Successions of Durnford v. Urquhart , 24 La. Ann. 114 ( 1872 )

Ludeling, C. J.

Andrew Durniord died on the thirteenth of July, 1859. On the twenty-eighth of April, 1866, his widow was appointed dative testamentary executrix of his will. On the tenth of June, 1866* she died; on the twenty-third of July, William Erskin was appointed executor of the will of A. Durnford and administrator of the succession of Mrs. Durnford, amp. on or about the thirty-first of December, William Erskin died, and no one was appointed executor of the will of A. Durnford or administrator of the succession of Mrs. Durnford after Erskin’s death.

On tlio twenty-fourth of January, 1867, the heirs of Mr. and Mrs. Durnford applied to be recognized as the heirs of their father and mother, and to be put in possession oí their estate. The order was rendered, putting the heirs in full possession of all tlio property belonging to the successions, according to law, “ vponpayment of the debts, if my there are.” The heirs, who were all of age or emancipated, wore put in possession of the property, and they continued to control the property as owners without any one questioning their right until about the twenty-second of July, 1869, when Pierre Maspero and George Olivier filed an application in the probate court praying that George Urquha,rt and James Reid be cited to show cause why they should not pay their debts, and why the plantation belonging to the successions-of A. and M. C. Durnford should not he sold to pay their debts.

After the death of William Erskin, George Urquhart and James Reid were confirmed as the executors of the testament of William Erskin, and they had undertaken to render an account of his administration of the successions of Durnford, over which the heirs and the creditors had contested, and there was a judgment homologating the account, so far as the claims of Maspero and Olivier were concerned. At the time the account rendered by Urquhart and Reid was filed, the first of June-, 1867, the heirs had been put in possession of the property* and there was no succession. Under this state of the ease, we think the plaintiff had no right to proceed against the succession. C. P. 995, 996; 21 An. 365; 1 An. 181; 4 An. 224; 22 An. 23; 23 An. 97.

Wliat effect tlio judgment on tlie account rendered by the executors of Erskin of Ms administration (to which, the heirs and creditors of Mr. and Mrs. Durnford wore parties) had or may have against the heirs personally, we do not feel authoiized to say in this suit, which was instituted in tho probate court. We think tho heirs and intervenors are entitled to a judgment in their favor rejecting the plantiffs? demands in this suit.

It is therefore ordered and adjudged that the judgment of the court-a qua be reversed, and that there be judgment in favor of the inter-, veiiors rejecting the plaintiffs’ demands, with costs.in both courts.