Succession of Hartigan ( 1898 )

On the application for Rehearing the opinion of the court was •delivered by Miller, J.

The opinion of the court was delivered by

Nicholls, C. J.

This is an appeal by William H. Bourke, in his capacity as testamentary executor of the succession of Bridget Hartigan, from a judgment sustaining partially the opposition of John Hannan, residuary universal legatee of the deceased, to a provisional account filed by the executor as such.

The judgment appealed from reduced or rejected a number of unpaid claims placed on the account by the executor as debts justly due by the succession to different parties, among which were several .claims set out as being due to the executor himself, personally, by Mrs. Bridget Hartigan. The judgment also set aside, as having to be considered “not written,” a clause in the will of Mrs. Hartigan, directing that the amount which would accrue to the residuary legatee from the succession should be paid over to him, one hundred dollars in cash, and the" balance in monthly instalments of one hundred dollars, instead of being paid over in entirety immediately upon the settlement of the succession. No motion has been made to dismiss the appeal.

The residuary legatee moved, in the Supreme Court, that the judgment be amended “by allowing him to be placed in possession of all the remaining property of the succession, all debts having been paid.”

The amount of the succession is such as would vest appellate jurisdiction in this court and authorize us to take action were the parties legally interested in a reversal of the judgment before us seeking to obtain relief, but the only appellant in the case is William H. Bourke appealing not personally, but officially in his capacity as testamentary executor.

As such he does not represent the parties who may have been aggrieved by the judgment, by reduction or rejection of their claims-

These parties, including William H. Bourke, personally and individually, should have themselves appealed, inasmuch as the testamentary executor does not officially represent them on appeal.

It is the duty of executors and administrators to act for the protection of the interest of the heirs in the succession, and that of the mass of creditors, and not in-the interest of special creditors.

In the succession of Pettis, 11 An. 177, this court said: “The administrator has no capacity to appeal on-behalf of parties whom he has placed on his account as creditors, and whose claims have been opposed and rejected by the court. It is no part of the administrator’s-business to swell the amount of indebtedness of the estate which he administers beyond the limits fixed by the court, of the first instance. If convinced himself of the correctness of a claim, he has done his duty by placing it upon the account. In the subsequent contest between the claimant and creditors, or heirs, the administrator is supposed to be disinterested, and cannot, therefore, be aggrieved by its decision. This point has been long ago settled in Furguson & Hall vs. Their Creditors, 19 La. 278.”

This principle has been since affirmed and acted upon in Girod vs. Creditors, 2 An. 548; Beer vs. His Creditors, 12 An. 774; Payne & Co. vs. DeJean, 32 An. 889; Chapoton vs. Creditors, 46 An. 414; Andrus vs. Creditors, 46 An. 1351.

The position of an executor appealing from a decree upon aii opposition to his account, filed by a creditor, increasing the amount beyond that which the executor had recognized as the amount due him, or ordering him to place claims on the account which he has declined to recognize at all, by which action the mass of creditors or heirs are affected injuriously, is very different from what it is where the claims as acknowledegod by him have been reduced or rejected. The reason for this difference is, we think, too clear to need elaboration.

The executor abandoned, in this, court, opposition to the portion of the judgment appealed from, which set aside as having to be considered “not writ!on” the clause of the will attacked by the residuary legatee.

By reason of this abandonment of the only issue which the executor,.. as such, was justified in presenting-, there is now before the court no issue advanced by one with legal capacity to urge it which we are called upon to review.

.Nothing' was decreed in the lower court in opposition to the provisions of the will other than the issue abandonéd by the executor.

\Ve do not think the amendment asked lor by appellee should be granted, it being relief advanced for the first time in the Supreme Court.

The judgment of the District Court is hereby affirmed.