The opinion of the court was delivered by
Nicholls, C. J.
The tutrix of the minor, Ross B. McNeely, denies in this court that J. H. McNeely was ever put in possession of the estate of L. McNeely. He avers that “ no such judgment was ever rendered; that the clerk probated the will, confirmed the said McNeely as testamentary executor and granted him letters of executorship, and at the same time made the following order: ‘That J. H. McNeely be recognized and confirmed as testamentary executor of his brother, Ludlow McNeely, he having taken the oath required by law as such with power to execute-said will according to the terms and tenor thereof and that letters testamentary issue to said J.' H. McNeely according to law and that he be recognized as testamentary heir and universal legatee-of said will, with the right of seizin and possession of the estate-according to the terms of said will according to law. That the-taking of the oath as executor and the letters of executorshipnegative the pretence that the said McNeely was put in possession, by the ex parte and contradictory order of the clerk of court, and that said fact is negatived by his still acting as executor and filing-his account as executor. That the clerk was without authority to-render any judgment putting a legatee as heir in possession, and no such judgment can be rendered or could have been rendered except by the District Oourt, in open court, and by suit in the ordinary form-of petition and citation, contradictorily with the heir or attorney of absent heirs, and if said ex parte order pretends to put the said McNeelyin possession it is an absolute nullity on its face, and the said McNeely is not a possessor as owner in good faith, but is in possession as executor (citing 0. P. 1001, Sees. 1, 2 and 3; The State vs. Judge of the Court of Probates, 4 Rob. 42; Succession of Lampton, 35 An. 419). That the minor and forced heir was seized of right of all the effects of the succession, and he was entitled to the enjoyment of the fruits and revenues thereof from the date of the death of the testator;' that [830]*830said fruits and revenues do not belong to the succession, but are the property of the minor. That the forced heir is a creditor of the succession to the extent of his legitime, and is in no way responsible for costs and attorney’s fees of the suit of McNeely, Tutrix, vs. McNeely, Executor, etal., and those of the succession settlement, they being chargeable to the legatee; that the executor was without authority to cultivate and make crops upon the plantation, or put up improvements, or make repairs thereon for account of the succession; that he did not, in fact, do so, as he cultivated the plantation for his own account, and he alone is chargeable with the expenses of administration — the clearing and repairs upon the place and the improvements put up. That the executor, being also a legatee, was entitled to no commissions as such.
On the 12th of May, 1893, J. H. McNeely filed in the District Court a petition, in which he alleged the death of L. McNeely; that he had left a last will and testament, íd which he was constituted universal legatee and appointed testamentary executor; thaj he had the! right to have said will probated and himself put in possession as testamentary executor on qualifying as well as to be recognized as universal legatee and put in possession of the estate. The prayer of this petition was in consonance with its allegations. Annexed to this petition was petitioner’s affidavit to the fact of the absence of the District Judge from the parish of Grant.
On the same day the clerk of the District Court probated the will according to its terms and tenor, ordered its execution, and recognized and confirmed petitioner as testamentary executor, and decreed that letters issue to him as such, according to law. It further recognized petitioner as universal legatee, with right of seizin and possession, according to the terms of the said will.
The probate of the will and the order directing its execution has never been contested, though a direct action was brought to annul the will itself, the action being directed against the testamentary executor who had confirmed under the will and its probate and against the same party individually as universal legatee.' In this suit the latter was averred to be in possession of the property and fruits and revenues were demanded of him. We do not understand that the claim is made now that the clerk was without authority to probate the will itself and to confirm the executor, but that a proceeding co place heirs in possession is a proceeding which has to be [831]*831conducted and disposed of in open court contradictorily with the heirs or an attoraey of absent heirs, and that the order for possession can only be signed by the District Judge.
We need not inquire whether, under the laws as they now stand, a clerk of court would be authorized to place the heirs of an intestate succession in possession upon their petition to be so placed, for that is not the case before us. The case at bar is that of an application made for the probate of a will — the granting of an order directing its execution and confirming the appointment of the testamentary executor named therein.
The authority to grant these particular orders is conferred upon clerks of court throughotit Che State outside of the city of New Orleans by Acts Nos. 106 of 1880 and 43 of 1882. The constitutionality of those acts has not been called in question. We are of the opinion that the will was legally probated and ordered executed and the tes - tamentary executor legally appointed and confirmed.
