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If the heir who is called renounces the succession in due form, and no others present themselves to accept it, the administrator is required, upon the authorization of the judge, to sell the effects, movable and immovable, present a tableau of distribution, and, after due advertisement of the same, distribute the proceeds in his hands among the creditors and legatees. Articles 1063 et seq.

those steps, any creditor may cite them be- | such balance be left after payment of all the fore the judge, in order to oblige them to de- debts and charges of the succession." Article 1058. clare whether they accept or renounce the succession, and, if they are silent or make default, they are considered to have accepted as unconditional heirs, and may be sued as such. Articles 1035, 1036. If, on the contrary, the heirs thus cited declare that they wish to take the benefit of inventory, and have the delay for deliberating, which is 30 days from the date of the last inventory, the judge shall grant the delay, and order all proceedings against them, personally or as heirs, to be stayed until the term has expired. Articles 1038, 1050. Whether the heir claims directly the term to deliberate, or whether

The Code of Practice contains the following provisions which have been invoked, at various times, in connection with the questions here presented, to wit:

Heirs and universal legatees may be sued for civil reparation of injuries caused by the crimes or misdemeanors of the deceased, whose successions they have accepted. Article 25. If one against whom there was a cause of action die, the suit may be carried on against the heirs (meaning necessarily the heirs who have accepted the succession). Article 120.

it is claimed at the suit of the creditor, it is made the duty of the judge to cause an inventory to be made (article 1039), and thereupon to name an administrator, to manage the property of the succession and to oblige him to give "good and sufficient security," or a special mortgage, as a guaranty for his administration (article 1041). In the choice of the administrator, preference is to be given to the beneficiary heir, if he be of age and present in the state. Articles 1042, 1043. ventory and for deliberating, the judge shall "During the time allowed for making the in"If all the beneficiary heirs be minors, their appoint an administrator to retain the proptutors can claim the preference for the ad-erty, if any of the creditors shall reministration, and it shall be given them, un- quire it, and in making such appointment he der the charge of their being personally re- shall prefer the beneficiary heir; such adminissponsible for their acts of administration, and trator shall give good and sufficient security, giving security, as before required, though these in the same manner as curators of vacant estutors should be the father or mother of the tates and absent heirs, unless the said adminisminors." Article 1044. "If there be several trator shall prefer giving such security by a heirs to a succession, some of whom have ac- special mortgage." Article 976. "It shall be cepted unconditionally, and others claim the the duty of the several judges of probate, on benefit of the term for deliberating, the judge the application of the creditors or any creditor * shall, notwithstanding, cause an in- of a vacant estate, to cause, on the requisite adventory to be made of the effects of the suc- vertisement being made, so much of the propcession, and shall appoint an administrator to erty of the said estate as is necessary to pay the manage them, until a partition of the same debts of the same which may be due to be be made among the heirs." Article 1047. "The offered for sale, and sold, at public auction. security to be given by every administrator * Article 990. "It shall be the duty thus named shall be one-fourth beyond the es- of the judge of probate in all cases of vacant timated value of the movables and immovables, estates, on the application of the creditors or and of the credits comprised in the inventory, any creditor thereof whose debt shall not then exclusive of bad debts. Article 1048. be due, to sell, after the usual advertisements, "The administrators thus chosen have the same * * * so much of the estate as will be suffipowers and are subject to the same duties cient to pay the claim or claims of the credias the curators of vacant estates, un- tors who shall make the application, and on der the modifications hereafter made." Arti- such terms of credit as will correspond with the cle 1049. "The administrator cannot sell the falling due of the several claims of the crediimmovables of the succession * until tors." Article 991. the term for deliberating has expired," but he "The principles contained in the two premay sell the movables, upon the authorization ceding articles shall apply to all successions of the judge. Article 1051. "During the term accepted with benefit of inventory, whether the for deliberating, the beneficiary heir cannot be heirs or minors are of age, and to all such succompelled to assume the quality of heir, nor cessions administered by administrators." Arcan any judgment be rendered against him." ticle 992. "The case is different when such Article 1052. "The effect of the benefit of in- estates are in the possession of heirs either ventory is that it gives the heir the advantage: present or represented in the state, although all 1. Of being discharged from the debts of the or some of those heirs be minors; for in such succession by abandoning all the effects of the case the actions for debts due from such sucsuccession to the creditors and legatees. 2. Of cessions shall be brought before the ordinary not confounding his own effects with those of tribunals, either against the heirs themselves, if the succession, and of preserving against it the they be of age, or against their curators, if right of claiming the debts due him." Article they be under age or interdicted." Article 1054. "If the heir declares that he is not will- | 996. ing to accept the succession, otherwise than under the benefit of an inventory, the person appointed administrator shall proceed


