Friend v. Graham's Administrator

| La. | Oct 15, 1836

Martin, J.,

delivered the opinion of the court.

The dismissal of this appeal is prayed for on the ground that it is not expressly made returnable to this or any other court.

• As the order granting the appeal is made at the foot, or on the back of the petition, any deficiency thereon may be eked out by a resort to that document. The appeal was not prayed for expressly to this or any other court, but was asked for according to law. There could not be a stronger implication that it was intended to be to this court, as an appeal could be made to no other. The judge in his order made the “.appeal returnable to Alexandria, the first, Monday of October,” the time and place provided by law for the return of appeals to this court. It is impossible to conclude, from an examination of the petition and order of appeal, that the tribunal to which it was intended to be addressed, could be mistaken. The appeal must, therefore, be sustained.

The plaintiff sought remuneration for professional services rendered the succession, in procuring the removal of a former curator. His claim is resisted on the ground that it is not a debt of the deceased, but of those of the heirs, by whom the plaintiff was employed. Debts of a succession, like those of the estate of a ceding debtor, are of a higher dignity than, and are to be paid before those of the deceased or of the insolvent. In the case of Morel vs. Misotere’s Syndics, & Martin, 363, this court held, that the services of the attorney who had drawn up the petition and schedule of the insolvent, created a claim on the estate surrendered, and was not to be placed on the tableau as a debt of the insolvent, the court being of opinion that the services of the attorney were rendered for, and enured to the benefit of all the creditors who had an interest that the cession should be made, and consequently they were bound to make compensation for the professional services of the attorney, although they were not rendered at their request.

So, the services of an attorney, in procuring the removal of an administrator, enures to the benefit of the succession, that is, the creditors and heirs. The claim for services should therefore be paid out of the funds ofthe succession, although the attorney was employed at the request of some of the heirs.

Claims or debts against a succession, as contradistinguished from those of the deceased, do not entitle the creditor to the curatorship of the succession. Holland vs. Wheaton, 6 Louisiana Reports, 443.

In the present case the removal of the curator enured to the benefit of the succession, i. e. the creditors and heirs, qui sentit commoduni, debet sentiré et onus.

If the succession, after paying the creditors of the deceased, leave nothing for the heirs, the former will be exclusively benefited by the services of the plaintiff. Should there be a surplus for the heirs, then the debts of the succession will be taken therefrom. In either case justice will be done.

The Court of Probates did not err in sustaining the claim of the plaintiff against the succession, although the services were rendered at the request of some of the heirs.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed with costs.