Beall v. Succession of Elder

35 La. Ann. 1022

• Court: Supreme Court of Louisiana
• Decided: October 15, 1883
• Docket: No. 108
• Status: Published

Opinions

The opinion of the Conrt was delivered by

Bermudez, C. J.

This is an action to revive a judgment.

The defendants, White & Tomkins, on whom citation had been served as executors of D. J. Elder, excepted on the ground that they were no longer such functionaries; that the succession entrusted to them had been finally wound up, and that they had ceased to be its representatives prior to the institution of this suit.

Upon the overruling of that preliminary defense, the defendants'pleaded the prescription of ten years, and that the judgment sought to be revived, and the judicial mortgage resulting therefrom, were can-celled and erased.

From an adverse judgment the defendants and a third person, not originally a party, have appealed.

On Exceptions.

The defendants have not shown that, at the time of service of citations on them, they had been discharged as executors of Elder.

The record shows that they filed a provisional account, which was never followed by a final account and tableau.

Nothing shows that the universal legatees, or heirs of Elder, have been put in possession of his estate.

Is is true, that his succession appears to have been thoroughly insolvent ; that its- assets were realized and distributed; that there was no necessity for the filing of a final account, and no occasion for the putting in possession of the heirs; but it does not follow, from these circumstances, that the executors, whose term does not, as formerly, expire with the year after appointment, became fwncti officio, and were consequently discharged, and ceased to be no more amenable to the Court as the legal representatives of the succession.

They could have been ruled to inventory newly discovered property; ■or to Ténder a final account; or to produce vouchers to show how far the funds realized had been distributed, or like purposes.

They surely could be sued to revive a judgment obtained against Elder.

The exceptions were properly overruled.