Opinion of the court was delivered by
Watkins, J.
This controversy arises upon an account of administration which was opposed by Mrs. Cuevas, a married daughter of the deceased by his first marriage — the opposition being chiefly directed at four items, viz.: (1) Mortgage of twenty-five hundred dollars on property on Baronne street; (2) amount of two thousand dollars, claimed to have been held in trust; (3) commissions of executrix, one thousand eight hundred and thirty-two dollars and sixty-five cents; (4) attorney’s fees, twenty-five hundred dollars.
The opponent also, as a part of her opposition, alleged the absolute nullity of the will of deceased for want of form; and on that account she averred that the accountant had no standing in court as executrix.
But it is a fact and conceded in the transcript, as well as in the argument at the bar, that the nullity of the will is involved in another suit which is the subject of another appeal; it is, therefore, evident that this part of the opposition can not now be considered or decided. For the determinination of that question opponent must be relegated to the other appeal.
It appears from the record and the argument as well, that the accountant, as the executrix therein named, propounded the will for [82]*82probate, and same was duly and regularly admitted to probate, and that she was duly qualified and commissioned and took charge of the estate of the testator, and has since had its exclusive care and administration — collecting its revenues and discharging its expenses.
During that administration the property of the estate was sold— the heirs concurring in the sale, and actively promoting same.
This simple statement is sufficient to show exclusively that there was an administration actually in progress; and that the accountant was executrix defacto, if not de jure —notwithstanding, the will was subsequently attacked, and may be hereafter adjudged null and void in a different case.
It has been frequently decided that unless the appointment of a succession representative ' be absolutely void, his acts can not be successfully assailed or questioned.
In Succession of Dougart, 30 An. 268, we said:
“As to the illegality of the appointment of the executrix, it is only necessary to say, that the question can not be raised in this indirect and collateral way. Whether legally or illegally done she was appointed and qualified and must be treated as the lawful executrix until her appointment is revoked in a direct action.”
In the Succession of Altemus, 32 An. 364, it was said:
“It seems to be considered, and indeed, we do not think it can be denied, that unless the appointment of an administrator or curator is absolutely void, the acts done by them in such capacities are legal and binding, for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such official, but declares that such decree shall have immediate effect, and, therefore, regardless of the illegality of the appointment.”
In Cloutier vs. Lamee, 33 An. 305, it was said:
“Inquiries touching the legality of defendant’s appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts.”
Citizens Bank vs. Bry, 3 An. 633; Gradnigo vs. Moore, Curator, 10 An. 670; Dorsey vs. Vaughan, 5 An. 156; Beard vs. Gresham, 5 An. 160; Succession of Lehmann, 41 An. 987; Vinet, Executor, vs. Bres, 48 An. 1254.
[83]*83Adhering to this line of authority we are of opinion that the acts of the qualified and acting executrix must be recognized as valid, and that the subsequent nullity of her appointment would not vitiate them.
She has a standing in court to file an account of her gestión. Having qualified as executrix and taken charge of the estate of the testator, she was powerless, of her own motion, to abandon that trust and assume the quality of heir. It was necessary for her to be relieved through the instrumentality of the law pursuant to a decree of court. Succession of Frazier, 33 An. 593.
On the trial there was judgment rejecting the demands of the opponent, homologating the account, and ordering the funds in the hands of the executrix distributed in accordance therewith; and from that judgment the opponent has appealed.
The proof shows that the principal property of the estate was the Marine Dry Dock, which was appraised in the inventory at twelve thousand dollars, and was subsequently sold for forty-one thousand dollars. It further shows that while under the administration of the executrix this dry dock yielded a little over six thousand dollars net returns within a period of about eight months. The property was exclusively community, and the executrix, as surviving widow, owned one-half in indivisión with the heirs.
In the brief of opponent’s counsel we find no discussion of the two items of indebtedness opposed, and, presumably, that part of the opposition has been abandoned.
