49 La. Ann. 407 | La. | 1897
Lead Opinion
On the Motion to Dismiss Appeal.
"The opinion of the court was delivered by
Appellant contends that he has paid the parties whose claims were opposed, and he is vitally interested himself in having their claims sustained. He calls our attention to the fact that the capacity in which he acted was as executor and not as administrator, and to the decision in the matter of the succession of Ames, 33 An. 1317, in which a distinction is drawn in respect to the questions raised in the motion as to his right of appeal between an executor and an administrator. He also directs our attention to the fact that, while the judgment is against him personally, it is also against him as executor.
This ease does not present the question of the right of an administrator or executor, who has filed an account or tableau of proposed payments on which he has placed certain parties as creditors, to appeal in his official capacity from a judgment of the District Court rejecting the claims on an opposition made to the claims, as being really succession claims. We have decided a number of times that if the parties aggrieved by the decision do not themselves appeal, it is no part of the duty of the administrator or executor to champion their rights. In this case the executor has already made, as executor, payment of the claims which were contested below, and it is the legality and correctness of such payments made by him which were litigated below. Under that phase of the question the executor had a direct official, and also personal, interest in sustaining the payments if he could.
The second clause of the motion to dismiss refers, we presume, to that portion of the judgment appealed from by which opponents were decreed “ to recover of James Heffner, individually and as late executor of the succession of William Heffner, the sum of ten thousand two hundred and thirty-eight dollars, being three-fourths of said balance (shown by the account filed), with legal interest from this date (date of judgment) until paid, and by which opponents were recognized as the legal owners of three-fourths of the real
The judgment from which the executor has appealed was one rendered upon an opposition filed to his'account as executor. It undertook to fix and determine the rights of the opponents to the funds in the hands of the executor, and to direct what disposition should be made by the executor. The executor had a direct official as well as personal interest in the subject matter of that judgment which carried with it a right to appeal from it. What issues can be legally raised and what legally passed on on this appeal, we can determine and declare after hearing. The motion to dismiss is overruled.
Opinion on the Merits
On the Merits.
The first item opposed is the payment of five hundred dollars by the executor to the firm of Wise & Herndon for attorney’s fees in defending the suit of Jackson Heffner et al. vs. James Heffner et al., in which the plaintiffs successfully attacked the will of William Heffner and had it set aside.
It is claimed on behalf of opponents that the instrument offered and probated as the will of William Heffner was so manifestly defective as such that it was scarcely permissible to have attempted to defend it — that its nullity was apparent on its face and the attorneys employed really made no serious defence and their labor was practically nothing.
It is insisted that the suit of Jackson Heffner vs. James Heffner et al. to annul the will was brought by legal heirs representing three-fourths of the estate of William Heffner, against James Heffner, individually and as executor, and against all the legatees under the will either by actual citation or through a curator ad hoc, and that when the defendants in the case employed counsel and defended the will they did so in their own interests, and that the attorneys engaged should be paid by James Heffner and the legatees who were really their clients.
In Sterlin’s Executor vs. Gros, 5 La. 100, it appears that one Philip Sterlin died leaving two instruments purporting to be his last
The District Court annulled the will and its judgment was affirmed on appeal. A question was raised in the Supreme Oourt as to costs-of suit. The court said: “The remaining question relates as to-costs. Plaintiff contends that -the estate should not be responsible-for them, as the will was not that of the deceased. We think it. ought. The costs were incurred in this case in consequence of the act of the testator and it was the duty of the executor to maintain the will.”
In Girard vs. Babineau, 18 An. 604, the plaintiff, an attorney at law, brought suit to recover a fee for professional services rendered the succession of which defendant was the administrator. The court said the claim was advanced by the plaintiff, relying upon the ruling in the case of Sterling vs. Gros, and as part of the costs incurred by the testamentary executor in maintaining the will. The claim was rejected. The report of the case shows that the deceased,- Marguerite Babineau, had left as a will an act under private signature, in which.she bequeathed to one Nareisse De Blanc several slaves, and appointed him her testamentary executor. The plaintiff, acting as the attorney of De Blanc, filed a petition praying for the probating and homologation of the will and for letters testamentary. The heirs at law filed an opposition to the homologation of the will, alleging its nullity. Notwithstanding the opposition, De Blanc, claiming to be executor under the will, filed a petition for an inventory, and afterward another for the sale of the property.
