No. 1,342 | La. | Jul 15, 1889
The opinion of the Court was delivered by
Jno. E. O’ltourke died leaving a will in which E. W. Bienvenu was named executor. On August 26, 1884, the will was presented to the court and probated, and an order was entered appointing Bienvenu as testamentary executor, who duly qualified. The order did not require him to give bond nor did the law exact any bond except on the demand of creditors or claimants of specific property in the succession, and then only in a sum exceeding by one-fourtli the amount of said claims. C. O. 1677. No such demand had been made in the court by any creditors or claimants.
Nevertheless, on September 14th, 1885, the following document was filed in the succession:
Bond or Testamentary Executor.
State or Louisiana, Parish or St. Martin. )
Twenty-first Judicial District Court. )
Know all men by these presents: That we, Eugene W. Bienvenu, of the Parish of St. Martin, and Ed. Simon, Louis Condly, Prosper Chrétien and Numa Bienvenu, as sureties, are held and firmly hound unto A. V. Fournet, Clerk of the Twenty-first Judicial District Court, in and for the Parish of St. Martin, in the sum of..................dollars;
The condition of the above obligation is such, that, whereas, the above bounden.............................has been appointed by the Court aforesaid......................
Now, therefore, if the said......................................... shall well and truly fulfill the duties incumbent on him................ ......................aforesaid, and shall account for and pay over all such sum and sums of money as shall come into his hands as........... aforesaid, then this obligation to be void; otherwise to remain in full force and effect.
(Signed) E. W. Bienvenue,
Ed. Simon,
Louis Condly,
Prosper Chretien,
Numa Bienvenu.
Signed in presence of
A. Y. Eournet, Clerk.
On this is endorsed, “ Received and Piled September 14th, 1885.”
On December 9th, 1885, certain creditors of the succession made application in a separate petition for an order, under C. C. 1677, requiring the executor to give security in favor of each of said creditors for an amount exceeding by one-fourth the amount of each separate claim.
This application was contested by the executor on the ground that he had already furnished a sufficient bond referring to the document copied above. After hearing and trial between the petitioners and the executor, the following'judgment was rendered :
“ It is ordered, adjudged and decreed that the bond of said defendant, E. W. Bienvenu, furnished by him as testamentary executor of the succession of the late Jno. P. O’Rouke, for the faithful discharge of his trust as such, and by him executed on the 14th September, 1885, leaving therein blanks to be filled up in the body, the same having been previously signed and executed by said testamentary executor and his sureties, JKd. Simon, Louis Condly, Prosper Chrétien and Numa Bienvenu, be and is hereby recognized as good and valid, and that said blanks be filled up, aoaordiiu/ io law, in the aggregate amount of the claims set forth in plaintiffs’ petition, excepting that of Mrs. Jno. P. O’Rouke, conditioned as the law directs.
“ Done, read and signed in open Court, this 24th day of December, 1886.
“[Signed] J. E. MOUTON,
“Judge.”
Judgment was rendered rejecting the demand of nullity, but granting the alternative relief above-mentioned, from which both parties have appealed.
Disregarding plaintiff’s allegations as to the error and deception under which his signature to the instrument was obtained, as to which the evidence is conflicting, we cannot see how such a document can stand as a valid bond imposing any obligations whatever on the signers.
As wo have said, there was no order of court directing, and no law requiring the bond. Therefore, the principle which construes such instruments with reference to the order or law in pursuance of which they were made, supplying omissions and rejecting superfluities, has no application. This instrument must be treated as a purely voluntary bond, conferring no rights and creating no .obligations except sxrcli as are clearly expressed by the tenor and terms thereof.
It has, indeed, been held that “ one who gives his signature in blank is bound by the obligation subsequently written above it.” Breedlove vs. Johnson, 2 N. S. 517.
If the executor, before filing, had filled up the blanks in the bond, perhaps this principle might apply; but hero the blanks were not, and, in point of fact, have never been, filled up. The instrument stands “ with all its imperfections on its head,” as originally signed.
It contains no date and no amount; it names all the parties as sureties and mentions no principal obligor; it defines no principal obligation for the performance of which a principal, in any capacity, is bound, and on whose failure the sureties are to be responsible.
There is absolutely nothing defining or expressing any obligation whatever, and the instrument has no legal significance upon which any claim of obligation can rest.
Deficiencies less gross have been held to invalidate even judicial bonds. Succession of Walker, 32 Ann. 525; Rawle vs. Feltus, 33 Ann. 421; Succession of Calhoun, 35 Ann. 363.
As it purports to give validity to a bond to which his name is signed and to insert therein obligations which he never assumed, he is entitled to have it judicially declared that, as to him, said judgment in inoperative and void.
The judgment operates no estoppel as to him, nor is this an action of nullity to which the proscription of one year applies. It is not properly an action of nullity at all, but simply seeks a judicial declaration that the judgment is not operative as to him, who was not a party thereto.
Apart from its character as a judgment, and considered merely as an order of court in a succession proceeding, it is clearly without any warrant whatever. Where and how did plaintiff ever agree to bind himself for the particular amount of the claims of these creditors, as directed by the judge to be inserted in the bond 9
No demand for such security liad been presented by them at the date of the execution or filing of the bond; if there had been, non constat that lie would liavo signed. His obligation must result from the bond as filed and cannot be changed or added to by subsequent orders without bis consent.
In as much as both parties appeal, and as tlie judgment granting alternative relief was predicated solely on the rejection of the demand of nullity, the whole judgment must now he reversed, and a proper one rendered.
It is, therefore, ordered and decreed that the judgment appealed from he annulled, avoided and reversed; and it is now adjudged and decreed that there ho judgment in favor of plaintiff and against defendants declaring the instrument filed in the succession of O’Eonlco on September 14, 3885, and the judgment rendered in tlie suit No. 8858, on December 24, 1886, to be null, void and inoperative in so far as they effect the rights and obligations of plaintiff herein ; defendants to pay costs in the lower court and the costs of this appeal.