| La. | May 15, 1845
Lead Opinion
The defendant and Thomas H. Maddox were executors of the mother of the plaintiff, a minor. Maddox was. besides his testamentary tutor ; so was the defendant in case of the disability of Maddox. The executors, in. the inventory of their testatrix’ succession, included not only her portion in her deceased husband’s estate as common in goods with him, but also the balance of it, constituting the share of his son, the present plaintiff, and charged their commissions, which ought to have been confined to their testatrix’s estate, on that and the portion of her husband’s property which had descended to his son, the plaintiff. Their account was homologated, -and this double commission received.
On the plaintiff’s coming of age and settling with his tutor, this error was discovered, and instantly rectified as far as it related to the latter, by his reimbursing the excess in the commissions received. The present defendant, however, persisted in retaining all he had got, and this suit was brought to compel him to refund what he had illegally charged and retained.
The defendant did not pretend to justify the charge he had made, but endeavored to repel the plaintiff’s claim by the plea of res judicata, founded on the homologation of the executors’ account ; and he is appellant from the decision of the first judge, overruling his plea on the ground that the heir cannot be affected by a claim of the executor, unless he be personally cited to contest it; and that the tutor being interested, and indeed the plaintiff in the judgment pleaded as res judicata, the under-tutor ought to have been brought in to defend the minor.
The defendant’s counsel has urged that the judgment of the Court of Probates, homologating the account of the executors, must avail the defendant, until it be set aside by an action of •nullity, or reversed on appeal; We think the Parish Court did not err in concluding, that the heir cannot be affected by a claim of
It is incorrect to' say that every judgment forms res judicata, until attacked by an appeal or an action of nullity. In the case of Pysché v. Paradol (6 La. 377), we were of opinion that a minor was not bound to resort to an appeal, or action of nullity, in order to protect himself against a judgment homologating the account of an executor, on the ground that she had not been legally represented before the Court of Probates homologating it. She had indeed been represented by a curator ad hoc, and she was relieved, because she ought to have been so by a tutor. It is difficult to distinguish that case from the present, in which, the tutor being interested against his ward, the under-tutor ought to have taken his place. In the case of Vignaud v Bernard (1 Mart. N. S. 1), this court held, that a judgment rendered against a person legally incapacitated to defend himself, ought to be considered as one rendered without parties, and absolutely void.
Executors are jointly and severally accountable for the property subject to the executorship. Civil Code, art. 1674. When, therefore, Maddox and the defendant sought to relieve themselves from the responsibility they hadincurred by the acceptance of the executorship, they were bound to render an account thereof to the Court of Probates, contradictorily with some per* son whose interest it was to inquire into the legality of their charges. They made one of upwards of #14,000 for their joint advantage. It would be absurd to say that one of them could legally admit one half of that charge, and contest the other. If it had been reduced, as it ought to have been, to one half, say #7,000, each executor would have retained #3,500. It is, therefore,- clear that, with regard to that charge the minor was without protection, and the event has shown it. Maddox has acknowledged it, and honestly done justice to his ward. Th@
It is unnecessary that we should examine whether, in the defendant’s claim for professional services, his co-executor could have represented the minor. As to it, the tutor was without any interest; for he was jointly and severally liable with the defendant, his co-executor, for any part of the succession retained by the latter, unless on a claim perfectly distinct from anything relating to the executorship, contradictorily examined, and finally allowed by the court. But, be that as it may, in joint demands one of the creditors cannot represent the debtor.
The opinion in this case was delivered on a re-hearing. Gakland, X, did not sit on the trial; being absent by leave of the court.
Dissenting Opinion
dissenting. I do not fully concur in the opinion pronounced by a majority of the court in this case. The only question is, upon the plea of res judicata set up by the defendant. It appears to me, that Maddox had not such an interest in the amount of commissions coming to his co-executor, as to render him incompetent to represent Baldwin as his tutor, as he assumed to do. Not only did he assume to act as tutor in that case, but his attorney at law moved for the homologation of the account, with the exception of the charge for professional services, and it was so homologated, and the judgment in that respect was affirmed in this court. Neither of them appear to have been sensible at that time, of the error as to the amount of commissions. It is clear that the judgment in question, so far as it concernsjdie professional services of Carleton, has the force of res judicata, because Maddox represented Baldwin as his tutor; so that, according to the doctrine settled by a majority of the court, a judgment may be partly conclusive and partly not,
Judgment affirmed.