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Blake vs. the Minors Kearney and Lake.

the agent of said heirs, with full authority to liquidate said estate, to sell its effects, to pay its debts, and thereafter to distribute to the heirs the balance according to their several rights, etc. This agreement is dated October 24, 1874. On the same day certain of the heirs acknowledge to have received, by way of distribution, from Kearney the sum of $250, being the balance of cash on hand belonging to the estate, after paying certain debts.

Richard A. Kearney, cited in the present suit as tutor ad hoc for his minor son Frank, appeared and excepted to the jurisdiction of the parish court, on the ground "that the heirs of Adeline Dupuy have long since entered into possession of the property of her estate, have sold a portion thereof and partitioned among themselves a part thereof, and have done acts of heirship and ownership which show an acceptance, pure and simple, and a mingling of the patrimony, so there is no succession remaining over which this court has jurisdiction to decree a partition," etc., "the property of said estate to be partitioned exceeding $500 in value." It seems that the plaintiff, Euphrosine Blake, has caused herself to be appointed administratrix of the estate of the deceased; but the date and circumstances of her appointment are not stated. The parish judge sustained the exception and dismissed the suit, and plaintiffs appeal.

The sole questions, therefore, are, where some of the heirs are majors accepting unconditionally and some minors necessarily beneficiary, and where there are no debts, can these heirs by agreement enter into possession and terminate, extra judicially, the existence of an estate where one of the majors demands an administration? Will such agreement and possession defeat a subsequent administration and take the estate out of the hands of the probate court?

C. C. 1047 provides: "If there be several heirs to a succession, some of whom have accepted unconditionally, and others claim the benefit of the term for deliberating (benefit of inventory), the judge of the place where the succession is opened shall, notwithstanding, cause an inventory to be made, ** * and shall appoint an administrator to manage until a partition of the same be among the heirs."

A minor, ex necessitate legis, claims the benefit of inventory. The Code directs, therefore, that an administrator shall be appointed to estates in which there are minor heirs concurring with majors who accept unconditionally. The only exception to this rule we have lately had occasion to review in the case of Soye vs. Price, not yet reported. It is to the effect that the natural tutors of minor children, may as such take possession of and administer the estates of the deceased parents of such children, unless and until creditors or heirs of age demand the appointment of an administrator.

Blake vs. the Minors Kearney and Lake.

It is admitted that plaintiff, Euphrosine Blake, has demanded to be and been appointed administratrix of the estate. We do not consider the acts of the major heirs as affecting the interests of the minors who were totally without power by themselves or tutors to accept uncondi tionally the estate. We think the probate court has jurisdiction of the succession, which has never ceased to exist, because the minors were without power to do, extra judicially, the acts necessary to terminate it. It is now the well-settled jurisprudence of this State that where heirs of age are permitted to take possession of an estate without an administration, and to partition or dispose of its effects among themselves, the estate ceases to exist and the patrimony of the deceased is lost by confusion with that of the heir. A succession is an ideal being, a unity. It can not exist as to one heir and be extinct as to another. To terminate the existence of a succession the heirs must all be sui juris, and have capacity to render themselves, by their acts, unconditionally liable for the succession debts. This a minor can not do; and, therefore, no extra judicial acts or contracts of a minor can legally terminate the existence of the succession.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed, and that the defendants' exception to the jurisdiction of the parish court be overruled, and that this cause be remanded to be proceeded with according to law, appellee paying costs of appeal.

No. 5945.

B. F. GEORGE VS. N. AMACKER.

The tutor who received the proceeds of the sale of slaves, the property of the minors under his tutorship, some time before the late civil war, is liable to the minors for the amount of those proceeds.

A

PPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Kemp, J. Trial by jury.

E. F. Russell for plaintiff and appellant.

O. P. Amacker for defendant.

The opinion of the court was delivered by

SPENCER, J. Plaintiff, as transferee of a note of defendant for $767 50, brings this suit therefor. This note was given in renewal of a previous note of defendant for $750, in favor of Mrs. Emma Dean Odom.

The defense is that this note for $750, in renewal of which the note sued upon was given, was based upon a Confederate money and negro slave consideration, and was, therefore, void; and, therefore, that the note in renewal is also void. The case was tried by a jury, and there was verdict and judgment for defendant, and plaintiff appeals.

George vs. Amacker.

The facts are as follows: William P. Dean died some time about 1852, and defendant was appointed tutor of his minor children. Dean left an estate of some $6000, consisting of land, slaves, and movables. In 1853 this property was all sold and the proceeds, consisting of money and notes, were paid over to defendant, as tutor of the minors to the extent of their interest in the estate.

In May, 1861, Amacker rendered a provisional account of tutorship, in which he charges himself with a balance in his hands, due the minors, $3988 38; of which he shows the sum of $2599 24 to be due to one of his wards, Emma Deau. This account was duly homologated.

In 1866 the tutor filed his final account, which, upon appeal being taken, was compromised and a judgment rendered in accordance with the compromise terms. In this compromise judgment the tutor, N. Amacker, "agrees to pay to Mrs. Emma Dean (Odom)” (who was one of his wards) "the sum of two thousand dollars, one fourth cash, and the balance in one and two years, with interest from maturity until paid; notes to be given, each for the sum of $750." The tutor goes on to state, in said compromise, "that he believes said arrangement a fair and equitable settlement of his indebtedness to the parties by reason of his tutorship of them, and that the same is advantageous to himself." Here we have the origin of the $750 note, basis of the note for $767 50 sued upon.

