Succession of Allen
Decision Date | 09 March 1896 |
Docket Number | 11,998 |
Citation | 20 So. 193,48 La.Ann. 1036 |
Court | Louisiana Supreme Court |
Parties | SUCCESSION OF R. H. ALLEN |
Argued February 14, 1896
Rehearing Refused June 1, 1896.
APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.
Fenner Henderson & Fenner, and Thomas A. Badeaux, for R. H. Allen Jr., Harry Allen, Mrs. J. C. Allen, Mrs. J. C. Latham and Thomas H. Allen, Appellants.
Beattie & Beattie, for Bettie Allen, and Wm. F. Collins, Executors Appellants.
Clay Knobboch & Son, for Ogden Smith, Co-executor, Appellee.
E. D. LeBreton and L. DePoortor, for Mrs. Jennie Boyle, Mrs. Bettie DeBerny and Mrs. Allen B. Baker, Legatees, Appellees.
Henry Chiapella, for the Turner heirs, Opponents, Appellees.
C. H. Osterberger and L. F. Suthon, for Gaston Smith and others Opponents, Appellees.
The deceased left the following will:
A motion has been filed by the executor, Ogden Smith, who is one of the heirs, to dismiss the appeal from the judgment adverse to the Allen heirs, taken by them.
In the Succession of Ames, 33 An. 1318, this court had occasion to notice the distinction between the functions of an administrator and an executor, giving to the latter, when a creditor, the right of appeal from a judgment adverse to his interest. The reasons assigned for the judgment in that case are conclusive. The executor is the mandatory of the deceased, and a mediator between the parties having an interest in the succession. He represents creditors and heirs, and it is his duty to see that the will is executed according to the wishes and desires of the testator. He is interested in the proper distribution of the funds, and it is sacred duty to see that they are distributed among those whom the testator intended should be beneficiaries. Representing all parties, he has an undoubted right to appeal for the common benefit of all the parties.
The Succession of Nicholson, 5 An. 359, is directly applicable to this case. In that case the testator left a sum of money for "the support of asylums in the faith of the Protestant religion especially devoted to the care of aged persons." There was no institution in the city of New Orleans where the bequest was to be expended, answering to the description in the testament. The St. Anna Asylum devoted to the relief of destitute and helpless children claimed the legacy, as the only institution in the city of New Orleans coming near the terms and conditions of the will. The judgment of the lower court was in favor of the St. Anna Asylum. On appeal by the executor the judgment was reversed. In this case the court said: The executor, therefore, has the right to appeal from a judgment interpreting the will, which he thinks is contrary to the intentions of the testator. In oppositions to the distributions of a fund there are as many adjudications -- separate judgments as there are oppositions and the party aggrieved must appeal for relief, and unless he does so this court will not amend the judgment as between the appellees made so by the operation of the appeal, except so far as the judgment between immediate parties to the appeal may affect indirectly their interests. By the appeal of the executor from a judgment adverse to his professed distribution of funds as he interprets the will, all the beneficiaries, legatees and heirs are necessarily immediate appellees.
The motion to dismiss is therefore denied.
The executors could not agree on an interpretation of the will, and there were controversies between the legatees and heirs among themselves and with the executors.
Two of the executors, Mrs. Allen and Collins, filed a provisional account, proposing to settle the bulk of the estate and distribute the funds on hand, and await a further realizing of assets and to make a future and final distribution. The executor Smith filed a final account.
Oppositions were filed by the executors to the accounts of each, and there were numerous other oppositions by the heirs.
Collins and Mrs. Allen, executors, propose to turn over to the latter, the residuum of the estate. The heirs, including the executor, Ogden Smith, oppose the account, on the ground that as to the residuum the testator died intestate, and it should be distributed among those to whom the law gives it. Mrs. Allen, claiming the residue, opposed the account. The division of the plantation is contested between the children of Thomas H. Allen, and the children of Mrs. Smith, brother and sister of the deceased. There were four Allen and five Smith heirs. Hence the contention of the former, that one-half of the plantation absolutely should go to them, as they deny the bequest to the Smith heirs; and that if they are entitled to a part of the plantation as legal heirs, that the half of the plantation should be divided per stirpes and not per capita.
The executors concur that each of said heirs should receive one-ninth of the half of the plantation. Collins and Mrs Allen, executors, propose to pay Mrs. Cragin for her boys, a sum sufficient to educate them. Smith, the executor, and one of the heirs, opposes this item in the will, because of its uncertainty. The executor, Smith, differs with the other executors as to the disposition of the crop of 1894, the former contending that the proceeds should be turned over to the heirs as a part of the estate undisposed of by the testator, and the three nieces named in the will claim...
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