| La. | May 15, 1846
The judgment of the court was pronounced by
William Ross died' in the year 18.32, in .the city of New Orleans, 'where his succession was opened. At his death he left a will, by which he devised his estate equally to his five children, James, John, Robert, George, and Ann, after making a few special bequests, and nominated his son James, and two other persons, his executors. The persons thus named were duly qualified as executors, but the administration of the succession seems to have devolved exclusively upon James Ross. An inventory of the effects of the succession was made, in which were included moveables estimated at $301. The landed property and moveables appear to have been preserved, and administered in kind. On the 20th of June, 1835, James Ross, the executor, purchased of John Ross, his brother, the share of the latter in the succession of their father. The executor continued to administ.ir the succession, without rendering'an account, until July, 1845, when John and George Ross, presented a petition to the Probate Court, praying that, he should be ruled to file a final account of his administration. In compliance with this prayer, a tableau was presented by the exeew
Upon the issue thus informally presented, the probate judge proceeded to enquire into the character and validity of the act of sale from John Ross to the executor, received a large mass of testimony explanatory of the objects and intentions of the contrasting parties, determined that lh© act was not a sale, but a mortgage to secure the reimbursement of the sum of $300, and maintained the right of John to oppose. From the judgments rendered upon this motion and upon the merits, the executor has appealed. We can-not, under the pleadings and evidence presented in the record, proceed with- propriety to determine what effect should be given to the act of sale. The question of its validity is not properly before us. The act is not referred to in the pleadings by either party; its invalidity is not asserted; no cause of nullity is alleged; and the whole testimony in relation to it has been improperly and irregularly received. There has has been equal irregularity in the motion to dismiss the opposition of John Ross. It appears to have been made orally; it was not even spread upon the minutes of the court as far as appears from the record, and we only learn that such a motion was entertained from casual references to- it in the proceedings. In this condition of the pleadings and evidence; we can not adjudicate finally upon those rights of the parties which depend upon this act. It was not necessary that the Probate Court should have decided upon the character of the act, in order to maintain the right of John to oppose the executor’s account. At- the date of the- transfer there was living another brother of the parties, Robert Ross, who subsequently died. It is not shown that he left forced heirs, or a will, or received his share of his father’s estate, or divested himsdlf of his interest while living. His surviving brother, John, must-be presumed to have inherited from him, and consequently had an interest in the succession which authorised him to call upon the executor to account.
The first question presented by the opposition, relates to the lights of George Ross. From the evidence it appears that, in the commencement of this unhappy controversy, an ineffectual attempt was made to settle, by arbitration, the difficulties subsisting between George and the executor. At that time John disclaimed any interest or right whatever in the succession, and repeatedly declared that he had settled with his brother for his share. While the matter was thus pending before arbitrators, the executor presented a statement of the disbursements made on account of the succession. This was submitted to George, who acknowledged the correctness of most of the charges, but objected to several others, which, with the assent of the executor, were modified in accordance with his wishes. His admissions were made with deliberation, after a scrutiny of the account, and after having been advised by the arbitrators, “to be careful of his rights, and to admit nothing which was not just.” They
Two objections are made in the opposition to the account of assets- The first is, that the moveables have been converted by James to his own use, and were worth more than their appraised value upon the inventory. The second, that the whole rents received have not been accounted for.
In relation to the first of these items, the allegation is not supported by the evidence. The rents appear to us to have been accounted for at a fair rate, but have not been brought down to the day when the tableau was filed. The probate judge made the amendment in this respect, which was correct.
It next becomes necessary to consider the opposition of John Ross. He was present at .the investigation of the account before the arbitrators, but asserting no interest in the succession, and not participating inthe proceeding further than to advise with his brother George, when called .upon, in relation to one or two of the charges objected to by the latter. He appears to have given no such assent to the correctness of the executor’s account, as to conclude him from requiring strict-proof of the items of whicn it is.composed.
The principal evidence relied upon by the executor in support of his account and to resist the opposition, consisted, first, of the admissions of George made in the presence of John, which have already been considered; and secondly, of the sale from. John, which he deemed conclusive against the latter. The fact that John had an interest in the succession of his father, as one of the heirs of a deceased brother, which had not been disposed of, and which authorized him to oppose the account, appears to have escaped the attention of both the court and the counsel upon the tidal below. The consequence has been that but little other testimony was adduced in relation to the disbursements made on account of the succession. For the reasons already assigned we have declined to consider the .transfer from John to the executor, which constituted the evidence mainly relied .upon by the latter. This branch of the case is thus presented without sufficient testimony to enable us to decide upon the rights of the parties, and the deficiency of proofs cannot be strictly ascribed to the negligence of the exscutor. Justice, in our opinion, requires that the cause, as far as relates to the opposition of John Ross, should be remanded for further proceedings. While making this order, we cannot forbear expressing the hope that the remaining causes of controversy may be adjusted between the -parties, without further recourse to courts of justice.
Ifc is therefore ordered and decreed that, the judgments appealed from be avoided and reversed. It is further ordered that, the account of assets of the succession of William Boss, deceased, presented by James Boss, the executor, be amended by adding to it the sum of $154 80, being for rents from the 1st of May, 1845, to the 1st of August of the same year; that the amount of debts paid by the executor be amended, by striking from it the charges of $75 for the funeral expenses of William Boss, jr., and of $400 for commissions of the executor, and by reducing the following charges, viz: that of fencing, from $240 to $53 85; that for repairing a roof, &c., from $225 to $150; that for paving side-walks, from $1,115 52 to $1,085 30; that the tableau thus amended be homologated and confirmed, as far as relates to George Boss. It is further ordered (hat, ns relates to the opposition of John Boss, the cause be remanded for further proceedings ; that the appellees pay the costs .of this appeal, and that the appellant pay the costs of the court below..