Succession of Quinn

The record presents two appeals which have been consolidated for the purpose of the hearing before this court. The first appeal was taken by Mrs. Duvernay and Mrs. Covalt, daughters of Mrs. Owens, the decedent, from a judgment ordering them to restore $2,700 to the succession of their mother, and, in the alternative, that they be charged with the amount. The second appeal was taken by the same parties from a judgment homologating the provisional account filed by the testamentary executor of Mrs. Owens.

The issues presented by the first appeal were thoroughly discussed in our opinion on the original hearing. The judgment reviewed under that appeal was obtained by the testamentary executor of Mrs. Owens on a rule taken against Mrs. Duvernay and Mrs. Covalt to compel them to return to the succession or be charged with the sum of $2,700, which shortly before the death of their mother they had removed from her bank box. Defendants in rule resisted the demand of the executor on the ground that they held the money as a manual gift from the decedent. After hearing the parties, the trial judge held that the defense was not well founded and rendered judgment against defendants. We affirmed this judgment on the original hearing; but, subsequently, on appellants' application, we granted a rehearing, and the matter is now before us for a further review of the issues presented by the appeal.

Appellants contend that the executor was without any right to file suit against them to recover money allegedly owing by them to their mother's succession.

Appellants also contend that they cannot be sued for a debt due the succession without proof of its insolvency; that if such debt be due it can be liquidated only by collation among the heirs.

An examination of the record indicates that the suit brought against the appellants by the executor was the result of a proceeding taken against the executor by Mrs. Rooney, another daughter of the decedent, and Joseph Owens, the son of the decedent, to compel him to institute such a suit.

Defendants, through their counsel, accepted service on the rule of the executor, and waived all objections to the form of the proceeding. No exception was filed by the defendants to the capacity of the executor to institute the proceeding, and no technical objection was made by the defendants to the demand of the plaintiff in rule for a judgment against them for $2,700, or, in the alternative, that they be condemned to suffer a proportionate diminution of their respective shares in the succession. So far as our examination of the record discloses, the only defense made by the defendants to the demand of the executor was set up in the return dictated into the record by their counsel on the day the rule was called for trial, which defense was that their mother had made a manual gift to them, in the proportion of one-half to each, of the $2,700 in dispute.

This court cannot consider appellants' objections to the executor's capacity and to the character of the executor's action. The objections were not made in district court. They were raised for the first time in appellants' printed brief, which merely contains appellants' written argument and forms no part of the pleadings. Dejol v. Johnson, 12 La.Ann. 853; Chase v. Davis, 20 La.Ann. 201; Yorke Co. v. Scott Co., 23 La.Ann. 54; State v. Brown, 175 La. 357, 143 So. 288. And the jurisprudence is well settled that pleas and issues not raised in the court of the first instance cannot be raised on appeal. De Grilleau v. Boehm, 106 La. 472, 31 So. 74; Neith Lodge No. 21, I.O.O.F. v. Vordenbaumen, 111 La. 213, 214, 35 So. 524; Bonnin v. Town of Crowley, 112 La. 1025, 36 So. 842; Timberlake v. Sorrell,125 La. 554, 51 So. 586; Succession of Turgeau, 130 La. 650, 58 So. 497; Safford v. Albritton, 161 La. 773, 109 So. 486; State v. Brown,175 La. 357, 143 So. 288.

Therefore, appellants' contentions must be confined to the only question presented to and decided by the district court, namely, whether Mrs. Owens made a manual gift to the appellants of the $2,700 in dispute. The question is strictly one of fact. After hearing the parties, the trial judge concluded that the defendants had failed to prove the alleged manual gift. After a careful review of the evidence on the original hearing, we concurred in the conclusion of the trial judge and affirmed his judgment. A further examination of the evidence and of the arguments addressed to us has convinced us that our former opinion and decree, as herein modified, are correct.

A further contention of appellants is, that the judgment in the alternative herein erroneously charges each of them with $1,350, whereas under the rules governing collations they can each be charged with only $1,012.50, representing three-fourths of the amount of the debt due the succession, after deducting the one-fourth interest due each of them as an heir.

