In re the Succession of Kugler

23 La. Ann. 455

• Court: Supreme Court of Louisiana
• Decided: May 15, 1871
• Docket: No. 3244
• Status: Published

Opinions

Ludeling, C. J.

This is an appeal from a judgment homologating the final account of the administrator of the succession of P. A. dingier.

The administrator has filed an answer, praying that the judgment in his favor he amended by allowing the widow and minors one thou•sand dollars under the homestead act of 1852.

The evidence in the record shows that the life of the deceased was "insured iu favor of his wife and children, and that they received one thousand dollars from the insurance company after his death. It is contended by the counsel for the administrator that at the moment of the death of Iiugler the widow and children were in indigent circumstances, and that the subsequent payment of the policy did not affect their rights, under the law, at the period of the husband’s death.

We think the rights of the widow and children to the policy existed before the death, and that the liability of the insurance company .became fixed and exigible by the death of the insured, and, therefore, the widow and children, owned, in their ^own right, one thousand dollars when Kugler died.

. The item forty-five of the account, being two mortgage notes for eight hundred dollars each, is opposed on the ground that they were prescribed.

The notes were due on the first of July, 1859, and on the sixteenth of May, 1860. On their face they were prescribed. To prove an interruption of prescription the administrator offered parol evidence to show that the credits indorsed on the notes were made at the dates when they purport to have been made. The evidence was properly rejected. Acts of 1858, p. 138; Succession of Ilildebrandt, 21 An. 350.

To establish a promise to pay these debts a letter of the deceased to-Phillips was introduced in evidence, and then parol evidence was-offered to prove that the deceased owed no other debt to Phillips but the notes. This was competent evidence. It is the acknowledgment or promise of tho deceased which the law requires to be proved by the writing and signature of the deceased. When an acknowledgment- and promise in writing and under the signature of the deceased ieproved, it is competent to show by testimony that no other debt was. due the party to whom the promise was made.

We think the letter and tho oral evidence in tho record establish the promise to pay the two notes embraced iu item forty-five of tho account. But the promise to pay was made after prescription had accrued. This created a now debt, binding on the deceased and his. succession ; but it did not ronew'or create a mortgage, at least as to-third persons. C. C. 3285 .(3252); 1 An. 330, Lathet v. Hogan et al; 2 An. 927, Grayson, Tutor, v. Mayo.

The other items of the account were correctly allowed.

II. Y. Babin, for the use of the succession of A. M. Dunn and of Louis Favrot, alone having appealed, we can change the judgment of the court a qua only in his favor, and not as between the appellees.

It is therefore ordered and adjudged that the judgment of the parish court, so far as it allows a preference to the notes included in item-forty-five of the account over tho claim óf H. V. Babin, for the use of the succession of A. M. Dunn and Louis Favrot, bo avoided and annulled; and that, in all other respects, it bo affirmed, the costs of this appeal to be paid by the succession.