author: Nicholls, C. J.

text:
    No. 12,361.
    American Freehold Land Mortgage Company of London, Limited, vs. J. Caldwell Peirce; Intervention of Philip B. Peirce et als. and Philip B. Peirce et als. vs. J. Caldwell Peirce et als. (Consolidated).
    A foreign corporation lending money to a resident of this State, through brokers domiciled out of the State, does not come within the meaning of Art. 236 of the Constitution of the State. Mortgage Co. vs. Ogden, ante, p. 8.
    If the seized debtor obtains credit for the amount of his debt he can not object to any arrangement made by the plaintiff with the purchaser. All the debtor could require would be that the debt should be declared discharged. Bandin vs. Uoliff, 1 N. S. 166; 8 N. S. 100.
    A sale of minor’s property, through executory process, taken contradictorily with their father as their tutor, is valid, though no certificate of the amount of the inventory of the property of the minors has been recorded as required bylaw, when the father having been appointed as their natural tutor by the court, he has taken an oath as such, and letters of tutorship have issued to him. The father has the right under such circumstances to stand in judgment defensively for the minors as a tutor ad hoc, under Art. 313 of the Civil Code, even though he be not authorized to administer generally as tutor.
    A PPEAL from the Eighth Judicial District Court for the Parish of Concordia. Tullís, J., Twenty-third District, sitting in place of the judge of the Eighth Judicial District, recused.

      H. R. Boyd for Plaintiff, Appellant.

      Thomas P. Clinton for Curator of Shattuck & Hoffman, Defendant and Appellee.

      Boatner & Hough for Heirs of Mrs. Peirce, Intervenors, Appellees.
    Argued and submitted January 19, 1897.
    Opinion handed down February 1, 1897.
    Statement of the Case.
    On the 26th of February, 1885, Mrs. Charlotte H. Peirce, wife of J. Caldwell Peirce, granted a mortgage on the Delhi plantation, in the parish of Concordia, to Gilbert M. Richardson, of New York, to secure a loan of four thousand dollars. The plantation was her separate property. The act contained a clause waiving the benefit of appraisement in case of forced sale. On the 3d of April, 1885, Mrs. Peirce died, leaving four minor children.
    On April 23, 1885, J. Caldwell Peirce, the father of the children, applied to be confirmed as natural tutor of the minors. He asked that an inventory be taken, and annexed an oath that the district judge was absent from the parish. On the same day the clerk of the District Court ordered that the applicant be appointed and confirmed as natural tutor upon taking oath and otherwise complying with all legal requisites. The same day an inventory was taken, and the oath of the father was filed. No certificate of the amount of the inventory seems to have been recorded, or to have been issued by the clerk. #On the 25th of April, 1885, James O. Brandon, the maternal uncle of the minors, was appointed as under-tutor of the minors, and qualified as such on the 25th of May, 1885.
    On the 23d of April, 1885, the district clerk issued to the father letters of appointment and qualification as tutor (12 An. 611), the letters reading: “Whereas J. Caldwell Peirce has taken the oath and otherwise complied with the law, he is, therefore, appointed natural tutor and ex-officio administrator to the minors (naming them). Witness the Hon. S. Charles Young, judge of said court and the seal of said court.”
    Default having been made on the payment of one of the notes secured by the mortgage to Richardson, executory proceedings were instituted on the 2d of March, 1887, for the amount due, three thousand and two hundred dollars, and interest, less a credit of one hundred and fifty-nine dollars, before the District Court for Concordia, parish. J. Caldwell Peirce, as natural tutor and ea-officio administrator, accepted service of notice of demand and order of seizure and sale. The Delhi plantation was seized and advertised and, on the 7th of May, 1887, sold by the sheriff. At the offering it was adjudicated to F. B. Hoffman, of the firm of Shattuck & Hoffman, of New Orleans, for the price of four thousand four hundred and one dollars. The purchase was made by Hoffman through H. R. Steele, acting as his agent and.attorney in fact, and, by direction of the attorneys of the seizing creditor the price of the adjudication was credited upon the writ and the writ returned.
    On the 14th of June, 1887, Hoffman, through Steele as his agent, sold the property to J. Caldwell Peirce for the sum of three thousand five hundred and ninety-three dollars. On the 17th of January, 1889, J. Caldwell Peirce mortgaged the property to the plaintiff company to secure a loan of four thousand six hundred and forty dollars.
    On the 11th of November, 1890, he executed a second mortgage-on the same property to secure an additional loan of one thousand dollars. Peirce having defaulted in the .payment of the interest and principal falling due on both of the loans, the plaintiff on the 2d of April, 1895, presented a petition to which he annexed the notes and mortgage for the second loan and prayed for and obtained an order-for the seizuz-e and sale of the property subject to the fii’st mortgage.
    Before seizure was made Peirce obtained an injunction against the execution of the order-. The ground assigned for injunction was that plaintiff was a foreign corporation and had violated all of the provisions of Art. 236 of the Constitution of Louisiana relative-to foreign corporations doing business in Louisiana, and further that the plaintiff was proceeding against him and asking judgment on a demand made up partly of illegal and usurious interest — that fiye of the notes in the act of mortgage were largely made up of capitalized interest at the rate of 10 per cent., which amount, together-with the 10 per cent, attorney’s fees thereon, exceeded the sum of' three hundred dollars.
    That plaintiff had elected by his petition to claim the maturity of' the whole debt by reason of the default of payment on the 4th of' May, 1894, and that they could not proceed to collect said capitalized interest not earned at or subsequent to said date; that said portion of said debt if it existed was extinguished thereby; that the injunction should be perpetuated, but should the same be dissolved the amount of the debt should be reduced by said amount as illegal, inequitable and usurious.
    On May 28, 1895, the children of Mrs. Peirce filed an intervention in the suit setting up that they were the sole heirs of Charlotte H. Peirce; that after her death their father made application to be appointed and confirmed as their natural tutor, bub that he did not comply with the law; that no true and faithful inventory was made; that no certificate of the amount of the inventory of the minors’ property was recorded in the mortgage record book; that their father went into possession of the property, and subsequently,, in the year 1886, entered into a correspondence with Shattuek & Hoffman, who held a mortgage on Delhi plantation for about four thousand dollars, executed by their mother, by which arrangement the said mortgage should be foreclosed, and the title to the property should be made to vest in the father, J. O. Peirce. That in pursuance of said arrangement, Shattuek & Hoffman foreclosed their mortgage, proceeding in the foreclosure contradictorily only with their father as their tutor. That Hoffman, one of the firm of Shattuek & Hoffman, bought at the sale, bidding the amount of the debt due them. That he subsequently sold the plantation to their father for just the amount of the debt and that that sale was illegal. That the present plaintiff had knowledge of all these facts when they made the loans to their father; that the mortgages were illegal and should be canceled, and they so prayed. That the loan by Gilbert M. Richardson to their mother was in reality a loan by Shattuek & Hoffman, Richardson being merely a party interposed; that the executory proceedings in the name of Richardson were really proceedings taken out by Shattuek & Hoffman in furtherance of the arrangement made between that firm and their father by which the title to the Delhi plantation should be shifted from the succession of their mother to their father. The knowledge of all the facts of the case, which it is alleged the plaintiff company had, is claimed to have been communicated to them through Francis Smith, Oaldwell & Co., who, it is asserted, acted as their agents in lending to Oaldwell Peirce the moneys for which the mortgages held by the plaintiff stand as security. Further charging that plaintiff was a foreign corporation transacting business in Louisiana, without having complied with Art. 236 of the Constitution. Plaintiff company, the American Freehold Land Mortgage Company, Limited, answered, declaring the validity of the father’s appointment as tutor — denied intervenor’s right to attack that appointment collaterally — alleged that they took the mortgages on the strength of the public record,s denied all knowledge of the facts charged to have been brought home to them — denied that they were doing business in Louisiana, but averred that they had complied with the provisions of Act No. 149 of 1890 — and that the provisions of Art. 236 of the Constitution were inoperative until the passage of that act — they pleaded also the prescription of five years against the intervenors. They answered Caldwell Peirce’s petition in injunction with practically the same allegations.
    On the same day that the intervention of the heirs of Mrs. Peirce was filed in the present executory proceedings the same parties brought in the District Court for Concordia an independent suit against Shattuck & Hoffman, Richardson and J. Caldwell Peirce on grounds substantially the same as those urged in their interventions, and praying for a judgment canceling and setting aside the sales and transfers, and asking for judgment for fruits and revenues.
    The curator ad hoc appointed to represent Shattuck & Hoffman and Francis B. Hoffman, answered, setting up that the British and American Mortgage Company, and not Shattuck & Hoffman, loaned the money to Mrs. Peirce, the payment of which was secured by the Richardson mortgage. On behalf of the parties the curator represented, he maintained the validity of Peirce’s appointment as tutor, the regularity and validity of the sale made under the Richardson mortgage, and by way of reconvention prayed that that mortgage be reinstated against the property if the sale should be found to be illegal and void.
    The two causes were consolidated and tried together. After trial a decree was rendered by the District Court recognizing intervenors as owners of the Delhi plantation, decreeing the two mortgages executed by Caldwell Peirce to the plaintiff to be null and void, and setting aside the sale made under the Richardson mortgage.
    In the opinion of the court a qua the father, by reason of the fact that he was in community with his deceased wife, was authorized, under Art. 1146 of the Civil Code and the interpretation placed upon that article in Bland vs. Lloyd, 24 An. 603, to buy the property though it was not community property, but it held that the appointment of the father as natural tutor was null and void for the reason that the certificate of the amount of the inventory of the minors’ property had not been recorded. From this judgment the plaintiff company, Shattuck & Hoffman and Francis B. Hoffman have appealed. J. Oaldwell Peirce has not appealed. Appellees have asked no amendment of the judgment as rendered.
   The opinion of the court was delivered by