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The Civil Code declares that:

to the sale of the property of the succession, and "The tutor shall have the care of the perto the settlement of its affairs. The son of the minor, and shall represent him in beneficiary heir shall, at the time of such settle- all civil acts. He shall administer his estate ment, have a right to be paid, as any other as a prudent administrator *** and shall creditor, all debts due him by the deceased, and be responsible for all damages resulting from shall moreover be entitled to the balance of a bad administration. * Article 327.

the proceeds of the sale of the estate, if any "The immovables of the minor cannot be alien

ated nor mortgaged, unless, on the representa- | minors, to whom a succession burdened with tion of the tutor that it is for the interest of debt may have fallen, since they have no the minor that these objects or a part of them should be sold or mortgaged, a family meeting duly assembled shall declare that the sale or mortgage is of absolute necessity, or of evident advantage to the minor." Article 339. "In case the family meeting shall consider the sale or mortgage to be advantageous to the minor, it shall set forth the reasons of its determination, in order that the judge may decide whether he ought to cause it to be homologated or not, and shall also fix the terms of credit on which the property shall be sold, and the other conditions of the sale, if the case requires it." Article 340. "The sale of the property of the minor shall be authorized by the judge, and made at public auction. ** Article 341. "The minor's property cannot be sold for less than the amount of its appraised value mentioned in the inventory. * Article 342.

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capacity either to accept unconditionally or
to renounce, but, as the law accepts for them
with benefit of inventory, their rights are
governed by that provision which declares
that, upon the settlement of the succession
by the administrator, they shall be paid any
debts that may be due them, "and shall,
moreover, be entitled to the balance,
if any such balance be left, after payment
of all debts and charges of the succession."
Where, however, the succession owes no
debts and falls to minor heirs exclusively,
the provisions of articles 940 to 945, C. C.,
would seem at once to become operative,
since, having no option to accept or reject it,
article 946 can have no application to them,
and the right of seisin and possession, con-
ferred by the preceding articles, is not sus-
pended. And the same thing is true where
the succession, being free of debt, falls to
heirs of full age and minors conjointly, and
the heirs of full age accept simply, or uncon-
ditionally. It is true that article 1047, C. C.,

declares that:

"If there be several heirs to a succession, and others claim the benefit of the term for de some of whom have accepted unconditionally, liberating, the • judge * ✦ shall cause an inventory to be made of the effects of the succession, and shall appoint an administrator to manage them, until a partition of the same be made among the heirs."

