Succession of Toy , 14 La. Ann. 536 ( 1859 )

Cole, J.

On the 26th May, 1858, Lafayette Caldwell, a creditor of the deceased John Toy, filed a motion, calling on Prendergast <& Jeremiah Toy, the son of John Toy, to render an account as testamentary executors of the deceased.

An order of court was granted, in accordance with the motion.

On the 2d of November, 1858, a motion was made to dismiss the executors, on the ground that they had failed to comply with the order of court.

On the 19th of November, 1858, an account was filed by Prendergast.

Upon trial of the rule to dismiss the executors, the District Court dismissed the rule, and the relator has appealed.

It appears that Jeremiah Toy cannot he held responsible for not filing an account, for he was not appointed till January, 1858, and had received no funds or property of the estate. The object of the ]aw is not to force an executor or administrator to render an account when there is nothing in his hands.

With relation to Prendergast, the judgment was correct, because the motion to file an account was made before the expiration of a year from the time of his appointment.

The order of court upon this motion was given before the expiration of the year.

The Act of 1855, to regulate the duties and powers of administrators, is highly penal, and must be strictly construed. Sess. Acts 1855, p. 78.

If the administrator or executor has funds for distribution before the expiration of the year from his appointment, he may be called upon to distribute them after the time of delay provided by law has expired. If he fails to obey the order of court, he cannot, however, he subjected to the penalties of the said Act of 1855, because the administrator or executor becomes liable to the penalties of this Act, so far as relates to filing an account, only at the expiration of twelve months. Acts 1855, sec. 4, p. 79.

The rule to dismiss the executor, because he had not obeyed the order of court to file an account, was based upon an order granted before the expiration of the year, and does not render him liable to the penalties of the Act of 1855.

Judgment affirmed, with costs.