Nicholls, C. J.

The attack upon the mortgages executed by J. Caldwell Peirce to the plaintiff company, in so far as it is based upon the claim that plainiiff was doing business in Louisiana in violation of Art. 236 of the Constitution, must fail. The facts of this case bring it under the principles laid down in Reeves vs. Harper, 43 An. 516, and Scottish American Mortgage Co., Limited, vs. W. F Ogden, ante, p. 8.

Intervenors claim that the loan to Mrs. Peirce, though apparently made by Richardson, was in point of fact made to her by Shattuck & Hoffman, and that in the taking of the notes and mortgage and in the proceedings which resulted in the sale of the Delhi plantation, Richardson’s name was simply used in order to interpose a third person between Shattuck & Hoffman and Mrs. Peirce and her heirs. We find under the evidence no foundation for that charge. There is no reason assigned why at the time of the loan to Mrs. Peirce there should have been any concealment of the actual facts of the case. The property belonged to her; she had a legal right to contract the debt she incurred and to grant the mortgage she did, and even up to the present time there has been no contention as to her not having been legally bound both as to the debt and as to the mortgage. The loan in question made to Mrs. Peirce was really made to her by the British and American Mortgage Company, through Richardson, and the notes and mortgage given were held by that corporation and not by Shattuck & Hoffman. It is charged that the sale made under the Richardson mortgage was the result of an agreement or combination between Shattuck & Hoffman and J. Caldwell Peirce, the father of the intervenors, to bring about for the benefit of the latter, and to the injury of the children, the shifting of the title of the plantation to the husband from the succession of the wife. We do not find this to have been the fact. The correspondence between the firm and Peirce discloses that the British and American Mortgage Oompany, holders of Mrs. Peirce’s notes and mortgage, had become alarmed at her death lest by some judicial proceedings a sale should be made in the settlement of her succession which would raise the mortgage and transfer their rights to the proceeds of sale. They were unwilling that this should happen, or that matters should remain any longer as they were; they therefore insisted upon immediate payment, or that a sale should be made and that their rights should be secured to their satisfaction. Peirce, so far from, at that time, seeking to transfer the title to himself, wrote a letter to Shat-tuck & Hoffman, complaining that immediate payment was being insisted upon, and the latter replied, explaining the exact situation and from what quarter came the demand. They informed Peirce that they had no control over the matter; that they had to follow the instructions of the company, between whom and Shattuck & Hoffman there seems to have existed business relations of some kind. It is not pretended that either Peirce himself, or the succession of his wife, was in a condition to make the payments which were exacted. The British and American Mortgage Company had the legal right to enforce payment, and neither Peirce nor the succession of the wife could control the corporation in the exercise of that right. They were without power to stay the executory proceedings which followed. The sale which resulted from these proceedings was a public one, at which any person was at liberty to buy. Had the seizing creditor bought precisely for the same price at which the property was adjudicated, there could certainly have been no legal obstacle in the way of its doing so, if the proceedings themselves were proper and legal. Nothing was done or alleged to have been done which was either intended to deter bidders or to have resulted in doing so. It is argued that the price bid was much below the actual value of the property, but the mortgagor, the mother of the intervenors, had herself waived the benefit of appraisement, and she was bound by her agreement. There was no legal reason why Hoffman, of the firm of Shattuck & Hoffman, should not buy the property at the offering. When the adjudication was made to him and the price (under the orders of the attorney of the seizing creditor) was credited on the writ, the debt of Mrs. Peirce was instantly as between her and the British and American Mortgage Company paid and extinguished and the ownership of the property passed at once to Hoffman. The seizing creditor could have donated the price to the purchaser or they might have consented to payment of the price by means of novation. In either event the seized debtor could not object. (Baudin vs. Roliff, 1 N. S. 165; Id., 8 N. S. 100.) Whether Hoffman ever paid the English and American Mortgage Company, or when or how they paid the amount of the bid was a matter between those parties which did not concern the seized debtor. All that the debtor could require was that the debt should be declared discharged. If either the seizing creditor or Hoffman, looking forward to the possibility of becoming a purchaser at the sale, had in view of that contingency made promises or arrangements (based upon that fact) with Peirce, this would have been doing with their own what they had the right to do. If the title passed to Hoffman by the sale (as it did) the seized debtors had no ground of complaint; certainly none so far as Hoffman was concerned that he should make use of his own ownership so as to benefit their father. They might be able to find fault morally with their father that he should not subsequently have given them the benefit of any arrangement which he had been able to make, but they could not make their father’s preferring to follow his own interests than theirs (if such was indeed his course) turn to the disadvantage of Hoffman, who owed them no duty. In Amato vs. Erman & Cahn, 47 An. 976, referring to a complaint of a similar kind sought to be urged against mortgage creditors, we said: “ If those parties had a legal mortgage on the property they were free to enforce it, and if they enforced it and cut off by becoming purchasers at the sale all rights of the creditors of Sorrel upon the property itself, transferring whatever claims creditors might have to the proceeds of sale, they were at liberty to do with their own what they pleased, and if they thought proper to transfer the property to a third person in order that Erman & Cahn might derive a benefit from it, that fact could not result in divesting them of rights which had legally vested in them under their execution. (Gilkerson, Sloss & Co. vs. Bond & Williams, 44 An. 844.) “ The creditors might perhaps (if the special agreement was one which would enable their debtor to evade their pursuit in the future) attack the agreement itself or make it turn to their own advantage, but they could not oust the purchaser from the property.”

