47 La. Ann. 126 | La. | 1895
The opinion of the court was delivered by
Counsel of the executor in their brief direct our attention first to the opposition made to the items Nos. 131-198 and 252, amounts paid for pew rent in the Jeanerette Church. The District Judge rejected the opposition to item No. 131, inasmuch as the amount paid under the voucher was for pew rent contracted for by Milmo himself, but he sustained the opposition to the other two items; holding .that the rent was due by Baxter individually.
During the period for which rent is claimed the children, with the •exception of Baxter Milmo, were absent from the State. The executor was not authorized to incur the obligation. When incurred it was his individual debt.
Appellant complains of the action of the District Court in holding him responsible for an amount of money belonging to the succession, which was in his hands as execútor, which he deposited in his own name in the Plankington Bank in Milwaukee, and which bank suspended payment while the money was there on deposit. The deposit
Appellant complains of the rejection by the court of a claim-advanced by him as tutor for a commission of ten per cent, on te^i thousand nine hundred and seventy-six dollars, alleged income of ^ the minors for the year 1891.
In the tutor’s account we find the following statement:
“Active Mass.
“For the reason that the estate of Bernard Milmo is still under administration and the minors having no separate property of their-own, there is, properly speaking, no entry to make as showing assets of the minors
“Their rights are involved in the property of the succession subject to administration and payment of debts, and all the property coming under control of the testamentary executor and tutor has-been accounted for in the account rendered heretofore of the gestión-of the testamentary executor.
“Daring the year 1891, in which B. Milmo died, the business of the firm of Milmo, Stokoe & Co. continued under the management of the surviving partners and the testamentary executor and tutor-
With this statement of record it is difficult to see upon what ground appellant can set up the claim he does for commission as tutor. It is expressly admitted that no portion of the ten thousand nine hundred and seventy-six dollars went into his hands as tutor, and in appellant’s testimony he declares these so-called “profits ” of 1891 were applied to the payment of the debts of the partnership of Milmo, Stokoe & Co. The executor calls them “profits” simply because, according to his statement, the business of the firm for the particular year 1891 — that in which Milmo died — showed an excess of income over outlays. It is not claimed nor pretended that at the end of the year 1891, with all the debts of the firm paid, there remained a balance in its favor. The affairs of the firm for the special year 1891 can not be separated from its general prior affairs in the ascertainment of “ profits.”
It is true that although the firm owed debts of its own, certain of its funds, with the consent of the other members of the firm, were permitted to be applied to the payment of some of the debts of the succession of Milmo (an advance to the succession), but these funds never went into the hands of Baxter as tutor. A portion of them went into his hands as executor, and were by him used for the purpose stated, while the greater part would seem to have been paid out by the firm to the creditors of the succession.
It is obvious that a person holding at one and the same time the position of testamentary executor of an estate, and tutor of the minor heirs therein, can not receive and disburse a fund in the capacity of executor and charge commissions upon the fund as being in his hands as tutor.
The rights and obligations of parties under the administration of the executor and those under the administration of the tutor can not thus be confounded. Succession of Mitchell, 33 An. 353.
The District Court in rejecting the claim for commissions as tutor
In his account the executor claimed that he was entitled to a commission of two and one-half per cent, upon the total amount of the inventory of the succession. This inventory showed separate property of the succession to the amount of eight thousand nine hundred and eight dollars, and assets of the firm of Milmo, Stokoe & Co. (in which firm the deceased had an interest of ten-eighteenths) to the amount of one hundred and forty-seven thousand one hundred and forty-eight dollars.
The District Court refused to recognize the claim in so far as it was sought to be based on the interest of the succession of Milmo, in the partnership of Milmo, Stokoe & Co., as shown by the inventory, but allowed the executor a commission of two and one-half per cent, on sixteen thousand two hundred and twenty-two dollars as being an amount of money which actually went into his hands as executor.
In the reasons assigned by the District Judge for his action he stated that the partnership affairs had not been at the time of his judgment liquidated, and that he had reason to believe its outstanding liabilities were heavy — that if the executor would be entitled to commissions on the partnership property it would only be on the share which would ultimately pass into his hands free from debts. That matters were not in such a shape as to authorize or to justify him in fixing any specific amount of partnership values as that upon which commissions could be predicated.
