In re the Succession of Faustin Bernard Romero

43 La. Ann. 975

• Court: Supreme Court of Louisiana
• Decided: July 15, 1891
• Docket: No. 1408
• Status: Published

Opinions

The opinion of the court was delivered by

Breaux, J.

The opponents move to dismiss this appeal on the- . ground that this court has not jurisdiction, ratione materise.

On the 27th day of April, 1872, acting under legal order, theadministratrix caused the property of the succession to be sold at public auction.

The total of the sale amounted to $8618.25. The administratrix alleges that she rendered an account, paid the debts, and partitioned and settled with her emancipated brother.

The petitioner and her brother are the only heirs of the late Bernard Romero.

The succession record can not be found.

It has not been recorded in the succession record boofcs, of the-clerk’s office.

At the sale of the property one tract of land was sold for $550,. another for $300, on credit.

The purchasers were unable to pay, and, therefore, retroceded the property to her in satisfaction of the purchase price and interest.

She shows this property to be the only remaining asset of the succession; prays to be authorized to deliver it to the heirs, and to be-finally discharged as administratrix.

The above mentioned facts, as set forth in her petition, are proven to be correct.

The opponents in their petition allege that they are the owners of a promissory note for thirteen hundred dollars ($1300), dated in 1871, payable in 1872, of which the late Bernard Romero was the maker, and which has been acknowledged by the administratrix, who promised to pay in due course of administration.

They oppose the application to place the heirs in possession, also the homologation of the account, and pray that it be amended by placing therein their claim as creditors.

The administratrix answered this opposition and denied her indebtedness.

The method adopted to finally settle the succession has reduced 'the issues seemingly to an amount less than $2000.

The administratrix has chosen to allege a complete settlement, made heretofore; but no final settlement has been made.

The distribution of the property has not received legal recognition; the payment of the debts were made without any order of court and the property was delivered to the heirs extra-judicially; except the two tracts, heretofore mentioned, she now proposes to deliver.

This court has decided that where there was a final judgment homolgating an account of administration, and authorizing partial distribution, so that the funds remaining for distribution were reduced to an amount less than $2000, it has not jurisdiction. Sue. of I. M. Duran, 34 An. 585; Sue. of Emma McDowell, 35 An. 102.

In these cases there had been a distribution judicially made. The-judgments were res adjudioata.

In the present ease the condition is different.

The administratrix applies for a judgment that will settle the-legality of all her acts and place at rest all questions that may have-arisen in the course of the administration.

It will effect the whole administration.

In a case decided recently, it was held that successive accounts filed by a syndic, distributing the fractional part of a fund exceeding $2000, will not divest court of jurisdiction. Theo. Brierre vs. Their Creditors, 43 An. ’ -

By distributing property of a succession, without an account, the administrator will not divest the court of jurisdiction.

The motion is overruled.

Bills op Exceptions.

Two bills of exceptions were taken to the court’s ruling.

In one, the ground set forth is that the acknowledgment was offe claim in amount more than $500, and that as same purports to have been signed by the affixing of a mark, it requires moi;e than one witness to prove its genuineness when denied.

The acknowledgment of an administrator is not the instrument in writing to which Act 2278, O. C., applies.

This acknowledgment had been reduced to writing.

The evidence was admissible. Its sufficiency vel non will be considered.

In the other bill the ground is that the court erred in not permitting the administratrix to prove the carelessness and want of probity of the attesting witness to the mark.

The bill sets fcrth that the purpose “was to contradict the evidence established by the signature.”

This witness died more than ten years ago.

When a witness is examined and attempt is made ,to impeach his testimony, he is protected against surprise and given the opportunity to prove the verity of his testimony.

The court will not remand the ease to prove charges of a general character against a witness long since deceased, charges which, if proven, would not establish the offence of falsifying a mark or signature.