It can not be pretended here that the English and American Mortgage Company were not legally authorized, holding a valid mortgage to force the property to sale as they did, nor that Hoffman was not at full liberty to buy as he did. It would be a strange result if, notwithstanding the concurrence of those two facts, the exercise of both rights should be followed by the consequence that the property should remain the property of the heirs, of the debtor, not only without having themselves paid the debt for which it stood mortgaged, but freed from that debt directly and indirectly. It is not asserted that the English and American Mortgage Company in foreclosing had any other object in view than to safeguard and protect their own interests. When Hoffman bought at the sale he became bound for the price; when he paid this price he became entitled to protection defensively, and, within certain limits, as against the seized debtor and her heirs through the rights of the seizing creditor. There existed at once such a privity between the seizing creditor and the purchaser as to authorize him to call on the latter and appear and defend the title, or directly avail himself of any legal or equitable defence by which the creditor might oppose the action. Judice vs. Kerr, 8 An. 462; Upsher vs. Briscoe, 37 An. 154; Seawell vs. Payne & Harrison, 5 An. 255; Scott vs. Featherston, 5 An. 314; Wolf vs. Lowry, 10 An. 274; Coiron vs. Millaudon, 3 An. 664.

Whether this right of protection springs from defensive equitable subrogation or the application of the principle that the debtor should not be permitted to enrich himself at the expense of another (Childress vs. Allen, 3 La. 480), we need not here consider.

The intervenors have succeeded in this suit, as between themselves and their father, in reinstating in themselves the title of which they were divested by the suit of the English and American Mortgage Company. Their father acquiesces in that judgment. The plaintiffs in this suit have no further interest in the question of title than to see that their mortgage rights, which they acquired on the strength of the title of J. Caldwell Peirce, as it appeared of record under judicial proceedings, should be fully recognized and enforced.

It would not follow, as the necessary consequence of the intervenors being decreed to be the owners of the property, that plaintiff’s mortgage rights should fall. Chaffe vs. Farmer, 34 An. 1021.

Francis B. Hoffman, however, as appellant, is interested in seeing, that the purchase of the property as made by him be sustained, inasmuch as he subsequently transferred the title so acquired by him ta J. Caldwell Peirce under warranty.

We will have, therefore, to examine into and decide whether the adjudication made to Hoffman divested the heirs of Mrs. Peirce of their interest in the property.

We have already said that Hoffman’s title was beyond attack on the ground of any bargain or arrangement between himself or Shat-tuck & Hoffman and J..Caldwell Peirce; that a judicial sale should be resorted to for the purpose of transferring the property over from the succession of the wife to the husband. The proceedings which resulted in the sale, therefore, have alone to be considered.

The only attack made upon the judicial proceedings is, that in foreclosing their mortgrge the English and American Mortgage Company did so contradictorily with J. Caldwell Peirce as being tutor of his children when, as they contend, he was not such under the law.

If, at that time, Peirce was not their tutor, the company would have been entitled to call for the appointment of a tutor ad hoe to represent their interests under the proceedings then about to be taken. Art. 313 of the Civil Code declares that, when the minor is without a tutor, any person who has a claim against him may apply to the competent judge to request that a tutor ad hoe be appointed to him, which tutor shall not be bound to give any security, but shall take an oath before the court who has appointed him to defend the interests of the minor according to the best of his knowledge.” It will be seen from this article that in cases where parties have claims adverse to minors, their enforcement is not subordinated to the fact that at that time the general interests of the minors in the administration of their affairs should be protected by a tutor who had given bond, and otherwise complied with the law as to tutorship generally. The rights of creditors, as well as those of minors, was matter for consideration. The lawmaker, in dealing with that subject, deemed it perfectly consistent with proper protection of the minors that they should be represented defensively in litigation by parties whose fidelity was guaranteed simply by an oath to perform their duty. J. Caldwell Peirce would unquestionably have been the proper person to have been appointed tutor ad hoc to represent Ms children had they been at that time without a regular tutor. He would presumptively be much more concerned in and for the welfare of his children than would a stranger. When the English and American Mortgage Company, in an examination of the proceedings in the matter of the succession of the wife, found that the father had been tutor of the children under a recital that he had complied with the provisions of the law, and that he had taken an oath as tutor, they were justified in believing, particularly under the decision in Stackhouse vs. Zuntz (36 An. 583), that J. Caldwell Peirce was legally authorized to represent Ms children as tutor — if not generally as tutor, at least defensively, and for the purpose of that particular suit.

We think it would be subordinating substance to mere form to have required that the father should have been appointed as a tutor ad hoc in that particular case, and to take therein a second oath. We are of the opinion that the proceedings carried on contradictorily with him as tutor were legal, and carried with them the legality of the sale to Hoffman.

Even had there been a secret understanding between Hoffman and J. Caldwell Peirce, the intent and object of which was to transfer the ownership of property from the heirs of Mrs. Peirce to the father, we do not think that fact could be made by the children to turn fo the injury of the plaintiffs. The record disclosed that their mother had executed a valid mortgage to the English and American Mortgage Company — that that company had validly enforced their mortgage rights on the property; that it had been purchased by Hoffman, against whose legal right to purchase nothing appeared; that it had been sold by Hoffman to Peirce, as between whom there was no reason to suppose that a legal disability existed either to sell or to buy. On the hypothesis that there was in fact some defect or vice in the title as between Hoffman, Peirce and Peirce’s children, plaintiffs were no party to the proceedings or facts from which such defect arose. They knew nothing of such defect or vice. There was nothing to indicate such vice in the records. We can apply to them the language used in Chaffe vs. Farmer, 34 An. 1021, in respect to the intervenors in that case: “ They acted in taking the mortgage upon the faith of a judicial sale translative of the property.: They were therefore in good faith and entitled to protection.”

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment herein appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the demands contained in the petition of intervention of Philip B. Peirce, Geraldine B. Peirce; wife of Samuel H. Coulsom; J. Caldwell Peirce, Jr., and Mary B. Pierce and contained in their petition in the suit of Philip B. Peirce et al. vs. J. Caldwell Peirce et al., No. 1892 of the docket of the Eighth Judicial District Court for the parish of Concordia, to be recognized as the owners of the Delhi plantation in Concordia parish, and that the sales of said plantation made by the sheriff of said parish to Francis B. Hoffman on the 7th of May, 1887, and by Francis B. Hoffman to J. Caldwell Peirce on June 14, 1887, and the mortgages granted hy said J. Caldwell Peirce to the American Freehold Land Mortgage Company .of London, Limited, recorded in the mortgage books of the parish of Concordia be declared null and void and set aside, be and they are hereby rejected at their costs in both courts.

It is further ordered, adjudged and decreed that the injunction which issued herein on the petition of J. Caldwell Peirce be and the same is hereby set aside and the plaintiff, the American Freehold Land Mortgage Company of London, Limited, be and they are hereby authorized to proceed to seize and sell the property covered by their mortgage and referred to in their petition in accordance with the order of sale granted to them on their prayer. It is further ordered and decreed that J. Caldwell Peirce pay costs in both courts.


source: Caselaw Access Project

author: NichoDls, O. J.

license: Public Domain

text:
    No. 12,196.
    Southern Insurance Company vs. Board of Assessors et als.
    The levying of taxes is for the “ calendar years,” and the “ assessment” of property for the “ purpose of levying” the “ annual taxes” is likewise for the calendar year. So when the law provides that assessment is to be begun on the 2d of January and completed on the first day of March, it contemplates an assessment on the basis of the condition of things existing on the 1st of January. Home Insurance Company vs. Assessors, 48 An. Nl, affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Denégre, Blair & Denégre for Plaintiff, Appellee.

