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And we can see no reason why, if one may lawfully stipulate, in a policy of insurance taken out for the benefit of his wife, that the amount called for shall be paid to her, at his death, he may not as well stipulate that the payment shall be made at the expiration of a certain period, whether he be dead or alive. Of course, if he be dead, he can no longer maintain his wife, and an ordinary life policy is intended as a provision against that contingency. But he may, before his death, become helpless and unable to maintain either his wife or himself, and an endowment policy is intended in a measure to provide, also, against that contingency. If, by the terms of a particular policy, the amount called for is payable, in the event of death, within a given period, to a named beneficiary, but, in case of the survival of the assured, is to be paid to him or to some one else, at the expiration of the period named, we know of no reason why the contract should not be enforced as written. But, as we understand the evidence in this case, the policy here in question (which is not in the transcript) names no other beneficiary than Mrs. Desforges. We are therefore, and for the reasons stated, of opinion that she alone is entitled to the proceeds.

The opponents, Lester Desforges (now of full age) and the minor, Alma Desforges, allege, in their opposition:

"That they are entitled to an undivided onesixth of the estate of Leonce Desforges, taking it by representation through their deceased father, Charles Desforges, as will more fully appear by the original petition herein filed by

them."

We are of opinion that the allegation that opponents came in by representation of their father is well founded, since a grandchild inherits in his own right only when he is nearest in degree, or with respect to gifts or legacies made by his grandfather during the life of his father; and it follows that collation may be demanded of opponents under C. C. art. 1240, which declares that:

"If the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced his inheritance."

[2] It is said that the amounts advanced to Charles Desforges by his father were not gifts, but that they constituted debts as against Charles Desforges, and that debts are not subject to collation. Our conclusion from the evidence is that the advances were made

or

with the intention that, in the event of their not being reimbursed, they should be charged against the inheritance of Charles Desforges, as having been made en avancement d'hoirie. They are therefore to be collated. It is also said that the judgment requiring the collation should, in any case, be reduced to the amount that the opponents would otherwise have received from the succession; but, as we interpret the judgment, it requires no amendment, as it goes no farther than to deny to the opponent the right to share in the partition.

It is therefore ordered, adjudged, and decreed: That the judgment appealed from be reversed in so far as it rejects, in toto, the item, in the projet of partition, reading:

"B. Proceeds of policy of insurance No. 69153, Manhattan Life Insurance Co. the sum of $2,500," etc.

That the amount thus stated be reduced to

$2,101.35, and that, as to said last-mentioned amount, all oppositions be dismissed. It is further decreed that, in all other respects, said judgment be affirmed; the cost of the appeal to be paid by the mass.

PROVOSTY, J., takes no part, not having heard the argument. O'NIELL, J., takes no

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YOUNG, State Bank Examiner, v. TEU-
TONIA BANK & TRUST CO.

(Supreme Court of Louisiana. April 13, 1914.)

(Syllabus by the Court.)

BANKS AND BANKING (§ 166*)-INSOLVENCY -PRIORITIES.

Judgment affirmed, for reasons assigned in William L. Young, State Examiner of State Banks, v. Teutonia Bank & Trust Co., No. 19,967.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. 88 574-578, 586; Dec. Dig. § 166.*]

Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.

The Teutonia Bank & Trust Company was placed in the hands of William L. Young, State Bank Examiner, for liquidation. To the first provisional account filed, Edward Earle Curtis filed opposition, and, from a judgment rejecting his demand, he appeals. Affirmed.

See, also, 64 South, 984.

Carroll, Henderson & Carroll, of New Orleans, for appellant. John J. Reilley, of New Orleans, for appellee.

LAND, J. The appellant filed an opposition to the first provisional account filed by W. L. Young, State Bank Examiner, in the liquidation of the affairs of the Teutonia Bank & Trust Company.

Opponent alleged that said bank, a few ·

See, also, 64 South. 806; 64 South. 983.

days before its failure, collected for his ac- | the Southern Commercial Savings Bank of count the sum of $2,100, and held said amount St. Louis filed opposition and from a judg in trust for the opponent, and as a special ment rejecting its demand, it appeals. Affund belonging to him. Wherefore the de-firmed. fendant prayed for a judgment ordering that his claim be paid by preference out of the funds for distribution in the hands of the State Bank Examiner. The opposition was dismissed, and the opponent has appealed.

