Succession of Reems

64 So. 898, 134 La. 1033, 1913 La. LEXIS 2239

• Court: Supreme Court of Louisiana
• Decided: October 20, 1913
• Docket: No. 20,031
• Status: Published

Opinions

PROVOSTY, J.

Two of the children of the decedent having been disinherited in her will, the executrices ignored them in the account presented by them to the court distributing the estate among the heirs, and these disinherited heirs filed an opposition to the account, contesting the validity of the disinherison. Judgment went in their favor, and the executrices appealed.

Motion is made to dismiss the appeal, on the ground that the executrices are without interest, and therefore without right, to appeal.

[1] The settled jurisprudence is that an executor may appeal from a judgment which disturbs the proper distribution of the estate in his charge.

Succession of Ames, 33 La. Ann. 1317; Succession of Allen, 48 La. Ann. 1036, 20 South. 193, 55 Am. St. Rep. 295; Succession of Nicholson, 5 La. Ann. 359.

In the cases cited by the appellees, to wit, Payne v. Dejean, 32 La. Ann. 889, Succession of Mausberg, 37 La. Ann. 126, and Heirs of Byland, 38 La. Ann. 756, the administrator of a succession was seeking to appeal in the name of the succession, and at its expense, from a judgment rendered in its favor against him.

[2] After the motion to dismiss had been filed, the heirs under the will took an appeal of their own. This they did in order that they might not find themselves without an appeal in case the motion to dismiss the appeal taken by the executrices in their interest should be maintained. Motion is made to dismiss this second appeal, on the ground that the trial court was divested of all jurisdiction over the case by the first appeal. This ground must be sustained, and the second appeal dismissed. By their appeal through the executrices, who are merely their representatives, the heirs removed the case from the trial court to this court, thereby divesting the trial court of all control over the case, so far, at any rate, as granting them an appeal from the judgment rendered in it .is concerned.

The motion to dismiss the appeal taken by the executrices is therefore overruled, and the motion to dismiss the appeal taken by the heirs is sustained, and the latter appeal is dismissed at the cost of the appellants.