      Samuel L. Gilmore, Oity Attorney, and James J. McLoughlin, Assistant Oity Attorney, for Defendants, Appellants.
    Argued and submitted February 4, 1897.
    Opinion handed down February 15, 1897.
    Statement of the Case.
    The plaintiffs alleged that in making up the assessment rolls for the year 1895 the Board of Assessors for the parish of Orleans assessed them, under the head of “money in possession,” etc., in the sum of ninety-five thousand nine hundred and thirty dollars, claiming to base said assessment upon their annual statement for the year 1894.
    That said assessment was excessive and erroneous, and should nob have been made; that in the above ninety-five thousand nine hundred and thirty dollars are included the amount of unadjusted losses due by plaintiffs outstanding at the date of the statement, all of which amount was paid in the early days of January or February, 1895, and ceased to exist before the assessment rolls were closed or completed, and could not and should not have been counted as assets of petitioners liable to taxation within the year 1895.
    Petitioners averred that precisely the same issue had been determined in favor of petitioners against the defendants in suits brought by them in suits Nos. 85,994 and 44,087 of the Oivil District Court, and the petitioners pleaded the judgments therein as res judieata. Petitioners prayed that they have judgment reducing the assessment from ninety-five thousand nine hundred and thirty dollars to fifty-nine thousand and twenty-six dollars, and that the State Tax Oollector and the city of New Orleans be ordered to receive taxes for the year 1895 upon said amount of fifty-nine thousand and twenty-six dollars without interest.
    The State Tax Oollector and the city of New Orleans answered that the assessment complained of was lawful and correct, and should be maintained.
    The District Court rendered judgment in favor of the plaintiffs, reducing the assessment to fifty-nine thousand and twenty-six dolXars, and ordering the State Tax Oollector and the city of New Orleans to receive from the plaintiffs taxes for the year 1895, upon said amount without interest or penalties, and ordered defendants to pay the costs of suit.
    They appealed.
   The opinion of the court was delivered by

NichoDls, O. J.

Counsel for plaintiffs urge in this court the . exception of res judicata pleaded below, based upon the judgments in their favor in the suits Nos. 32,994 and 44,087 of the Oivil District Court. They say that precisely the same issue was presented in those eases as is presented here, and that it was raised and decided between the same parties. The suits involved the assessments of 1891 and 1894. The judgments referred to not having been appealed from, fixed the rights of the parties as involved in that particular litigation. Their effect extended no further.

On the 29th of January, 1895, the plaintiff company made their assessment return to the Board of Assessors. In that return we find the following statement:

Money in possession on deposit or in hand..........................................................$95,929
Less reserved for paid (payment of?) losses..................................................... 36,903
$59,026

The assessors in making out their own assessment do not seem to have given the company credit for the thirty-six thousand nine hundred and three dollars which on their return list they had deducted from the ninety-five thousand nine hundred and twenty-nine dollars on hand, on the score that that amount was held by them in reserve fund for the payment of losses, but charged the plaintiffs as being assessable on the whole ninety-five thousand nine hundred and twenty-nine dollars, for we find that on the 11th of March, 1895, application was made to the board for a reduction to make their assessment conform to their list. This application was refused and this suit followed.

It is contended by the plaintiffs that the amount of thirty-six thousand nine hundred and three dollars which figured on their return as reserve fund for payment of losses was in point of fact paid out between the first of January, 1895, and the 11th of March, 1895; that the company never had on hand after the 11th of March even the amount of fifty-nine thousand and twenty-six dollars on which they were and are still willing to have their assessment based. They contend the evidence shows the following condition of affairs

The company had on hand December 31,1894 ....................................................$95,929
.January 20, 1895, cash on hand...............................................................45,511
February 28, 1895, cash on hand........................................................................... 25,526
The amount of losses for the year 1894 paid out during the months of January, 1894, amounted to........................................................................ 40,742

Their position is thus stated in their brief: “ We contend that the law contemplates the state of affairs existing or values existing on the first day of March of each year, the date upon which the rolls are completed, the assessment up to that time being inchoate, and that as it appears that on that day the company had but twenty-five thousand five hundred and twenty-six dollars and fifty-four cents cash on hand the application for a reduction to fifty-nine thousand and twenty-six dollars can not bs contested, because actually a demand of less than the company were entitled to demand.

“From a statement of the issue thus presented to the court it is evident that they are not similar to those in Home Insurance Company vs. Board of Assessors, 48 An. 451, relied on by defendants in this case.

“ Section 1 of the revenue act of 1890 declares as taxable all cash, without mentioning as of what date the cash is to be estimated.

“ Section 24 of the act provides that the board shall meet on the '2d day of January, and complete their assessment by the 1st day of March of each year, and provides for daily meetings.

“ The former acts provided a day upon which the valuation of cash was to be made. The revenue act of 1888 provided for the assessment of ‘ all cash on hand on the day upon which the notice is served to make return of taxable property, in conformity with this act’ and provided that ‘ cash on hand’ must represent the full amount standing in the name of the person to be assessed, or subject to his control on the day above mentioned. ‘ A change having been made in the law, it must be presumed it was done by design, and to establish a different rule, especially as the Act of 1890 is an amendment to the Act of 1888, and therefore clearly shows the intention of the Legislature to abolish the old and substitute a new rule for the valuation of cash on hand. Under these circumstances, we contend that the new rule fixes the date as of the day upon which the rolls are completed, since there is no assessment until on that date. * * * If this be not the true rule, it is difficult to know what the true rule is. No other guide can be found, unless it be that as by Sec. 28 of the Act of 1890 corporations are called upon to make sworn returns within the first twenty days of January of each year, it could be held that the condition of the company on the 21st of January is to be taken as the proper basis of assessment. * * * It seems to us clear that our contention is correct, and that a consideration of the act shows that the assessment is made as of date the 1st of March; that the assessors are given the whole of January and February to gather information simply as a basis for their action upon that day.” Oounsel in argument, selected by way of illustration a number of special cases by which they sought to show the injustice or injury which would be done either to the State or to individual taxpayers by not adopting the theory advanced by them, but that is not a proper method of dealing with the subject. The assessment of property for the purpose of taxation and the levying of taxes upon the assessment of property has to be considered as a system and not from a consideration of the results good or bad which may result therefrom in particular instances. Oases of individual hardship or inequality will result no matter what system may be adopted. What is necessary is that there should be some fixed rule established withdrawing from officials and from the taxpayers themselves a power of control over the performance of their duties. What might in some particular year under a fixed rule lead up to apparent hardship or injustice against the taxpayer, would the next, under the operation of the same rule, lead up to an apparent hardship or injustice to the State. The hardship or the benefits of a system will during a serious of years doubtless be found to be equalized or compensated. We think the plaintiffs took a correct view of the law, when on the 29th of January they made a return showing the condition of the company’s cash account, not as of that day, but as of the first of January, 1895. The “levying” of taxes is for “calendar years,” and the “assessment” of property for the “ purpose of levying ” the “ annual taxes ” is likewise for the calendar year. That this is the correct rule is manifest from reading the Oonstitution itself and the various revenue laws levying taxes. If one citizen were to make his assessment on the 2d of January, another' on the 10th of January, another on the 1st of February, another on the 15th of February, there would not be that uniformity as much demandable in matters of assessment as there is in the establishment of the rate of taxation. Plaintiffs concede that there should be some fixed date determining the righis of parties, but they contend that that date is fixed as of the 1st of March, when the assessments are closed. We are not of that opinion. It is true that there is a period of time between the date when the business of assessment commences, and that upon which it is ordered to be closed, but that is because in the nature of things the assessors can not make the assessment over an extended territory in one day, and it is true that during that open period the taxpayer may make his return for assessment purposes, but when he does so he is expected to make it on the basis of the condition of things existing on the 1st of January. It is true that if there be “errors” in the assessment lists or in the assessment as made by the officials themselves, they are subject to correction, buta correction of “ errors ” is something different jrom an alteration of assessment. If the plaintiffs, after making their return, showing that they had on hand ninety-five thousand dollars on the 1st of January, had ^fterward discovered that they had on hand on that date only twenty thousand dollars, they could properly have applied for a “correction” of their list, but if having in fact on the 1st of January the amount they had stated they then held, they should apply to have the amount reduced, because, on the 1st of February, or some other day named, they had less than that ninety-five thousand dollars, they would seek, nob a correction, but an alteration of their return. If plaintiffs’ theory be true that the daté that the assessment is ordered to close is to be taken as that fixing the date of the situation of individual taxpayers as to the objects on which they are taxable, and the valuation of the same, it is clear that what is intended to be the ending of the assessment, except for “ corrective ” purposes, would be practically the beginning of the assessment, for very naturally the situation of almost every taxpayer would have been more or less altered between the 2d of January, when the assessors are directed to commence their work, and the date when they close the same. It would be impossible for those officers in the short time allotted to them for the “ correction” of the rolls to made a “revision” of the same through new lists not “ corrected,” but altered to conform to changed conditions.

