says that his understanding was at the time of the
sale, in January, 1869, when he bought in the property for the
heirs, that they were to receive their proportion or the land
purchased in witness' name, and he was to retain his
proportion."
"They were (the heirs of Julia Morgan) to take three-fourths of
the land and witness one-fourth, and this understanding was had as
to the exact amount in the division after the sale. There was no
conversation or agreement with the heirs, or any other parties, as
to how the division should be made. "
Page 139 U. S. 408
Buckner was reexamined in the present cases, and states still
more explicitly the fact that the Melbourne plantation was
possessed and operated by him in the interest of the Kellam heirs,
including his own children. He says:
"I married Mrs. Melinda Kellam, April 7, 1859. Her son, Oliver
H. Kellam, died in September, 1863. He was seven years old at the
time of his death. My wife, Mrs. Melinda Kellam, died in September,
1863. My son John died one week afterwards. He was three years old
at the time of his death. My daughter Louisa (called Mollie) died
in March, 1883, and was 21 years and 6 months old at the time of
her death. . . ."
"Melbourne plantation was first set apart and given by Oliver J.
Morgan to the ancestor of his great-grandson, Oliver H. Kellam (the
son of my first wife), in 1853. . . ."
"The Kellams cultivated if as their own; had their own merchant,
raised their own money with which to improve and plant the place,
and were never called to account for rents or revenues, and never
did so account for them, either to Judge Morgan or to anyone
else."
"It was in the possession of my wife, Mrs. Melinda Kellam, as
natural tutrix, and myself, as co-tutor, to the minor, Oliver H.
Kellam at the time of the death of Oliver J. Morgan. The said
plantation remained in the continuous possession of the Kellams or
their representatives from the time it was originally given or set
apart to them by Oliver J. Morgan until dispossessed by the
receiver appointed by the court in suit No. 6,612."
This was on his cross-examination. On his direct examination, he
had said:
"Oliver J. Morgan died in the spring of 1860. Upon his death,
the Melbourne plantation was claimed by the was in the possession
of (as it had been for many years before) the Kellam heir. The
other places were claimed by the heirs of Julia Morgan, but the
executor took possession or control, and exercised authority over
all but Melbourne. There was a change in 1869; after the succession
sale took place Morgana was controlled by F. M. Goodrich, until he
transferred it to
Page 139 U. S. 409
Samuel Boyd, of New Orleans, who had possession until 1st
January, 1885."
"Westland after 1869 went under the control of some of the
creditors of O. J. Morgan, and remained so until 1st January, 1885,
and Col. Matt. Johnson controlled Wilton and Albion until about
1879, when Mr. Geo. Johnson took control of the lower part of
Wilton and Albion. How much was controlled by the latter I do not
know, and these two places remained under their control until 1st
January, 1885."
"
As to Melbourne, it has never passed out of the
representative of the Kellam interest."
The pretense that the Melbourne plantation was intended as a
pure gift by Oliver J. Morgan to the Kellam family cannot be
seriously maintained in view of the express declarations and
provisions to the contrary made by Mr. Morgan in his lifetime, and
is contradicted by the conduct of Buckner himself in procuring
Melbourne to be sold as part of the property of Oliver J. Morgan at
the sale of January, 1869, and becoming the purchaser himself, and
filing a petition for homologation in which he expressly declares
that it belonged to the estate of Oliver J. Morgan, deceased.
In addition to the evidence taken in the former case, further
evidence has been taken in the present cases as to the rental value
of the property from the time of Oliver J. Morgan's death and the
value of the fruits and revenues which have been derived from it,
and in this connection the complainants have adduced evidence to
show that they have been at large expenses for repairs and for
restoration of the lands after floods. We have carefully examined
the evidence on these points, both that which has been adduced in
the present suits and that which was taken in the case of
Johnson v. Waters, and without attempting to give an
abstract of it, we shall only state our conclusion, which is
substantially the same as that at which we arrived in that case,
namely, that any debt which may have been due from Oliver J. Morgan
to his heirs was more than satisfied by their receiving that
portion of the property which was intended by him as a
satisfaction, and by the
Page 139 U. S. 410
rents and revenues received since his death. Though heirs with
benefit of inventory (being for the most part minors at the time of
their becoming such), they were nevertheless chargeable, as against
any claims of their own, for what the estate was worth when the
succession commenced, and that far exceeded the amount of such
claims.
