24 La. Ann. 490 | La. | 1872
Lead Opinion
This appeal is taken by C. H. Morrison from a judgment on the final account by him rendered under the decree of this ■court in the case of John C. Rogers v. C. H. Morrison, executor.
The appellee has asked for an amendment of the judgment in three particulars, by disallowing — first, the two and a half per cent, on the •amount of the inventory claimed as commissions due the executor; secondly, the credit claimed for $805 alleged to have been paid to Mrs. Liles under the homestead act of 1852; and, thirdly, the amount of $575 claimed by Morrison & Parmer for fees.
It is admitted that there is an error of calculation in the statement •of the accountant of one hundred dollars against himself, and it is evident that the judge a quo fell into an error when he added to the ■debit side of the account the items, amounting to $381 73, claimed as ■credits, but disallowed by the judge. The contest thus seems to be narrowed down to the questions presented .by the answer of the appellee to this appeal.
First — Is the accountant entitled to the two and a half per cent, ■commissions allowed by law for administering estates?
The accountant avers in his brief that uIn this opposition there is no malfeasance alleged or shown. Had there been, and the acts of malfeasance set forth, accountant would have been allowed to and would have shown that his administration had been successful and to the best interest of the estate.”
The opposition to this item is in the following words : “ The credit claimed — amount of my commissions as executor being two and a half per cent, on amount accounted for, to wit, $27,404 53, on page seven, .amounting to $685, is opposed; first, because the said Morrison having been removed from his office of executor for malfeasance is not entitled to any commissions,” etc.
It is manifest, therefore, that loss to the estate has resulted “atleast from the gross carelessness ” of the executor. In the succession of Lee it was held that “ when an administration, instead of being beneficial, has been injurious to a succession, the administrator will not be allowed commissions.” 4 An. 578.
This is in consonance with equity and the textual provisions of the ■Civil Code. “ The attorney is responsible not only for unfaithfulness in his management, but also for his fault or neglect. Nevertheless, the responsibility with respect to faults is enforced less rigorously against the mandatory acting gratuitously than against him who receives a reward.” Article 3003 (2972.)
Second — The next item opposed is the claim allowed to the widow under the homestead act. There is no evidence that she was in necessitous circumstances at the death of Liles. The evidence, on the ■contrary, shows that Mrs. Liles bought the “ Reuben Frantom ” tract of land for $3251, and that the price was paid. The executor paid this amount without an order of court, and he has failed to prove that it was a just claim against the estate. The credit claimed for this amount must therefore be rejected.
Third — The item for $575 is claimed for fees due Morrison & Farmer for professional services rendered to the deceased and. the succession after his death. They claim that there exists a privilege in theirfavor for this sum. The facts in regard to the litigation in which the fees are charged are substantially these: During the lifetime of Liles he employed Morrison & Farmer to collect a claim for rent against M. C. Hardy, amounting to about $1900, with interest. The movable property of the lessee was sequestered in that suit to secure the lessor’s privilege. Several other creditors of Hardy, all claiming privileges against the property of Hardy, sequestered as aforesaid, also filed suits against .Hardy and intervened in the suit of Liles v. Hardy. After considerable litigation eight hundred and fifty-seven dollars were realized after the death of Liles on his claim for rent against Hardy. The judge a quo
As to the charge for services in the case of Dowdy v. Morrison, executor, which was a suit for fifteen hundred and 'sixty-four dollars, it appears that Morrison & Parmer filed an answer and the plea of prescription, and that the case is yet untried. This item and the other fees charged in favor of Morrison & Parmer are resisted on the ground that Morrison, being executor, could not charge for professional services rendered to the estate. As to Morrison, this position is unquestionably correct. In the case of the succession of Key, the following language is used : “In the case of Baldwin’s executor v. Carleton, 15 La. 397, the court virtually adopted the English rule that an executor, who is also a professional man, and renders legal services to the estate he administers, is not entitled to any separate compensation.” The reason of the rule is that the best counsel should be selected and employed on the best terms. Judge Martin, in delivering the opinion of the court, remarked that it was the duty of the executor to make such selection; “but it was his interest in this case that he should be employed at all events, and as his conduct has shown, on the very highest terms. In our opinion he succumbed to the temptation.” 5 An. 567 ; 15 La. 399.
There is no evidence in this record to show what services, if any, were performed by Mr. Farmer; or, in other words, to show whether Morrison or Parmer rendered the services charged for, and this constitutes the single difference between the case of the Succession of Key and the one now under consideration. In that case it was shown affirmatively that Haskell, the curator, had performed the services for which fees were claimed for the firm of Simon & Haskell. On the authority of the cases of Baldwin’s executor v. Carleton and the succession of Allen J. Key, above referred to, and which we approve, we think the fees to Morrison & Parmer for services rendered in matters arising subsequent to the death of Liles, should be disallowed. By correcting the error of calculation made by the executor against himself, and deducting the following sums from the credits claimed, to wit, $685 11 commissions, $805 paid Mrs. Liles, and $375 attorneys’ fees, which are disallowed, we find that the accountant- owes fourteen hundred and ninety-eight dollars and five cents, with five per cent, perannum interest from this date. C. P. 1007.
Rehearing
On Application for Rehearing.
The counsel for the appellee in this case consented that we might correct any errors in our former judgment without delay or a new trial. We proceed to do so now.
We erred.iu stating that the item of the account for amount paid to the widow Mrs. Liles was opposed in the opposition to the account.
We were led into the error by the answer of the appellee praying for an amendment in this particular, by the brief of the appellee, and by the silence of' the defendant on that point. The proees verbal of the sale of the property of the succession shows that the property was sold to Mrs. Liles; but as this item was not specially opposed, we erred in making any change in the account as to that item.
It is therefore ordered and adjudged that our former decree be so amended as to reduce the judgment against Charles II. Morrison to the sum of six hundred and ninety-three dollars and five cents, for which judgment should originally have been rendered, and for which judgment is now rendered.