Being so confirmed we think under the circumstances of this case he was legally authorized to take charge of the property of the succession and liquidate its affairs. The testator was directly authorized by law to appoint a testamentary executor. C. O. 1658, 1659. It is true that in this case he did not grant him the seizin of the estate, but the situation was such as to require that some one take charge of the administration of the estate and its property. Had Ross B; MeNeely been of age and had he accepted the succession of his father purely and simply a question might have arisen as to the rights and powers of the testamentary executor appointed by the will. He was, however, not only a minor incapable of accepting the succession otherwise than under benefit of inventory, but no one on his behalf appeared to claim or take charge of the administration of the succession. There was no necessity for parties interested in the succession to call upon the tutrix to declare whether the heir accepted or not, and if he accepted, to declare whether he did so unconditionally or not — the law itself settled that fact. The situation under and through the law was precisely that which would have resulted had creditors or legatees called upon a major heir to declare his status in respect to the succession, and had he declared that he accepted under benefit of inventory. Under such conditions the appointment of a succession representative became at once called for by the law (0. 0.1058), if parties interested should demand one. This representative in the case [832]*832of an intestate succession would have been either an administrator or a curator. In the case of a testamentary succession it would have been either the testamentary executor appointed by the will, or an administrator appointed by the court, if the legal heirs under certain conditions should exact that the latter character of representative should be appointed.
We think that the creditors and legatees of a succession accepted under benefit of inventory are at liberty, if thelbeneficiary heir does not come forward within the legal delays to claim the administration of the succession for himself, to have the succession placed under administration in other hands (0. 0., 1034, 1035, 1036, 1041, 1047, 1058, 1095, 1101).
The powers, duties and obligations of testamentary executors in Louisiana, under existing statutes, run closely toward those of curators and administrators. Parties in interest have the right to exact security at their hands for their faithful performance of their duties (0. 0. 1670, 1673; Heirs of McGehee vs. McGehee, 41 An. 660).
Holding as we do that J. H. McNeely was legally appointed testamentary executor of the succession of his brother charged under the circumstances of this case with the administration of its property and its affairs we now direct our attention to the consequences of that fact upon the rights of the parties to this litigation.
Counsel of the minor cites Art. 1607 of the Civil Code, which declares that: “ When at the death of the testator there are heirs to whom a certain proportion of the property is reserved by law these heirs are seized of right by his death of all the effects of the succession and the universal legatee is bound to demand of them the delivery of the effects included in the testament,” as establishing beyond question that it was the duty of J. H. McNeely to have made a demand upon the tutrix for the delivery of the portion left legally to him by the will, and that he not having done so the entire property should be held in law as to have been constantly in the actual possession of the minor up to the present time in so far as a right to fruits and revenues is concerned.
The article in question, whatever may be its scope or interpretation, was clearly not intended to apply to a case where a succession is accepted under benefit of inventory, and where its property has never been placed in the actual possession of such heir, but has, on [833]*833the contrary, been legally placed under the administration and in the actual possession of a testamentary executor who is himself the universal legatee of the deceased, and this is the case at bar (Bird vs. Jones, 5 An. 643).
We are of the opinion that when the universal legatee is himself the testamentary executor appointed by the will and on his petition, to the court the will has been probated and ordered ex cuted according to its tenor and he has qualified and taken into his actual possession the property of the succession and assumed the liquidation of the estate, there is no basis whatever for the contention that the fruits and revenues of the thing or objects legally bequeathed to the universal legatee belong to the heir.
Hven in the special cases to which Art. 1607 may be held to refer the next article provides that, “ nevertheless, in those cases the universal legatee will have the enjoyment of the effects included in the testament from the day of the decease if the demand for the delivery has been made within a year from that period; if not, enjoyment will ouly commence from the day of the judicial demand or from the day on which the delivery has been agreed upon.” The law did nob contemplate that the universal legatee in the actual possession of the objects bequeathed to him under the will should make a demand for delivery from one not in possession. We think a judicial demand made by the universal legatee for the probite of the will for an order for its execution and the placing of himself in possession under the will is a sufficient demand for delivery of his legacy to cut off the possibility of the fruits and revenues of the thing leg illy bequeathed to him thereafter enuring to the benefit of the legal heir.