It will readily be seen that many of the provisions to which we have thus referred apply exclusively to heirs who are of full age and sui juris, that others apply exclusively to minors, interdicts and married women, and that still others are equally applicable to all classes. Article 977, C. C., which declares that no one can be compelled to accept a succession, also declares that all successions are accepted for minors, by operation of law, though with benefit of inventory. It will also be seen that, although the purpose of the provisions relating to the benefit of inventory is, no doubt, to enable the heir to protect himself against the debts of the succession, and at the same time preserve his rights as a creditor and an heir, the right of the heir who is sui juris to renounce any succession that may fall to him, even though it may be free of debt, is unqualified, and that the right of seisin and possession, conferred on him by C. C. art. 940 et seq., is as effectually suspended, until he decide whether he will accept or reject it, in that case as in the case of a succession that is burdened with debt. So that, whenever there are heirs who have the option of accepting simply, accepting with benefit of inventory, or renouncing, a succession, and whose rights of seisin and possession are suspended until they decide upon the course that they will adopt, there is, necessarily, an interval of time during which the succession has the status of a juridical entity, with rights and obligations which are distinct from those of the natural persons who may be interested in it, and for the assertion and discharge of which the law contemplates that such entity shall be provided with a legal representative, in the form of an administrator, if the creditors, whose interests are paramount, require it. In any event, that is to say, whether the succession be indebted or not, if the heirs are all sui juris, and accept simply, they are entitled to be put in possession, subject to the right of the creditors, where the succession owes debts, to demand security, and to require the appointment of an administrator if the security be not fur- "An administrator is the trustee of the ered

But it is clear that the article has no application to the case stated, which is a case where there are several heirs, some of whom accept unconditionally, but the others of whom do not claim the benefit of the term for deliberating. The law does not allow the minor heir a term for deliberating, and there is no provision under which he could claim, or derive, any benefit from it, since the succession is accepted for him immediately upon its being opened, upon the condition that he shall not be liable for its debts, beyond the value of the property that he may receive-which is the "benefit of inventory"-and, if there are no debts, he and the heir of age who accepts unconditionally become the absolute owners of the property, with seisin and right of possession thereof; and the administrator would have no fune tion to discharge, save to surrender the same, for the last clause of the article, “until a partition of the same shall be made among the heirs," is to be construed with reference to the fact that the article does not apply where the succession is free of debt, and with reference to other provisions of law, under which persons who own property in indivision may so hold it until there is a demand among themselves for a partition.

In Succession of Harkins, 2 La. Ann. 925, it was said:

ative obligation is to watch over their inter-ed on, and has become a rule of property ests.

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In Succession of Story, supra, in which, there being heirs of age and minors of a succession which owed no debts, the court rejected the application of one of the heirs of age to be appointed administrator, and concluded by saying:

"We concur with the appellant's counsel that the only fruits of this administration are litigation, unnecessary expense, and useless delay, and that no case was before the judge on which he was authorized to grant it. The succession had no debts, and we are at a loss to discover any one useful object to be attained by embarrassing the succession with this unnecessary administration."

which we do not feel at liberty to disturb. Succession of Story, 3 La. Ann. 502; Labranche v. Trepagnier, 4 La. Ann. 561; Dickason v. Smith, 5 La. Ann. 196; Fabre v. Hepp, 7 La. Ann. 6; Monget v. Penny, 7 La. Ann. 134; Hair & Labuzan v. McDade, 10 La. Ann. 535; State v. Heirs of Leckie, 14 La. Ann. 641; Succession of Weber, 16 La. Ann. 421; Vincent v. D'Aubigne, 19 La. Ann. 528; Bland v. Lloyd, 24 La. Ann. 604; Soye v. Price, 30 La. Ann. 95; State ex rel. Jones v. Shreveport, 33 La. Ann. 1247; Succession of Sadler v. Henderson, 35 La. Ann. 826; Succession of Lamm, 40 La. Ann. 318, 4 South. 53; Succession of Dumestre, 40 La. Ann. 571, 4 South. 328; Tutorship of Minors Scarborough, 43 La. Ann. 320, 8 South. 940;

See, also, Succession of Ducloslange, 1 La. Ann. 181; Succession of Walker, 32 La. Ann. 321; Succession of Charmbury, 34 La. Ann. S. C., 44 La. Ann. 293, 10 South. 858; Vincent 26; Martin v. Dupre, 1 La. Ann. 239; Alle- Succession of Keppel, 113 La. 246, 36 South. v. Phillips, 47 La. Ann. 1240, 17 South. 786; man v. Bergeron, 16 La. Ann. 191; Succession of Baumgarden, 36 La. Ann. 46; Succes-955; Succession of Weincke, 118 La. 207, 42 sion of Geddes, 36 La. Ann. 963; Succession South. 776. The ruling so made must, howof Powell, 38 La. Ann. 181; Succession of ever, be considered in connection with the Graves, 50 La. Ann. 435, 23 South. 738; Suc- case before the court. It is to be presumed, cession of Wintz, 111 La. 41, 35 South. 377; Succession of Glancey, 114 La. 766, 38 South, 554; Succession of Weincke, 118 La. 206, 42 South. 776; Miquez v. Delcambre, 125 La.

