32 La. Ann. 265 | La. | 1880
The opinion of the court was delivered by
Fanny Oampbell was the fourth wife and is the surviving widow of Dr. William H. Winn, who died shortly after the 1st of November 1877, leaving two minor children bom of his last marriage.
His widow declined to qualify in the executing of his will, and— with her consent — J. J. Gondeau was appointed to execute it. He — as such — obtained an order to sell, and sold — for. $386.26 — the personal ' effects belonging to the community which had existed between the deceased and two of his wives.
After that sale, he filed a tableau, in which he carried and classified the claims which he considered as due by the succession of Winn and the last community.' In that tableau, which was partially amended and homologated on the 12th of April 1879, the surviving widow is classed — • in accordance with the homestead act — as a privileged creditor for the sum of one thousand dollars.
Pressed, as it is admitted he was, by Mrs. Winn and the other creditors, the executor procured — on the 10th of January 1879 — an order to sell the real estate, partly for cash and partly on terms. He, accordingly, advertised the intended sale, and — on the day fixed in the published notice — proceeded to offer the property at auction. Its appraised value not having been bid, he re-advertised it for sale on a credit of twelve months, and — at the second offering — adjudicated it to Mrs. Alice W. Owens for two hundred dollars.
Less than two months after that adjudication, Fanny Oampbell— acting in her own name and as tutrix of her children — brought this suit to annul it, on the grounds : ’
1. That, as Gondeau was a regular auctioneer, he could not have
That distinction is not sustained by either the spirit or letter of the law, which provides that representatives of successions — without ex■ception — shall have the right to cause to be made, or to make themselves the sale of the property which they administer.
Rev. St. sect. 1467.
2. That, unless the purchase price of the property belonging to a ■succession, cr in which minors are interested, be equal to its actual value, its sale for less than the amount of its appraisement, is void.
This is true, but only so far as it relates to the first offering; for we ourselves said that the property may be re-advertised for sale, and — at the second offering — sold at twelve-months credit, and — then—for what it will bring.
In “ Eraser vs. Zylicz,” we held that property which had passed to, ■and fully vested in minors, could not — legally—be sold for less than its appraisement. The Code so expressly provides — art 342. Here, however, the property twice offered for sale, and sold — at the second offering — on credit and under its appraisement, belonged to an insolvent ■succession, which — at that very moment — was opened and under administration.
“ When” — as said by this court — “ an administrator has been appointed to a succession, the widow in community, and the tutrix of the minors, who are necessarily beneficiary heirs, have no right to interfere, and have nothing to claim until the debts of the estate are paid, and its administration legally terminated. The sale of the property of such an estate, for the payment of debts, is not subject to the rules and formalities prescribed for the alienation of minors’ property as such, the beneficiary heir having but a residuary interest in the estate, which can be ascertained only by a full administration.”
10 R. 509.
The Code of Practice provides, in terms which admit but of one ■construction, that — at the second offering — the property of vacant estates, of all successions accepted with the benefit of inventory, whether the heirs are minors or of age, and of all successions under administration, must be sold on credit and for what it will bring.
C. P. 990, 992.
In an amendment to her original petition, plaintiff avers that — after the first offering — the property was re-advertised for sale, and sold by the executor, without an additional order from the court, and that this was irregular. The article of the Code does not require that a new
We believe, as defendant’s counsel, that — in such a case — the commission addressed to the auctioneer may properly be assimilated to a writ of fieri facias directed to a sheriff, and that it would be a vain thing to return either after the first offering, inasmuch as any subsequent commission could but rehearse the imperative command of the law itself, and it is that, then, the property be re-advertised for sale and1 sold for what it will bring, within a delay and on conditions which it fixes and specifies, and which — unless with the consent of every interested party — could not be changed or altered by the judge.
O. P. 990.
The charge of fraud which — in the brief and nowhere else — is made against the executor, is — not only not justified by a vestige of evidence — but repelled by every proceeding which followed his appointment. They were openly conducted, and — we think — more in the interest of the widow and children of the last marriage, than that of the creditors and of the other heirs.
If, as averred in the uncontradicted affidavit of their counsel, the' property adjudicated to defendant was worth more than one thousand' dollars, she could have purchased it in satisfaction of her own and her-children’s rights, but — it seems — forgot that “ the law favors the vigilant.”
It is, therefore, ordered, adjudged and decreed that the judgment, appealed from is affirmed with costs.
