Succession of Curtis

10 La. Ann. 662

• Court: Supreme Court of Louisiana
• Decided: September 15, 1855
• Status: Published

Opinion

Merrick, O. J.

The only question presented in this case is, whether Thomas Maslcell, who holds certain promissory notes, signed by the intestate, shall be paid out of the community or separate estate of the deceased.

As the notes are negotiable and were given during the existence of the community, and it has not been shown that the present holder acquired them after maturity or with notice, we do not feel called upon to decide, whether notes given in extinguishment of the individual debts of the husband can, after his decease, be exacted of the community, or whether they should be paidby the separate estate.

The holder of promissory notes, negotiable on their face, acquired before maturity and without notice, is entitled to inforce them against the community, during the existence of which they were given.

We think, therefore, the judgment of the lower Court is erroneous, so far as it refuses to recognize Thomas Maslcell, as a creditor of the community, for the amount of the notes set forth in his opposition.

The record does not justify us in declaring the dividend to be paid the oppo-sers and other creditors, and we remand the ease for the filing of a new tableau accordingly.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be reversed, so far as it refuses to recognize said Thomas Maslcell., as a creditor of the community, for the amount of the said promissory notes,, and interest specified in the said account and tableau of distribution, and the said Thomas Maslcell is hereby recognized as such clinographic creditor, and it is ordered that he be paid concurrently with the other clinographic creditors out of said fund, hereby recognizing the claims of the community against the separate estate of said Bennett A. Ourtis, as a clinographic creditor for the amount of such payment; and it is further ordered that the claims; of all other parties as recognizeded by the account, and the judgment ■of the lower Court, be confirmed and approved; and it is further ordered that said administrator and administratrix do, within twenty days after the filing of the mandate of this Court in the lower Court, file a new tableau of distribution, wherein he shall place said Thomas Maslcell and John Garrett tutor, with the other creditors, in conformity to the direction contained in this decree, and so much of the decree of the lower Court as is hereby affirmed ; and it is further ordered that the decree of the lower court, be, in all other respects, affirmed, and that the appellee pay the costs of appeal; and this case is remanded to the lower Court for further proceedings herein, •directed.