Article 1628 of the Civil Code declares that the testamentary executor who has the seizin of the effects of the succession and who is at the same time a legatee is nob bound to damind the delivery of his legacy; that he can retain it in his possession subject to the obligation mentioned in Art. 1627 of being bound to give it up for the purpose of contributing to the payment of debts in case it be liable for any. It is true that Art. 1628 has direct reference to the case of a testamentary executor who is a particular legatee, bub we think the provisions of that article fairly extend bo the case of a universal legatee situated as is the universal legatee under the circumstances of this case, in their bearing upon the question of the [834]*834fruits and revenues of the thing legally bequeathed to the universal legatee. ,
What we have said does not refer to the question of the fruits and revenues of that portion of the thing which the .universal legatee may have taken possession of which did not and could not legally belong to him or pass to him under the will, but which remained in and belonged to the heir. That presents a different question. We Simply say that the fruits and revenues of that portion of the prop-, erty of the succession of L. McNeely which was legally bequeathed (the will to the extent of two-thirds having been sustained) to J. H. McNeely, and which went originally into his possession as testamentary executor, belonged to the universal legatee. We think he had the right quoad the plaintiff to consider that portion as his own, to so deal with it, subject to such rights on the part of the heir and such liability on the part of the legatee as would result from the ownei'r ship of the heir of an undivided interest in that property under the circumstances of this case. We leave out of view in this connection any discussion as to what the situation would be were rights of creditors involved. The question before .us is freed from that complication. What those rights and liabilities were in respect to the plaintiff, we will hereafter,have to ascertain and declare..
We may say at once that the taking possession by the executor of the property mentioned has not had as its effect the discharge of the executor. He is still executor and his account is properly before its for examination. Succession of Sterry, 38 An. 854; Succession of Frances, 49 An. 1732. The first question with reference to that account which we will take up is that of the costs and attorney’s fees in the matter of the suit of McNeeley vs. McNeeley, 47 An. 1321, and those incurred in the general settlement of the estate.
Counsel claim that a forced heir is a “.creditor” to the amount of. his legitime of one-third'of the estate as it existed at the .date of the death of the testator, and that this amount he is entitled to take as. of that date, not reduced by succession costs and charges and attorney’s fees.
Counsels claim that the minor’s position is that of a .creditor is inconsistent with those advanced.on. his behalf in other portions of their argument. It is true, that forced .heirs have sometimes., in, some respects, been assimilated to creditors, but it is very clear that that is not their legal status.
[835]*835When a person dies in Louisiana, leaving descendants, they become at the instant of his death his heirs. Of this status they can not be deprived by their ancestor, unless through legal, disinher■> ison for legal cause. In the absence of testamentary dispositions, the law by its own force determines the extent of .their respective portions, but it allows the ancestor within limits fixed and announced by itself to modify those proportions, subjecting any modification' made by him in excess of this limit to successful reduction by the heir to within those permitted. This power of' the ancestor to thus alter by the exercise of his own will the extent of the rights of his descendants in his succession does not result in transforming their statiis from that of heirs to creditors. Of that status they can not be deprived by the act of their ancestor. It is by reason of that fact and-of their forced legal right to be maintained in their claims as heirs to the portion which as such the law has reserved to them if they elect to claim the same that they are designated as forced heirs. It is only under their status as heirs that they can claim this proportion known as the legitime. The seizin which they are- declared in Art. 1607 of the Civil Code to have, is not peculiarly and ápeeially given to them as “ forced heirs,” but is given to them by law as “heirs” of their father. The seizin is not “ granted” to them through that article. It is simply recognized therein in its bearings and consequences upon the special condition of affairs to which that article refers. The articles of the Code in describing and fixing the rights and obligations of these forced heirs evidently contemplate cases where the reserve should have been trenched upon either by the donatious inter vivos or the testamentary dispositions of the ancestor, and where they are forced to fall back for their protection upon their legal right reserved to them by law, hence it is that they are careful to place themselves before the court exclusively as heirs occupying the position assigned them by law as such. What is that position? It is certainly not that claimed by the tutor of holding the full amount of the proportion allowed them by the law entirely regardless of the debts of the deceased and entirely regardless of legal costs and attorney’s fees properly and legally chargeable as such to the entire estate for the purpose of its general settlement out of the property belonging to the succession at the date of its opening. The forced heir may, by claiming as such, as an heir under benefit of inventory, escape direct personal liability for the debts and charges [836]*836of the succession, but in fixing the reserve, the law has not ordered it to be established regardless of payment of the succession debts and charges out of the property belonging to the succession at its opening, though certain charges are excluded by express provision of law, as, for instance, the commissions of executors as declared in Art. 1687 of the Civil Code and the costs of delivery as declared in Art. 1632.