176, 51 South. 108.

It would appear to be well settled, therefore, that in general, and unless there be some peculiar conditions requiring it, an administrator will not be appointed to a succession which owes no debts, whether falling to heirs of full age, or minors, or both, and that such appointment is not necessarily to be made, and will not be made unless creditors require it (upon their failure to obtain security) to a succession which owes debts, but which falls to heirs of age exclusively. The ruling thus referred to includes cases in which the successions owed debts which were trifling in comparison to the value of the property; and there are other cases in which it has been applied to the widow in community and usufructuary demanding to be put in possession in those capacities. Succession of Pratt, 11 La. Ann. 201; s. c., 12 La. Ann. 457; Burton v. Brugier, 30 La. Ann. 478; Welch v. Dixon, 36 La. Ann. 702.

In the case of Bryan v. Atchison, it was held, as we have seen, that a succession, falling exclusively to minors, though burdened with debt, may, in the absence of any demand by creditors for the appointment of an administrator, be administered by the natural tutrix of the minors, so as to bind the heirs and creditors, and that in such capacity the natural tutrix may defend a suit brought to recover a debt claimed to be due by the succession of the deceased husband and father, and may defend a proceeding to compel the sale of succession property in satisfaction of the judgment therein obtained and of other debts. The doctrine so enunciated (in 1847)

since the face of the record discloses noth

ing to the contrary, that Neibert, the decedent, and his wife were married under the régime of the community, and that the property in controversy, in so far as it was found in his succession, was community property. Succession of Manning, 107 La. 457, 31 South. 862; Succession of Burke, 107 La. 82, 31 South. 391; Succession of Pratt, 11 La. Ann. 201; Id., 12 La. Ann. 457; Rocques v. Freemen, 125 La. 65, 51 South. 68. The court had before it, then, the widow in community, who, as such, owned one-half of the property which was sought to be made liable for the debt sued on, and was entitled to the usufruct of the other half, and who, as natural tutrix of the minors, represented the owners of the half of which she had the usufruct. Beyond that, the suit which she defended was brought, by the surviving partner of her deceased husband, for the recovery of a debt due to the partnership, and the property in question was partnership property; so that it was liable, first, for the debt sued for as a partnership debt, after which the balance, if any, fell into the community, and was liable for its debts, before anything could inure to the individual creditors of the decedent. Thompson v. Vance, 110 La. 26, 34 South. 112. In her various capacities, therefore, the widow and tutrix represented all the rights in and to the property, save such as pertained to the creditors, and, in the absence of any demand, or attempt, on their part, to provide for its administration, she was within her rights and within the rights of those whom she represented in assuming such administration, at least to the extent necessary for the protection of those rights. Beyond that, there being no one else interested in the property save the creditors, and they

to waive their right to demand the appoint- have acquiesced in the administration by the ment of an administrator who would give | tutrix and were held to be bound by it, the security, and to litigate their claims with the case was not altogether the same with rewidow in community and tutrix, as represent-gard to the minors. The creditors were sui ing the only other parties in interest, and it was competent for her to defend any proceedings that might affect the interest repre- | sented by her, since she was at liberty to do as she pleased with her own, and she thereby waived no rights of her minors.