In the case of William L. Young, State Examiner of State Banks, v. Teutonia Bank & Trust Co. (No. 19,967) 64 South. 806, recently decided, we said:

remittance.

"The custom of banks is to mingle collection money with their general funds, and to treat it as their own, and to send their own checks in "The great weight of authority in other jurisdictions is to the effect that banks and other senders of paper for collection and remittance are presumed to know of this custom and to intend to abide by it, unless collections are sent with special instructions to the contrary, and that the operation of this custom is to transfer the ownership of the money to the bank, the customer becoming, the moment the money is thus mingled, a mere creditor of the bank for

the amount.'

In the case at bar, in two instances, the bank had made collections for the opponent, and placed the amounts to his credit. Opponent checked out the money in the usual way. The last collection was also credited to opponent's account, and doubtless would have been checked out if the bank had not failed. The opposition now before us presents a weaker case than in some of the oppositions which were dismissed in the suit cited supra. Judgment affirmed.

O'NIELL, J., takes no part.

(135 La. 66)

No. 20,085.

YOUNG, State Bank Examiner, v. TEUTONIA BANK & TRUST CO. (Supreme Court of Louisiana. April 13, 1914.)

(Syllabus by the Court.) BANKS AND BANKING (§ 166*)-INSOLVENCY -PRIORITIES.

The custom of banks is to mingle money collected by them for account of others with their general funds, and to remit by means of their own checks, and those who deal with them are presumed to know the custom and to intend to abide by it, unless the paper forwarded for collection is accompanied by special instruction to the contrary. In the absence of such instructions, the forwarding bank becomes the ordinary creditor of the collecting bank, and has no right to be paid by preference from the funds on hand at the time of its insolvency.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 574–578, 586; Dec. Dig. § 166.*]

Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.

The Teutonia Bank & Trust Company was placed in the hands of William L. Young, State Bank Examiner, for liquidation. Το 'the first provisional account filed by him,

Frank E. Rainold, of New Orleans, for appellant. John J. Reilley, of New Orleans, for appellee.

MONROE, J. Opponent has appealed from a judgment rejecting its demand to be paid, "from the funds in the vaults" of the insolvent defendant bank, the sum of $796.50, as the proceeds of a check for that amount which had been forwarded to defendant for collection, and collected by it, but the proceeds of which had been mingled with its own funds, and not accounted for, save by means of a draft on New York which had not been paid, the defendant having, in the meanwhile, been taken in charge by the State Bank Examiner and found to be insolvent, though there was at that time in its vaults the sum of $23,268.63, and the aggregate amount of claims against it for collection and not accounted for was $7.493.49.

It is admitted that the opponent bank kept no account with the defendant bank, but "merely sent this check for collection and re

turns."

The contention on behalf of the opponent is thus stated in the brief of its counsel, to wit:

"(1) When a check is intrusted to a bank, with instructions to collect and remit the proceeds, the relation of depositor and banker is not created; the relation between the parties is that of principal and agent.

"(2) The ownership of a thing intrusted to an agent remains in the principal.

"(3) The product or substitute of a thing follows the nature of the thing itself, so long as it can be identified. So, the property of a principal, intrusted to an agent for a special purpose, is considered still the former's notwithstanding any change of form, so long as it can be identified.

(4) The sole question to be decided is, What constitutes identification?"

Counsel further says in his brief:

"The court will observe that this case is almost identical with that of the Kansas City Flour Mills Company's appeal, argued some months ago; in fact this appeal would have been consolidated with No. 19,967 had it been filed in time."

In the case thus referred to (being the consolidated case of Kansas City Flour Mills Company and Merchants' Bank of Winona against the same defendant [Young v. Teutonia Bank & Trust Co., 64 South. 806] Nos. 19,967 and 20,004), the question presented in this case was fully considered, and the court reached the conclusion stated as follows, to wit:

"The custom of banks is to mingle collection money with their general funds, and to treat it as their own, and to send their own checks in remittance. *

"The great weight of authority in other jurisdictions is to the effect that banks and other

senders of paper for collection and remittance | 3. TAXATION (§§ 204, 500*) - EXEMPTION are presumed to know this custom, and to intend to abide by it, unless collections are sent with special instructions to the contrary, and that the operation of this custom is to transfer the ownership of the money to the bank; the customer becoming, the moment the money is thus mingled, a mere creditor of the bank for the

amount.

