Succession of Clew

18 La. Ann. 229 | La. | 1866

Iusi/ey, J.

In the final account oí administration of the aboye succes-

sion, rendered by the testamentary executor, on the 19th August, 1864, 'the claim of the succession of the late Samuel Broom, is thus inscribed :

•“ Succession of the late Samuel Broom by judgment of the Second District Court (No. 6,369) rendered 21st June, 1853, against the deceased, and affirmed by the Supreme Court, on the 13th June, 1855.. .$4,403 55

Less the amount of a judgment rendered by the same Court (No. 5,931) on the 28th June, 1853, in favor of deceased, and against the heirs of the said Samuel Broom, for the sum of $1,318 30, but reduced by the Supreme Court on the 13th June, 1855, to $1,258........................... 1,258 00 — $3,145 55

.Interest thereon at six per cent, per annum, from first January, 1850, until paid, say up to 30th September, 1864, fourteen years and three months.... 2,783 78

Cost of No. 6,369; Clerk $75 75; Sheriff $31 65;

Supreme Court $22 80, together................ 130 20

Defendant’s writs, No. 5,931; Clerk $45 43, Sheriff $14 20...........................,............ 59 63 70 57

$5,999 90

Opposition to the compensation claimed against the judgment in favor of the succession of Samuel Broom, was made by the testamentary executor of his last will, who claims the whole amount of the judgment in the suit $6,369 in favor of his predecessor, G. L. Broom.

The opposition was dismissed in the Court below, and the reasons assigned for the dismissal are thus stated by it. George L. Broom, as executor of Samuel Broom, recovered judgment for the sum of $4,403 50, and costs against the deceased. The deceased (Mrs. Elizabeth Clew) recovered judgment against George L. Broom, and all the heirs and legatees of Samuel Broom, in the sum of $1,318 31, reduced to $1,258. One suit is styled “ George L. Broom, Executor, v. Elizabeth Clew and Husband;” the other, “Elizabeth Broom, Wife of Clew, v. Geo. L. Broom, Agent.”

We are unable to perceive any material difference between any executor acting in such capacity or in the capacity of agent of all the heirs and legatees.

On the trial of the opposition (p. 47 Bee.) certain evidence was adduced, to wit : the record in the suit No. 6,369, Broom, Executor, v. Clew and Husband, and also the record of the suit No. 5,931, Mrs. Clew v. the Heirs of Broom, also the record in the Succession of Samuel Broom; and none of this testimony is extant upon the record of this suit, although the Clerk of the Court below certifies it to be complete.

In the ease of Harris v. Hays, 8 A. 433, the Court observed : “The appellant, whose duty it was to bring up all the evidence, cannot profit by his own wrong, to have the judgment reversed to the prejudice of the other party. Nal prendra avansage de son tort demesne. ” It was the duty of the appellant to suggest at the proper time a diminution of the record in the defective transcript. Gilloutel v. Marcelin, 7 A. 442; Levy v. Weber, 8 A. 439.

It is therefore ordered that the appeal be dismissed, at the costs of the’ appellant.