extension of time for the payment of the debts, or have made any other arrangement that she and the creditors might have agreed on. But what the creditors may have been willing to consent to did not, and could not, have the effect of removing any of the restrictions which the law imposes upon the authority of the tutrix, in the matter of the administration and alienation of the property of her minor wards, and they had no capacity to acquiesce in the removal of those restrictions. The most that can be said of the situation was that she was permitted by the creditors to take charge of the entire succession, as an heir of full age might have done, and deal with it as property belonging to the minors which was incumbered with debt. But, as in the case of any other immovable property belonging to the minors and so incumbered, she could not have sold or mortgaged it of her own motion to pay the debt, without the advice of a family meeting, homologated by the court. And so, in the case before the court, the tutrix could not have done so; for, as to the minors, she was still their tutrix, and nothing more, and the law declares that the immovable property of the minor shall not be alienated or mortgaged, unless upon the representation of the tutor, or tutrix, that it is for the interest of the minor, a family meeting shall declare that it is of absolute necessity or of evident advantage to the minor, and the judge shall approve that finding and order the sale or mortgage to be executed. Moreover, the only authority which the law confers upon tutors and tutrixes to assume the administration of successions falling to their wards is coupled with the singularly explicit restriction, to wit:

juris, and it was perfectly competent for them to consent, so far as their interests affected the matter or were affected by it, that the tutrix should administer the succession exactly as though she individually had been the sole heir, of full age, and had accepted If, under these circumstances, all the cred- unconditionally, and they were willing that itors of the succession had been joined as she should administer without giving securiplaintiffs in the suit, and in the proceeding ty, in which case she might have sold the for the sale of the property, no question property at private sale, have obtained an could have arisen as to their being bound, for, although the litigation would have involved the settlement of the affairs of the juridical entity known as the "succession," which, it was said, was not represented, every person interested in those affairs, and in that entity, would have been before the court, demanding, or litigating the demand for, that settlement, and must have been concluded by the final judgment of a court of competent jurisdiction and of last resort. As the matter stood, it was an administrator appointed some three years later who sued to set aside the proceedings, and, although he appears to have alleged that they, and the sale, were ex parte, and without notice "to any one representing the succession," he does not appear to have alleged that the other creditors, if there were any, were ignorant of what was being done, or that there was any concealment or fraud therein, or that the property failed to bring a fair price. The court, therefore, in substance held, mainly upon the authority of article 976, C. P., that, as the creditors had not required the appointment of an administrator, it was to be presumed that they did not desire that one should be appointed, but were satisfied to effect the settlement of their claims against the succession contradictorily with the widow and natural tutrix (or rather with the natural tutrix, the inference that she was also widow in community and usufructuary having been drawn by us from the face of the record), and that their nonaction and the recognition thus accorded her, as the administratrix de facto of the only interests in the succession which were adverse to theirs, were sufficient to authorize her to act as she did and to make her action binding upon the creditors, the minors, and herself. It will be remarked, with reference to that conclusion, that the property was ordered to be sold at the instance of the creditor, and not of the tutrix, and that the court emphasized the fact that the succession was one the sole heirs of which were the minors, whom the tutrix was authorized to represent in all civil acts. Those distinctions have sometimes been lost sight of, but they should be borne in mind; for, whereas, by reason of the failure of the creditors to exercise their right to require the appoint

"And it shall be given them, under the charge of their being personally responsible for their acts of administration, and giving security, as the father or mother of the minors." before required, though these tutors should be

Conceding that the security thus required is intended rather for the benefit of the creditors than of the minors, the fact re mains that the tutrix is to administer upon her own personal responsibility, and not upon the responsibility of the minors, and, hence, that she administers because she is tutrix, and not as tutrix, just as a promi

the baseball season, because he is what he is, and yet exercise no function of his of fice.

