48 La. Ann. 578 | La. | 1896
The opinion of the court was delivered by
This appeal is by the administratrix of the succession of Gustave P. Blancand and the tutrix of his minor child from the
The deceased died insolvent. The account exhibits assets amounting to four thousand one hundred dollars and debts to a greater amount. The property left by the deceased was mainly a stock of groceries, the sale of which produced the fund for distribution to her creditors.
Gustave P. Blancand, the husband of Josephine, died in 1891, leaving children, on behalf of one of whom, a grandson, the opposition is filed. Gustave P. Blancand was the proprietor of a grocery, the stock of which was all he left at his death. It is proved he died insolvent. There was no administration of his property, his widow continued the grocery until her. death with the result of á remnant of stock insufficient to pay her debts as exhibited by the account, the subject of this appeal.
It is under these circumstances that the administratrix of Gustave P. Blancand and tutrix of his minor child claim by the opposition to be placed on the account of the administratrix of Josephine M. Blancand for the one-half of the proceeds of sale of her stock of goods to the exclusion of her creditors.
The theory of the opponent is that the stock of groceries of Gustave P. Blancand, as it stood in 1891, is to be deemed still in existence and represented by the stock possessed by Josephine M. Blancand when she died in 1894. The stock of Gustave P. Blancand has been consumed. His widow, continuing his business since 1891, used the stock of 1891 in daily sales and replenished her supplies from time to time, until her death. We are asked, because of this continuance of the business by the widow in the same store occupied by Gustave P. Blancand, and replenishing of her stock as required by the needs of her business, to sanction the fictitious existence in 1894 of the groceries in 1891, in the store when Gustave P. Blancand died. On this legal fiction that the stock of Josephine Blancand is the stock long since consumed of her husband, and of the community between them, dissolved by death, it is claimed that one-half the funds on the account should be awarded to the administratrix of the husband and to the tutrix of the minor child, and this result is insisted upon, notwithstanding it takes from the creditors of Josephine the fund to pay them, derived, doubtless, from the groceries sold to her by the creditors.
We have considered the contention that there was the good will of the grocery of Gustave Blancand, part of his estate in 1891. No such asset was ever sold. If it existed, it passed to Mrs. Blancand with the business to which she succeeded in 1891. It is claimed that the good will of this same grocery added to the sale of the stock she left at her death in 1894, hence must be deemed to have been equally valuable in 1891. It is quite certain that this supposed good will had long since ceased to be an entity, if it ever existed. It surely is not represented by the proceeds on this account. If an asset in 1891, Mrs. Blancand had the benefit of it at her husband’s death, and if liable to the minor for it, the claim vvas a debt due to her minor child. We can perceive no basis to award the minor a portion of the funds on this account, because of the good will claimed to have existed in 1891.
The demand asserted by the administratrix of Gustave Blancand and as tutrix of her minor child is for property of Gustave Blancand, claimed to be in the possession of the administratrix of Mrs. Josephs ine M. Blancand. We have examined the ground of the demand in deference to the earnest argument addressed to us. But in our view no such demand has any place in an opposition to the account of the administratrix of Mrs. Blancand. If there was the basis for
We have given attention to all the phases of the elaborate argument for the opponent, but the views announced dispose of the controversy.
It is therefore adjudged and decreed that the judgment of the lower court be affirmed with costs.