41 La. Ann. 504 | La. | 1889
Lead Opinion
Tlie opinion of the Court was delivered by
Watkins, J. * E. C. Gillingham resided at Ms death in Madison paiisli, and Henry Soliorten was duly appointed administrator of Ms succession in November, 1885.
1-Iis surviving spouse, Amelia., uce Baron, removed to East Baton Rouge, and carried with her the children of the marriage, all of whom were minors, and established her domicile there. She subsequently married William Sanchez and thereafter died, leaving a small estate, consisting in part of - separate property and in part of her share in the new community. Jacob Baron was duly appointed and qualified as the dative tutor for the Gillingham minors, and in that capacity administered the Sanchez succession, and filed a final account, which is the
His claim is, substantially, that one-half of the $990, which is carried on the final account, is an asset of the Gillingham community, and should be surrendered to him. That Mrs.' Gillingham (Sanchez) took possession of, and converted to her own use, property and cash belonging to her husband’s succession, to the amount of $3000, for which Baron, administrator, should account. That the original and supplemental inventories show the total appraisement of property which came into his hands to have, been $2906 70, of which said administrator has only accounted for $1659 14, and that he should be compelled to render an account of the surplus.
Further, that he should be required to account for the property and money he recovered in the suit of Jacob Baron, tutor, vs. Sanchez.
It will be observed that no complaint is made of any item of credit carried on the account.
In an amended and supplemental opposition, claim is made for the whole of the different items, one-half only of which was demanded in liis original opposition, alleging that the recovery thereof into the succession was necessary for the payment of its debts, and that of the first community, and that the Sanchez succession was only entitled to the residue after the payment of debts.
To this opposition the administrator filed a peremptory exception to the effect that opponent has mistaken his remedy and that his petition discloses no cause of action. Other grounds were assigned, which need no mention. Those exceptions were properly referred to the merits, because an oxjposition to an administrator’s account is in the nature of an answer, and to which exceptions are inadmissible. All objections, of either law or fact, are raised on the face of the papers, in favor of the accountant. 11 Ann. 380, 071.
After hearing the evidence, the judge a quo dismissed (he oxjposition homologated the account, holding that, as there was no oxaposition to the. payment of any debt named in the account, and the opx>onent having failed to make out his case “in the form of action of ox>position to the account,” the opposition is disallowed. But the judgment charged the tutor with the amount of $2618 70, iu lieu of $1659 14, with which he had debited himself in his account, and apx>roved all the items of credit he claimed. It axqiears that, after xmying all debts, there still remains a cash surplus of $207 09, and real estate valued at $875, unsold.
Wo think the judgment api>ealed from is correct, under this statement
Judgment affirmed.
Rehearing
On Application por a Rehearing.
Construing tlie opx>osition as a suit in revendication, we think under the authority of Cathey vs. Kerr, administrator, 15 Ann. 228, that the proceeding ought to have been not by opposition, but by a direct suit, the more so, as tlie succession of Sanchez is not under a regular administration, hut under the administration of a tutor, who, after his administration as such shall have terminated, will remain in possession of the property.
Rehearing refused.