Succession of Wengert

152 So. 747, 178 La. 1027

• Court: Supreme Court of Louisiana
• Decided: January 29, 1934
• Docket: No. 32660.
• Status: Published

Opinion

O’NIELL, Chief. Justice. '

The testamentary executor of this estate has appealed from a judgment ordering him to pay to the widow of the testator $120, in three monthly payments of $40 each, on account of the legacies coming to her. The widow has moved to dismiss the appeal on the ground that the amount in dispute is less than $2,000. The value of the estate, however, or the fund to be distributed by the executor, is $9,051.83.

According to section 10 of article 7 of the Constitution, this court has appellate jurisdiction in suits where a fund to be distributed, regardless of the amount therein claimed, exceeds $2,000, as well as in suits where the amount in dispute exceeds $2,000. And, in a succession or other concurso proceeding, the test of appellate jurisdiction is not the amount ordered paid out or distributed provisionally, but the whole amount of the fund to . be distributed. . Succession. of Johnson, 141 La. 842, 75 So. 743.

The decisions relied upon by counsel for the appellee are not appropriate, viz.: Kahn v. Kahn, 154 La. 729, 98 So. 167; Succession of Koppel, 171 La. 119, 129 So. 727, and Murff v. Ratcliff, 171 Da. 419, 131 So. 194. In Kahn v. Kahn the fund to be distributed was only $173.29, and the only effect which the opposition or contest could have had would have been to increase the fund to $549.85. In the Succession of Koppel, the contest was over a fund of $156.50. There was no other fund remaining for distribution. Murff v. Ratcliff was a hypothecary action, based upon a judgment for only $231.50, and the ruling was that this court did not have jurisdiction by virtue of the fact that the contest depended upon the question whether a former owner of the property had a homestead exemption.

The motion to dismiss the appeal is overruled.