Monet v. Garnier

6 La. 324

• Court: Supreme Court of Louisiana
• Decided: April 15, 1834
• Status: Published

Opinion

Martin, J.,

delivered the opinion of the court.

Garnier is appellant from the judgment of the Court of Probates, which allows him a commission of one and a fourth, per cent, only, as executor of the last will and testament of R. Mon Y. Fon, deceased.

Where the functions of two executors aro equal and undivided, each can claim one half only of the commission. The legacy left to a co-exccutor, is evidence of the testator to remunerate this co-executor for his trouble, by the legacy, instead of the half of the commission he would otherwise bavebeen entitled to.

Gamier and Rivas are mentioned as executors, and their functions are not divided by the will, in which a legacy is given to Rivas, who accordingly made no claim to any commission. The heirs opposed Garnier’s claim to a commission of two and one half, and their opposition was sustained.

It does not appear to us that the Court of Probates erred. The Louisiana Code, allows to an executor or executors, a commission of two and a half per cent. Louisiana Code, 1676, 1678. But executors to whom a legacy is given by the will, are not entitled to any commission, unless the testator formally expresses his intention that to the legacy and commission be received, id. 1679.

The appellants having a co-executor, with equal powers, was entitled to his share of the commission, i. e. one half of two and a half, which is exactly what the judgment appealed from allows him.

The legacy left to this co-executor is evidence of the testator, to remunerate this co-executor for his trouble, by the legacy, instead of the half of the commission he would otherwise have been entitled to. This circumstance does not in the least add ought to the trouble of the appellant, nor consequently to his claim for compensation.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.