104 So. 119 | La. | 1925
This is an appeal from a judgment appointing a testamentary executor *371 to administer a succession. The only question is whether there was any necessity for the appointment.
Mrs. Eliza Roy Comeau, a widow, died on the 12th of August, 1924, leaving as her heirs at law two sons and a daughter, all of age. The estate of the deceased is appraised at $46,747.10, consisting of $38,249 of real estate and $8,498.10 of movable property. The real estate consists of a cotton plantation valued at $35,822.80 and two tracts of woodland, one valued at $1,646.20 and the other at $780.
The deceased left a will, in which she gave only two legacies, one for $800 and the other for $50. She directed that the rest of her estate should be distributed among her heirs according to law. She did not appoint an executor.
She owed debts amounting to $2,876.74, besides the expenses of the last illness and funeral expenses, and the taxes amounting to $765, which would soon be due. She had $333.60 in bank, to which was added $650.46 before the judgment was rendered, appointing the executor.
The plantation was cultivated by tenants — 12 families; some of them paying a third and others half of their crops of cotton, corn, and potatoes as rent. The crops were ready for harvest, in fact the harvesting had commenced, when Mrs. Comeau died.
The elder son, an assistant cashier of a bank, who was already managing his mother's affairs, made application to be appointed executor, alleging that there were debts to be paid, crops to be harvested and marketed, and settlements to be made with the tenants on the farm.
The brother and sister of the applicant opposed his appointment, averring that they accepted the succession unconditionally and without the benefit of inventory; that the estate could be divided in kind; that there was no necessity for an administration; and that the appointment of an executor to *372 administer the estate would therefore impose a useless expense upon them. The brother averred that, if the court should deem it necessary to appoint an executor to administer the estate, he would perform the services without compensation; that he had had 25 years of experience managing the plantation, and would furnish bond for the faithful performance of the duties of executor or administrator.
On the petition of the applicant for appointment as executor, the judge appointed him temporary "guardian and keeper" of the estate, with authority to harvest and market the crops and to make settlements with the tenants.
On the 4th of October, the opponents filed a supplemental opposition, averring that the crops of cotton, corn, and potatoes had been gathered, and that the succession's share was worth more than $5,000, which would more than pay the debts of the succession. They prayed that the crops should be ordered sold and the debts paid.
It is conceded, at least it is not disputed, that the applicant in this case is legally entitled to the appointment of executor or administrator, in preference to either of the opponents, if an administration of the succession is necessary. No authority has been cited for the proposition — and we are not aware of any such provision, although it might be a wise provision in the law — that an heir to a succession can prevent the appointment of another heir as administrator or executor by offering to perform the service without compensation.
The learned counsel for appellants admits in his brief that district judges are allowed much discretion in the matter of appointing executors and administrators, and that their decrees in that respect are not often reversed on appeal. The learned counsel argues that the judge abused his discretion in this case. We are not convinced of that. Although it seems to us that the three heirs to this succession ought to have agreed to accept it unconditionally and save the expense of an administration, we do not see how the district judge could have compelled them to do so, when the succession owed debts, and the plantation had to be administered by some one in authority.
We do not rest our decision in this case upon the opinion that, under article 1047 of the Civil Code, every heir to a succession has the right to impose the expense of an administration upon his coheirs, even though the succession owes no debts and there is no necessity for an administration, by arbitrarily declining to accept the succession unconditionally, or without the benefit of inventory. That seems to have been the interpretation of article 1047 in several decisions. See Girod's Heirs Legatees v. Girod's Executors,
Article 1047 of the Civil Code declares:
"If there be several heirs to a succession, some of whom have accepted unconditionally, and others claim the benefit of the term for deliberating, the judge of the place where the succession is opened shall, notwithstanding, cause an inventory to be made of the effects of the succession, and shall appoint an administrator to manage them, until a partition of the same be made among the heirs."
Article 976 of the Code of Practice declares:
"During the time allowed for making the inventory and for deliberating, the judge shall appoint an administrator to retain the property, if any of the creditors of the succession shall require it, and in making such appointment he shall prefer the beneficiary heir; such administrator shall give good and sufficient security, in the same manner as curators of vacant estates and absent heirs, unless the said administrator shall prefer giving such security by a special mortgage."
The word "retain" in the expression, "the judge shall appoint an administrator to retain the property," was "détenir" in the original or French text, which, in law phrase, according to all of the lexicographers, means to hold in one's custody for another. The intention of the writers of article 976 of the Code of Practice was that the administrator, whom the judge was required to appoint if a creditor demanded it, during the taking of the inventory, would be merely a detainer or keeper of the property until, at the end of the term for deliberating, it should be decided *376
whether this detainer or keeper should turn over the property to the heirs or go on and administer the estate. The declaration in the Code of Practice that the judge shall appoint an administrator to retain, or detain, the property, if a creditor of the succession shall require it "during the time allowed for making the inventory and for deliberating," does not exclude the idea that the judge cannot appoint an administrator, unless a creditor of the succession does require it. In fact, it was said in the Succession of Story, supra, that a case might arise requiring the appointment of an administrator for a succession that owed no debts, and therefore had no creditor to demand the appointment of an administrator. The statement was repeated in the Succession of Graves, 50 La. Ann. 435, 23 So. 738, and in the Succession of Bulliard,
Our analysis of the divers and diverse decisions on this question, of the right of the judge to appoint an administrator when one of the heirs accepts the succession unconditionally and another claims the benefit of inventory, shows that the court has not always regarded either article 1047 of the Civil Code or article 976 of the Code of Practice as laying down a hard and fast rule. The court has been disposed to judge each case by its own peculiar facts, deferring largely to the judgment and discretion of the district judge. We do not find that he abused his discretion in this case.
The judgment is affirmed. *377