"See 2 A. & E. Enc. of Law, 819, 821; Morse on Banks, 590; Zane on Banks & Banking, § 178, p. 301; Tiffany on Banks & Banking, 207. There are common law decisions to the contrary, but the authorities cited, supra, are more in accord with our own jurisprudence, based on the provisions of the Civil Code."

RAILROADS-SUFFICIENCY OF EVIDENCE. While it' is true that tax exemption is subject to strict construction, the evidence shows that only half of the defendant's road was constructed prior to April 1, 1901, and as to this part it is not now within the exemption period of ten years.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 321-323, 325, 332, 333, 925-930; Dec. Dig. §§ 204, 500.*]

4.

Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.

(Additional Syllabus by Editorial Staff.) RAILROADS-CONSTRUCTION "COMPLETE.” In its natural and ordinary sense as applied to the construction of a railroad, the word Among the authorities to which the opin-completed" does not include the equipment of ion thus alludes, as constituting our own ju- Phrases, vol. 2, pp. 1366-1368). the road with rolling stock (citing Words and risprudence, are the following, which support the propositions that the right of a principal to recover property in the hands of his defaulting agent is limited to those cases where there has been a deposit in kind, or where the indentity of the thing is fully established; mismanagement or failure to pay over money received gives no privilege upon the property of an agent: Whatley v. Austin, 1 Rob. 21; Longbottom's Ex'rs v. Babcock, 9 La. 50; Matthews, Finley & Co. v. Their Creditors, 10 La. Ann. 342; Succession of Stone, 31 La. Ann. 311; Clason & Co. v. City of New Orleans, 46 La. Ann. 1, 14 South. 306; Girardey v. Southern Bank, 33 La. Ann. 957; In re La. Sav. Bank & Safe Dep. Co. in Liq., 40 La. Ann. 514, 4 South. 301; Civ. Code, arts. 2926, 2940, 2944, 2963, 3222.

We find no reason for changing the opinion as thus expressed, and the judgment appealed from is accordingly affirmed.

Suit by the Louisiana & Arkansas Railway Company against the State Board of Appraisers to cancel assessment on property. From judgment for defendant, plaintiff appeals. Modified and affirmed.

Henry Moore, of Texarkana, Ark., and H. H. White and R. F. White, both of Alexandria, for appellant. R. G. Pleasant, Atty. Gen., and Harry Gamble, Asst. Atty. Gen., for appellee.

Statement of the Case.

BREAUX, C. J. The plaintiff complains of a judgment rendered against it in a suit brought against defendant to cancel the assessment upon its property.

The Louisiana & Arkansas Railroad Com

PROVOSTY, J., concurs in the decree. pany and the Arkansas-Louisiana & Southern O'NIELL, J., takes no part.

(135 La. 69)

No. 19,984.

Railway Company were consolidated into one under the name of the Louisiana & Arkansas Railroad Company.

Plaintiff through learned counsel states that one section of its road measures 17.35

LOUISIANA & A. RY. CO. v. STATE BOARD miles from Cotton Valley to Minden in Web

OF APPRAISERS.

(Supreme Court of Louisiana. March 30, 1914. Rehearing Denied April 27, 1914.)

(Syllabus by the Court.)

-

1. TAXATION (§ 231*) EXEMPTION RAILROADS OPERATION OF STATUTE.

Article 230 of the Constitution, exempting from taxation for a period of ten years those railroads built prior to 1904, was intended to encourage enterprises of some importance and was never intended to apply to a private logging railroad, or a tramway.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 371-378; Dec. Dig. § 231.*] 2. TAXATION (§ 231*) — EXEMPTION - RAILROADS OPERATION OF STATUTE.

