Succession of Lamm

40 La. Ann. 312

• Court: Supreme Court of Louisiana
• Decided: March 15, 1888
• Docket: No. 10,135
• Status: Published

Opinions

On Motion to Dismiss Appeal.

The opinion of the Court was delivered by

Watkins, J.

This case presents a controversy over the appointment of an administrator of the succession of Adéle Lamm, deceased. She was the wife of Leopold Dalsheimer, deceased. There was a community existing between them, and neither owned any separate property. The wife died on the 26th of October, 1879, and the husband in the spring of 1886. The latter left a will, containing a be-quest in favor of Mrs. Pauline Kaufman, one of his forced heirs,- of aU the- disposable part of his fortune; and she was appointed executrix with full seizin. She obtained the probate of the will, qualified as executrix and had an inventory taken, all on the 22d of June, 1886.

On the 6th of July, afterwards, Mrs. Sarah Rose and Henry Dal•sheimer, co-heirs of Pauline Kaufman, joined in a petition for the appointment of J. W. Hubbs as administrator of the succession of the predeceased wife, Ad ele Lamm, and caused an inventory of her estate to be taken. This application was resisted by Pauline Kaufman on several grounds ; but she, in the alternative, prayed to be appointed administratrix, if an administration was deemed necessary.

On the trial the court held that an administration was necessary, and that the opponent was entitled to be appointed on giving bond according to law; but it further decreed that upon her failure to furnish a satisfactory bond Hubbs should be appointed upon furnishing bond in her stead.

In January, 1888, Pauline Kaufman procured this appeal, and in this Court — Hubbs-having in the meanwhile obtained confirmation of his appointment — he seeks its dismissal on the ground that she had acquiesced in the judgment appealed from by joining issue on the merits with him in the suit entitled J. W. Hubbs,.administrator, vs. Mrs. Pauline Kaufman, executrix, the record of which is now before us on appeal, and which is annexed hereto for reference.

It is clear to our minds that it is altogether insufiicent for the purpose of proving acquiescence.

The appearance of Mrs. Kaufman was at a date subsequent to the appointment and qualification of Hubbs under the decree of court. That decree was valid on its face. This appeal was deemed necessary to obtain relief from it.

Had she tendered, in Imiimi, an exception to Hubbs’ capacity to stand in judgment as administrator of Adele Lamm’s succession upon the .introduction of this succession record in evidence, it would have been overruled. It is, therefore, obvious that she thereby abandoned no valuable right.

Had she obtained her appeal prior to the filing of her answer it could not have been considered as an abandonment of it, and obtaining it subsequently has no additional force.

The motion to dismiss is denied.