Succession of Montamat v. Kennedy , 15 La. Ann. 332 ( 1860 )

Buchanan, J.

This is an action for partition. Plaintiff represents her husband, an interdicted person, lieir, for one-fifth, of his mother; of whoso estate tlie defendant, Duncan Kennedy, is administrator, and the other four defendants are heirs.

Plaintiff calls upon the administrator and the co-heirs for a division of the proceeds of the succession sold, and also of sums received for rent alleged to amount in the aggregate to #17,060.

The administrator files an account showing the net proceeds of the succession property, after deducting charges and claims, to be #9,120 37, of which one-fifth or #1,824 07 belongs to each heir.

lie also files his account with the heir whom the plaintiff represents, crediting him with #1,824 07, his share of his mother’s succession, as aforesaid; and charging him with sundry expenditures amounting to #3,642 74. — Balance to debit of plaintiff, #1,818 67,

The judgment of the District Court amended these accounts by allowing hire of two slaves, at twelve dollars a month each, as a credit to the succession, and approving, in other respects, the administrator’s accounts.

Plaintiff appeals, and has filed in this court a plea of prescription of three and ten years against the allowance, as a charge against the succession, in favor of one of the defendants, Stephanie LeBlanc, of #1,907, her share in the succession of her father, Ives LeBlanc, received by her mother, the decedent.

Appellant complains of the judgment of the court below, on three grounds.

1st. Because it did not allow for rent of house received by the administrator.

2d. Because it allowed #2,130 for necessary expenses of plaintiff’s husband, Eugene LeBlanc, paid by his mother; also items paid for the same by the administrator.

3d. Because it allowed #1907 to Stephanie LeBlanc, as creditor by mortgage of the succession.

I. The omission of house rent as a credit to the succession, in the judgment, seems to have been the effect of inadvertence, and which would probably have been corrected by the District Court, had the same been brought to its attention. But it is remarkable that, although a new trial was applied for by the appellant, yet this was not made a ground for the application.

The administrator (who is also the attorney in fact of three out of the five heirs,) has filed a separate statement of the amount collected by him for house rent, being eleveu mouths and seventeen days, at $165 per month, or $1,908 50. Against this amount, he has charged tho sums paid by him for doctor’s bills, fuucral expenses, duo bill of Widow LeBlanc, and insurances, taxes and repairs to the property, and his own commissions as administrator on the amount of rent collected — total $866 98, leaving a balance in the administrator’s hands of $1,041 52, by which amount, as a credit to the succession, the judgment is to be amended.

II, The court did not err in making the allowances which are the object of this ground of complaint by appellant.

The plea of prescription against the claim of Miss Stephanie LeBlanc upon her mother’s succession, for her share in the succession of her father, is not sustained by proof. It is admitted of record, that a special mortgage was executed by Mrs. Ives LeBlanc on the house corner of St. Peter.and Royal streets, in favor of her minor children, for the security of their rights in their father’s estate ; and that the rights of each child amounted to $1,901. In this admission we find no date, as a starting point for prescription. The party who pleads prescription is bound to prove the facts necessary to sustain the plea. Andrews v. Rhodes, 10 Rob. 52.

It is, therefore, adjudged and decreed, that the judgment of 1he District Court be amended, - by crediting the succession of Mrs Ives LeBlanc, and debiting tho administrator with the sum of ten hundred and forty-one dollars and fifty-two cents, as balance in his hands of rents of house collected ; that in other respects the said judgment be affirmed; and that the costs of this appeal bo borne by tho succession.

Land, J., absent.