Drouet v. Succession of Drouet , 26 La. Ann. 323 ( 1874 )

Howell, J.

This is a suit against the administrator to be declared the illegitimate child of the deceased and to recover alimony at fifty dollars pet month, to he paid out of the property of the succession.

The administrator excepted that pla'ntiff has no right of action against him, as he does not represent the heirs.

Article 241 E. C. C. declares that, “illegitimate children have a right to claim this alimony, not only from their father and mother, but from their heirs after their deat h.”

Article 919 provides, in the first clause, that natural children are called to the succession of their natural father, who has duly acknowledged them, to the exclusion only of (he State, and says, in the second clause, “In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall he determined, as is directed in the title of father aud child.”

Those provision's of tlie law seem to give the right of action for alimony only against the parent or his heirs ; and this seems reasonable, as the payment of alimony may be necessarily required for a considerable time, and to be made only by the parties against whom the law creates the claim. It does not seem to be a debt against the succession, which the creditors must allow, or which they have an interest in resisting, but a personal debt of the parent and those who inherit his estate, and the heirs only take the residuum after the payment of the debts of the succession.

The administrator only represents the creditors, and aft'er the settlement of the debts, he must turn over the estate to the heirs ; but he can not create or recognize any debt which will pass with the estate and remain a binding, continuing debt against the heirs, because he is not appointed to represent them.

We think, therefore, the action for alimony can not properly be brought against the administrator. It seems by law to be owing by the heirs according to their virile share, and the obligation to pay it continues while it is necessary, or they are able to pay.

It is therefore- ordered that the judgment appealed from be reversed, and that the plaintiff’s demand be dismissed without prejudice to her right of action against proper parties. Costs to be paid by appellee.

Rehearing refused.