SAME CASE ON A RE-HEARING.
Oole, J.Appellees in their motion for a re-hearing, allege that “ Henry Hicks Grocker being the testamentary executor at the time the several transfers were made to him, could not, under the provisions of the Code, acquire any portion of the property then under his administration.”
“ That the Act allowing executor’s and others, who are legatees, &c., to purchase, applies only to purchases made at the public sale which takes place of the effects of the succession in due course of law.”
The provisions of law forbidding executors, except in certain cases, to purchase any part of estates under their care, do not apply to assignments of heirs to them of their rights m the estate.
Appellants have also asked for a re-hearing on the following point:
“ There is error, we respectfully suggest, in the decree of this honorable court, ordering the partition of the estate of the testator without regard to the amount bequeathed, to the collaterals, and excluding the natural children from participating in this important portion of the succession.”
As appellants appear to have misconstrued a part of our judgment, we will add a few remarks in explanation, for the direction of those who shall make the partition.
Our judgment did not order the partition of the estate without regard to the amount bequeathed to the collaterals and exclude the natural children from participating in this part of the succession.
In our judgment we declared: “That the said estate is to be distributed without any regard to collation; and the said heirs, assignees and legatees, are to take their shares in the estate without being obliged to account for anything they may have received before the death of the said testator.”
We did not explain the mode of partition, as the cause was remanded to the lower court for the purpose of making a partition.
We had been requested to decide if the collaterals were obliged to collate, and we decreed, they were not; but we did not detail what was to compose the estate to be divided, nor in what manner the quarter due to the natural children or the three-quarters of the collaterals, was to be determined, as this would be settled in the lower court.
*444We think that the following principles, which, in our opinion, are not antagonistical to our judgment, ought to govern in the partition.
In order to fix the one-fourth of the estate, the succession should be considered as consisting not only of the effects in the testator’s possession at the time of his decease and legal claims of the estate, but also of that which was donated in the will. Donations made by the testator during his life, are not to be included in the mass of the estate.
When the wrhole mass of the succession is thus formed, the estate is to be divided between the natural children and collaterals, according to their respective proportions, to wit, one-fourth to the former and three-fourths to the latter, and the collateral relations are to take their share in the three-fourths without any regard to donations to them in the will, or to gifts to them by the testator during his life.
Por special legacies to collaterals, when there are no forced heirs, belong exclusively to the legatees, and are not subject to collation.
A testator who has natural children complies with the law, if he bequeaths three-fourths of his estate to one or more of his legitimate collateral relations, for they are not regarded as forced heirs.
Let us suppose the testator has bequeathed in his will $20,000 to his collateral relations, and the entire estate, including these legacies, is $100,000, the natural children would then have one-fourth of this amount, i. e. $25,000, and the remaining three-fourths, i. e., $75,000, less the $20,000, bequeathed to col-laterals, that is to say $55,000 would be divided among 'all the collateral relations without regard to collation. Ii; then, there were five collateral relations, heirs of the testator, each of them would receive $11,000, and also retain the amount bequeathed to him in the testament and the donations to him by the testator during his life.
Before concluding, it should be observed, that the semi-annual interest on the bonds of the city of New Orleans, deposited with some of the heirs, is not to be included as a part of the estate, as it was given to them by the testator during his lifetime..
When the partition is made, the estate must be considered as consisting of:
1st. The amounts donated or bequeathed in the will.
2d. The property in the testator’s possession at the opening of the succession, and all legal claims of the estate.
The partition must be made according to law, in accordance with the judgment in this case as thus explained.
It is, therefore, ordered, that the re-hearing prayed for by plaintiffs and defendants be refused.