Atkinson v. Rodney

35 La. Ann. 313

• Court: Supreme Court of Louisiana
• Decided: March 15, 1883
• Docket: No. 8805
• Status: Published

Opinion

The opiniou of the Court was delivered by

Bermudez, C. J.

On the averment that he is an unpaid creditor of a deceased party, whose succession has been administered upon by an administrator who has obtained his discharge, the plaintiff brings this action to have the succession mortuoria reopened, in order to compel the legatee who was put in possession to return the legacy and to inaugurate another administration of the estate.

An exception of no cause of action was died and sustained by the 'lower court, from whose judgment this appeal is taken.

The plaintiff rests his claim on Articles 1067, 1068, R. C. C., which "provide for the payment of new or. straggling creditors who present themselves and who had not made themselves known before, when the funds iri the hands of' the administrator are insufficient, and which give them a right of action against legatees and creditors who have been paid for return and contribution, with a view to a now distribution.

These Articles were designed to apply 'only to successions under actual administration and were not intended to apply to successions "already administered upon, the assets of wliich have been distributed, the heirs put in possession, and the administrator of which has been discharged.

In such cases'the probate jurisdiction determines and can no more be revived. The mortuoria proceedings cannot be reopened and a new 'administration inaugurated. A prohibition lies to prevent such a course. 22 An. 61. The rights of creditors, which could have been exercised against the'succession representative, must then be asserted and enforced against the heir or legatee, whoever he be, that was recognized and putin possession of the estate. 28 An. 446; 29 An. 837; 25 An. 225, 335; 28 An. 367; 27 An. 686; 30 An. 93; 34 An. 31.

The judgment is affirmed with costs.