In argument at the bar opponent’s counsel waived all objection' with regard to the amount of the fee claimed by the attorney for the executrix, and limited her opposition to his right to claim any fee. This contention is but the logical supplement of the prior contention that the accountant had no standing in court as executrix, and finding that as her appointment as executrix was not absolutely void, her acts are valid, and that contention must be rejected, it follows necessarily that she had the legal right to tax her attorney’s fees against the estate.
The remaining question is with regard to the amount of the executrix’ commissions — her right to claim commission resting upon the same foundation as that of her standing in court.
Her ease comes within the principle announced in Succession of Hopkins, 33 An. 1166.
[84]*84The accountant claims commissions of two and one-half per centum on account of rents and revenues of succession property which she collected during her administration; the amount of cash in bank, and on account of the proceeds of property of the succession under her administration. But the contention of the opponent’s counsel is that her claim should, in any event, be restricted tO' the amount of the inventoried value of the property. R. O. O. 1069.
The appraisement in the inventory is about twenty-three thousand’ dollars, while the proceeds of sales was about forty-one thousand dollars.
The Code declares that “ an executor * * * shall be entitled,, for his trouble and care, to a commission of two and one-half per cent, on the whole amount of the estimate in the inventory,” etc. R. C. C. 1683.
The same rule applies to administrators. R. C. C. 1069.
In Succession of Linton, 31 An. 130, the court in discussing this provision of the Code in regard to an administrator’s commissions of two and one-half per cent, said:
“ The Code so expressly provides, and this court has thus invariably held. R. C. C. 1069, 1201; Baillio vs. Baillio, 5 N. S. 229; Succession of Milne, 1 Rob. 400; Succession of Day, 3 An. 624; Succession of Girod, 4 An.
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Opinion of the court was delivered by
Watkins, J.
This controversy arises upon an account of administration which was opposed by Mrs. Cuevas, a married daughter of the deceased by his first marriage — the opposition being chiefly directed at four items, viz.: (1) Mortgage of twenty-five hundred dollars on property on Baronne street; (2) amount of two thousand dollars, claimed to have been held in trust; (3) commissions of executrix, one thousand eight hundred and thirty-two dollars and sixty-five cents; (4) attorney’s fees, twenty-five hundred dollars.
The opponent also, as a part of her opposition, alleged the absolute nullity of the will of deceased for want of form; and on that account she averred that the accountant had no standing in court as executrix.
But it is a fact and conceded in the transcript, as well as in the argument at the bar, that the nullity of the will is involved in another suit which is the subject of another appeal; it is, therefore, evident that this part of the opposition can not now be considered or decided. For the determinination of that question opponent must be relegated to the other appeal.
It appears from the record and the argument as well, that the accountant, as the executrix therein named, propounded the will for [82]*82probate, and same was duly and regularly admitted to probate, and that she was duly qualified and commissioned and took charge of the estate of the testator, and has since had its exclusive care and administration — collecting its revenues and discharging its expenses.
During that administration the property of the estate was sold— the heirs concurring in the sale, and actively promoting same.
This simple statement is sufficient to show exclusively that there was an administration actually in progress; and that the accountant was executrix defacto, if not de jure —notwithstanding, the will was subsequently attacked, and may be hereafter adjudged null and void in a different case.
It has been frequently decided that unless the appointment of a succession representative ' be absolutely void, his acts can not be successfully assailed or questioned.
In Succession of Dougart, 30 An. 268, we said:
“As to the illegality of the appointment of the executrix, it is only necessary to say, that the question can not be raised in this indirect and collateral way. Whether legally or illegally done she was appointed and qualified and must be treated as the lawful executrix until her appointment is revoked in a direct action.”
In the Succession of Altemus, 32 An. 364, it was said:
“It seems to be considered, and indeed, we do not think it can be denied, that unless the appointment of an administrator or curator is absolutely void, the acts done by them in such capacities are legal and binding, for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such official, but declares that such decree shall have immediate effect, and, therefore, regardless of the illegality of the appointment.”
In Cloutier vs. Lamee, 33 An. 305, it was said:
“Inquiries touching the legality of defendant’s appointment are irrelevant. While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts.”