The question of costs and attorney’s fees is complicated in this litigation by the particular manner in which plaintiff brought his suit and that in which it was defended. The action was primarily one to have declared null and void in its entirety the will of Ludlow McNeely, coupled with a demand as resulting from such nullity for the ownership and possession of the entire property with its fruits and revenues from the date of his death, and contingently and subsidiarily for the reduction of the legacy to the disposable portion, with a contingent demand for the ownership and possession of an undivided one-third of the property and one-third of its revenues from the same date.
The defence on the part of the executor was an insistence upon the validity of the will as written, coupled with a denial that the plaintiff was the legitimate child and heir of the deceased. This denial struck at his right either to attack the will as a whole, or to ask for a reduction of the legacy to the disposable portion.
Plaintiff’s demand in so far as it attacked the entire will was not in aid of his legitime or reserve, but as a general legal heir seeking to be decreed to be the sole heir in the succession. He was cast in the action to the extent that he was proceeding upon that line of attack, and the executor was justified on that same line in the defence he made upon that special issue. Had the suit contained no other issue and claimed no other than that paitlcular relief, plaintiff would unquestionably have had the costs of the suit thrown upon him, and the executor would have been entitled to costs and reasonable attorney’s fees (Succession of Hasley, 27 An. 589).
Dalloz and Verge, under Art. 1016, C. N. (our Art. 1631), under the No. 10, refers to a decision, the syllabus of which was to the effect that: “L’article 1016 qui porte que les frais de délivrance d’un legs ne peuvent jamais étre pris sur la réserve ne met par obstacle a ce que ces frais soient compris dans la condemnation aux dépens contre le réservataire par le jugement qui a repoussé son action en nnllité du testament.”
[837]*837We have seen that plaintiff’s action contained a contingent demand in which he was successful for a reduction to the disposable portion of the legacy made in the will.
With reference to that portion of the cáse this court held that the attack upon the legitimacy and heirship of the plaintiff was totally unwarranted by the law. That the child though born after a separation from bed and board was born in wedlock and therefore had had his status as a legitimate child and heir irrevocably fixed by the fact that the father had not brought before his death and within the time fixed for such an action, an action “ en desaveu” of the child. The executor was aware of the fact that no such action had been brought by the father. He had knowledge of the fact of the existence of the child, and that it bad been born during marriage before the bonds of matrimony had been finally broken, and he must be held in law to have known that the special defence he set up was unauthorized and unwarranted.
Had the plaintiff limited his action to a claim for a reduction of the legacy made in the will to the disposable portion, and had he been met with the defence that he was not the child and heir of the deceased, judgment would have been rendered and should have been rendered in his favor for costs. We do not think, under the circumstances of this case, opponent can be made responsible, directly or indirectly, for any portion of the costs incurred, in the attempt to make that defence good, nor for the fees of the attorneys employed for that purpose. The error of law into which the testamentary executor and universal legatee fell as to his right to set np this special defence, and his belief that any estoppel which might have struck the father on this subject did not reach to him, did not have the effect of authorizing the executor to charge up those particular costs and attorney’s fees to the succession. He must sustain them himself. The evidence shows that the attorneys in the suit of McNeely, Tutrix, vs. J. H. McNeely, stipulated for a fee of two hundred and fifty dollars for contesting the legitimacy and heirship of opponent. That amount is included in the sum of twelve hundred and fifty dollars, which figures on the account as an item for attorney’s fees and should be struck out. The costs incurred in the case of McNeely, tutrix, must be separated; those incurred in attempting to defeat the heirship of opponent should be changed entirely to J. H. McNeely individually; the balance is a proper general charge [838]*838against the suceession. The District Court should make the separation and apportionment of these costs.