The constitutional amendment adopted in 1904 (Acts 1904, No. 16) providing for the exemption from taxation of certain railroads also provides that the right of exemption shall follow the railroad into whoever's hands it may come, and, while the niceties of grammar may not have been observed in drawing it, the intent is plain and will not be disregarded in the interest of fine grammatical distinctions.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 371-378; Dec. Dig. § 231.*]

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ticularly complains as to part of the track., case as numbered by defendant. It relates Plaintiff's contention is that the 16.92 miles to the state board's action in assessing plainof road were not completed until April 1, tiff's road for the back taxes of 1908 and re1902, while defendant's contention is that a lates to the stretch of 17.35 miles between portion of it was completed in 1900 and 1901 Cotton Valley and Minden. The Arkansasand that such portion is subject to the taxes Louisiana & Southern Railway Company lost of 1911 and 1912. its exemption at the time that it was consol

The question as to taxes of 1908 is con- idated with plaintiff is the contention of the sidered later.

The defendant, on the other hand, claims that as soon as any part of the section had been built, equipped, and ties and steel laid and surfaced, there was a completion pro tanto.

board of appraisers the plaintiff. We take it that the state is not entitled to the taxes for the year 1908 on this section; the objec tion is principally (as to 1908) that the road lost all exemption and was without right in the consolidation to transfer exemption from taxation. We think plaintiff still retained

Plaintiff states as to this particular road of 16.92 miles that a dump was built and steels laid during 1901 by the Stamp Construction Company. It is stated by plaintiff that this is a separate corporation doing construction work under a contract to construct and deliver the road to plaintiff company, the right. That ground was considered in and plaintiff states that this road was used the decision of the Rock Island v. State for freight and passengers the first time April Board of Appraisers (No. 19,953) 63 South 1, 1902; while the dump had been built and 262. The decision, although criticised by steel laid on this section December 31, 1901, learned counsel for the state, will have to rethe surfacing was not completed until April main as it is for the present at least and 1, 1902. That 50 per cent. of the surfacing until additional light is brought to bear upon was done prior to December 1, 1902, and 50 the subject which would render it evident per cent. between that date and April 1, that it should be overruled. The objection on 1902, and that in reality the road was not the part of the state to the construction placcompleted and subject to assessment before ed by this decision upon the constitutional April 1, 1902. amendment of 1904, No. 16 of the Acts of that year, is not sufficiently convincing to justify the overruling of the decision. The view expressed on the part of the state is that the last paragraph of the amendment of 1904 is ungrammatical. It reads, where "same remains the property of the present owner or owners or be transferred or assigned." The contention is that the word "same" of this paragraph refers to property to the extent stated by the defense. The reconstruction of the sentence as suggested by the defendants adds to the clearness of the paragraph, but does not materially change the meaning. The confusion suggested is that when considered word for word it should be made to read "where the same property remained the property." That would defeat the purpose which prompted the adoption of the paragraph. Effect will not be given to the niceties of grammar for which defendant contends. The purpose of the paragraph was to exempt property where it remained in the present owner or was transferred or assigned. The word "same" cannot be construed so as to be fatal to all exemption. It must

Another section of 17.35 miles from Ashland through Goldana also gives rise to the question for decision. We are to determine whether or not it was proper to assess this road for the years 1911 and 1912. This will suffice for the purpose of the decision.

Opinion.

[1] In the first place, defendant's contention is that the Minden Company East and West is not exempt, for it was only a log road, and that it never acquired exemption, and therefore transferred no exemption to plaintiff; that it was absorbed by plaintiff in 1909 and lost all identity.

We have arrived at the conclusion that it was as alleged by defendant a log road; it surely did not carry passengers. Moreover, it was an entirely private enterprise as long as it was in the name of the Minden East & West Railroad Company, and before it was absorbed by purchase by the plaintiff company.

Article 272 of the Constitution defines highways, and does not include in its definition a mere private log train or tramway. We add tramway, because one would be as much entitled to exemption as the other; if the Minden road be exempt, it is not. The purpose of the exemption law was to encourage enterprises of some importance, and not tramways. Such a tramway as the one here is not exempt.

remain and be construed as it is.

[3-4] The third issue in the order presented by the defendant relates to the 16.92 miles from Ashland through Goldana to the Natchitoches line, assessed for the taxes of 1911 and 1912. Exemption is claimed for this property on the ground that the Louisiana and Southern road was completed after the Constitution of 1898 was adopted and during the year 1899, and that in consequence the year 1908 was within the ten years' exemption period.