The heirs at law then instituted a direct action against the legatees under the will to have the same set aside. In that action De Blanc was not sued in his capaacity as testamentary executor, but as one of the legatees. Plaintiff (Girard) filed an answer for De Blanc; other attorneys appeared for the different legatees, and thus issue was joined between the heirs and legatees. The will
The court allowed, however, as costs, seventy-five dollars for petition for probate of the will and ten dollars for the inventory, which was declared to be a conservatory act for the benefit of both the heirs and the legatees.
It does not appear from the opinion that the will ever went to •probate.
In Succession of Hasley, 27 An. 587, it appeared that David Hasley, the deceased, left a will, by which he gave the usufruct of all his property to his widow during her life, and appointed her his executrix. The will was probated, and Mrs. Hasley was confirmed as testamentary executrix. The heirs of Hasley then sued to have the will annulled, and by a judgment of the Supreme Court the will was held to be valid. The heirs then sued to reduce the legacy to the disposable portion and for the rendition of an account and a partition. There was judgment, reducing the disposition in the will and ordering an account. An account was filed and various oppositions were made among these was one against the fee for defending the suit in which the validity of the will was attacked; also the fee for defending the suit to reduce the legacy to the disposable portion and for an account. The former of these two oppositions was rejected, the court holding it was properly chargeable to the estate. In sustaining the second opposition, the court said: “ The testator having left no forced heirs, the executrix might have learned from any member of the bar that the bequest of the usufruct of the whole of his property was reducible, and there was no necessity for defending such a suit — at least, by the executrix. If the legatee chose to defend it, she should pay a reasonable fee; it was not a proper charge against the estate.”
In the present succession (that of William Heffner) the will of the deceased was actually probated, and the executor named therein actually qualified. The plaintiffs in the suit of Jackson Heffner et al. vs. James Heffner et al. brought him into court in his official capacity
The second item opposed is the charge made against the estate by the executor for costs paid by him in the defence of the suit of Jackson Heffner vs. James Heffner, Executor, et al.
Opponents elnim that the judgment of this court in that suit on appeal definitively settled that question adversely to the right of reimbursement claimed by the executor. Our judgment was: “The judgment of the lower court is affirmed with costs.” The judgment affirmed condemned the defendants in that cas ein solido to pay the costs; the defendants were James Heffner, individually and as executor, and the various persons named as legatees in the will. The judgment relieved the plaintiffs in that case, as such, from the responsibility for costs, and authorized them to charge the estate itself with any amounts paid out by them for that purpose. It, however, charged the estate represented by James Heffner to pay solidarily with James Heffner individually, and the other legatees who were defendants in the suit, the costs of suit. Parties holding claims for costs were entitled to recover from the executor, as well as from the other parties, and if, in point of fact, the executor paid the accounts he is entitled to credit for the same. Opponents who, as plaintiffs, were entitled to reimbursement for amounts paid out by them for costs primarily, and who, as plaintiffs, were relieved from any direct liability to the executor for unpaid costs paid out by him, have indirectly, as heirs at law, to take their share in the succession, lessened by the amounts of the costs paid by the executor. James Heffner, individually, will have, indirectly, to pay his share of the costs as an heir.
Opponents, as plaintiffs in the suit of Jackson Heffner et al. vs. James Heffner, Executor, et al., considered the executor as the
The next item opposed was a claim advanced by the executor to be credited with one thousand dollars paid to Jackson Heffner’s sons —two thousand nine hundred and twenty-one dollars and fifty-one cents to Mrs. Mary Wellborn — a like amount paid to Mrs. Ollie Akard and a like amount paid to Mrs. Laura Booth.
We think the District Court ruled correctly in rejecting these claims. The parties to whom payment was made were named special legatees in the will which was annulled. The payments were made without order of court and at the executor’s peril.
The executor complains of that portion of the judgment by which opponents are decreed to recover against himself individually and as executor “ the sum of ten thousand two hundred thirty-eight dollars and fifty-six cents as being three-fourths of the balance in the hands of the executor with interest, and further recognizing them as owners of three-fourths of the real estate described in the inventory, with the right to sue for a partition of the same, and to demand in said proceeding the collation of what sum may be due them by James Heffner, the owner of the remaining fourth, reserving their right to execute their judgment.” He contends that though he consented that the decree in the case should be rendered (as it was) at
He also contends that he was before the court only as an executor rendering an account — that he was not individually and personally responsible to opponents for any amount which might be coming to them as heirs in the succession and could not be condemned to pay the same. That Art. 993 of the Code of Practice and the decisions of this court in Dupuy vs. Dashiell, 16 La. 126; Wells vs. Roach, 10 An. 343; Stevens vs. Stevens, 13 An. 416; Succession of Philbrick, 18 An. 220; Succession of Comstock, 44 An. 429, shows the circumstances under which an executor may become personally liable.