We are of the opinion that the executor is entitled to charge up, as a charge against the suceession, the costs incurred in the general settlement of the succession, as also reasonable fees for services of attorneys rendered necessary for that purpose (0 . 0. 1682; Succession of Lizzie Dean, 33 An. 869). Funeral expenses and expenses of last illness are also chargeable to the succession (33 An. 869). The testamentary executor being also a legatee is not entitled to commissions (O. 0. 1689).
The executor is entitled to charge up the amounts paid by him on the mortgage notes held against the property and for the taxes paid by him on the property.
We next consider the claim made by the plaintiffs for fruits and revenues. His right to the same must be' limited to a claim for fruits and revenues upon one undivided third of the property, that being the extent of his interest in the ownership of the property under our decision in the case of McNeely, Tutrix, vs. McNeely, Executor, 47 An. 1325. He claims that they are due from the date of the death of his father. We have already stated that J. H. McNeely must be held to have had knowledge of the existence of the plaintiff’s claim, as the legitimate child of Ludlow McNeely, to one undivided third of his estate, and of the rightfulness of that claim. The effect of that knowledge was to make him, to the extent of his taking pos - session of thatundivided third, a possessor in bad faith. He did not, though having this knowledge, make the minor a party in any way to the proceedings for the probating and execution of the will, and the course which he subsequently took in contesting to the bitter end the legitimacy and heirship of the child makes it certain that had plaintiff, through her tutrix, made any demand upon him at that time for joint possession of the property, it would have been peremptorily-refused by the executor.
It is admitted that the rental of the property is worth fifteen hundred dollars per year over and above all impro vements for the year 1893, and each succeeding year included in the executor’s accounts. The account should be so framed as to charge the executor for the year 1893, and. each succeeding year, at that rate as for rent, but these rents should be made to enure one-third to opponent, and two-thirds to the universal legatee. The right of the opponent as to [839]*839rents for years later than the period covered by the accounts should be and is reserved and left open.
The effect of placing J. H. McNeely in the attitude of a quasi-tenant, chargeable as for rent, is, while entitling him to the crops, to make him responsible himself for and to relieve opponent from any responsibility for the expenses incurred in the cultivation of and administration of the property as such (including overseer’s wages) during the period of his holding the property under those conditions —this does not include permanent improvements upon the property, but does include the ordinary incidental repairing of buildings and clearing of land.
In respect to the permanent improvements placed by J. H. McNeely upon the property it must be borne in mind that when placed there by him he held an interest of two undivided thirds in the property — opponent holding the other undivided third interest. The rights and obligations of parties have to be considered in view of such being the relations between them. We understand the parties to say that they have cometo an agreementin respect to the ginhouse, the two gin stands, the boiler and engine, the steam cotton press and fixtures and the grist mill, which are borne upon the account — that they are recognized by opponent as being the individual property of J. H. McNeely, and that he has the right to remove the same from the property. The District Court should so decree and give effect to this agreement.
We think the rights of J. H. McNeely, as resulting from permanent improvements placed by him on the property other than those covered by the admission referred to should be reserved for consideration and determination in an action of partition between opponent and himself. They are not passed on by us, but are reserved. We tnink that the amount chargeable to the succession for attorney’s fees for the general settlement of the succession up to date, instead of being two thousand dollars as charged in the account, should be reduced to and it is hereby fixed at twelve hundred dollars.
We think we have passed upon all of the disputed items of the accounts now covered by the oppositions. It is possible we may not have done so, as matters have been presented to us, in some respects, in a very unsatisfactory, desultory manner. As some of these items need re- examination for decision, and as over a year has elapsed since the accounts were presented, we think the best course to [840]*840pursue will be to reverse the judgment appealed from and to set aside the accounts filed and remand the cause for the filing of a new account under and through which the rights of parties can be finally determined and fixed.
Por the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the accounts filed by the executor are hereby set aside, and it is now ordered, adjudged and decreed that this cause be remanded to the District Court with orders to that court to order the testamentary executor to recast his account and make it conform to the views herein expressed and decided, and to render judgment on the rights and obligations of parties according to the same. Costs of appeal to be paid by the parties in the proportion of one-third and two-thirds, two-thirds by the universal legatees, and one-third by the opponent and heir.