There was annexed to the tutor's final account a list of notes which he says were partitioned to him as tutor, from the estate of William P. Dean, "or have been derived therefrom in due course of administration for the best interests of the minors at the time, and are now on hand." This list consists almost entirely of the notes of one D. W. Thompson, said to be defendant's son-in-law, amounting to nearly $3000.

We presume the intention of the tutor (though not so expressed) was to force his wards to take this list of notes in satisfaction of what he owed them. But, as stated, the judgment on the compromise ignored all of these and gave a money judgment, in satisfaction of which, in part, the note sued on was by renewal given.

Strange to say, Amacker swears that the notes on this list were based upon Confederate money and slave consideration; and, stranger still, there was not one of the notes on this list which he derived from the estate of William P. Dean. He does not explain how the cash in his hands in 1861 got into the shape of Confederate money and slave notes in 1866.

The truth is that these notes did not belong to the minors. Their property was sold in 1853, and Amacker received and collected the proceeds long before Confederate money was dreamed of, and when a slave consideration was not under ban. True, the money he received

George vs. Amacker.

was largely the price of slaves sold in 1853. His self-abnegation and anxiety to save his wards from contact with this polluted gold, by appropriating it to himself and taking the sin thereof upon his own shoulders, are, to say the least, refreshing, and smack very much of the martyr. We prefer that he should not burden himself thus with the sins of others, notwithstanding the magnanimity of his desire to do so.

It is therefore ordered, adjudged, and decreed that the verdict and judgment appealed from be annulled and reversed, and it is now ordered and decreed that the plaintiff, B. F. George, do recover of the defendant, N. Amacker, the sum of seven hundred and sixty-seven dollars and fifty cents, with eight per cent interest thereon from March 1, 1869, till paid, and costs of both courts.

No. 5488.

M. GOEPPER & SONS VS. CASPAR LUSSE.

The facts that a written demand was made on defendant before suit was brought, that he answered by a general denial, and specially averred in his answer that too much interest was demanded, and it appears that he and his counsel were absent on the trial of the cause, are all corroborating circumstances, and in conjunction with the testimony of one witness, will prove a claim for more than five hundred dollars.

Damages will be allowed for a frivolous appeal.

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PPEAL from the Sixth District Court, parish of Orleans. Saucier,

J.

Gabriel Fernandez for plaintiffs and appellees.

Hornor & Benedict for defendant.

The opinion of the court was delivered by

SPENCER, J. This is a suit for the balance of an open account for $861 87, one item of which is for two hundred bags malt, amounting to $822 14, under date October 10, 1873. The defendant was personally cited and answered by a general denial, and a special plea that the account sued upon includes interest upon which interest is claimed.

The defendant and his counsel were absent at the trial. There was judgment for plaintiff for the sum of $851 54, with legal interest from October 17, 1873, the date of closing the account. The judge a quo evidently rejected the item $14 93 interest charged in the account. Defendant took a suspensive appeal, and urges as the sole ground for reversal that the item $822 14 is established only by the testimony of a single witness who proves the defendant's acknowledgments of the correctness of the account. This witness, plaintiffs' attorney, testifies that he, on receipt of the account, wrote defendant a letter (a copy of which he

Goepper & Sons vs. Lusse.

produces and offers in evidence) informing him thereof, and of its amount. That he soon after saw the defendant himself, who said the account was right and just, and that he would pay half of it in a few days and the balance at another stated time. There is annexed to plaintiff's petition, but not formally offered in evidence (so far as the note of evidence shows), what purports to be a telegram from defendant to plaintiffs, of date October 7, 1873, ordering two hundred sacks of malt.

The defendant was personally cited. He answered by a general denial, and a plea that too much interest was claimed. He absented himself from the trial, and made no effort to contradict the plaintiffs' witness by his own or other evidence. The truth of plaintiffs' witness is corroborated by these circumstances, and by the undisputed evidence that the letter was sent to defendant. Defendant's appeal is manifestly frivolous and for delay, and plaintiffs have prayed damages therefor, and are entitled to it.

It is therefore ordered and decreed that the judgment appealed from be affirmed, with ten per cent on the principal amount thereof as damages for frivolous appeal; and that defendant pay costs of both courts.

No. 6903.

HERRMANN & VIGNES VS. JUSTIN L. AMÉDÉE.

On the rule to dissolve an attachment the defendant in the suit may put at issue, and require to be passed on, all of the allegations of the plaintiff's affidavit, on which the writ of attachment itself legally rests. And when such allegations are thus put at issue, the plaintiff must prove them to be true. On such a rule however, no allegation, or fact, involving the merits of the case, will be considered.

A

PPEAL from the Fifteenth Judicial District, parish of Lafourche.
Beattie, J.

J. D. Moore and T. A. Badeaux for plaintiff and appellant.

E. W. Blake and E. 4. O'Sullivan for defendant.

The opinion of the court was delivered by

MARR, J. This suit was brought to recover the balance of an

account.

The petition charges that "said Justin L. Amédée has mortgaged, assigned, or disposed of, or is about to mortgage, assign, or dispose of, his property, rights, or credits, or some part thereof, with intent to defraud his creditors, or give an unfair preference to some of them; and that he has converted, or is about to convert, his property into money

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