Changeur v. Gravier, 4 Martin, N.S. 68.
We think, however, that it would be proper, not as a matter of
strict right but on equitable grounds, that they should have some
allowance or consideration beyond the use of the property for
improvements which they have placed upon it, and for restoration of
its condition after floods and other devastations. But in view of
the conflicting evidence as to the annual value of the lands since
Oliver J. Morgan's death and the great lapse of time that has
occurred, it would be difficult, it not impossible, to arrive at
any precise and accurate adjustment of the equities arising out of
all the complications of the case, and the creditors might well say
that their claims should have been satisfied when the estate was
abundantly able to pay them, and before the restorations were
necessary. The best that can be done, with a view to the interest
of all the parties and the termination of a vexatious litigation,
is to make such award and decree as, on the whole, seems most
equitable and just. With this view, we see no better disposition to
be made than to increase somewhat the percentage of interest in the
lands to be reserved to the complainants, and to order a division
of the lands to be made, if they shall so desire. This will enable
each party to obtain and secure his or their own rights without
sacrificing those of the others. To allow the complainants to go
before the master in the
Gay suit, and prove their
antiquated claims, principal and interest, would enable them to
sweep away nearly all the property, and leave the creditors
nothing. This certainly would be most inequitable. While to allow
the creditors to sell the whole property in order to raise the
amount of their debts would be equally inequitable, for it would
leave nothing for the heirs, who have a meritorious claim arising
from the interest of their ancestor, Narcissa Deeson. We think it
is admissible, and,
Page 139 U. S. 411
under all the circumstances of the case, would be just, to
increase the interest to be reserved to the heirs of Julia Morgan
in the four plantations allotted to them, from 25.32 percent to
forty percent, or two-fifths, and to increase the interest to be
reserved to the heirs of Oliver H. Kellam, Jr., in the Melbourne
plantation from 43.35 percent to fifty percent, or one-half. And in
setting off to them their separate portions respectively as thus
defined, if they shall desire the same to be so set off, any
permanent buildings which they may have erected on said portions
should not be added to the value of the lands thus assigned to
them, in making the division between them and the creditors. The
remainder of the lands should be sold for the benefit of Gay's
administrator and the other creditors who shall have established
their claims before the master in the original suit, not including
the complainants. If the heirs should not desire to have their
portions set off separately, then the whole property is to be sold,
and they are to receive their proportional share of the proceeds,
but no allowance for buildings. If any moneys remain in the hands
of the receiver beyond the expenses incurred by him and his proper
compensation, they should be divided between the creditors and
heirs in the proportions above stated, and the portion due to the
heirs should be applied, as far as requisite, to the payment of the
costs awarded against them.
We have thus far expressed our views of the equities and legal
aspects of the case, without referring to particular laws or
decisions. But it is proper to add that, besides other portions of
the Civil Code of Louisiana, the following articles have been
constantly borne in mind:
"Art. 254. If a mother who is tutrix to her children wishes to
marry again, she must, previous to the celebration of the marriage,
apply to the judge in order to have a meeting of the family called
for the purpose of deciding whether she shall remain tutrix. . .
."
"Art. 255. When the family meeting shall retain the mother in
the tutorship, her second husband becomes of necessity the
co-tutor, who, for the administration of the property subsequently
to his marriage, becomes bound
in solido with his wife.
"
Page 139 U. S. 412
We assume that the due formalities were observed with regard to
the tutorship of the minor heirs who from time to time became
interested in the property of Oliver J. Morgan. This presumption is
the most favorable to the parties, and should be made unless the
contrary appears.
"Art. 352. It shall not be necessary for minor heirs to make any
formal acceptance of a succession that may fall to them, but such
acceptance shall be considered as made for them with benefit of
inventory by operation of law, and shall in all respects have the
force and effect of formal acceptance."
"Art. 1032. The benefit of inventory is the privilege which the
heir obtains of being liable for the charges and debts of the
succession only to the value of the effects of the succession, by
causing an inventory of those effects to be made within the time
and in the manner hereinafter prescribed."
The heir with benefit of inventory is bound only to the amount
the estate was worth at his ancestor's death. Of course, he is
bound to that extent.
Changeur v. Gravier, 4 Martin N.S.
68.
