372 So. 2d 740 | La. Ct. App. | 1979
Lead Opinion
Appellant, Edward G. Koch, Jr., has appealed a judgment setting aside his appointment as sole administrator of the Succession of Edward G. Koch and naming him and his brother Martin R. Koch co-administrators of the estate. Appellee, Martin Koch, expresses his displeasure at this arrangement in brief, but does not seek modification of the joint appointment.
Edward G. Koch died May 22, 1978 and on June 1, 1978 his son Martin filed a petition in Civil District Court for the Parish of Orleans under C.C.P. art. 3091, requesting notification of any applications for appointment as administrator of this estate. C.C.P. art. 3093 requires the applicant for appointment as administrator to notify the party designated in the petition for notice of the date and hour assigned by the court
The following day, June 2, 1978, Martin R. Koch petitioned to be appointed administrator and the court signed an order directing letters of administration issue to him on complying with the requisites of the law.
On June 13, 1978 (the day following the 10-day qualifying period), appellant, Edward G. Koch, Jr., filed a motion to revoke the appointment of Martin R. Koch for his failure to qualify as administrator of the succession within 10 days after his appointment and to appoint mover as administrator of the succession. On the same date the court summarily issued an ex parte order removing Martin Koch as administrator and appointed Edward G. Koch, Jr., in his stead. The court is empowered under C.C.P. art. 3181 to revoke the appointment of an administrator who fails to qualify within 10 days of his appointment; however, the procedure for removal of an administrator is prescribed in C.C.P. art. 3182, which mandates a contradictory proceeding. It therefore follows that the ex parte removal of Martin Koch was improper.
On June 16, 1971 (some three days later), Martin Koch filed a motion to set aside the appointment of Edward Koch, Jr., and to be reappointed. The basis of this motion was two-fold: first, the ex parte removal of Martin was improper; and second, Edward, Jr., failed to comply with the request for notice to Martin of his application as administrator. When this rule was heard, the trial judge appointed both brothers as co-administrators.
We affirm this result. The sworn list of this succession’s assets and liabilities reflects a gross estate of $471,187.84 and total liabilities of $99,779.76, or an approximate net estate before taxes of $371,408.08.
Appellant and appellee both have a substantial interest to protect and obviously are unwilling to turn over the administration to the other. (Parenthetically we note that the liquidity of this estate and the form of its assets suggests that an administration might be superfluous.)
If any appointment is procedurally questionable, it is that of Edward, Jr., who had his brother removed on an ex parte order and who further failed to comply with the notice request filed by Martin.
Martin’s reluctant acquiescence in the co-appointment obviates our need to review the judgment to decide whether Edward, Jr., should have been removed. As to Martin, his failure to appeal or answer the appeal makes the judgment final.
For the reasons assigned, the judgment appealed from is affirmed. All costs incurred in presenting this appeal are to be paid by Edward G. Koch, Jr., individually, not by the estate.
AFFIRMED.
REDMANN, J., dissents with written reasons.
Dissenting Opinion
dissenting.
The text of La.C.C.P. 3181 is express:
If a person appointed or confirmed as succession representative fails to qualify for the office within ten days after his appointment or confirmation, on its own motion or on motion of any interested person, the court may revoke the appointment or confirmation, and appoint another qualified person to the office forthwith. (Emphasis added.)
That text gives the court discretionary power to revoke and appoint “forthwith”, and “on motion”.
The immediately adjacent art. 3182, on removal of an already-qualified succession representative, in contrast to art. 3181’s “on motion . . the court may revoke ”, provides an understandably different procedure: under art. 3182 “[t]he court on . motion may . . order the succession representative ... to show cause why he should not be removed . . . ” (emphasis added). Art. 3181 authorizes the court to revoke (and appoint) while art. 3182 only authorizes it to order to show cause.
West LSA-C.C.P. vol. 11, Form 889a, n. 1, for C.C.P. 3181 proceedings, agrees:
It is not necessary that this proceeding be by contradictory motion.
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Normally, an application to be appointed administrator should be presented in a petition. Art. 3091, LSA-C.C.P. However, Art. 3181, id., permits the appointment of another qualified person as succession representative on motion under the circumstances set forth in that article.
C.C.P. 3181 is equally express that, in the case described, the court “on motion . may . . . appoint another . forthwith.” It cannot reasonably be doubted that the appointment of Edward was therefore within the court’s express authority.
Martin’s only argument of any weight is that, by the ruling naming both co-administrators, Edward was removed under C.C.P. 3182 because he “failed to give notice of his application for appointment when required under Article 3093.” That argument must be rejected because C.C.P. 3093’s general rule is stated in terms inconsistent with C.C.P. 3181’s special rule for its cases: specifically, C.C.P. 3093 requires that an applicant send a copy of the “application for appointment” to anyone who petitioned for notice and “notify him of the date and hour assigned by the court for a hearing thereon.” C.C.P. 3181 does not envision the “application for appointment” spoken of by C.C.P. 3091-3096 (a petition, see West, Form 889a, n. 1, above) but a simple ex parte motion, and it does not provide for a hearing but for appointment “forthwith.” C.C.P. 3093 thus did not oblige Edward to give notice to Martin (even less so, when Martin himself had already been appointed but neither qualified nor asked for an extension of time to qualify).
The partial removal of Edward, that is, the naming of Martin as co-administrator after Edward was under express authority appointed and qualified as administrator, was therefore not authorized by C.C.P. 3182 and should be reversed.
