42 So. 776 | La. | 1907
Lead Opinion
Statement of the Case.
Malvina Sallier (Widow Weincke) died, intestate, in May, 1906, leaving children by three marriages, viz.: By the first marriage, Joseph H. Moss, Madora Moss, wife of Geo. W. Farquhar, and Catherine Moss, wife of Joseph Malcolm; by the second marriage, Rosa Wilson, wife of Geo. Miller; by the third marriage, Elise Weincke, wife of Harry Cash, Ida Weincke, wife of Ed. McCormick, Mollie Weincke, wife of Charley Stenious, and Dela Weincke, wife of William Cheney.
She also left property, inventoried as belonging to her separate estate, consisting of town lots in West Lake and Lake Charles, and 2S0 acres of land, with improvements, in the parish of Calcasieu, valued, together, at $4,295; two notes, made by her son Jos. H. Moss, amounting to $90; two notes, made by her daughter Mrs. Cash, amounting to $140; one note, made by her daughter Mrs. McCormick, amounting to $140; and $790, cash in bank — to which is to be added an interest in 40 acres of land and a lot of household furniture, inventoried as belonging to the last community, and valued at $185.
On May 30th Jos. I-I. Moss filed a petition for administration (signed, also, by counsel representing Mrs. Malcolm), to which, on April 9th, an opposition was filed on behalf of all the other heirs, who allege that the succession owes no debts, save those incurred in connection with the last illness, death, and burial of decedent, not exceeding $150, and that an administration is' unnecessary; and to this opposition there is appended the written consent of the persons who are said to be creditors that the heirs be put in possession.
Upon the same day (April 9th), but after the filing of the of>position, the applicant executed a bond as administrator and received from the clerk letters of administration; and thereafter the - opponents moved that the applicant be ordered to show cause why said letters should mot be annulled, on the ground that they were prematurely issued. Upon the trial (together) of the rule and opposition, counsel producéd written authority from each of the opponents; but Mrs. Gash, though stating that she did not want an
Opinion.
On Motion to Dismiss.
From the reading of the minutes, the motion of appeal is applicable to both judgments, and, as the matters were tried together and tend to the same result, we think the appeal may be sustained as bringing up both judgments for review. Succession of Clark, 80 La. Ann. 801.
On Rule to Cancel Letters.
The petition for administration having been filed on May 30th, and the opposition on April 9th (before any order had been made by the clerk, and before the bond had been filed or the letters issued), the latter was in time, and the issuance of the letters before it was heard was .premature. Succession of McKinney, 4 La. Ann. 25; Succession of Picard, 33 La. Ann. 1135; Succession of Block, 6 La. Ann. 810; Succession of Gusman, 35 La. Ann. 407.
Opinion on the Merits
Opinion on Merits.
The heirs of this succession are all majors; there are no debts disclosed, save those incurred in connection with the last illness,
The judgment appealed from condemns the succession to pay the cost of the application for administration and of the opposition thereto, with attorney’s fees to a reasonable amount, and the appellees pray that it be amended in that respect. We are of opinion that the inventory which the applicant caused to be made may inure to the benefit of all parties, and that the costs, including the fee of the attorney incurred in the taking, should be borne by the mass, but that all other 'costs should be borne by the applicant
It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, in so far as to condemn the appellant for all costs, save those incurred (including attorney’s fee) in the taking of the inventory, and, as amended, affirmed; the appellant to pay the cost of the appeal.