273 So. 2d 717 | La. Ct. App. | 1973
Lead Opinion
This is a suit to nullify the judgment rendered herein on May 25, 1971, on the ground of ill practice. The plaintiffs are Mrs. Patricia Gay Mydland and Donald R. Chapman, testamentary co-executors of the Succession of Tennis L. Mydland. Defendant in the nullity suit is Guaranty Bank and Trust Company. From an adverse judgment, Mrs. Mydland, as co-executor, has appealed. Defendant has filed a motion to dismiss the appeal on the ground that both co-executors failed to join therein.
Defendant-appellee relies on Code of Civil Procedure, Article 3192 which provides in pertinent part as follows:
“If there are several succession representatives, all action by them shall be taken jointly . .
It is urged that since the action was not taken jointly, the single executor has no right to appeal and accordingly the appeal must be dismissed. We disagree.
Code of Civil Procedure, Article 3192 replaced Civil Code Article 1681. That article provided as follows:
“If there be several executors who have accepted, any one of them may act for them all, but they shall all be responsible in solido for the property subject to the executorship . . . ”
Under the interpretation given this article by the Courts, the act of a single executor bound the other executors and made them personally liable in solido even though they might not have agreed thereto or acquiesced therein. This even created the anomaly of having one executor sue another for improper administration of the succession property, secure a judgment against the co-executor on behalf of the succession, and end up with the judgment being effective against himself because of his solidary liability. Doriocourt v. Jacobs, 1 La.Ann. 214 (1846). It is obvious that this is the problem C.C.P. Article 3192 was adopted to alleviate.
The comments to C.C.P. Article 3192 support this conclusion. Comment (a) provides :
“With respect to the duties a,nd powers of multiple executors, Art. 1681 of the Civil Code provides that one of several executors has the power to bind the others, unless the testator has divided their functions. See Doriocourt v. Jacobs, 1 La.Ann. 214 (1846); cf. Allen v. Louisiana National Bank, 50 La.Ann. 366, 23 So. 360 (1898). The concept of Art. 1681 of the Civil Code has been rejected in favor of the system generally approved in the Model Probate Code, which is made applicable to succession representatives in general."
The concept which was rejected was the power of one executor to bind the others, or the power to make the other executors liable. Nowhere does C.C.P. Article 3192 reject the concept of one executor being able to act on behalf of the estate in the event the others refuse. He simply can no longer bind co-executors for his own malfeasance.
Comment (b) lends further support to this view. It provides that,
“b) Since the above article requires unanimity, it follows that unauthorized unilateral action would subject the offending representative to the penalty provisions of Article 3191, supra."
This comment recognizes that there might be instances of singular action on the part of one co-executor, and provides not that the action is necessarily void, but that the co-executor taking the action becomes subject to the penalties of Article 3191 which makes the co-executor personally responsible for all damages for failure to act as a proper fiduciary.
Thus the net effect of C.C.P. Article 3192 is to provide that the acts of one co-executor do not necessarily bind or make liable the others because the article requires unanimity. If a singular act is taken the executor taking the act becomes liable therefor, not the co-executors who did not take the action. Consequently, the single executor in this case has the right to perfect this appeal. However, this action is not binding on the co-executor in the event some detriment to the estate occurs therefrom.
We further note that Article 3196 of the C.C.P. gives to the testamentary executor all procedural rights enjoyed by a litigant.
The motion to dismiss the appeal is denied.
Dissenting Opinion
(dissenting).
I decline and respectfully refuse to participate in the disposition of this case on the merits because I am of the firm opinion that the motion filed herein by the ap-pellee, to dismiss this appeal, should be sustained.
Only Mrs. Patricia Gay Mydland, one of the testamentary co-executors moved for an appeal and only her attorneys signed the motion for the appeal.
Only Mrs. Patricia Gay Mydland, one of the testamentary co-executors, signed and filed the appeal bond herein.
Neither co-executor, Donald R. Chapman, nor his attorneys, appealed nor joined in the appeal.
We have been cited Art. 3192 of the Code of Civil Procedure, which governs this situation, and which provides as follows :
“If there are several succession representatives, all action by them shall be taken jointly, unless:
(1) The testator has provided otherwise, or
(2) The representatives have filed in the record a written authorization to a single representative to act for all.” Emphasis mine.
