Fabacher v. Fabacher

90 So. 519, 150 La. 79, 1922 La. LEXIS 2546

• Court: Supreme Court of Louisiana
• Decided: January 2, 1922
• Docket: No. 23930
• Status: Published

Opinions

SOMMERVILLE, J.

J. P. Hudson & Sons, in liquidation, and Joseph Y. Ferguson & Co.; judgment creditors of' Louis B. Fa-bacher, son and heir of Peter Fabacher, appeal from the judgment on a rule to homo-logate the partition between the widow and heirs of Peter Fabacher, wherein Louis B. Fabacher was ordered to collate- $15,000 due to his father.

The procés verbal of the notary making the partition contains the following items: Louis B-. Fabacher is recognized as one of the heirs of his father, Peter Fabacher, and entitled to :/i« of $101,663.49, amounting to $4,941.93.

It contains the further item:

“And inasmuch as in the said judgment the said Louis B. Pabacher is ordered to collate and accdunt for the sum of $15,000 to the community heretofore existing between the deceased and the widow plaintiff herein, making the amount due and to be collated herein as $7,500, which amount the said Louis B. Pa-bacher has failed to pay, and inasmuch as the said amount, to wit, $7,500, is in excess of the amount due the said Louis B. Pabacher, as per the foregoing figures, I, the said notary, as a process of collation, .did proceed to further partition the said amount due the said Louis B. Pabacher among the other heirs in the proportions to which they are entitled thereto under the said judgment, as follows, to wit:

“Share of Mrs. Peter Pabacher in the share of Louis B. Pabacher $2,470.96.”

Then follows the allotment to each heir.

To the rule to homologate the partition Hudson & Sons and Ferguson & Co. made returns and opposed same on the ground that no portion of the $15,000 was due by Louis B. Pabacher to the succession of his father or his heirs, or to his mother, Mrs. Peter Pabacher.

The rule to homologate was made final, and the oppositions of the creditors of Louis B. Pabacher were dismissed. Prom this judgment the two creditors referred to have appealed.

The record shows that judgment had been herein rendered ordering the property of Peter Pabacher sold and a partition effected. The real estate was sold for $102,225; the personal property was sold for $8,800 — making a gross sum of $111,025 to be partitioned. After paying all the debts which the heirs agreed were fair and reasonable, there was a net balance of $101,663.49. Of this amount Mrs. Peter Pabacher, the widow in community, was entitled to one half, or $50,831.74; the balance of $50,831.75, under the terms of the will, was to be divided among the children of the deceased and two grandchildren.

Several judgments had been rendered against Louis B. Pabacher, one of the children and one of the heirs. He was entitled to receive the sum of $4,941.93 if he had not been called upon in the will to collate the sum of $15,000; that being the amount the father stated in his will should be collated by Louis B. Pabacher.

[1] Some of the judgment creditors of Louis B. Pabacher opposed the homologation of the act of partition, contending that he should not collate anything for reason that he owed his father nothing, and that his father inserted this clause in his will in order to prevent the creditors of Louis B. Pabacher from collecting their judgments, and for the further reason that, as all of the other children of Peter Pabacher had received large advances from him, they should be called upon to collate.

Article 1991, C. C., provides:

“Neither can they [creditors] call on a coheir of the debtor to collate, when such debtor has not exercised that right.”

And the opposition of the creditors of Louis B. Pabacher was on this ground properly dismissed. Louis B. Pabacher could have called upon his coheirs to collate. lie did not do so, and his creditors had no right under the law to force him to do so. There was no suggestion of fraud against Peter Pabacher in the distribution of his estate among his children; and the evidence showed that Louis B. Pabacher was indebted to his father.

Article 1594, O. C., also provides that the reduction of a donation can be sued for only by forced heirs or by their heirs or assigns. See Tompkins v. Prentice, 12 La. Ann. 465; Champagne v. Bloch Bros., 121 La. 193, 46 South. 207.

But there is an error in the proposed distribution in favor of Mrs. Peter Pabacher. The amount of $15,000 ordered to be collated by Louis B. Pabacher was a debt due to the community, $7,500 of which was due to the widow, Mrs. Pabacher. It was shown that the share of Louis B. Fabacher amounted to $4,941.98. That amount, under the terms of the judgment, should have gone to the coheirs of Louis B. Fabacher; but one-half of that amount was allotted to Mrs. Fabacher, as the “share of Mrs. Peter Fabacher in the share of Louis B. Fabacher, $2,470.96.” The widow Fabacher was not an heir of her deceased husband, and did not' take any part of the amount collated by Louis. B. Fabacher in his father’s succession. This amount of $2,470.96 should have gone to the coheirs of Louis B. Fabacher.

The judgment fixing the amount in favor of Mrs. Fabacher is final except in so far as Hudson and Ferguson are concerned; and the coheirs have not appealed from a judgment awarding that amount to their mother, and they have not asked for any amendment of the judgment in this respect. The amount is not properly disposed of by the judgment appealed from; and it must go to the appellants.

It is ordered, adjudged, and decreed that the judgment appealed from be amended by striking therefrom the order dismissing the oppositions of Hudson and Ferguson, and that it be further amended by adding the words:

“And out of the said sum of $2,470.96 shall be paid in full, or as far as said fund will pay them, the judgments of J. P. Hudson & Sons, in liquidation, and Joseph V. Ferguson & Co., with interest and costs in both courts.”

PROVOSTY, J., dissents. O’NIELL, J., dissents, being of the opinion that the judgment should be affirmed.