Citizens Bank vs. Bry, 3 An. 633; Gradnigo vs. Moore, Curator, 10 An. 670; Dorsey vs. Vaughan, 5 An. 156; Beard vs. Gresham, 5 An. 160; Succession of Lehmann, 41 An. 987; Vinet, Executor, vs. Bres, 48 An. 1254.
[83]*83Adhering to this line of authority we are of opinion that the acts of the qualified and acting executrix must be recognized as valid, and that the subsequent nullity of her appointment would not vitiate them.
She has a standing in court to file an account of her gestión. Having qualified as executrix and taken charge of the estate of the testator, she was powerless, of her own motion, to abandon that trust and assume the quality of heir. It was necessary for her to be relieved through the instrumentality of the law pursuant to a decree of court. Succession of Frazier, 33 An. 593.
On the trial there was judgment rejecting the demands of the opponent, homologating the account, and ordering the funds in the hands of the executrix distributed in accordance therewith; and from that judgment the opponent has appealed.
The proof shows that the principal property of the estate was the Marine Dry Dock, which was appraised in the inventory at twelve thousand dollars, and was subsequently sold for forty-one thousand dollars. It further shows that while under the administration of the executrix this dry dock yielded a little over six thousand dollars net returns within a period of about eight months. The property was exclusively community, and the executrix, as surviving widow, owned one-half in indivisión with the heirs.
In the brief of opponent’s counsel we find no discussion of the two items of indebtedness opposed, and, presumably, that part of the opposition has been abandoned.
In argument at the bar opponent’s counsel waived all objection' with regard to the amount of the fee claimed by the attorney for the executrix, and limited her opposition to his right to claim any fee. This contention is but the logical supplement of the prior contention that the accountant had no standing in court as executrix, and finding that as her appointment as executrix was not absolutely void, her acts are valid, and that contention must be rejected, it follows necessarily that she had the legal right to tax her attorney’s fees against the estate.
The remaining question is with regard to the amount of the executrix’ commissions — her right to claim commission resting upon the same foundation as that of her standing in court.
Her ease comes within the principle announced in Succession of Hopkins, 33 An. 1166.
[84]*84The accountant claims commissions of two and one-half per centum on account of rents and revenues of succession property which she collected during her administration; the amount of cash in bank, and on account of the proceeds of property of the succession under her administration. But the contention of the opponent’s counsel is that her claim should, in any event, be restricted tO' the amount of the inventoried value of the property. R. O. O. 1069.
The appraisement in the inventory is about twenty-three thousand’ dollars, while the proceeds of sales was about forty-one thousand dollars.
The Code declares that “ an executor * * * shall be entitled,, for his trouble and care, to a commission of two and one-half per cent, on the whole amount of the estimate in the inventory,” etc. R. C. C. 1683.
The same rule applies to administrators. R. C. C. 1069.
In Succession of Linton, 31 An. 130, the court in discussing this provision of the Code in regard to an administrator’s commissions of two and one-half per cent, said:
“ The Code so expressly provides, and this court has thus invariably held. R. C. C. 1069, 1201; Baillio vs. Baillio, 5 N. S. 229; Succession of Milne, 1 Rob. 400; Succession of Day, 3 An. 624; Succession of Girod, 4 An. 386.”
But the court allowed the administrator a commission of five per cent, on the amount of rents collected, no mention of same being in the inventory, and this in addition to the two and one-half per ’cent, on the amount in the inventory.
This theory appears reasonable and correct, and it is in keeping with a subsequent decision. Succession of Rhoton, 34 An. 893.
Adopting this rule, the executrix is entitled only to commissions of two and one-half per cent, on the amount of the estimate in the inventory of twenty-three thousand dollars, which is five hundred and seventy-five dollars.
And to the amount of five per cent, on the amount of the net income of the property of the estate during her administration fixed approximately at sixty-five hundred dollars, equal to three hundred and sixteen and sixty-six and two-thirds dollars.
The total amounts to eight hundred and ninety-one and sixty-six two-thirds dollars, and to this sum her commission must be reduced.
It is therefore ordered and decreed that the amount of the exeeu[85]*85trix’ commissions be reduced to the sum of eight hundred and ninety-one and sixty-six and two-third dollars, and that as thus amended the judgment be affirmed.