Counsel refer us to Welty on Assessment, page 49, and the cases of Mygatt vs. Washburn, 15 N. Y. 320, and Clark vs. Norton, 49 N. Y. 243, but we find nothing therein which induces us to alter our views on the particular point presently submitted to us. There may be subordinate questions connected with the subject as to when assessments are to be taken as beginning and ending the decision of which may be affected by viewing the situation of parties, and of property as of a date later than the 1st of January. We will postpone any expression upon them until particular cases arise making such expression necessary.

With reference to the present demand we are of the opinion that it is controlled by the decision in Home Insurance Co. vs. Board of Assessors, 48 An. 451.

For the reasons herein assigned, it is ordered that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiffs’ demand be and the same is hereby rejected with costs of suit in both courts.


text:
    No. 12,369.
    Succession of William Heffner.
    1. Where an executor having made, as executor, payments of claims placed on his account, these charges were contested helow, and the question is the correctness and legality of such payments, the executor has a direct official and personal interest in sustaining the payments, and he has a right to appeal from a judgment on such subject matter adverse to him.
    2. Where one who has qualified as executor is brought into court in his official capacity to defend an attack upon the validity of the will which he is executing, he has a right to employ counsel to defend such suit, and the services of such counsel are properly chargeable to the estate.
    3. Where a plaintiff, seeking to annul a will, has proceeded against the executor named in the will and the testamentary heirs and special legatees instituted therein, and has obtained judgment, setting aside the will with costs against all the defendants in solido, the executor who has paid these costs in full is entitled to charge them up in full against the succession in his account,
    4. Payments made by an executor, without order of court, to special legatees under a will subsequently annulled, will not be recognized.
    5. One ceases to be executor when the judgment annulling the will appointing him such becomes final.
    6.If, from a scrutiny of the final account which a curator or executor has rendered on the demand of the heirs, he shall appear to owe a balance, he shall be sentenced to pay it to the heirs with interest from the day of judgment. (O. P. 1007.)
    A PPEAL from the First Judicial District Oourt for the Parish of Caddo, Land, J.

      Wise <& Herndon for Executor, Appellant.

      Harrison & Aston and D. T. Land, for Opponents, Appellees.
    Argued and submitted January 20, 1897.
    Opinion handed down February 15, 1897.
    Statement of the Case.
    William Heffner died in the parish of Caddo on the 20th day of February, 1895, having disposed of his property by what purported to be a last will and testament. The instrument was probated as such, and James Heffner, who was named therein as executor, qualified thereunder.
    On September 14, 1895, Jackson Heffner et al. instituted a suit to annul the will, and to recover as legal heirs three-fourths of the estate. Service was made on James Heffner, individually and as executor. The suit resulted in the District Court in a judgment in favor of the plaintiffs, annulling the will and ordering them to be placed in possession of three-fourths of the estate. From that judgment James Heffner individually and as executor appealed. On appeal the judgment was affirmed. 48 An. 1088, Heffner et als. vs. Heffner et als. Jackson Heffner and the other plaintiffs in the suit to annul the will then ruled the executor to file an account. The executor filed his account.
    In his petition accompanying the account the accountant averred that the succession of Wm. Heffner had been fully administered in accordance with the will, with the exception of the real estate which was still undisposed of, and the balance due the four sons of Jackson Heffner, amounting to one thousand dollars. He prayed that notice be given of the account, which he declared was his final act, and that he be discharged.
    The account filed was as follows:

      James Heffner, Executor, in Account with Succession of Wm. Heffner.

    Real estate as shown by inventory................................................................. $1,020 00
    Notes as shown by inventory....................................................................... 8,830 01

    Note on Sam Butterfield not inventoried................................................ 2,«00 00
    Cash on hand as shown by inventory............................................................... 2,707 07
    Total............................................................................................................ $18,847 07

      Or.
    Privileged Debts.
    Funeral expenses............................................................................................. $161 OO
    F. A. Leonard, notary’s fees .........................................................................
    F. A. Leonard, clerk’s fees in succession.......................................................
    Clerk’s fees m suit of Jackson H«-ffner et al. vs. James Heffner et al..........
    To deposit in Supreme Court in suit of Jackson Heffner et al. vs. James Heffner et al ....................................................................................... 2<?00-
    To y mount paid for brief in said suit.......................................................... 5 00
    ToR. J Looney, attorney, for probating will........................................... 25 00
    To Wise & Herndon, attorneys, for defending suits of Jackson Heffner

      et al. vs. James Heffner et al.......................................................................... 500 00
    Amounts paid under terms of Will.
    To amount paid Jackson Heffner’s sons........................................................ 1,000 00‘
    “ “ “ Mrs. Mary Wellborn.. ................................................... 2, 21 51
    “ <• “ Ollie Akard........................................................................... 2,92151
    “ “ “ Laura Booth ............................................................................. 2,921 51
    Jackson Heffner and his co-plaintiffs filed an original and art amended opposition to the account, setting up in the first opposition, as grounds:
    1. The executor failed to account for the interest on the notes set forth in his account and for the rents and revenues of the real estate belonging to said succession.
    2. Because the debit side of said account foots up fourteen thousand eight hundred and sixty-seven dollars, and not thirteen thousand eight hundred and forty-seven dollars and seven cents as stated in the account.
    3. Because the item of one hundred and sixty-one dollars funeral, expenses and the item of twenty-five dollars fees for probating will are not due and owing by the succession.
    4. Because the amount of the items of costs in succession and-attorney’s fees are not stated and are not due by said succession.
    5. Because the amount of items of costs in suit of Heffner et al. vs. Heffner et al. are not stated and are not due by the succession _gnd James Heffner has been condemned personally to pay said costs- and as executor wrongfully and fraudulently disposed of eight thousand seven hundred and sixty-four dollars of the moneys and property of said succession, and because the defence of said suit was-unnecessary and against the interest of said succession, as said, executor well knew.
    6. Because the item of five hundred dollars attorney’s fees to Wise & Herndon for defending suit of Heffner et al. vs. Heffner ef al. is not due and owing by said succession for the reason that Wise & Herndon were employed and represented James Heffner and the other legatees individually, and the defence of said suit was unnecessary, against the interest of said succession and involved a pure (question of law, with the authorities all in favor of the plaintiffs, as ■the said Wise & Herndon well knew; and further, because if said fees are due by said succession, which was denied, the same were exorbitant and excessive.
    7. Because the executor was not entitled to a credit for the sum of one thousand dollars claimed to have been paid to Jackson Heffner’s sons, and two thousand nine hundred and twenty-one dollars claimed to have been paid to Mary Wellborn — a like amount to Mrs. Akard, .and a like amount to Mrs. Booth, because—
    ,(1) Said sums were not paid out by the executor; (2) because if ■said sums were paid out by the executor they were made under the terms of a will which was an absolute nullity on its face; (3) because plaintiffs in the suit of Heffner vs. Heffner obtained a final judgment against James Heffner individually and as executor, and against the parties to whom said payments were claimed to have been made, recognizing them as the owners of three-fourths of the estate of Wm. Heffner, and ordering them to be put in possession of same, which' said judgment they pleaded as res judicata on the question of the ownership and possession of said estate; (4) because prior to the pretended payments opponents made a demand on James Heffner, individually and as executor, for three-fourths of the estate, and pointed out to him the nullity of the will — that if the executor paid said sums to said parties he did so with full knowledge of the nullity of the will and of the rights of the opponents, and he had wrongfully and fraudulently disposed of eight thousand seven hundred and sixty-four dollars belonging to the succession. They prayed that their opposition be maintained, and that they have judgment against James Heffner individually and for three-fourths of the property an(| money of said estate not accounted for or disposed of by him, with ten per cent, per annum interest thereon and for general relief.
    In the amended opposition they averred that James Heffner claimed to be owner of one-quarter of the property of the succession in his hands as executor, basing the same on the fact that he was one of the heirs at law of Wm. Heffner, and, as executor, he proposed to distribute the property in his hands in the proportion of one-fourth to himself, individually, and three-fourths to opponents. That they opposed said claim and said proposed distribution for the reasons:

