Hibernia Bank & Trust Co. v. Whitney
| Decision Date | 04 January 1909 |
| Docket Number | 17,237 |
| Citation | 48 So. 314,122 La. 890 |
| Parties | HIBERNIA BANK & TRUST CO. v. WHITNEY |
| Court | Louisiana Supreme Court |
On Rehearing, February 1, 1909. Rehearing Refused.
Appeal from Twenty-Sixth Judicial District Court, Parish of St Tammany; Thomas Moore Burns, Judge.
Petitory action by the Hibernia Bank & Trust Company, dative tutor of Elenore Pochelu, an infant, against George M. Whitney. Judgment for defendant, and plaintiff appeals. Reversed, and action dismissed.
T. M. & J. D. Miller and Ellis & White, for appellant.
Farrar Jonas, Kruttschnitt & Goldberg and Miller & Morgan, for appellee.
Miller & Morgan, for Eugene Esquinance, warrantor, appellee.
Joseph Bradford Lancaster, for George F. Bierhost, warrantor appellee.
This is a petitory action instituted by plaintiff to recover lands for its ward, Elenore Pochelu, claimed by plaintiff as belonging to her by inheritance from her late father, Raymond P. Pochelu. He died testate, a fact which plaintiff wishes to pass over and ignore.
The defendant interposed an exception to the petition, alleging, among other defenses, that plaintiff cannot prosecute this action, the succession being in the possession of the testamentary executor; that the succession was accepted for the minor, with benefit of inventory; that it was in debt, and that the property plaintiff seeks to recover was sold to pay debts on July 18, 1896, and adjudicated to Eugene Esquinance, under whom the defendant holds, and the proceeds were, defendant avers, applied to the payment of the debts of the succession; that the minor, plaintiff, is not the heir at law of the decedent, and cannot maintain this suit as an heir at law; that the probate sale cannot be attacked collaterally, but by the executor in office; that there was no tender made of the purchase price, an essential step; and that any attack on the sale is barred by the prescription of five years.
The pertinent facts, in deciding the points presented by the exception, are that the clerk of court probated the will of Pochelu without having required an affidavit of the proponent or his counsel that the judge was absent from the parish of St. Tammany, in which the succession was opened; that he some time afterward gave the order to sell the property involved in this suit, again without requiring an affidavit showing the absence of the district judge from the parish; and, furthermore, that the petition for the sale was not accompanied by a schedule of debts, as required by Act No. 43, p. 54, of 1882, and Act No. 13, p. 11, of 1894.
Another of plaintiff's grounds in the argument is that the property was illegally offered for sale, and, the sale failing for want of satisfactory bid, it was readvertised on the same terms by instruction of the executor.
The defendant sought to supply the affidavit by oral testimony as follows: The judge of the district testified, substantially, that he was not in the parish at the date of the orders. The clerk also testified he did not recall the fact that such an affidavit had been filed, but testified as to his custom not to issue orders without the affidavit.
The court referred the exception to the merits.
Defendant by motion prayed for reinstatement of the exception and for a decision thereon, as if it had not been referred to the merits. This the court declined to do.
The defendant answered, reserved the grounds of the exception, and pleaded that he bought the property from George F. Bierhorst in August, 1906, for $ 10,000. He pleaded the prescription of 5 or 10 years. He called Bierhorst in warranty.
The latter answered, admitting the defendant's allegations in his answer. He also pleaded the prescription of 5 and 10 years. He alleged that he bought the property on August 19, 1897, from Eugene Esquinance for $ 1,400.
Esquinance, called in warranty, answered Bierhorst's call in warranty, and joined in the exceptions and defenses of the first defendant. He specially averred that he bought the property on the 10th day of July, 1896, at the probate sale of the property of the succession of P. Pochelu. He called the plaintiff and the widow of Pochelu in warranty. This last warrantor, Esquinance, alleged that the succession was not represented, that the executor had died recently, and asked for a delay in order to have the succession represented and to call its legal representative in warranty.
The court refused to grant the delay asked, but, instead, the court entered an order and directed that Elenore Pochelu, the minor, through the bank, tutor, and Mrs. Lucie Andirac, widow of Pochelu, be called in warranty.
The Hibernia Bank & Trust Company answered the call in warranty, denying that the minor was bound in warranty, and alleging further that in the event the minor obtained a judgment, before she obtained possession of the property, she would have to refund to Esquinance the sum of $ 2,000, the price paid by him for the land, because the amount had inured to her benefit, and had been applied to the payment of debts due by her late father's succession.
The court on motion struck out this part of the answer, as the whole of the price had not been applied to the payment of the debts.
The widow in her answer to the call in warranty disclaimed all interest in her husband's succession, the land having been his separate property; averred that she has relinquished the usufruct left to her in her husband's will.
Judgment was rendered in favor of the defendant.
EXCEPTION: The Probate of the Will of the De Cujus.
The plaintiff, as representative of the minor, Elenore Pochelu, has not noticed the disposition contained in the will of her father. It is treated as so much waste paper.
The suit was instituted directly for the property.
She, as an heir at law, has accepted the succession with benefit of inventory, but ignored the bequest in the will which made her the universal legatee.
The justification for thus proceeding is sought in the assertion that the will has never been probated, and that in consequence she cannot be held by any of its terms.
The will was probated in the absence of the district judge from the parish. There was no affidavit found to show that the judge was absent.
If no attempt had ever been made to probate this will, if it had been laid aside as useless or worthless, it would be different; but the least that can be said is that a serious attempt was made to have it probated, and that if not probated in due form, or for want of a required affidavit, it was owing to negligence or oversight, and that it was not due to intention on the part of those by whom it was presented for probate.
The petition was presented to the court by the one named in the will to be the executor. At the executor's instance, a day was fixed for hearing the evidence; it was heard; the will was decreed probated, ordered executed, and he was authorized to qualify, and did qualify, and letters of executorship were issued to him.
The will became a part of the proceedings in matter of the settlement of the succession.
The alleged executor took charge of the estate and administered to the date of his death, which was not long since. He had seisin of the property, and performed all the functions of an executor. He was appointed to assist the court, and as such received recognition.
We would have to pause a long time before arriving at the conclusion that the proceedings up to the date of the sale, to which we will refer in a moment, were void in so far as relates to innocent third persons. They may be null, but are not void. The heir cannot be heard to plead that they are not in the least binding on the succession; that whatever was done was void. To declare such acts void would introduce an element of chance into proceedings never seriously contemplated.
Plaintiff will have to expressly assail the probating of the will in a direct action.
The legal representative of the succession will have to be made a party, and contradictorily with him it will be determined to what extent he has properly administered the affairs of the succession, and the extent of his liability, if any.
We leave the executor's tenure to take up the next question.
The grounds of the exception following are germane, and will be considered and decided as one.
They are that the required affidavit was not made showing the judge's absence before the order of sale was issued; and further, the petition for the sale was not accompanied by a schedule of debts as required by Statute, Act No. 43, p. 54, of 1882, and...
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