After declining to recognize at present a claim for executor’s commissions, except to commissions at two and one-half per cent, on sixteen thousand two hundred and twenty-two dollars, the court declared that 11 the balance of the commission coming to him when he shall have filed his final account will be computed on the amount of the productive property coming to the estate, as the share of the deceased in the partnership of Milmo, Stokoe & Co., when liquidated.”
The executor complains of this action, first in not taking the inventory itself as a basis for commissions, and, second, in not passing finally upon this question. He says that the ‘‘provisional ” account, in which the claim is made, has, by consent, been converted into a final one, but there is no evidence before this court that the partnership has been liquidated or what the ultimate situation, either of the
The heirs are not satisfied with the judgment of the court, as to the executor’s commissions — they claim that none whatever are due; that he has mismanaged the estate; that his administration has not been beneficial, but a positive injury. .
As part of the amount of sixteen thousand two hundred and twenty-two dollars upon which the court allowed commissions, figures the amount received by the executor which he deposited in the Milwaukee bank, as we have before stated. Upon the theory that that sum would be finally lost to the succession, it would not be proper to permit the executor, through whose imprudent and illegal action it would be lost, to charge commissions upon it. We have held, however, that the fund is to be considered as still in the hands of the executor, as if he had never parted with possession of it. If he be able to pay, and does pay over the amount to the heirs, we are not prepared to cause him to lose the commission, as a penalty ipso facto for his course, which the District Oourt seems to regard as more an error of judgment, in order to obtain an interest-bearing deposit, than a designed wrong. The balance of the sixteen thousand two hundred and twenty-two dollars consists of moneys actually or constructively received from the partnership of Milmo, Stokoe & Co., and applied to .the payment of the succession debts and support of the minors. There seems to be no clash between creditors and minors, and no likelihood of opposing interests. The heirs do not
We leave open the question of executor’s commissions on property or amounts over the sixteen thousand two hundred and twenty-two dollars referred to, which may be based on the affairs of the partnership, subsequently to the filing of the account, to be hereafter dealt with and passed upon by the District Court.
The heirs, in their motion Nr an amendment of judgment, pray that they be decreed “ interest on the amount in the hands of the executor, which he invested in his name and for his individual interest.”
We do not think the occasion calls for the infliction of statutory penalties upon the executor, and therefore sustain the judgment below on that point. We think the court contemplated a restatement or recasting of the whole account by the executor, so as to show on its face the precise final situation of the parties and enable it to render a direct judgment in the premises. As matters stand we find that the various issues raised were passed on, but not passed on in a form such as to permit of either certain or easy execution. The
Counsel of both sides have in their brief discussed at length the .action of the court in overruling the opposition of the heirs of Milmo to the fees of Messrs. Mentz and Burke, and their opposition to the items of the account which figure under the numbers 145, 156, 166, 169, 177, 199, 200, 201, 202, 205, 208, 209, 210, 211, 213, 215, 222, 227, 277, 279, 280, 281, 308, 309, 362, 363 and 403.
None of these items, other than the fee of Mentz and Burke, are eov-■ered by the motion to amend filed in this court. On that ground .alone the judgment below could not be altered, but besides this the heirs did not appeal from the judgment. The judgment of the District Court overruling the opposition made before it to the claim of Mentz and Foster, as it stood recognized by the executor, can not be -altered by us, through a motion to amend in the present ap eal. 'That matter could only be brought before us by direct appeal taken by the heirs. Andrus vs. His Creditors, 46 An. 1351; Chapoton vs. Her Creditors, 45 An. 451.
For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be amended so as to leave • open for future examination and decision the right of the executor to future commissions other than the commission of two and a half per cent, on sixteen thousand two hundred and twenty-two dollars to which he is decreed entitled by the judgment below, which may be based on the ultimate interest of the succession of Milmo, in the partnership of Milmo, Stokoe & Co., and so as also to leave open for • future examination and decision the question of interest due and to become due by the executor. It is further ordered, adjudged and ■ decreed that the judgment appealed from in so far as it recognizes . as due absolutely to the executor a commission of two and a half per cent, on sixteen thousand two hundred and twenty-two dollars be amended so as to simply authorize the executor to deduct the . amount of the said commissions from his indebtedness as executor . after payment in full of everything otherwise due by him, and the • delivery of everything for which he is accountable as executor. It .is further ordered that the judgment appealed from, except as herein