      1. That James Heffner, executor, was bound'to account to opponents as owners for three-fourths of said estate, which he had failed to do, the property accounted for being less than one-half of the amount due to opponents. 2. That the executor had wrongfully and fraudulently disposed of a large amount of property belonging to said estate, as set forth in the original opposition filed, and had thereby rendered himself personally responsible to said succession and opponents, and was not entitled to receive any part of said succession as heir before he paid what he owed to the succession — his share as heir being compensated and extinguished pro tanto by the amount due by him to said succession. They prayed that in the event judgment be rendered in their favor against James Heffner, individually, that the amount of said judgment be declared compensated and extinguished pro tanto by the amount of the share of said James Heffner as heir of William Heffner in and to the property of said succession now in his hands as executor, and that said executor be ordered to deliver to opponents, as owners, within ten days from the adjournment of court the entire property of said succession now in his hands as executor, less all legal claims against the same that might be allowed by the court. They prayed for all other orders and decrees necessary in the premises.
    The District Court rendei’ed judgment increasing the amount of the debit side of the account by the sum of one thousand and twenty dollars, this being merely the correction of a clerical error in the statement. It sustained the items of one hundred and sixty-one dollars for funeral expenses, the item of twenty-five dollars for attorney fee for probating the wiil, and an amount of nine dollars and sixty-five cents for succession costs and notarial fees. It rejected the amounts of items of costs in the suit of Heffner vs. Heffner, and also the item of five hundred dollars for services rendered by Wise & Herndon as attorneys in defending the suit of Heffner vs. Heffner. It rejected the claim made by the executor for credit for amounts paid to Mrs. Mary Wellborn, Ollie Akard, Laura Booth and the four sons of Jackson Heffner as special legatees under the will. It decreed “ chat Jackson Heffner and his co-opponents do have and recover judgment against James Heffner individually, and as late executor of the succession of William Heffner, the full sum of ten thousand two hundred and thirty-eight dollars, being three-fourths of the balance (in his hands), with legal interest from date of judgment until paid. It further ordered and decreed that opponents be recognized as the legal owners of three-fourths of the real estate described in the inventory with the right to sue for a partition of the same and to demand in said proceeding the collation of what may be due them by James Heffner, the owners of the remaining one-fourth interest reserving their right to execute their judgment according to law.
    The court at the same time sustained an opposition to the account which had been filed by Harrison & Aston claiming to have paid taxes due by the estate for such amounts and been subrogated to the rights of the State.
    After said judgment was rendered James Heffner “individually” moved to set aside the judgment rendered against him for the reason that he individually was no party to said suit and made no appearance therein, and further, because said judgment was rendered in chambers without his knowledge or consent. The court overruled the motion, stating that under Act No. 72 of 1884 no motion in the nature of a new trial was permissible, as it was made the duty of the judge at the same time as reading the decree to grant the order of appeal — that the minutes would show that the judgment was rendered in chambers pursuant to consent of parties who were represented by their counsel. The motion to set aside the judgment for the reason that it was rendered at chambers without his consent was overruled.
    Opponents moved to dismiss the appeal from that part of the judgment rejecting against said succession the claim of Wise & Herndon for attorney’s fees, and rejecting claim for the costs of that suit, and from that part of the judgment condemning said executor personally in favor of opponents. Because said Wise & Herndon, and the parties to whom said costs are due, have not appealed, and the executor has .no capacity to' appeal in behalf of parties whom he has placed on his account as creditors, and whose claims have been opposed and rejected by the court.
    2. Because James Heffner has furnished no bond personally, but solely as executor, and as executor can not appeal in his official capacity from a judgment against him personally.

      The bond furnished by James Heffner for an appeal reads: “We, James Heffner, executor Win. Heffner estate, as principal, and S. H. Johnson as surety, are held and firmly bound unto the clerk of tint First Judicial I).strict Oom t in the sum of one hundred and fifty dollars,” and declaies the condition of the bond to be that “ whereas the above bounden James H finer, executor, has applied for and obtained an order for a devolutive appeal from the judgment lately rendered against him by the First Judicial District Court, for Caddo parish, in the case of the succession of Win. Heffner, opposition to final account * * * n »w. therefore, if the said James Heffner, executor, shall well and truly prosecute hi- said appeal, etc. * * * then this obligation to be null and void, otherwise to remain, in full force and effect.”

   On the Motion to Dismiss Appeal.

"The opinion of the court was delivered by

Nicholls, C. J.

Appellant contends that he has paid the parties whose claims were opposed, and he is vitally interested himself in having their claims sustained. He calls our attention to the fact that the capacity in which he acted was as executor and not as administrator, and to the decision in the matter of the succession of Ames, 33 An. 1317, in which a distinction is drawn in respect to the questions raised in the motion as to his right of appeal between an executor and an administrator. He also directs our attention to the fact that, while the judgment is against him personally, it is also against him as executor.

This ease does not present the question of the right of an administrator or executor, who has filed an account or tableau of proposed payments on which he has placed certain parties as creditors, to appeal in his official capacity from a judgment of the District Court rejecting the claims on an opposition made to the claims, as being really succession claims. We have decided a number of times that if the parties aggrieved by the decision do not themselves appeal, it is no part of the duty of the administrator or executor to champion their rights. In this case the executor has already made, as executor, payment of the claims which were contested below, and it is the legality and correctness of such payments made by him which were litigated below. Under that phase of the question the executor had a direct official, and also personal, interest in sustaining the payments if he could.

The second clause of the motion to dismiss refers, we presume, to that portion of the judgment appealed from by which opponents were decreed “ to recover of James Heffner, individually and as late executor of the succession of William Heffner, the sum of ten thousand two hundred and thirty-eight dollars, being three-fourths of said balance (shown by the account filed), with legal interest from this date (date of judgment) until paid, and by which opponents were recognized as the legal owners of three-fourths of the real estate described in said inventory, with the right to sue for a partition of the same and to demand in such proceeding the collation of what might be due them by James Heffner, the owner of the remaining fourth, reserving, however, their right to execute this judgment according to law.”

