38 La. Ann. 611 | La. | 1886
Lead Opinion
Tlie opinion of tlie Court was delivered "by
Mrs. Mary A. Myrick died in the parish of Richland in 1880, and her surviving husband, Benj. Myrick, was appointed administrator of her succession the same year.
I.
There were certain grounds of opposition urged by both heirs and •creditors.
They were: 1st. Charging the administrator with the loss of a uiumber of working animals that had died during the term of his administration and valued at $470, and also for 25 head of cattle that likewise died; and 2d. With five years’ rentals of the plantation at $1500 per annum.
It is not charged that the mules and cattle died from neglect of the •administrator — and such was not the case; but that he was liable for •their value because he had failed to sell them seasonably to- pay the •debts of the succession.
The administrator took charge of the plantation stocked and ready for cultivation. There was little or no movable property, strictly ■speaking, belonging to the succession. The mules, which it is contended he should have sold in ten days after his appointment, were the working animals of the plantation, and therefore immovable by •destination — in legal contemplation, a part of the plantation. It was no more the administrator’s duty to have sold these working animals •and small stock of cattle than it was to have disposed of the farming implements, mill, gin stand, machinery, and thus denude the plantation of everything required for its successful cultivation.
It was his duty to have leased the plantation if he could, but we are satisfied from the testimony of the administrator and of Ed. Myrick, the tutor of the opposing heirs, that this was impossible. The plantation contained at least 400 acres of open land — a large plantation for that section of the country, inhabited principally by men of small means, who, as a general rule, had more land than they could cultivate themselves.
The situation was such that the administrator was compelled to cultivate the plantation himself or abandon it to waste and ruin. He •adopted the former and doubtless wise alternative to cultivate it himself on account of the succession, which he did; and though it resulted unfavorably and produced no revenue for the succession, yet it pre•served this valuable in good condition and saved it from great injury, if not the total ruin that might have resulted from its abandonment.
We find no reason and know of no law, wider these circumstances,. that would compel the administrator to pay for the mules and cattle that died, or for the rent of the plantation ; and the judgment of the-lower court, so far as it imposes the former liabilities upon him, must-be reversed.
II.
The administrator asked credit in his account for certain privileged-debts and necessary charges paid by him. They consist mainly of the expenses of last illness, of funeral expenses, law charges, taxes, blacksmith’s account for repairing machinery, etc., amounting in the aggregate to $1086.28. These items were not opposed and were accompanied by proper vouchers, and their correctness proved by direct testimony, and yet they were rejected. This error must be corrected and the proper credit given for these items.
III.
The administrator has placed in his account as a just claim against the succession a judgment against the deceased, rendered on her confession for $8,600, subject to a credit for $1,950, in favor of Beaumont,. Fakes & Co., and then held by W. J. Sla-yden under assignment from them.
For several years after his marriage, the plantation in question was cultivated by Myrick on his own account. That was before his wife had' obtained a judgment separating her in property from him. By an examination of the record of the proceedings in the suit wherein Slayden’s-. judgment was rendered, it will appear that the consideration of the judgment was a debt of her husband’s- It was an account for advances, made to the husband of plantation supplies, etc., whilst a community existed between the spouses and when Myrick was cultivating the plantation on his own account. Mrs. Myrick, according to this record,, owed no part of the debt for which she confessed judgment. It further appears, however, from the evidence in the record that in 1871, Myrick,. who had been cultivating the plantation on his own account, formed a planting partnership with his brother-in-law John F. Raines, under the-firm name of Myrick & Raines, who continued planting together for-
The account for supplies for which Mrs. Myrick confessed judgment was in part the consideration for which this mortgage note was given. At the date of this judgment, Jno. F. Raines was dead, and his succession was under administration, and his one-half interest in the plantation was to be offered for sale. The creditors of the firm mentioned, Beaumont, Fakes & Co., agreed that if Mrs. Myrick would confess the judgment in their favor above mentioned, that they would surrender to her the mortgage note of $4,000 of herself and brother they held, and also a like one of $500. This was done, and with these Mrs. Myrick purchased the.one-half interest of her deceased brother in the plantation.
Under these facts, a special plea of estoppel is urged against the right of Mrs. Myrick or her heirs repudiating the judgment confessed by her or questioning her liability under it.
It is true that Mrs. Myrick by confessing judgment for this debt, though a debt she did not owe, obtained the moans by which she acquired half interest of her brother in the plantation — in other words she exchanged her confessed judgment for the notes which proved available in her hands to secure for her property of value surpassing the amount of the judgment she had confessed, thus realizing full and complete consideration for it. We axe convinced that the heirs of Mrs. Myrick cannot now consistently deny that the judgment should be recognized as valid and binding against her; and that the same was properly reported in the administrator’s account as a valid debt against her succession subject to the credit stated. 84 Ann. 1171; 37 Ann. 679. This crodit we see no reason to reduce as asked to do in the motion to amend.
IV.
There is a claim allowed by the account in favor of R. U. L. Watson. It was for a number of mules and wagon bought of Huson by Mrs. Myrick, for which she executed her obligation to deliver ten bales of cotton after she was separate in property from her husband. The debt is a just one and the deceased was clearly liable for it.
There was also a claim for $860, in favor of Thomas Jones, recognized in the account as a just debt against the succession. We are satisfied that the debt is a just one. The creditor, however, moves an amendment to the judgment because the same allowed only the prin
It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed :
1. In so far as it rejects the credit claimed by the administrator for the working animals and the cattle that died during the term of his administration, $470.
2. In so far as it rejects the credit claimed for the privilege debts and necessary charges aggregating $1,186.28.
In so far as it fails to allow interest on the claim of Thomas Jones for $860, on which legal interest is now allowed from the 1st of January, 1880.
4. In so far as it charges the administrator with the depreciation in the value of the mules on hand, $114; and that in all other respects the judgment appealed from be affirmed, opponents to pay costs of their respective oppositions in both courts.
Rehearing
On Rehearing.
After a second hearing of this case and a second examination of the record, we reach the conclusion that we had committed no error in our previous opinion.
It is, therefore, ordered that our decree remain undisturbed.
