Succession of Jones

• Decision Date: 04 April 1938
• Docket Number: 34414
• Citation: 180 So. 489,189 La. 693
• Court: Louisiana Supreme Court
• Parties: Succession of JONES

180 So. 489

189 La. 693

Succession of JONES

No. 34414

Supreme Court of Louisiana

April 4, 1938

Appeal from Twenty-Second Judicial District Court, Parish of Washington; Robert D. Jones, Judge.

Proceeding in the matter of the succession of Ivan (Irwin) Lee Jones deceased, by an heir against the administrator for alleged failure to recognize heir as such. Judgment for defendant and the heir appeals.

Reversed and rendered.

H. H Richardson, Curator ad hoc, and B. D. Talley, both of Bogalusa, for appellant Christine Jones.

Guy V. Rich and M. I. Varnado, both of Bogalusa, for appellee Theodore T. Jones, administrator and individually.

HIGGINS, Justice. O'NIELL, C. J., does not take part. LAND, J., absent.

OPINION

HIGGINS, Justice.

This is an action by an emancipated minor against the administrator of the succession of her father to recover from him, in his capacity as such, and individually, the sum of $ 2,525.25, plus 20 per cent. penalty and interest for having illegally paid her three-fourths share of her inheritance in the proceeds of her father's war risk insurance to other heirs, while her appeal from the decision of the lower court overruling her opposition to the administrator's final account was pending in the Supreme Court.

The defendant answered, admitting that he had failed to recognize the plaintiff as an heir on his final account and tableaux of distribution, which was amended and homologated by the trial court, and that a suspensive and a devolutive appeal were applied for, but avers that only the devolutive appeal was perfected, and that after the delays for perfecting a suspensive appeal had expired and none had been perfected, he paid out the funds in accordance with the final judgment of the district court, while the devolutive appeal was pending.

The case was submitted on the entire record of the succession proceedings, including those of the instant case, and judgment was rendered in favor of the defendant, rejecting the plaintiff's demand. She has appealed.

The record shows that Theodore T. Jones was appointed administrator of the estate of Ivan Lee Jones and received the balance of the proceeds of the war risk insurance of the deceased amounting to the sum of $ 3,367; that on June 13, 1934, the administrator filed his final account and tableaux of distribution of the funds, asking that it be approved and homologated by the court; that various oppositions were filed to the account and the tableaux and on July 30, 1934, Christine Jones, minor daughter of the deceased, now plaintiff herein, through a curator ad hoc, appointed by the court, filed an opposition to the account and tableaux of distribution of the administrator, claiming as an heir through her mother and, as such, entitled to three-fourths of all of the funds belonging to the estate; that after a hearing the opposition of Christine Jones was rejected, the account amended in other respects, and, as amended, was approved and homologated, the judgment having been signed on February 15, 1935; that the curator ad hoc of the minor immediately, in open court, on February 15, 1935, moved for a suspensive and a devolutive appeal, without bond, since the funds were in custodia legis and he had filed the opposition in behalf of the minor under the Pauper Statute, Act No. 156 of 1912, as amended by Act No. 260 of 1918; that the district judge entered an order for a suspensive appeal on furnishing bond in the sum of $ 3,500, and a devolutive appeal without bond, fixing the return date of the appeal on April 8, 1935; that on March 4, 1935, the administrator filed what he termed "a revised account," in accordance with the judgment of the district court, and on March 5, 1935, without any further authority of the court, and without citing the plaintiff as an heir, or without publishing the revised account, and pending the appeal, the administrator paid out all of the funds to the four creditors, whose claims arose as a result of opening the succession, and the nineteen collateral heirs, who claimed as heirs to the exclusion of the minor; that on May 25, 1936, this court held that Christine Jones, plaintiff herein, was the natural and duly acknowledged child of her mother, who survived her husband as widow in community, and was entitled to one-half of the insurance proceeds in her own right and one-half of the remaining half of the community under article 915 of the Revised Civil Code, as amended by Act No. 160 of 1920; and that Christine Jones, therefore, inherited her mother's share or three-fourths of $ 3,367, the proceeds of the insurance policy, and that the brothers and sisters of the deceased, Ivan Lee Jones, i. e., the children of the surviving mother of the de cujus (his father had predeceased him) and their descendents inherited the remaining one-fourth of the fund of $ 3,367, in their respective proportions; that this court, accordingly, amended the final account and tableaux of distribution and, as amended, approved and homologated it, remanding the case to the lower court for further proceedings; that on July 1, 1936, after the judgment of this court became final, the curator ad hoc of the minor filed a rule against the administrator and the sureties on his bond to show cause why the funds should not be distributed according to the judgment of this court, and, in the alternative, if the funds had been disbursed, why judgment should not be rendered against the administrator and the sureties on his bond, individually and in solido, for the amount due her of $ 2,525.25; that the exceptions of prematurity and misjoinder filed by the sureties were sustained, and after defendant had answered, admitting that he had paid out the funds, in accordance with the judgment of the lower court, homologating the final account, as amended, the district court held that the plaintiff in the rule was obliged to proceed by direct suit and not in a summary manner against the administrator; and that the present suit was then filed in forma pauperis against the administrator in his capacity as such and individually for three-fourths of the said fund or $ 2,525.25, with 20 per cent. penalty and legal interest, and with full reservation of petitioner's rights against the sureties on the administrator's bond.

Plaintiff in her brief makes the following assignment of errors:

"1. The Court erred in holding that the provisions of the Civil Code, which specifically says that the Administrator shall hold in his hands sufficient funds to pay oppositions when there is an appeal, did not apply unless the appeal was a suspensive appeal, and further, that the appeal taken by the minor, under the Pauper Act, in a case where the funds are in the hands of the Court, was not sufficient to serve as a suspensive appeal, thus permitting the administrator to pay out the funds as he did.

"2. The Court erred in holding that the account of the administrator could be homologated without the advertisement required by law.

"3. The Court erred in holding that a judgment homologating an account, which distributes the funds to the heirs, is binding on the heirs without citation. Especially is this true when there has been no notice by publication."

We shall discuss these assignments in the above order.

Article 1066 of the Revised Civil Code reads:

"If, on the contrary, there is any opposition to the payment or to the tableau of distribution, the judge shall decide thereon in a summary manner; but if his decision be appealed from, the administrator can make no payment, until final judgment be rendered thereon."

Article 1187 of the Revised Civil Code provides:

"If the decision of the judge thereon be appealed from, the curator is bound to retain a sufficient sum to satisfy the claims on which the opposition is made, with interest and costs; but can not, under the pretext of this appeal, refuse to distribute among the creditors, whose debts or privileges are not contested, the surplus remaining after this sum being retained."

The trial court adopted the contention of the defendant that the appeal referred to in the foregoing articles of the Revised Civil Code is a suspensive and not a devolutive one, citing articles 575, 578 of the Code of Practice and sections 6 and 7 of Act No. 163 of 1898; and that the plaintiff perfected only a devolutive appeal, having failed to furnish the bond of $ 3,500.

The defendant concedes it to be the established jurisprudence of this state that when a fund is in dispute and in the custody of the court a suspensive appeal may be taken on furnishing a cost bond only. State v. Judge, 44 La.Ann. 564, 10 So. 866; Metropolitan Bank et al. v. Blaise, 109 La. 92, 33 So. 95.

It is also conceded that under the provisions of Act No. 156 of 1912, commonly called the Forma Pauperis Act, as amended by Act No. 260 of 1918, as construed and interpreted by this court in the Succession of Wolfe, 180 La. 688, 157 So. 391 that the appellant is entitled to a devolutive...