The difference between plaintiff and de

plaintiff contends that this section was com- | 39, of 1877, the transfer was by consolidapleted when the surfacing which was neces- tion and subject to a different construction, sary for its operation had been done and as will readily be seen by referring to the when the section was delivered by the con- act. struction company, accepted by the plain- For reasons stated, it is ordered, adjudgtiff's engineer, and put into operation, and ed, and decreed that the judgment of the that all of this occurred April 1, 1902, and district court be amended as follows: That not before; while, on the other hand, de- there be judgment in favor of defendant, the fendant's contention is that as soon as any state board of appraisers, and against the part of the section has been built, equipped plaintiff, the Louisiana & Arkansas Railway with ties and steels, and surfaced, there was Company, in the case of the Minden East & a completion pro tanto. To decide this last West Company, and in the case of one-half point both of the parties to this suit re- of the 16.32 miles section heretofore mentionsorted to the definition of words. Plaintiff ed. As to the former, the eight miles bequotes Words and Phrases, verbo "complete," | tween Minden and Shreveport, the plaintiff p. 1366, to prove that the completion dates from the time that a railroad is reasonably safe, fit, and convenient for the public use and accommodation. The second paragraph of the quotation reads that a road will be held to be completed if it was in operation on that day in such a manner as it might be regularly used for the purpose of transporting freight and passengers.

The defendant, on the other hand, reproduces another definition from the same book in which it is stated that a railroad is completed or constructed when that has been done which is necessary to make it a railroad, where it is fitted for use as a railroad, that is to say, when it is made ready and put in proper condition for the placing and running of trains upon it; for its operation, as it is usually termed.

In its natural and ordinary sense the word "completed" does not include the mere equipment of the road with rolling stock. Graff v. Railroad Co., 23 Minn. 144-146.

De

It appears that one half of the road was in operation. As to the other half, the insistence on the part of the state is that the existence of a well-founded doubt is equivalent to a denial of a claim for exemption from taxation, and that the road was sufficiently completed to be taxed. We do not agree with that view. Townsend v. Vanderwerker, 160 U. S. 174, 16 Sup. Ct. 258, 40 L. Ed. 383.

As to the other point urged, undoubtedly it is well settled that tax exemption is subject to strict construction; but it does not justify our holding that the road had been completed when it had not been completed at the date before mentioned (that is, as to half). We therefore hold that one-half the property is subject to taxation, as this one-half was completed in the year 1901, and it follows that it is not within the exemption period of ten years.

We will here state that in the decisions, in which these questions were heretofore considered, the Flournoy Case, in 128 La. 71, 54 South. 475, and the Rock Island R. R.

has no exemption, for the reason before expressed. At the transfer of the mileage to plaintiff this Minden road had no exemption to transfer; and as to the latter one-half of the railroad is subject to taxation for one year, but not prior.

It is further ordered, adjudged, and decreed that the exemption acquired by the construction of the mileage stated was not lost by the consolidation, except 50 per cent. as before stated, because the work as to this 50 per cent. was done prior to the time necessary to bring it (the 50 per cent.) within the exemption for one year. For that year, it will have to be assessed as herein before stated. In accordance with prayer of plaintiff's petition to the extent before mentioned exempting property heretofore assessed, the assessment will be canceled and all other formalities complied with to carry out the exemption.

Except as before indicated to the contrary, the judgment of the district court is affirmed, that is, plaintiff's demand is rejected and no further exemption is decreed, and, as to all property not decreed exempt, the judgment appealed from is affirmed. Appellee to pay costs.

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J. B. LEVERT CO., Limited, v. JOHN T.
MOORE PLANTING CO., Limited.
(Supreme Court of Louisiana. March 30, 1914.
Rehearing Denied April 27, 1914.)

(Syllabus by the Court.)
1. EXECUTION (§ 172*)—SALE-INJUNCTION—
SUFFICIENCY OF EVIDENCE.

The sale of a sugar plantation, under executory process, having been enjoined, on the payment of the debt, it is held that the eviground that time had been granted for the dence fails to establish the agreement whereby the time is said to have been granted.

[Ed. Note.-For other_cases, see Execution,

Cent. Dig. §§ 519-539; Dec. Dig. § 172.*] CONTRACTS (§ 170*)-EXISTENCE EVIDENCE. As in the case of an ambiguous contract, in determining the question of contract vel non, a court will be largely influenced by the

Case, before cited, the property had been sold previous to the adoption of the amend-2. ment exempting railroads in 1904, while in the other decision, interpreting the Act No.

so,

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