. It is with groat hesitation that I yield to the decree in this case my concurrence.
As it respects this controversy, the effects left at the decease of Nathaniel Noggatt must be considered as forming two successions. The one subject to the laws of his domicil in Mississippi, and composed of his lands and slaves in that State, and such movables as might be considered dependant upon that domicil; the other, his real estate and slaves in Louisiana, governed by the laws of the latter State.
Over the first, he had full power by the laws of Mississippi, to dispose by will, and could give all or a part to strangers or his children, as he should see fit.
The bequest of $20,000 and the residuary legacy of $25,000, must be considered as coming from the Mississippi succession. Conceding, therefore, that the will contains a fidei comnissum prohibited by our law, I have doubts whether affairs had not arrived at that stage, at the time the authentic act was passed before the commissioner Wood, to admit of a valid ratification; and, further, whether the plaintiff canmow bo permitted to set aside the act without first tendering to defendant the $45,000 which his ancestor has received as its consideration out of the Mississippi estate, and which no law prevented Nathaniel Noggatt from withholding from his daughter.
These doubts I surrender to the clearer considerations of my colleagues.