At the time the account which is opposed was filed, James Heffner was no longer executor of .the succession of his brother. He ceased to be such when the judgment annulling the will became final; when the plaintiffs in that suit afterward went into the succession of Wm. Heffner in the District Court for Caddo and ruled James Heffner as executor to file his account, and in obedience to orders of court the account was filed, it was that of one, not who was, but who had been the executor of an estate. The plaintiffs none the less treated him as an executor, and so dealt with him, bringing him into court by rule and objecting to the account by oppositions. Heffner, personally, was not before the court. Opponents are mistaken in their amended opposition in stating that accountant proposed in his account to make a distribution of the assets of the succession— three-fourths to opponents and one-fourth to himself. He simply made a statement showing the assets of the succession in his hands on one side and the credits to which he claimed he was entitled on the other, without any intimation or claim as to how the assets should be distributed. • In the suit of Jackson Heffner vs. James Heffner the present opponents had, as plaintiffs, been contradictorily with James Heffner individually and as executor recognized and decreed to be the legal heirs of William Heffner and entitled as such to three-fourths of his succession, and they had in the same judgment succeeded in obtaining a judgment that they be placed in possession. That judgment became final long ago independí
When the lower court after the account was filed and the oppositions had been made and tried, rendered the decree it did, matters were substantially in the situation called for by Arts. 1000, 1001, 1002, 1003, 1004, 1005, 1006 and 1007 of the Oode of Practice, with the sole exception that the proceedings commenced with a rule instead of a petition and that movers in rule were already recognized as heirs and then held a judgment ordering them to be put in possession of three-fourths of the estate. Accountant made no objection on the score of the manner in which he was called into court, but rendered an account as directed.
What are the provisions of Art. 1007 of the Oode of Practice in relation to the judgment proper to be 'rendered on the homologation of the final account? The article declares that “if from a scrutiny of the account, the curator or executor shall appear to owe a balance he shall be sentenced to pay it to the heirs or other claim - ants, with interest, from the day of judgment.”
Article 1057 of the Code of Practice declares that “ if the curator, testamentary executor or administrator refuses or neglects to pay the amount for which judgment has been rendered in one of the modes pointed out in the preceding articles, or if he fails to prove that he has no funds in his hands, the party in whose favor the judgment was rendered may take out execution against him, under which his property to a sufficient amount to pay debt shall be seized.”
Appellant seems to apprehend that the judgment rendered in the present suit means something other and different from that which is contemplated in Art. 1056 of the Code of Practice. We do not so understand it. If the parties holding the judgment were to place a wrong construction upon its scope and effect and proceed to enforce
Accountant does not pretend to have any claims against the succession or against his co-heirs — he does not pretend that their rights ns heirs are subject to deduction from any cause or that there is anything requiring a partition. As we understand matters the opponents in this case constitute with accountant himself all the legal heirs of the deceased. Accountant has in his hands a certain sum of money which calls for a division or a distribution rather than a partition. Rachal vs. Rachal’s Heirs, 10 La. 458.
We see no reason why opponents should not to the extent of their recognized rights receive present payment. It will be practically a provisional partition of funds to be followed by a definitive partition when the real estate is disposed of. Opponents are entitled to be paid presently three-fourths of the balance of the “funds” on hand after accountant shall have received the credits to which he is entitled, with legal interest from date of judgment of the District •Court until paid, costs of both courts payable out of the succession funds.
We restate the account as follows:
debits.
Real estate as shown by inventory................................................................. $1,020 00
Notes inventoried.................................................................................. 8,S40 07
Note Sam Sutterfield (not inventoried)........................................................... 2,300 00
Cash on hand as shown by inventory.............................................................. 2,707 07
Total to be accounted for........................................................................ $14,867 14
Credits.
Real estate remaining on hand......................................................................... $1,020 00
Funeral expenses ánd doctor’s bill.................................................................. 161 00
R. J. Looney, attorney’s fee............................................................................... 25 00
F. A. Leonard.................................................................................................. 9 65
Transcript in suit of Heffner vs. Heffner...................................................... 32 00
Wise& Herndon, attorney’s fees..................................................................... 300 00
Amount paid tor brief.................................................................................. 5 00
Deposit in Supreme Court.............................................................................. 20 00
Total credits................................................................................................ $1,572
RECAPITULATION.
Debits..................................................................................................................$14,867 14
Credits.............................................................................................................. 1,572 65
Balance....................................................................................................... $13,294 49
Three-quarters of balance............................................................................... $9,970 86
