Van Wickle v. Calvin

Supreme Court of Louisiana

Van Wickle v. Calvin

23 La. Ann. 205

CourtSupreme Court of Louisiana

DecidedMarch 15, 1871

DocketNo. 3136

StatusPublished

Cited by2 cases

This text of 23 La. Ann. 205 (Van Wickle v. Calvin) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Wickle v. Calvin, 23 La. Ann. 205 (La. 1871).

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Opinion

Howell, J.

The question in this case is whether or not a testamentary executor can sue to set aside, as simulated and fraudulent, an act of sale of real property made by the testator and have the property declared to belong to the succession upon the allegations that said sale was made to hinder and delay the creditors, the executor being one individually; that there are debts .amounting to many thou-sound dollars, and that, although the deceased held a lucrative office, he, the executor, has been unable to find any money or obtain possession of any property whatever, except a small quantity of movables inventoried at about $300.

We are of opinion that this question, as presented in this case, must be decided in the negative.

The plaintiff does not claim to act for, and in the name of, the ■creditors, but simply as executor of the last will and testament of the deceased, and without alleging that by the will he is vested with seizure ■of the property of the estate. In such capacity he can be considered only as standing in the place of the testator, and can only bring such actions as the latter could himself bring, and it is clear that the testator, if alive, could not maintain this action. The sale attacked is just as much the act of the 'deceased as the will through which the plaintiff desires his appointment and authority.

We conclude that the district judge did not err in maintaining defendant’s exception.

Judgment affirmed.

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Howell, J.

The question in this case is whether or not a testamentary executor can sue to set aside, as simulated and fraudulent, an act of sale of real property made by the testator and have the property declared to belong to the succession upon the allegations that said sale was made to hinder and delay the creditors, the executor being one individually; that there are debts .amounting to many thou-sound dollars, and that, although the deceased held a lucrative office, he, the executor, has been unable to find any money or obtain possession of any property whatever, except a small quantity of movables inventoried at about $300.

We are of opinion that this question, as presented in this case, must be decided in the negative.

The plaintiff does not claim to act for, and in the name of, the ■creditors, but simply as executor of the last will and testament of the deceased, and without alleging that by the will he is vested with seizure ■of the property of the estate. In such capacity he can be considered only as standing in the place of the testator, and can only bring such actions as the latter could himself bring, and it is clear that the testator, if alive, could not maintain this action. The sale attacked is just as much the act of the 'deceased as the will through which the plaintiff desires his appointment and authority.

We conclude that the district judge did not err in maintaining defendant’s exception.

Judgment affirmed.

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Bluebook (online)

23 La. Ann. 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-wickle-v-calvin-la-1871.

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