The judgment from which the executor has appealed was one rendered upon an opposition filed to his'account as executor. It undertook to fix and determine the rights of the opponents to the funds in the hands of the executor, and to direct what disposition should be made by the executor. The executor had a direct official as well as personal interest in the subject matter of that judgment which carried with it a right to appeal from it. What issues can be legally raised and what legally passed on on this appeal, we can determine and declare after hearing. The motion to dismiss is overruled.

On the Merits.

The first item opposed is the payment of five hundred dollars by the executor to the firm of Wise & Herndon for attorney’s fees in defending the suit of Jackson Heffner et al. vs. James Heffner et al., in which the plaintiffs successfully attacked the will of William Heffner and had it set aside.

It is claimed on behalf of opponents that the instrument offered and probated as the will of William Heffner was so manifestly defective as such that it was scarcely permissible to have attempted to defend it — that its nullity was apparent on its face and the attorneys employed really made no serious defence and their labor was practically nothing.

It is insisted that the suit of Jackson Heffner vs. James Heffner et al. to annul the will was brought by legal heirs representing three-fourths of the estate of William Heffner, against James Heffner, individually and as executor, and against all the legatees under the will either by actual citation or through a curator ad hoc, and that when the defendants in the case employed counsel and defended the will they did so in their own interests, and that the attorneys engaged should be paid by James Heffner and the legatees who were really their clients.

In Sterlin’s Executor vs. Gros, 5 La. 100, it appears that one Philip Sterlin died leaving two instruments purporting to be his last will and testament. In one of these instruments a natural son was-acknowledged as such and to him was bequeathed three-fourths of the estate. In the other one Celestin Gros was appointed executor, and that instrument having been probated, he qualified as such.. The natural son brought suit to obtain possession of thp estate, producing a copy of the notarial act which he declared upon as a will. He directed his proceedings against Gros as executor, attacking the-will under which he had been appointed as a nullity on the ground that it was not legally witnessed.

The District Court annulled the will and its judgment was affirmed on appeal. A question was raised in the Supreme Oourt as to costs-of suit. The court said: “The remaining question relates as to-costs. Plaintiff contends that -the estate should not be responsible-for them, as the will was not that of the deceased. We think it. ought. The costs were incurred in this case in consequence of the act of the testator and it was the duty of the executor to maintain the will.”

In Girard vs. Babineau, 18 An. 604, the plaintiff, an attorney at law, brought suit to recover a fee for professional services rendered the succession of which defendant was the administrator. The court said the claim was advanced by the plaintiff, relying upon the ruling in the case of Sterling vs. Gros, and as part of the costs incurred by the testamentary executor in maintaining the will. The claim was rejected. The report of the case shows that the deceased,- Marguerite Babineau, had left as a will an act under private signature, in which.she bequeathed to one Nareisse De Blanc several slaves, and appointed him her testamentary executor. The plaintiff, acting as the attorney of De Blanc, filed a petition praying for the probating and homologation of the will and for letters testamentary. The heirs at law filed an opposition to the homologation of the will, alleging its nullity. Notwithstanding the opposition, De Blanc, claiming to be executor under the will, filed a petition for an inventory, and afterward another for the sale of the property.

The heirs at law then instituted a direct action against the legatees under the will to have the same set aside. In that action De Blanc was not sued in his capaacity as testamentary executor, but as one of the legatees. Plaintiff (Girard) filed an answer for De Blanc; other attorneys appeared for the different legatees, and thus issue was joined between the heirs and legatees. The will seems to have been set aside. In its opinion t-he court said: “Prom the moment all the legatees appeared in court and filed their answers to the direct action brought against them to annul the will) the oontestatio litis was between them and the heirs, and not between the latter and the testamentary executor. After the filing of the opposition to the probating of the will the testamentary executor had no authority to employ counsel to ask for a sale of the property.”

The court allowed, however, as costs, seventy-five dollars for petition for probate of the will and ten dollars for the inventory, which was declared to be a conservatory act for the benefit of both the heirs and the legatees.

It does not appear from the opinion that the will ever went to •probate.

In Succession of Hasley, 27 An. 587, it appeared that David Hasley, the deceased, left a will, by which he gave the usufruct of all his property to his widow during her life, and appointed her his executrix. The will was probated, and Mrs. Hasley was confirmed as testamentary executrix. The heirs of Hasley then sued to have the will annulled, and by a judgment of the Supreme Court the will was held to be valid. The heirs then sued to reduce the legacy to the disposable portion and for the rendition of an account and a partition. There was judgment, reducing the disposition in the will and ordering an account. An account was filed and various oppositions were made among these was one against the fee for defending the suit in which the validity of the will was attacked; also the fee for defending the suit to reduce the legacy to the disposable portion and for an account. The former of these two oppositions was rejected, the court holding it was properly chargeable to the estate. In sustaining the second opposition, the court said: “ The testator having left no forced heirs, the executrix might have learned from any member of the bar that the bequest of the usufruct of the whole of his property was reducible, and there was no necessity for defending such a suit — at least, by the executrix. If the legatee chose to defend it, she should pay a reasonable fee; it was not a proper charge against the estate.”

In the present succession (that of William Heffner) the will of the deceased was actually probated, and the executor named therein actually qualified. The plaintiffs in the suit of Jackson Heffner et al. vs. James Heffner et al. brought him into court in his official capacity as a defendant. As such he resisted, both in the District and Supreme Courts, the claims of the plaintiffs. Plaintiffs, it is true, made all the legatees, among whom the executor himself was one, parties to the action, but the fact remained that the executor was officially a defendant on plaintiff’s demand. It was proper for him, as such, to employ counsel and defend the suit. He employed Messrs. Wise & Herndon — that firm seems to have been employed by all the parties defendant, not solely by the executor, as in the pleadings they appear and act for all. We are of the opinion that accountant is entitled to a credit for three hundred dollars for and on account of the fee of Messrs. Wise & Herndon.

The second item opposed is the charge made against the estate by the executor for costs paid by him in the defence of the suit of Jackson Heffner vs. James Heffner, Executor, et al.

Opponents elnim that the judgment of this court in that suit on appeal definitively settled that question adversely to the right of reimbursement claimed by the executor. Our judgment was: “The judgment of the lower court is affirmed with costs.” The judgment affirmed condemned the defendants in that cas ein solido to pay the costs; the defendants were James Heffner, individually and as executor, and the various persons named as legatees in the will. The judgment relieved the plaintiffs in that case, as such, from the responsibility for costs, and authorized them to charge the estate itself with any amounts paid out by them for that purpose. It, however, charged the estate represented by James Heffner to pay solidarily with James Heffner individually, and the other legatees who were defendants in the suit, the costs of suit. Parties holding claims for costs were entitled to recover from the executor, as well as from the other parties, and if, in point of fact, the executor paid the accounts he is entitled to credit for the same. Opponents who, as plaintiffs, were entitled to reimbursement for amounts paid out by them for costs primarily, and who, as plaintiffs, were relieved from any direct liability to the executor for unpaid costs paid out by him, have indirectly, as heirs at law, to take their share in the succession, lessened by the amounts of the costs paid by the executor. James Heffner, individually, will have, indirectly, to pay his share of the costs as an heir.

Opponents, as plaintiffs in the suit of Jackson Heffner et al. vs. James Heffner, Executor, et al., considered the executor as the proper and necessary party against whom they should proceed in their attack upon the will, and accordingly brought him into court as such. Ex industria they made James Heffner individually, and the various parties who were made legatees under the will, parties defendant, and recovered judgment against them as well as against the succession for costs. Opponents have the right, as plaintiffs in that suit, to enforce their judgment against all the defendants therein; but we do not think their judgment can be set up in this suit against the credit claimed by the executor for payments made by him as such under decree of the court. It may be well to say that the increased cost incurred by reason of the fact that the legatees were individually made parties defendant in the suit was almost nominal. Those parties, with the exception of James Heffner, were not heirs at law and they are not before the court, and it would be difficult to know what their respective pro rata of costs would be. We think the credit which the executor claims for costs in the suit mentioned is a proper credit and should be allowed. Sterlin’s Executor vs. Gros, 5 La. 105; Girard vs. Babineau, 18 An. 604; Succession of Hasley, 27 An. 590; Chapoton vs. Creditors, 46 An. 415.

