30 La. Ann. 702 | La. | 1878
The opinion of the court was delivered by
The plaintiffs in the rules claim to be creditors of the succession: Ryan & White for $2000 for services as attorneys in the succession; Mrs. Barlow for $1000 also for services as attorney rendered to the succession by her deceased husband, H. C. Barlow; Solibellos for $4000, evidenced by note subject to a credit. Winn died in 1861; his succession was opened in 1862. In 1869 a tableau of debts was filed by the attorneys for the then executrix, Mrs. Winn, now wife of Richards, upon which appear the claims of the several plaintiffs in the rules as debts of the succession. It was homologated by the parish judge, H. C. Barlow, who himself figured upon it as a creditor for the same debt now claimed by his widow, plaintiff in one of the rules.
There were a large number and amount of other claims on the tableau, but it does not appear that there were any funds to distribute; on
None of the creditors or other parties in interest were cited in the matter of the tableau. It does not appear that there were any funds to distribute, or that any had been collected or distributed. It was therefore not such a tableau as could be made binding by homologation upon either creditors or heirs, nor one in regard to which they can be called in by publication to establish or oppose. Succession of Hart, 8 B. 121; Succession of Day, 2 An. 895; Hickman vs. Flemisker, administrator et al., 12 An. 268. But were it otherwise, Judge Byan, the attorney who filed the tableau, testified on the trial that the executrix was absent from the State when the tableau was filed by him for her, and that she never saw the tableau or any of the claims upon it, and he is not shown to have had authority to acknowledge them for her. The claims of the plaintiffs in the rules do not appear to have been acknowledged in the manner provided by law. C. P. arts. 985, 986. And as was very properly decided in the Succession of Poussin, 27 An. 296, an attorney at law,merely as such, can not allow claims which the, legal representative of the succession never heard of, nor bind the succession by filing a tableau upon which they figure without the knowledge of the executor or administrator. In the same case it was also properly held that a tableau filed under such circumstances does not dispense with that legal- acknowledgment provided for in the articles of the Code of Practice just
It is also denied that Mayfield is a creditor, and averred that if he ever was his debt is prescribed. He claims that the question of prescription was judicially determined in his favor in á suit brought by him to remove Mrs. Winn from the administration of the estate, and that his debt, which is evidenced by several promissory notes, has been legally acknowledged both by the former and present executor. The evidence supports the latter allegation; but we do not consider the adjudication in the amotion suit as determining finally for other purposes and against other creditors or parties interested the matter of prescription. The judgment of the court below dismissed his opposition and made the rules absolute so far as to order the executor to sell property for the payment of debts. It is unnecessary under the view we take of the case to consider the other points raised or the various bills of exception in the record.
For the reasons stated the judgment of the court below is avoided and reversed, and it is now ordered and adjudged that the several rules which were all tried together be and they are discharged at the costs of the plaintiffs; that the opposition of Mayfield being only incidental to the rules be also dismissed at his cost. That the right of the several claimants, including Mayfield, to assert their claims according to law, if any such they have, and of the succession, and all parties in interest, to contest the same, and each of them, be reserved for future adjudication.
The Chief Justice recused himself in this cause.