"Art. 1054. The effect of the benefit of inventory is that it
gives the heir the advantage"
"1. Of being discharged from the debts of the succession by
abandoning all the assets of the succession to the creditors and
legatees."
"2. Of not confounding his own effects with those of the
succession, and of preserving against it the right of claiming the
debts due from it."
In the present case, the heirs did not abandon the assets of the
succession to the creditors, and the debts due to them from the
estate were satisfied in the manner hereinbefore stated. The
portion of the property received in satisfaction we propose shall
be set off to them in severalty, if they shall desire it, so that
it may not be confounded with the residue.
"Art. 1058. But if the heir declares that he is not willing to
accept the succession otherwise than with the benefit of an
inventory, the person appointed administrator of the estate,
whether it was the heir himself or any other individual, shall
proceed to the sale of the property of the succession and to
Page 139 U. S. 413
the settlement of its affairs, as prescribed in the following
articles. The beneficiary heir shall, at the time of such
settlement, have a right to be paid, as any other creditor, all
debts due him by the deceased, and shall, moreover, he entitled to
the balance of the proceeds of the sale of the estate, if any such
balance be left after the payment of all the debts and charges of
the succession."
As the debts due to the heirs in the present case were satisfied
and paid by the property received for that purpose, this article
has no special bearing upon the result.
The question arising from the incapacity of minor heirs has
already been adverted to.
Upon the final hearing of the cases as consolidated, the court
below, on the 15th of June, 1886, made the following decree,
to-wit:
"These consolidated causes came on to be heard at this term on
final hearing, and were argued by counsel, and thereupon, upon
consideration thereof, it is ordered, adjudged, and decreed by the
court that the bills of complaint of the complainants, John A.
Buckner and others, and Narcissa Keene, wife of Matt. F. Johnson,
and others, be dismissed, reserving the right to said complainants,
except said Buckner in his own right, to go before the master
appointed in the case of Waters,
Waters, Adm'r v. Johnson et
al., No. 6,612 of the docket of this Court, and prove up as
ordinary claims against the estate of Oliver J. Morgan such sums as
may be due them on account of the original indebtedness of Oliver
J. Morgan to the heirs of Narcissa Deeson, which indebtedness is
hereby recognized as originally $134,991.40, provided said
complainants shall account for said property, rents, and revenues
of the said estate of Oliver J. Morgan as came to their hands as
heirs or grantees of said Oliver J. Morgan, and it is ordered that
said complainants do pay all the costs of the suit, said costs to
be equally divided between the complainants in the two causes,
respectively."
On a full consideration of the case, we think that this decree
should be reversed, and that a new and different decree should be
made. Instead of dismissing the bills of the complainants, we think
that those bills, being in the nature of cross-bills in
Page 139 U. S. 414
the suit of Waters (now Mellen), administrator of Gay, against
the executor of Morgan and others, should be retained and
consolidated with that suit, and instead of reserving to the
complainants in the present suits the right to go before the master
in that case, and prove their claims against the estate of Oliver
J. Morgan for any supposed indebtedness due to them as heirs of
Narcissa Deeson (which indebtedness should be declared to be paid
and satisfied), a certain portion of the said plantations and real
estate of Oliver J. Morgan, before referred to, should be reserved
to them free from the claims of the creditors of said Morgan; that
is to say, two-fifths of the four plantations, Albion, Wilton,
Westland, and Morgana, should be reserved for the benefit of the
heirs of Julia Morgan, deceased, and one-half of the Melbourne
plantation should be reserved for the benefit of the heirs of
Oliver H. Kellam, Jr., deceased, and the remaining interest in the
said plantations should be subjected to the payment and
satisfaction of the debt due to said administrator of William Gay,
deceased, and the debts of other creditors of Oliver J. Morgan who
may have established their claims before the master in said Gay's
suit in pursuance of the decree therein, not including any
pretended claim or claims of the said Morgan's heirs. And the said
portions so to be appropriated to the said heirs, respectively,
should be divided and set off to them in severalty, if they so
desire, without charging them with the value of any permanent
buildings erected by them on such portions. And a decree should be
made for the sale of all the remaining property in convenient
parcels and for an appropriation of the proceeds among the
creditors as above stated. But if the heirs do not desire a
severance of their portions, the whole to be sold, and they to
receive their respective portions of the proceeds, but no allowance
for buildings. In carrying out the said directions, if the heirs
shall desire their portions to be set off in severalty, they may
designate any buildings erected by them which they wish to retain,
and the portion set off to them shall include said buildings, if it
can be done without prejudice to the other parts, and in that case
the value of such buildings shall not be included in the aggregate
valuation of the land, nor charged
Page 139 U. S. 415
to the heirs in the valuation of the portion so set off to them
with said buildings. And such decree should be made as the decree
in the present consolidated case, and as a supplemental decree in
the principal case, to which the present is related as by
cross-bill.
