Succession of Ames

33 La. Ann. 1317

• Court: Supreme Court of Louisiana
• Decided: November 15, 1881
• Docket: No. 8022
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

A motion to dismiss the appeal taken by the executor of the deceased, is made by her forced heirs, on the ground : “that the judgment appealed from is one in favor of the succession, which is benefited and not aggrieved thereby, and that said executor cannot be permitted to use his official capacity for his individual advantage when he only is the one aggrieved by the judgment.”

The executor claims that the judgment affects not only himself, but also three other parties, a creditor and two legatees, and insists that he has a right to appeal from the judgment, both as concerns himself and those parties, in his official capacity and for their common good.

The authorities relied upon by the movers, 19 L. 278, 11 An. 177,12 An. 774, 82 An. 889, can receive no application in the case before us. It is evident from the very terms of the motion to dismiss, that it is based mainly on the ease in 32d A. R., in which the language used by the movers was employed by the Court.

The duties and rights of executors are in this respect different from those of administrators of successions.

The appointment of an executor by a testator is a mandate, anomalous in this, that it begins when other mandates, intended to be exercised at a different time, terminate; i. e., at the death of the principal. Marcadé; vol. 3, p. 104; Art. C. N. 1025. When it is accepted, it is a contract binding on the conscience of the executor, the effect of which he is not lightly to disregard. Mourlon, vol. 2, p. 444 (5); Art. 1034, C. N; Coin Delisle, p. 487, No. 11. By such an appointment, the testator constitutes the executor a mediator between the various parties who may have an interest in his succession, whether under the will, or under the law. Duranton, No. 390. The instructions of the principal to his agent in such a case are peremptory, when their execution infringes no prohibitory law. They generally are : You shall pay my debts, as well those existing before, as those arising after, my death. You shall next pay or satisfy my special legatees, and, otherwise, carry out my intentions. You shall next and last, deliver the residue of my estate to such person or persons as it accrues to, under my will, or under the law, or both.

The executor who has the seisin, represents the active and passive mass of the succession, all the assets, all the liabilities, the entire residue. Where he happens to be a creditor, a legatee, he represents himself as such, officially, as effectually as he is authorized to represent others similarly situated. His trust of executor, of confidential agent and mandatory, charged with the execution of the sacred behests of the departed one, and to be held as such as long as they contravene no prohibitory law, — derives from the testator and not from the law, and cannot place him in duriori casu. He cannot be required to distinguish himself, as a creditor, as a legatee, from himself, as an executor, 3 An. 174, representing as he does all the creditors, all the legatees, and eventually the heirs, be they legal or testamentary. Coin Delisle D. & T. p. 486, No. 3; Merlin Rep. Vo. Ex. Test. No. 2; Grenier, No. 327; Toullier, No. 577; Duranton, No. 390, 392; Dalloz, ch. 8, Sec. 1, No. 1; Ricard, part 2, No. 66; Pothier, Disp. Test. Art. 2, ch. 5, p. 360; Furgóle, Nos. 20, 21, 23; C. N. 1025; R. C. C. 1658, 1659, 1660, 1661, 1672; C. P. 123; 3 An. 172; 10 R. 194; 1 An. 92; 4 An. 571; 7 L. 389; 26 An. 312; 23 An. 369; 12 An. 611.

It is & personal mandate, intransmissible in principle, but which, under special legislation in this State, can be, in certain cases, provisionally delegated. R. S. 2349. The powers which are conferred upon him, even where the heirs have taken away from him the seisin of the estate, by furnishing him funds to pay the debts and legacies, continue and last during all the time which is necessary to ¡wind up the estate and to execute the will of the deceased, which is to him, the law. Bicat testator et exit lex. O. P. 123 ; R. C. 0.1658,1676,1680,1673; O. N. 1051; R. S. 1471.

He gives no security, but can be required to do so, not only by the creditors of the deceased, or of his succession, by persons claiming property in kind, found among the assets of the succession, but also by the forced heirs of the deceased, when their legitime may be affected. R. C. G. 1677-, 1673; Succession Turnell, and authorities there cited. 32 An. 1218.

The functions of administrators are not at all of the same origin and of the same duration as those of executors. They are conferred by law and are restricted to a liquidation of the estate, and to the application of its funds to the payment of its creditors. That result once accomplished, their duties are at an end; they turn over to the heirs of the deceased what may remain in their hands, after payment of the liabilities. They do not represent the mass of the succession; they have no mandate of the deceased to execute. Where they are individually concerned as creditors, and their claims are not admitted, the authorities are that, if they appeal, they must do so in their individual capacity. This case in the 32d An. p. 889, was one of that description. Code Practice 123.

Upon a motion to dismiss, which involves the right of an executor to appeal from a judgment which modifies an account of his administration, we' cannot be expected, particularly in a case the transcript of which contains no less than 823 pages, to go behind the motion of appeal and inquire into the correctness of the judgment complained of, in order to ascertain the effect of such an appeal. It may, however, happen that, on the trial of the case on its merits, if we find that the executor should not have been permitted to appeal as he has done, we may summarily dispose of the case. As at present advised, and in a succession in which the assets have been appraised at more than $150,000, we do not feel authorized to dismiss the appeal. 26 An. 312; 1 An. 414; 2 An. 387; 4 An. 534.

It is, therefore, ordered that the motion to dismiss herein be accordingly overruled.