Succession of Marcour

• Court: Court of Appeal of Louisiana
• Writing for the Court: McCALEB, Judge.
• Citation: Succession of Marcour, 173 So. 587 (La. App. 1937)
• Decision Date: 19 April 1937
• Docket Number: 16641
• Parties: SUCCESSION OF MARCOUR

173 So. 587

SUCCESSION OF MARCOUR

No. 16641

Court of Appeal of Louisiana, Orleans.

April 19, 1937

Arthur J. Peters and Daniel J. Murphy, both of New Orleans, for appellant.

Louis R. Hoover, of New Orleans, for appellee Mrs. Louise Marcour.

OPINION

McCALEB Judge.

This is an appeal from a judgment dismissing the opposition of Mrs. Eleonore Marcour, widow of Henry Menage, the legal heir of and, presently, the administratrix of the succession of Mrs. Eugenie Marcour, widow of Ralph Haistre, to the final account of Mrs. Louise Marcour Nunez, the former administratrix of the succession.

The facts of the case are not in dispute and we find them to be as follows:

Mrs Eugenie Marcour, widow of the late Ralph Haistre, died in the city of New Orleans on February 14, 1933, leaving certain property of an appraised value of $ 5,389.72. On February 21 1933, Mrs. Menage, the opponent herein, filed a petition in the district court, alleging that she is a first cousin of the deceased; that the decedent left no descendents nor ascendents other than herself; and prayed for the appointment of a notary public to make the necessary search for a last will and testament of the deceased. Later, on May 10, 1933, she filed another petition, averring that the search for a will of the deceased had been made without success; that the deceased had left property situated within the jurisdiction of the court; that the succession owed debts; and that it was necessary for the estate to be administered. She further represented that she was the nearest relation of the decedent in the collateral line and that, as such, she was entitled to be appointed administratrix of the estate. She prayed for an inventory of the property of the estate and for the issuance of letters of administration to her.

On May 29, 1933, Mrs. Louise Marcour Nunez filed a petition opposing the appointment of Mrs. Menage as administratrix of the succession, on the ground that she (Mrs. Nunez) was a niece of the decedent; that, as such, she was the nearest of kin and the sole and only heir and that she was entitled to be appointed administratrix of the succession to the exclusion of Mrs. Menage.

On the issue, as to which one of the contestants was entitled to the appointment as administratrix of the succession, a trial was had, Mrs. Menage asserting that Mrs. Nunez should not be recognized because the ancestor, through whom Mrs. Nunez claimed relationship to the deceased, was an adulterous bastard. The district judge, after hearing the evidence, maintained the opposition of Mrs. Nunez, and on November 7, 1933, he signed a judgment dismissing the application of Mrs. Menage. He also decreed that Mrs. Nunez was the legitimate and lawful niece of the decedent and appointed her as administratrix of the succession. On November 13, 1933, Mrs. Menage appealed devolutively from the adverse judgment to the Supreme Court.

On December 19, 1933, shortly after the devolutive appeal had been taken by Mrs. Menage, Mrs. Nunez, having qualified as administratrix of the succession, filed a provisional account, on which she listed certain debts of the succession, and included thereon a commission charged by her as administratrix and also a fee for her attorneys. This provisional account or tableau of distribution was duly published, in accordance with law, and, not being opposed, was homologated by the district court on January 2, 1934.

On January 12, 1934, Mrs. Nunez obtained an order from the court to sell certain stock owned by the decedent in the Suburban Building & Loan Association for the purpose of paying the debts listed on the provisional account.

Later, on July 2, 1934, the judgment of the district court, recognizing Mrs. Nunez as the lawful heir of the decedent and appointing her administratrix of the succession, was reversed (see 180 La. 129, 156 So. 198); the Supreme Court holding Mrs. Menage to be the sole heir of the decedent and entitled as such to the administration of the estate. On July 18, 1934, the decree of the Supreme Court was recorded in the district court and Mrs. Menage was forthwith appointed administratrix in place of Mrs. Nunez. On August 15, 1935, Mrs. Nunez filed a final account of her charge of the succession, which shows that she had collected cash amounting to $ 1,427.41 and that she had disbursed, in accordance with her provisional account, the sum of $ 824.74.

