Succession of Allen

Decision Date09 March 1896
Docket Number11,998
Citation20 So. 193,48 La.Ann. 1036
CourtLouisiana Supreme Court
PartiesSUCCESSION 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.

OPINION

MCENERY, J.

The deceased left the following will: "I give to my Dear wife Bettie Allen all my corporal movables such as furnature, bedding Linin silver plate, China ware &c. all my stock of cattle all my horses and Carriages she is to ocupy The Homestead without reservation or distinction till the plantation is disposed of I authorize her to take immediate possession of the same for her own use without Inventory or Controle of any kind. My debts are small I have no children nor forced heirs. I wish the tribunals of La to have nothing to do with my Estate unless somting arises that that can not be avoided I do this for econimy.

"In addition to the above gifts I give to my dier wife Bettie Allen four thousand Dollars worth of City of New Orleans Bonds four per cent. interest Bearing Bonds, with Coupunds. I give her also two thousand Three hundred and fifty Pounds Sterling in the hands of Bearing Bro &c limited more or less (see their ac. currents in chst).

"This will be ovr fourteen thousand Dollars for a house I gave her at our marriage not recorded but good. I give to my Wife Bettie Allen one-half of my Rienzi Plantation and one-half of all tools mules &c the names of my Executors &c will be named hereafter. My Executors shall have from one to five years to Sell and clos up the estate as I fear property will be very low and dull. They can sell part cash part on time 8 per cent. Interest with Vendors lean I will that my wife do have one-half of everry thing belongin to Rienzi, Except the Claim due me by the U. States that and other Property I will speak of further on.

"I appoint as my Executors Ogden Smith and W F Collins residing on Rienzi plantation I also appoint Mrs Bettie Allen Executrix. I give them ful power to sell Rienzi plantation When Ever they find a good offer all the property there belonging. When it is sold half of all the proced Cash Notes &c is to belong to my wife Bettie Allen The other hafe will be spoken of hereafter As I fear property will be very low I give my Executors five years to work for a good price in the Meantime That they are waiting to sell, the place can be rented or worked so as to pay all Taxes and other Charges, any over that go to Mrs Bettie Allen's credit. The other half of Rienzi and and a claim I hold against the Government of the United States for army supplies I think is about one hundred thousand dollars These two amounts or halfs I intend to give to the families of my Brother Thomas H. Allen's four children R. H. Allen Jr for his famly's use Thomas H Allen Jr for his wife and children Harry Allen for his wife and children Mrs. Mary Louis wife of J. C. Leatham of New York city.

"And to the five children of my Sister Cynthia A. Smith Gaston Smith, Fred W. Smith Jr. Mrs. Nellie Houchens, Ogden Smith & Thomas A. Smith. My three neices Mrs. Jennie Boyle, Mrs. Bettie De Berny, Mrs. Ellen B. Baker have Received Each five hundred Dollars I will that they receive five hundred dollars more in Cash and have no interest in any other Claim. my Brothrs firm in Memphis Tenn owes me $ 17.369 Dollars Seventeen thousand three hundred and Sixty nin dollars loaned them he having surrendered all his Estate to his Credited Which he thinks will pay all he ows. I thirefore Give this sum $ 17.369 to The wife of my Brother for her self and all the dividends on that amount.

"To Mrs Sallie Cragin I give five hundred dollars to Walter Collins I give two hundred dollars. To my faithful servants Lizzie Harrison and Mat Dickerson I give one hundred and fifty dollars Each.

"To my sister Myra Turner's two sons John B and William Turner I give John B His note for three hundred dollars deducting Interest to Will I have given as much as I intend in Cash.

"I hold Fred W. Smith note for five hundred dollars this note Can be given him without counting Interest as part of his share heretofore given him. My gold Watch and chain I give to my namsake R. H. Allen, son of Thomas H. Allen Jr of Memphis Tenn to be given him when of age.

"Codicil No. 1 I will that Mrs Cragin's two small boys shall be given an English Education at Expense of the Estate I will that my Executors shal not give bond as I think them honest men I prefer they pay off the cash donations as soon as possible."

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 will is his (executor's) mandate. He has no power and is subject to no duty except within its terms and conditions." 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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