Succession of Peytavin

10 Rob. 118

• Court: Supreme Court of Louisiana
• Decided: March 15, 1845
• Status: Published

Opinion

Martin, J.

In the account of tbe exeputors, filed on the 9th May, 1837, Mrs. Bernard was placed as a creditor for five thousand five hundred dollars, subject to a deduction of fifteen hundred dollars, paid in 1834. Sbe made no opposition, and tbe executors were authorized to make payment accordingly. In 1843, at tbe suit of the legatees, the executors filed an account of the monies in their hands after the payment authorized in 1837, and Mrs. Bernard was placed as a creditor for an additional sum of sixteen hundred and twenty-eigbt dollars and nineteen cents, claimed as omitted through error in the first account, it being alleged that a payment of fifteen hundred dollars by .the testator had been applied to the capital instead of to tbe interest. The legatees resisted her demand on tbe grounds: 1st, that it was not legal; 2dly, that sbe bad not presented it before, and had not opposed tbe homologation of the first account of the executors and the tableau made accordingly, and they pleaded the homologation of it as res judicata. By consent of counsel the opposition to her claim was reserved for future adjudication. As she did not produce the written evidence of a promise to pay conventional interest, testimony was received, and the case submitted to the Court of Probates without argument.

The court sustained the plea of res judicata, and Mrs. Bernard appealed. It does not appear to us that the court erred.

In the settlement of successions a concurso takes place among the creditors and legatees. All claims must be presented to the executor, administrator or curator, before being acted upon by the court. As the legatees have a right to the residue after the creditors are paid, they have a right to contest the debts, and these must be settled contradictorily with them. The notification of the filing of the tableau operates as a citation to all persons concerned therein, creditors as well as legatees ; and the homologation of the executors’ account and tableau, bars all further enquiries as to all matters included in the account. No parol testimony can be received in support of a claim for the payment of conventional interest. It is of the essence of legal evidence in support of it, that it be written.

Judgment affirmed.