There is no question that the Legislature, by the enactment of this article, intended changing the law of this state with respect to the duties and powers of multiple executors.
Following Art. 3192 in the Code of Civil Procedure we find the following:
“Official Revision Comments”
“(a) With respect to the duties and powers of multiple executors, Art. 1681 of the Civil Code provides that one of several executors has the power to bind the others, unless the testator has divided their functions. See Doriocourt v. Jacobs, 1 La.Ann. 214 (1846); cf. Allen v. Louisiana National Bank, 50 La.Ann. 366, 23 So. 360 (1898). The concept of Art. 1681 of the Civil Code has been rejected in favor of the system generally approved in the Model Probate Code, which is made applicable to succession representatives in general.
(b) Since the above article requires unanimity, it follows that unauthorized unilateral action would subject the offending representative to the penalty provisions of Art. 3191, supra.” Emphasis mine.
It is clear from the above article and comments that unanimity of action is required by the. multiple executors unless the action complained of comes within the exceptions provided in Article 3192. The appellant herein has not shown where she acted under any such exceptions, and the appellee herein certainly has the right to raise the question on a motion to dismiss the appeal, if said appeal is not in order and the proper parties have not perfected this appeal.
Art. 3192 of the Code of Civil Procedure makes it abundantly clear that all succession representatives must act in unanimity and be of one mind, agreeing and being unanimous in approval, when it uses the words, “all action by them shall be taken jointly, . . It is evident therefore that since there is a lack of unanimity of the co-executors in the asking for this appeal it follows that there is likewise a lack of a right to appeal in this case.
The cardinal principle used in the application and construction of laws in this state is provided in C.C. Art. 13, which provides as follows:
“When a law is clear and free from all ambiguity the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”
Since the legislative intent is clearly expressed in C.C.P. Art. 3192 and the comments that follow it, we are bound to follow it.
Since there was only one co-executor who asked for the appeal and only one who signed the bond for said appeal and the case does not come under any of the exceptions provided for, we must hold that
For these reasons, I hereby dissent from the majority herein.
Opinion on the Merits
ON THE MERITS
This matter has been before us on one previous occasion, in a different procedural posture, but involving the same basic circumstances. See Guaranty Bank and Trust Company v. Quad Drilling Corporation, 268 So.2d 261 (La.App. 1 Cir. 1972), writs refused La., 270 So.2d 872 (1973), to which reference is made for a recitation of the background of this case.
The ill practice complained of herein arose out of the circumstances surrounding the drafting and execution of the judgment. According to the minutes, at the conclusion of the trial on May 17, 1971, the district judge directed Iddo Pittman, counsel for the bank, to draw up the judgment. He did so, and on May 18, 1971, forwarded the original and two copies thereof to the Clerk of Court, requesting that she present it to the judge for his consideration. Copies of the letter, accompanied by copies of the judgment, were forwarded to the three attorneys representing the two co-executors, and their comments invited. On May 25, 1971, the judge signed the judgment. No notice of the signing of the judgment was sent out. Counsel for the co-executors made no suggestions relative to the judgment until May 27, 1971, and did not learn of the signing on May 25 until about July 1, 1971. Counsel were then of the opinion that they could no longer take a suspensive appeal.
They were further of the opinion that the judgment prepared by Mr. Pittman and signed by the trial judge did not conform to the judgment rendered by the judge, which contention seems to be borne out by the record. In addition, they contend that the trial judge had directed Mr. Pittman to prepare the judgment, but had said he would not sign it until all counsel had approved it. The ill practice complained of is that Mr. Pittman prepared an improper judgment, and failed to submit it for their approval.
The transcript and minutes do not reflect anything except that Mr. Pittman was directed to prepare the judgment. They disclose no instruction to submit it to opposing counsel for approval. The trial judge, who testified as a witness herein, had no recollection of giving such an instruction, and testified that it was his practice to have the successful attorney prepare the judgment. Mr. Pittman testified that no such instruction was issued.
The trial judge found no ill practice and refused to annul the judgment. This holding must of necessity have been based on a finding that there was no instruction issued by the trial court to have the judgment approved before he would sign it. We find no manifest error in this factual conclusion.
The judgment appealed from is therefore affirmed, at appellant’s cost.
Affirmed.