The next item opposed was a claim advanced by the executor to be credited with one thousand dollars paid to Jackson Heffner’s sons —two thousand nine hundred and twenty-one dollars and fifty-one cents to Mrs. Mary Wellborn — a like amount paid to Mrs. Ollie Akard and a like amount paid to Mrs. Laura Booth.

We think the District Court ruled correctly in rejecting these claims. The parties to whom payment was made were named special legatees in the will which was annulled. The payments were made without order of court and at the executor’s peril.

The executor complains of that portion of the judgment by which opponents are decreed to recover against himself individually and as executor “ the sum of ten thousand two hundred thirty-eight dollars and fifty-six cents as being three-fourths of the balance in the hands of the executor with interest, and further recognizing them as owners of three-fourths of the real estate described in the inventory, with the right to sue for a partition of the same, and to demand in said proceeding the collation of what sum may be due them by James Heffner, the owner of the remaining fourth, reserving their right to execute their judgment.” He contends that though he consented that the decree in the case should be rendered (as it was) at chambers under Act 72 of 1874, his consent was given only in his official capacity as executor, and he was not before the court individually. That the decree rendered was one homologating an account of executorship which could not be rendered in vacation or at chambers; citing in support of this position Succession of Bougère, 29 An. 378, 381.

He also contends that he was before the court only as an executor rendering an account — that he was not individually and personally responsible to opponents for any amount which might be coming to them as heirs in the succession and could not be condemned to pay the same. That Art. 993 of the Code of Practice and the decisions of this court in Dupuy vs. Dashiell, 16 La. 126; Wells vs. Roach, 10 An. 343; Stevens vs. Stevens, 13 An. 416; Succession of Philbrick, 18 An. 220; Succession of Comstock, 44 An. 429, shows the circumstances under which an executor may become personally liable.

At the time the account which is opposed was filed, James Heffner was no longer executor of .the succession of his brother. He ceased to be such when the judgment annulling the will became final; when the plaintiffs in that suit afterward went into the succession of Wm. Heffner in the District Court for Caddo and ruled James Heffner as executor to file his account, and in obedience to orders of court the account was filed, it was that of one, not who was, but who had been the executor of an estate. The plaintiffs none the less treated him as an executor, and so dealt with him, bringing him into court by rule and objecting to the account by oppositions. Heffner, personally, was not before the court. Opponents are mistaken in their amended opposition in stating that accountant proposed in his account to make a distribution of the assets of the succession— three-fourths to opponents and one-fourth to himself. He simply made a statement showing the assets of the succession in his hands on one side and the credits to which he claimed he was entitled on the other, without any intimation or claim as to how the assets should be distributed. • In the suit of Jackson Heffner vs. James Heffner the present opponents had, as plaintiffs, been contradictorily with James Heffner individually and as executor recognized and decreed to be the legal heirs of William Heffner and entitled as such to three-fourths of his succession, and they had in the same judgment succeeded in obtaining a judgment that they be placed in possession. That judgment became final long ago independí ently of any judgment of court rendered upon the opposition filed in the present proceedings. When the plaintiffs in that suit ruled James Heffner, as executor, into court, they did so with their recognized status as heirs to three-fourths of the estate and with an existing decree in their favor that they be placed in possession. The matter before the court through the account was the ascertainment of what the succession in his hands really consisted of for purposes of distribution. Accountant when he filed his account averred that it was a final account, stated that the succession was fully administered and that the only asset of the succession not in money in his hands was the real estate which still remained unsold.

When the lower court after the account was filed and the oppositions had been made and tried, rendered the decree it did, matters were substantially in the situation called for by Arts. 1000, 1001, 1002, 1003, 1004, 1005, 1006 and 1007 of the Oode of Practice, with the sole exception that the proceedings commenced with a rule instead of a petition and that movers in rule were already recognized as heirs and then held a judgment ordering them to be put in possession of three-fourths of the estate. Accountant made no objection on the score of the manner in which he was called into court, but rendered an account as directed.

What are the provisions of Art. 1007 of the Oode of Practice in relation to the judgment proper to be 'rendered on the homologation of the final account? The article declares that “if from a scrutiny of the account, the curator or executor shall appear to owe a balance he shall be sentenced to pay it to the heirs or other claim - ants, with interest, from the day of judgment.”

Article 1057 of the Code of Practice declares that “ if the curator, testamentary executor or administrator refuses or neglects to pay the amount for which judgment has been rendered in one of the modes pointed out in the preceding articles, or if he fails to prove that he has no funds in his hands, the party in whose favor the judgment was rendered may take out execution against him, under which his property to a sufficient amount to pay debt shall be seized.”

Appellant seems to apprehend that the judgment rendered in the present suit means something other and different from that which is contemplated in Art. 1056 of the Code of Practice. We do not so understand it. If the parties holding the judgment were to place a wrong construction upon its scope and effect and proceed to enforce it in an unauthorized manner the judgment debtor would have his remedy, but we can not by anticipation suppose that such a thing will happen or that because a correct judgment may be misinterpreted in execution, it should be set aside.

Accountant does not pretend to have any claims against the succession or against his co-heirs — he does not pretend that their rights ns heirs are subject to deduction from any cause or that there is anything requiring a partition. As we understand matters the opponents in this case constitute with accountant himself all the legal heirs of the deceased. Accountant has in his hands a certain sum of money which calls for a division or a distribution rather than a partition. Rachal vs. Rachal’s Heirs, 10 La. 458.

We see no reason why opponents should not to the extent of their recognized rights receive present payment. It will be practically a provisional partition of funds to be followed by a definitive partition when the real estate is disposed of. Opponents are entitled to be paid presently three-fourths of the balance of the “funds” on hand after accountant shall have received the credits to which he is entitled, with legal interest from date of judgment of the District •Court until paid, costs of both courts payable out of the succession funds.

We restate the account as follows:

debits.
Real estate as shown by inventory................................................................. $1,020 00
Notes inventoried.................................................................................. 8,S40 07
Note Sam Sutterfield (not inventoried)........................................................... 2,300 00
Cash on hand as shown by inventory.............................................................. 2,707 07
Total to be accounted for........................................................................ $14,867 14
Credits.
Real estate remaining on hand......................................................................... $1,020 00
Funeral expenses ánd doctor’s bill.................................................................. 161 00
R. J. Looney, attorney’s fee............................................................................... 25 00
F. A. Leonard.................................................................................................. 9 65
Transcript in suit of Heffner vs. Heffner...................................................... 32 00
Wise& Herndon, attorney’s fees..................................................................... 300 00
Amount paid tor brief.................................................................................. 5 00
Deposit in Supreme Court.............................................................................. 20 00
Total credits................................................................................................ $1,572
RECAPITULATION.
Debits..................................................................................................................$14,867 14
Credits.............................................................................................................. 1,572 65
Balance....................................................................................................... $13,294 49
Three-quarters of balance............................................................................... $9,970 86

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended by reducing the amount for which judgment was rendered in favor of opponents, against James Heffner as executor, from ten thousand two hundred and thirty-eight dollars to nine thousand nine hundred and seventy dollars and eighty-six and two-thirds cents, with legal interest thereon from date of judgment of the District Court, and, as so amended, the judgment appealed from be affirmed; costs of both courts to be paid out of the succession funds.