Succession of Liles , 24 La. Ann. 550 ( 1872 )

Taliaferro, J.

The dative testamentary executor of Liles, under an order of court, filed a provisional account. It was opposed by Wade H. Ilougb, on the ground that the executor refused to recognize his judgment against Liles for $2966 66 as a just claim against the estate. The account was also opposed by Abraham Levi on the ground that his claim against the estate of Liles for $7861 27, on which he had obtained judgment against Liles in 1866, had been refused by the dative testamentary executor and not. placed upon the account. Levi also opposed the judgmeut of Hough, and upon the same ground that it had been rejected by the executor, viz: that it was founded chiefly upon a consideration arising from the price of slaves.

The executor contends that Levi, so far from being a creditor of Liles’s estate, is in fact a debtor. He shows that the original indebtness of Liles to Levi was extinguished by the failure of Levi to collect certain notes for a large amount, upon which judgment had been confessed by one Hogan, and which were plaeed in his hands as collateral security, to collect and apply the proceeds to the discharge of the debt of Liles to Levi. On this issue there was much controversy. It was decided, we think correctly, by the judge a quo who, in an elaborate opinion, eited various authorities to sustain the doctrine that the creditor receiving collateral obligations to secure bis debt must use proper diligence to collect them, and, to avoid responsibility, must show the causes which prevented him. Finding from the facts in evidence no grounds to exonerate Levi from this liability, judgment was rendered against him, decreeing that the liability of Levi, so incurred, exceeds the debt that Liles originally owed Mm, and that it is the duty of the executor to collect the excess. C. C. 3002; 1 N. S. 767, 4 An. 301; 1 An. 13 ; 12 An. 672, 119 ; 10 An. 98, 69 S. 195. The judgment of Hough was decreed to be a valid debt against the estate, and its payment in full was ordered by the court. From the judgment rendered by the court below the executor has not appealed; and •coming to the conclusion that Levi, who has appealed, is not a creditor ■of the estate of Liles, and has no interest to contest the correctness of Hough’s judgment, the decree of the lower court must he maintained. Levi further opposed items from one to five on the executor’s account. The items one and two were allowed ; the amounts as fees to Stubbs & Cobb, and also to W. J. Q. Baker, the court considered as not properly established, and were not allowed; but the right was reserved to establish these claims. The commissions claimed by the executor were allowed. With the alterations made, the provisional account was approved and promulgated.

We think the judgment correct.

It is therefore ordered that the judgment of the parish court he •affirmed with costs.

Rehearing refused,