Succession of Fink

13 La. Ann. 103

• Court: Supreme Court of Louisiana
• Decided: February 15, 1858
• Status: Published

Opinion

Spoeford, J.

Diedrich Bullerdieck, testamentary executor of John D. Fink, is 'appellant from a judgment of the District Oourt, sustaining an opposition to two items of his account, to wit, the item of $4,758 69 charged by him for commissions as executor, at two-and-a-half per cent, on the inventory, and an item of $15,000 charged for fifteen years of services by said Bullerdieck as agent for Fink, before his death, collecting his accounts, keeping his books, attending to his houses, and his business generally, at $1,000 per annum.

I. It is admitted by the appellant’s counsel, that the deceased, by his last will, appointed Bullerdieck his testamentary executor, and in the same instru • ment bequeathed him a piece of immovable property in New Orleans, expressly “in full compensation and satisfaction for all charges and commissions which the said Bullerdieck may be entitled to as executor,” &c.

The appellant entered upon the execution of his trust, without manifesting any disposition to renounce this legacy in lieu of his commissions. That action, on his part, was an acceptance of the trust under the conditions lawfully imposed by the testator, and debars him from now claiming any other or different remuneration. For, by Article 1679 of the Louisiana Code, “ testamentary executors, to whom the testator has bequeathed any legacies or other gifts by his will, shall not be entitled to any commission, unless the testator has formally expressed the intention that they should have the legacies over and above their commissions.”

It was too late for him to say, in answer to tho opposition, that ho had always intended to renounce the legacy, and claim his commissions. Eon con-stat, that the testator wished him to be executor upon any other terms than those expressed in the will. He was not obliged to accept the trust. But he did accept it, unqualifiedly, and he is bound by its conditions.

The remarks in Gucullu’s case, 4 Rob. 898, do not apply to this, for there it was contended that the legacy was not a bequest in lieu of commission, but was merely a remuneratory donation in payment of past services. Here the testator has given a legacy specially “in lieu of commissions.”

II. Upon the other point, the main reliance of the appellate is tho case of Fowlers succession upon the claim of Bogart, curator, reported in 7 An. 209.

We agree with the District Judge in the opinion that the facts of that case are so widely different from the facts in this, as to furnish no precedent for the allowance of the sum claimed by Bullerdieck for services rendered to Fink in his lifetime.

The appellant pursued the trade of a watchmaker and kept a small shop, where Fink had his books and papers, and usually staid in business hours. Fink was capable of transacting his own business, and did transact it in the main. Bullerdieek rendered him occasional servercies, but their extent and character are not shown, as was so amply done in the case of Bogart Fink made a will without forgetting Bullerdieek, and Fowler died intestate. The claim for services, as agent, appears to he an afterthought, and unsupported by sufficient data to authorize a judgment for any sum.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.