Appellants' contention appears to be sound. The part of the judgment to which it refers reads as follows, viz.: "It is further ordered, adjudged and decreed, that in the event the judgment rendered is not paid, then the said Joseph J. Ferguson, Testamentary Executor, shall consider that Two Thousand Seven Hundred Dollars has been returned to the Succession, and shall distribute the estate accordingly. In the distribution he shall charge and deduct from the eventual shares or portions of this succession, to be received by each of said respondents the sum of Thirteen Hundred and Fifty Dollars, that is, he the said Joseph J. Ferguson, Testamentary Executor, shall charge and deduct, the said sum of Thirteen Hundred and Fifty Dollars, from the share or portion of Mrs. M.J. Duvernay and Thirteen Hundred and Fifty Dollars from the share or portion of Mrs. Almeda Owens Covalt."

We think the executor was correctly ordered by the judgment in the alternative to treat the $2,700 as paid, and to distribute it accordingly. In a final account the heir's indebtedness to his coheirs should be settled, and all sums each of the coheirs has received should be included. Succession of Dumestre, 45 La.Ann. 200, 12 So. 123. But we also think the executor was incorrectly ordered in the judgment to deduct in his distribution of the estate the sum of $1,350 from the share of each of the appellants. Since each of the appellants is an heir to one-fourth of the succession of the decedent, she is entitled to retain one-fourth, or $337.50, from the amount of $1,350 she is ordered to return to the succession, and there can be legally charged against her share only $1,012.50, representing three-fourths of the amount due by her to the succession. The judgment appealed from will have to be amended accordingly.

The second appeal we are called upon to review is the devolutive appeal taken by Mrs. Duvernay and Mrs. Covalt from the judgment homologating the executor's provisional account. The account was filed on April 25, 1933, and the judgment of homologation was rendered and signed on May 9, 1933. The appeal was applied for and granted on April 25, 1934, which was nearly 12 months after the judgment appealed from was rendered and signed.

Appellants have urged as objections in this court that the executor's account was prematurely filed, and that excessive fees are allowed the notary and appraisers for taking the inventory. But no opposition was made in the district court to the executor's account; the appellants having made no appearance in that court. The executor made affidavit to the correctness of the account, and also testified as to its correctness on the hearing for its homologation. This was sufficient basis for the judgment of homologation. Succession of Rabasse, 50 La.Ann. 746, 23 So. 910.

As appellants' objections to the executor's account were not formally and timely presented in the district court, they cannot be considered by this court. Succession of Perret, 20 La.Ann. 86; Chase v. Davis, 20 La.Ann. 201; Succession of Rabasse, 50 La.Ann. 746, 23 So. 910; De Grilleau v. Boehm, 106 La. 472, 31 So. 74; Succession of Turgeau, 130 La. 650, 58 So. 497; Safford v. Albritton, 161 La. 773, 109 So. 486; State v. Brown, 175 La. 357,143 So. 288.

It is a general rule that costs are incident to the judgment and follow the result of the suit. In this state the general rule is modified by Act No. 229 of 1910, under section 2 of which appellate courts are given a discretionary right in taxing costs. Although we find it necessary to amend in appellants' favor one of the judgments appealed from, we do not think the amendment is of such a character as to justify us in relieving appellants of the costs of appeal. It would seem to be obvious that the judgment could have been corrected in the court below on a motion for a new trial, which appellants apparently failed to file.

For the reasons assigned, the judgment herein appealed from in favor of Joseph J. Ferguson, testamentary executor, plaintiff in rule, and against Mrs. M.J. Duvernay and Mrs. Almeda Owens Covalt, respondents in rule, is amended by decreasing the amount the executor is ordered to deduct from the share of each of the respondents in the distribution of the estate from $1,350 to $1,012.50; and in all other respects the said judgment is affirmed.

It is further ordered that the judgment homologating the provisional account of Joseph J. Ferguson, testamentary executor, herein appealed from be affirmed.

Costs of both appeals as well as the costs of the district court to be borne by the appellants.

The right to apply for a rehearing is reserved to all parties to this appeal.