Each party should pay their own costs on this appeal, except the
costs of printing the record, which should be equally divided
between the two parties, appellants and appellees. The costs in the
court below up to this time should be paid by the complainants, as
directed in the decree of the circuit court.
The cause is remanded to the court below, with directions to
proceed in conformity with this opinion.
DECREE
It is now here ordered and decreed that the said decree of
the circuit court be reversed, and that a new and different decree
be made in this consolidated case, and by way of supplement to the
decree in the principal case of William Gay's administrator against
Matthew F. Johnson, dative testamentary executor of Oliver J.
Morgan, and others, that is to say, it is ordered and decreed that
the bills filed by the complainants in the causes herein
consolidated be retained, and the cases consolidated with the said
principal case of Gay's administrator against Morgan's dative
testamentary executor and others, but that all relief prayed in and
by said bills filed in the present cases be denied except as herein
declared, namely: it is decreed that instead of reserving to the
said complainants the right to go before the master in said suit of
Gay's administrator, and to prove their claims against the estate
of said Oliver J. Morgan, deceased, for any supposed indebtedness
to them as heirs of Narcissa Deeson, the said claims are hereby
declared to be satisfied and paid, and that in place of said
supposed claims, the said heirs are entitled to have and retain a
certain portion of said Oliver J. Morgan's estate free from the
claims of his creditors, as follows, to-wit: two-fifths of the four
plantations, Albion, Wilton, Westland, and Morgana, are directed
and decreed to be reserved for the
Page 139 U. S. 416
benefit of the heirs of Julia Morgan, deceased, and one-half
of Melbourne plantation is directed and decreed to be reserved for
the benefit of the heirs of Oliver H. Kellam, Jr., deceased, and
that the remaining interest in the said plantations is decreed and
adjudged to be subject to the payment and satisfaction of the debts
due to the administrator of said William Gay, deceased, and to the
other creditors who shall have established their debts before the
master in said Gay's suit, not including the complainants in this
consolidated cause, and it is further decreed that the portions so
to be appropriated to said heirs respectively be set off to them in
severalty, if they shall so desire, without charging them for the
value of any permanent buildings erected by them thereon, and that
all the remaining portions of said plantations be sold in
convenient parcels, and the proceeds appropriated to the creditors
as above stated. And power is reserved to the court below to
appoint commissioners to make division of said property in the
proportions above named before said sale shall take place. But if
the heirs shall not desire a severance of their portions, then the
whole property to be sold, and they to receive their respective
portions of the proceeds, but no allowance for buildings. Any
moneys in the hands of the receiver after paying his expenses and
compensation are to be divided between the creditors and heirs in
the proportions above stated, applying the amount due to the heirs,
so far as may be requisite, to the costs payable by them. In
carrying out the said directions, if the heirs shall desire their
portions to be set off in severalty, they may designate any
buildings erected by them which they wish to retain, and the
portion set off to them shall include said buildings, if it can be
done without prejudice to the other parts, and in that case the
value of such buildings shall not be included in the aggregate
valuation of the land, nor charged to the heirs in the valuation of
the portion so set off to them with said buildings. It is further
decreed that each party shall pay their own costs on these appeals,
except the cost of printing the record, which shall be equally
divided. It is also decreed that the costs in the circuit court up
to the present time be paid by the complainants, as directed in the
decree appealed
Page 139 U. S. 417
from. It is further decreed that the cause be remanded, with
directions to the Circuit Court for the Eastern District of
Louisiana to enter a decree in conformity herewith, and to proceed
in accordance with the opinion of this Court herewith
filed.
MR. JUSTICE BREWER and MR. JUSTICE BROWN were not members of the
Court when this case was argued, and took no part in the
decision.
* This sum is obtained thus: $143,238.30 less $9,530.72 =
$133,707.58.