In due course, Mrs. Menage appeared in her capacity as administratrix of the estate and also as the sole and only heir of the decedent and opposed the final account of Mrs. Nunez. The opposition alleges, in substance, that the final account not only contains items of disbursement proposed to be made but also items of disbursements made in accordance with the provisional account filed by Mrs. Nunez; that, with the exception of payments made to the Metairie Cemetery Association, fees of notary for making the inventory, and fees of the appraisers, all of the other items, contained on the final account and included in the provisional account, are not due and chargeable against the estate. Mrs. Menage particularly opposes two items one for $ 500 representing fees charged by Mrs. Nunez's attorneys, and another for $ 134.74 representing her commission as administratrix for the following reasons: That, at the time Mrs. Nunez was appointed administratrix, she was cognizant of the fact of her appointment being in contest; that a devolutive appeal (a suspensive appeal not being permitted by law) had been taken from the judgment appointing her; that shortly after said appeal had been perfected, to wit, on January 2, 1934, she, without performing any acts of administration or conservation of the assets of the estate, filed a petition praying to be authorized to sell certain assets of the estate for the purpose of paying alleged debts of the succession (the principal ones consisting of the items now opposed); that, although she proposed in her provisional account to pay taxes on properties owned by the decedent, none of these taxes were paid and, in fact, as shown by her final account, the only items paid by her were her attorneys' fees and her commission, other than the appraisers' and notary fees; that the services rendered by the attorneys for Mrs. Nunez are not chargeable against the estate because they are services rendered to her in sustaining her appointment as administratrix and that the alleged administratrix's commission paid herself is likewise invalid because she performed no acts of administration or conservation for the benefit of the succession.

The case was set for trial on the foregoing account and opposition, and the district judge dismissed the opposition, approved and homologated the final account, and ordered that the funds be distributed in accordance therewith. Mrs. Menage has appealed to this court from the adverse judgment.

While the ground, on which the district judge dismissed the opposition of Mrs. Menage, does not clearly appear from the record, counsel for both parties tell us, in brief and in oral argument, that the district judge was of the opinion that, because Mrs. Menage failed to oppose the provisional account of Mrs. Nunez, she is now bound by that judgment of homologation and is estopped from contesting its invalidity. Counsel for Mrs. Nunez relies upon the recent case decided by the Supreme Court, In re Liquidation of Canal Bank & Trust Co. (Whitney National Bank, Intervener), 185 La. 34, 168 So. 485, which holds that, where a final account of an executor, recognizing and ordering commissions to be paid him during his tenure as such, has been filed, published and homologated, it is res adjudicata and cannot be assailed by anyone in the absence of charges of fraud, misfeasance, or waste.

It is claimed, however, by Mrs. Menage, that the Canal Bank Case is readily distinguishable from the case at bar because: (1) She is the legal heir of the decedent and that, under the jurisprudence, the judgment homologating the provisional account of Mrs. Nunez could not bind her in the absence of personal citation; (2) that, at the time the provisional account was filed by Mrs. Nunez, Mrs. Menage could not oppose it because she was neither a creditor nor a legatee or recognized heir; and (3) that, at all events, she is not bound by it for the reason that it was filed by Mrs. Nunez for the specific purpose of obtaining illegal commissions for herself and invalid fees for her attorneys and not with the object of conserving the assets of the estate and paying the just debts of the decedent.

We shall consider these propositions in their respective orders.

The question as to whether an heir is estopped from assailing a judgment homologating an administrator's account, in cases where the heir has not been personally cited, has been definitely...