12 La. 73 | La. | 1838
delivered tbe opinion of the court.
The defendant is appellant from a judgment which reduces his commission as executor of the plaintiff’s ancestor, and a charge which he made for the services rendered by a notary to the estate. \
The plaintiffs and appellees seek the amendment of the judgment, so as to have their opposition to several items in the executor’s account sustained.
I. The commission was reduced on the suggestion of the plaintiffs, that “no commission should he allowed upon the appraised value of the property unsold, nor for the amount of debts not collected.” The court, in our opinion, erred. The Louisiana Code, 1676, provides that “ an executor who has had the seizin of all the estate of the succession, whether he were charged to sell it or not, shall be entitled for his trouble and care, to a commission of two and a half per cent, on the whole amount of the estimate of the inventory, making a deduction for what is not productive, and for what is due by insolvent debtors.” The testator ‘ appointed the defendant detainer of his goods, without any exception; detenteur de mes biens. 1653- He was, therefore, entitled to hiscommis,sion on the unsold part of the estate, and on the uncollected debts, as it does not appear that any of these were due by insolvent debtors.
II. The charge for the professional services of the notary, was correctly reduced. We refrain from examining-whether it ought not to have been absolutely stricken out, because the appellee has not required this to be done. >
It was grounded on the account produced by the notary, in which the estate is charged for the “inventory, copies, (démarches,) steps taken, acts of delivery made and to be made for the said succession, three hundred dollars.”
Objections having been made to this account because it did not detail the services rendered, the notary amended it by writing in the margin, “will and copy,.inventory and copy,,including the examination of a great number of papers, three acts of deliverance of legacies and copies, one dollar and fifty cents for each signature, certifying the papers in
If this gentleman be correct in what he last stated, his testimony presents the most melancholy and deplorable evidence of the depravity of the receivers and keepers of the ' muniments of our titles that was ever exhibited to a court of justice. It is the first time that we have official knowledge of it.
As we are informed that notaries disregard the tariff in succession matters, we must consider this affirmative as pregnant with a negative, to wit: that they do not disregard it in other matters. But 'it is difficult to discover on what grounds the disregard is viewed by them as justifiable in these matters.
In the case of Pain vs. Plique et al., 10 Louisiana Reports, 318, one of the notaries who has been examined as a witness jn t[ie present case, deposed, that an act which purported to r 7 r 7 1 \ have been signed in his presence and that of two witnesses, had been signed out of the presence of any witness. We would then have exercised the power apparently vested in this court, to suspend him, had we not been clearly of opinion, that the legislature had not the right of vesting such power hr us, as it could not have been exercised without citing and hearing the notary, contradictorily with the prose-D , . . .. , , cutor for the state, and passing judgment on him, which would have been an act of original jurisdiction, violating the constitution of the state, which provides that “ our jurisdiction shall be appellate only” 1 Moreau’s Digest, page 18. That case was one of gross negligence only, but not attended with any the least degree of turpitude either in the notary or the persons who employed him. The testimony in this case, relates to acts of legal and moral turpitude. We are told, that for the sake of sordid lucre, notaries live in daily breaches of their oaths of office, and the exercise of acts of extortion
Public officers must refrain not only from demanding, but even from receiving greater fees than are allowed by law. The excess is an ill-gotten prey, which they are legally and morally bound to return ; and courts of justice must frown on those who seek it. The heart of an officer cannot be supposed to be long pure, when his hands have ceased to be clean. The judge was without any legal evidence of the value of the notary’s services, which could only be properly ascertained by a resort to the tariff. He could not allow any thing to the notary except on a detailed statement of every thing which he had done for the estate, and a reference to the tariff for the legality of his charges.
The plaintiffs and appellees made opposition to three items in the executor’s account. The charge of a fee to the attorney appointed by the court to, represent absent heirs ; that for the delivery of extra legacies; lastly, of a double legacy to each of the legatees, A. and S. Lefebvre.
I. The executor had charged seven hundred and fifty dollars for the fees of the attorney. The court reduced the item to five hundred dollars, a sum which was sworn to be reasonable by three other attorneys, who deposed that the customary charge for the attorney for absent heirs was one-half of that of the attorney of the estate.
It is contended by the appellees that an attorney was improperly appointed to the absent heirs; for it is not alleged, neither does it appear that there were any such heirs. The testator declared that he never was married, and that both his parents were dead. It is further urged that the Court of Probates ought to have required a statement of the particular services for which remuneration was sought; evidence of their having been rendered, and of their value. The counsel
The Louisiana Code, 1204, authorizes the appointment of an attorney to absent heirs, on the opening of a succession, of which the heirs or part of them are -absent, and not represented in the state. Hence it appears, that the legislature does not authorize .the appointment of an attorney to absent heirs, in every case. When the court is required to make such an appointment, it ought to demand proof of the fact which authorizes its action : de non appareniibus et non existentibus eadem est lex. When’there is an authentic will, the heirs named therein must be presumed to be the legal heirs," even when the testator has not stated that he has no forced heirs, for they are entitled to the possession of the estate, unless it be claimed by a forced heirr nay, such heirs, if there be any, cannot claim the will to be annulled, but are only entitled to require that the testamentary disposition should be reduced so as to leave them their legitime; and the court cannot refuse possession of the estate to the testamentary heir, unless upon the opposition of one claiming as forced heir.
The Court of Probates was without any legal evidence of any particular service rendered by the attorney. The witnesses testify • only to their belief, but not of their knowledge.
It cannot be assumed, that the attorney of absent heirs is to be compensated by one-half of the sum allowed to the attorney of the estate. If the former does his duty, his office generally expires shortly after his appointment, as the
II. The plaintiffs oppose an item of twelve dollars and fifty cents for the expenses of delivering a legacy; the fee of the notary in drawing an act for the discharge of the executor. It appears to us the item ought to have been rejected, as it must be presumed to have been included in the charges allowed to the notary.
III. The testator left two wills; in the first he bequeathed to A. and S. Lefebvre a sum of five hundred dollars each, with a proviso, that if only one of those legatees survived him, he should have both legacies, i. e., one thousand dollars. In the second will, the same legacies are made to these individuals, but the jus accrescendi is omitted. We are of opinion, that the Court of Probates erred in sustaining the legacies claimed to both bequests; for we consider that in the second will, as a repetition of the one in the former, modified only by the omission of the jus accrescendi in the latter, which leaves it at least doubtful whether the testator intended a double legacy to each legatee. The Civil Code, 1710, provides, that “if it cannot be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least.”
It is, therefore, ordered,, adjudged and decreed, that the judgment of the Court of Probates, be annulled, avoided and reversed, and proceeding to give such a judgment as in our opinion ought to have been rendered in that court; it is