If, however, a succession falling to the minor is thus left by the creditors under the administration of the tutrix, it is none the less liable for its debts; and though it be conceded that, with the consent or acquiescence of the creditors, it may be administered by the tutrix, as a thing belonging to the minor, or in which the minor has such an interest as to require that the tutrix, in default of any one else, assuming that responsibility, should administer it, the creditors may demand of the court that the property of which it consists, and which remains their common pledge, be sold in order that they may be paid, and the tutrix may appear to defend the interest of her ward for the purposes of such demand, as in any other proceeding affecting that interest, since the law declares that she shall represent him in all civil acts. It is, however, going beyond anything contained in the law to say, because the creditors are willing that the representative of the minor shall also be their representative, that the minors are as much bound by her acts of administration performed in behalf of the creditors as by those performed in their behalf. That is true where the authority which the law confers on her as tutrix concurs with that conferred on her by the creditors as administratrix, as, for instance, where she finds in the succession funds wherewith to pay the debt due to the creditors. But where there are no funds, though the creditors may be willing that she could sell the immovable property of the succession for the payment of such debt, the law declares that the immovable property of a minor cannot be sold, save by the advice of a family meeting, and if, so far as the minors are concerned, she administers the succession as a thing belonging to them, she is bound by that restriction. Said the court in Succession of Weber, 16 La. Ann. 422, 423:

"The law accepts for the minor any succession which falls to him with the benefit of inventory. If, therefore, there should be found in the patrimony of the minor a succession, the tutor may administer it; not because it is so written in the letters of tutorship, for such express authority cannot there be found, but because the succession is an effect, a thing belonging to the minor, and therefore subject to the administration of the tutor for the ultimate advantage of the minor. Now, the Civil Code, art. 334 [now 339], makes the convocation of a family meeting necessary to the alienation of a minor's lands or slaves."

See, also, Succession of Schuttler, 21 La. Ann. 713; Succession of Bourgeois, 43 La. Ann. 249, 9 South. 34; Succession of Yarutzky, 52 La. Ann. 1913, 28 South. 328.

creditors, appear to have found it to their interest to leave the administration and settlement of the succession to the widow and tutrix. They now insist upon no complaint of that administration, save that, in the matter of the sale of the land here claimed, the widow and tutrix was unauthorized to represent them, because they had attained majority and were capable of acting for themselves. They do not allege that they were ignorant of the fact that the succession owed the debt for which the property was sold, or that they were not advised, at the time, of the intention and fact of the sale, or that there was any other means by which the money to pay the debt could have been obtained; nor do they allege that the price obtained for the property was less than its value. The petition does not even allege where the plaintiffs reside, and there is no evidence in the record on that subject, and, in the absence of anything to the contrary, we see no reason to doubt that they reside, and have always resided, in the community in which the property claimed, and which we take to have formed part of that constituting the family home, is situated. Upon the case as thus presented, our conclusion is that the major heirs must be held to have known of, and to have acquiesced in, the administration, by their mother, of their father's succession, and of the sale, at her instance, of the land in question, for the payment of the debt of that succession, and that, as to them, the sale should be given all the effect of a probate sale, conveying a just title, under which the defendants, in good faith, have possessed, as owners, openly, peaceably, and uninterruptedly for more than ten years, and that defendants are protected by such acquiescence, as also by the prescription of ten years, acquirendi causa, against the claim which those heirs here assert. Leverett v. Loeb, 117 La. 312, 41 South. 584; Irwin v. Flynn, 110 La. 829, 34 South. 794; Thibodaux v. Barrow, 129 La. 395, 56 South. 339; Kerlec v. N. O. Land Co., 130 La. 111, 57 South. 647; Succession of Balovich, 130 La. 1043, 58 South. 873.

The minor heirs were, however, incapable of acquiescing in anything done by their tutrix which involved an exercise of authority in excess of that which the law conferred upon her for the administration of their property, and hence were not bound by the sale, provoked by her in violation of the prohibitions of the law; nor does the prescription of ten years, acquirendi causa, apply to their claim, since it has been less than that time since they attained their majorities.

It is therefore ordered, adjudged, and decreed that the judgment of the district court The heirs of full age (in this case), like and Court of Appeal be avoided and reversthe creditors, might have required that an ed, in so far as it rejects the demands of the administrator be appointed, if they had plaintiffs Zelima Deshotels, wife of Elee

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