Soye v. PriceSoye v. Price
The opinion of the court was delivered by
The only question urged in this Court, is as to the jurisdiction of the Sixth District Court, parish of Orleans, so far as relates to plaintiff’s demand against the minors Alice and Frank Nairne, represented by their naturаl tutor, George L. Nairne.
Mrs. Amelia Nairne, wife of George L. Nairne, during her life borrowed $2500 from the plaintiff and, with the authority of the Court, executed a special mortgage to seсure it. She died leaving three minor children ; one, Miss M. A. Price, by a previous marriage, and the two named by the marriage with George L. Nairne. Miss Price was soon after emancipated and dispensed from attainment of majority. George L. Nairne caused an inventory of his deceased wife’s estate to be made and qualified as natural tutor of his two minor childrеn. He applied for, and upon advice of family meetings, obtained authority from the Second District (Probate) Court, to enter into an arrangement with plaintiff on behalf of said minоrs — Miss Price joining him therein — for an extension of time on said debt; and in order to pay the interest thereon in advance, and taxes and insurance due upon the property of thе estate, he obtained authority to mortgage on behalf of said minors, joined by Miss Price, certain other property of the estate to amount of one thousand dollars. These arrangements were all carried into effect —the interest paid, debt extended and additional mortgage executed In his applications for these orders, the tutor represents that the revenues of the estate were barely sufficient, under the existing depression, to maintain the children, and that it was to their evident interest that the propеrty of the estate should not be forced to a sale. There is no doubt, and we believe no dispute, that the tutor, and the (emanci
“ The case is different when such estates are in the possession of heirs, either present or represented in the State, although all or some of those heirs bo minors ; for in such cases the actions for debts due from such successions shall be brought before the ordinary tribunals, either against the heirs themselves, if they be of age, or against their curators, if they be under age or interdicted. ”
In
In Martin vs. Cannon,
A similar doctrine was hold in Swin vs. Gordon’s succession. 25 A 221 and 231 — also
But the defendant contends that minors being of necessity beneficiary heirs, can not have technically a legal .pоssession of the estate until there has been an administration thereof and that administration is terminated.
He cites in support of this proposition a series of decisions, cоmmencing with Ingram vs. Ingram, 3 N. S. 371, where it was held that heirs of age and who receive an estate purely and simply may be sued in courts of ordinary jurisdiction. Also,
So in
“Art. 996, C. P., applies to estates accepted absolutely, or those which having been administered by a curator, etc., have come into possession of the heirs. If they bo all of age, and accept unconditionally, they are immediately put in possession, and are suable before the ordinary tribunals for their virile portion of the debts as if contracted by them. If somе of them be minors the succession can not be accepted 'by, nor for them, but with benefit of inventory.
“ When thus accepted it can not be partially administered but must bo placed under an administrator, and no part comes legally into their possession as heirs, until the administration be terminated, or a partition be legally made among them. ”4 R. 20 , 412 ;7 R. 24 ;17 L. 109 ;13 L. 379 .
It may, therefore, at least be said that all the decisions are uniform to the effect that where the heirs, whether pure and simple, or beneficiary, are legally in possession of an estate, they may be sued for its debts, in courts of ordinary jurisdiction. So that the controversy narrows itself down to this: Can benеficiary heirs, (minors are always such,) come legally into possession, without the estate having been previously fully administered and liquidated ?
Notwithstanding the numerous authorities cited by counsel of defendants, from our earlier reports, we think it is now well settled that minors (who are beneficiary heirs of necessity) may come lawfully into the possession of the estate of their deceased parent without there having been any previous administration thereof. In
In Monget vs. Penny
These cases clearly recognize the right of the natural tutor of the minor heirs of the deceased spouse, in the absence of opposition, to take
But as an original proposition, and aside from these decisions, we think that a fair interpretation of Art. 996 itself shows that minors and beneficiary heirs may come into possession beforo the estate “ has been fully administered and liquidated.” When an estate has been fully administered and liquidated, there remain no “ debts due from the succession.” Why, therefore, does the Article speak of suing beneficiary heirs before the ordinary tribunals, “fоr debts due by the succession,” if such estate can not come into tlieir possession until these debts are all paid ? The very fact that the Code gives a right to sue them for such debts, when they are in possession, shows conclusively that they can obtain possession before these debts are paid and, thoroforc, before the estate has been “ fully administered. ”
The true doctrine is this — that successions accepted under benefit of inventory should and must bo administered where the creditors or heirs of age require it. But if no such demand fоr administration is made, the natural tutor of the minor heirs of the deceased may, as such, take possession and administer their interests therein, and that any creditor of the deceased may, under Art. 996, bring suit for their debts against the tutor in the courts of ordinary jurisdiction.
The well established jurisprudence under Arts. 65 and 66 of the Code of Practice confirms us in these views. Had the creditor in this case proceeded via executiva instead of via ordinaria, there being no administrator, his right' to proceed, contradictorily with the tutor to enforce his mortgage can not be doubted. Again Art. 1671 of Revised C. C. gives the heirs, without qualification, the right when the estate is in the hands of executors to take possession, on tendering the amount of the movable legacies and giving security to creditors, as provided by Art. 1012. See Swin vs. Gordon above cited. We think, therefore, that the minors in this case were in the legal possession through their natural tutor.
We conclude, therefore, that the exception to the jurisdiction of the Sixth District Court was properly overruled, and as no other defenses are urged, and as we see no error in the judgment appealed from, it is affirmed with costs.