Carriere v. Meyer

16 La. 126 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

Plaintiff having obtained a judgment against the defendant as administratrix of the estate of her deceased husband, Ursin Gonsoulin, had a rule served on her several years after-wards, to show cause why they should not be authorized to take out against her an execution under which her property, to a sufficient amount to satisfy their judgment, should be seized and sold. To this rule the defendant made answer, that she had paid privileged debts of her husband’s estate to a large amount; the vouchers for which, she would exhibit on the trial of the case; and that there was not a sufficiency of funds in her hands to satisfy her dotal rights. The rule was made absolute, and defendant appealed.

Judgment creditors of an estate in the course of administration, cannot take out executionagainst the administrator, without first notifying such judgment to him, that he may show he has no funds to satisfy and pay it. Creditors having judgments against an estate have it in their power at any time, to compel the administrator to account and show the true state of the funds.

This rule, taken on the administratrix, appears to us to have,' been premature. It does not appear that notice of the judgment liquidating the plaintiffs’ claim against the estate, arid ordering them to be placed as ordinary creditors for its amount on the tableau of distribution, has ever been servqd on the defendant. Had it been notified to her as required by law, she would have informed the sheriff that she had n;o funds to satisfy it. It would then have been in order for the plaintiffs to compel her, by a motion to the court, to prove the truth of her declaration, by filing within a specified time, a. brief statement of her situation with regard to the succession. Had she failed to prove that she had no funds in her hands belonging to the estate, the plaintiffs would have been entitled to the execution they now seek to obtain. Such is the course pointed out by law, when an administrator is sought to be rendered personally liable for a sum due by the estate he administers. Code of Practice, articles 1054-55-56-57.

Much has been said in the argument, of the defendants* neglect and dereliction of duty in not rendering any account of her administration. The reproach is well founded ; but it comes with a bad grace from creditors, who, having obtained their judgment in 1835, had it in their power to compel her to file her account, or satisfy their claim.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates of the parish of St. Mar-' tin, be anulled, avoided and reversed, and that the rule taken in the premises be discharged; the plaintiffs and appellees paying costs in both courts.