MILLAUDON vs. CAJUS, 6 La. 222

Martin, J., delivered the opinion of the court. Millaudon, the assignee of the shares of two of the heirs, is appellant from the decree which homologates a tableau of distribution of the property of these two estates, by Cajus? who was executor for both. The defendant claims a reversal of the decree, on a suggestion that it was rendered without his having been cited or notified, and that it is contrary to law and evidence. The m2d art< 'code, ^áo^Tnot o?p an° executor who seeks to distribute -the net proceeds of an a,"0lis heirs.

In that concerne/aTeñot whioirnsrestrictl which nothing is aaSfSon b“f the cpurt of probates to the payment of creditors. The case of an 2co“n“r “bye the heirs has no bearing on that of an executor who to'thenefproceeds of an estate among the heirs.

The counsel of the executor has replied that the appellant was a party to the proceedings of the Court of Probates, on the estates, having been present and having subscribed the inventories; that the usual advertisements of publications, notifying all persons concerned, were made in the gazettes; that the appellant ought to have filed his opposition to the tableau, if he had any, within three days and in writing; that he filed an opposition after the adjournment of the court, on the day the deed was rendered, and obtained a rule to show cause on the executor, which rule was afterwards discharged.

He has relied on the Louisiana Code, 1172 and 4. Louisiana Reports, 300. The appellant’s counsel has relied on the Code bf Practice, 606, 9. These articles of the Code of Practice, are relied on to establish the rights of the party, enforced by a judgment rendered without his having been cited to have it annulled or reversed. The

article of the Louisiana Code, cited by the appellee’s counsel, authorises indeed the executor who desires the authority of the Court of Probates to pay creditors, to call all persons concerned, to appear and file their opposition, This may likely prevent an heir who has neglected to oppose , . ,, , i. •, , payments to creditors, to contest their legality; but the arti- "*■ # ele has no application to the case of an executor who A x to distribute the net proceeds of an estate among the heirs; this must be done vocatis vocandis, and the persons concerned are not to be cited in the mode prescribed by the

article 1172, which must be restricted to cases in which nothing is sought but the sanction of the court to the payment x * of creditors. The case in 4 Louisiana Reports, is that of an executor called to account by the heirs. It decides that when the , _, _ . . account is tiled, the heirs must state their opposition in x A writing within a fixed period. This case has no bearing on +ho rkr^cArvime pi esem.

The presence of the appellant at, and his subscribing the inventory, cannot authorise the executor to consider him as constantly in court, and bound to take notice of any account, the executor may file at any subsequent period, so as to be precluded from consulting any part of it, unless a written opposition be filed within three days, a party at and inventory, cannot authorise the executor to consider him as constantly boundtoteiteni count”wSch thé subsequently fifí ciudedfrom coni ofitf unless ain written opposition be filed wi?hm three days.

All objections to accounts of executors must he made in writing, within three days after the account is filed. 4th Louisiana Reports, 300. Marchand vs. Cavelier. 1. The suggestions made by the appellant that the judg_ ment of the inferior court was rendered without his having been cited, comes too late. It was made, for the first time, on the very day of trial before the Supreme Court, viz. on the 21st January, 1834.

The points containing this strange allegation, were filed on that day without their having ever been communicated to us, so that we were left entirely in the dark, and taken on purpose by surprise, as to the plea on which the appellee intended to rely. This plea ought to have been specially set out at length in the .inferior court. 2. The opinion manifested by this court with regard to personal notice, is contrary to the universal course followed throughout the state on this particular point.

The general impression has been that the duties and powers of executors, curators of vacant estates, and administrators were the same, and that those parts of the Code which had relation to the former, had also a bearing on the latter. Thus, we see by

article 1042 of the Louisiana Code, that administrators have the same powers, and are subject to the same duties and responsibilities as the curators of vacant estates; and by

article 1663, that executors must proceed to the sales and to the payment of the debts in the manner prescribed for curators of vacant estates. Now, if

article 1172 was to be explained by itself alone, it might, perhaps, be understood as applying exclusively to creditors; but it must be taken in conjunction with

article 1057, whereby legatees are placed on the same footing with creditors. The notice there required to be given, (in the French text, avis), is not a personal notice, but a public advertisement in the newspapers. Such has been the construction given to that article, 1057, by universal practice, and it appears to be founded on law. D.

Seghers, for appellee moved for a re-hearing on the following grounds: The rule obtained by the appellant, with the view of affecting the decree of the Court of Probates, and the dis-0 charge of that rule, cannot have the effect of curing so 0 7 0 Papable a defect in the decree, as that of having been rendered against a party sought to be bound thereby, without his having been legally cited or notified, It is therefore ordered, adjudged, and decreed, that the judgment of the court of probates be annulled, avoided and reversed, at the costs of the appellee, 7 x 3.

The court have annulled the judgment of the inferior tribunal in all its parts, though it never should have been reversed, in any case, except only as far as Millaudon may be concerned. The estates are nearly settled, all the creditors have been paid, and all the heirs and legatees, except Millaudon, have received their shares. What a confusion would it not create if the decree was not amended in that respect!

Should the court, therefore, persist in this opinion, that the decision of the judge below is erroneous, still his judgment ought not to be disturbed, except as relates to Millaudon; and even then, with directions to the inferior judge, to disregard all that part of Millaudon’s opposition concerning payments made to creditors. This is in strict accordance with the. doctrine laid down by this honourable court, in the very opinion of which we now complain. “This article, 1172,” says this court, “prevents an heir who has neglected to oppose payments to creditors, to contest their legality.” Mapready, contra.

The opinion of the court overruling the motion, was delivered by Martin, J. We have been requested to grant a re-hearing, (among other grounds) because the judgment of the lower court is reversed absolutely, while it ought to have been so as to the aPPeUallU all the parties against whom it was given, not having appealed; and, because, in remanding the case for further proceedings, we have not instructed the judge not to suffer the payments authorised by the homologation, to be X J J 07 contested.

Aparty against whom judgment is given, cannot when he does not leifoflts™veS a" p¿tyPPjoUiea ¡nferiorcourt.the It is so clear a point that a party against whom judgment is given, cannot avail himself when he does not appeal, of its reversal on the appeal of a party joined with him below, that it is absolutely unnecessary to qualify the reversal of the J J * * iurlp*mpnf.

J uuSmuiL* ^le reasonings which lead to the conclusions we came an heir who had neglected to appear on a. publication requiring all persons concerned to come and oppose if they saw fit, the leave prayed for by the executor to pay creditors, was concluded from contesting such judgment after the homologation. The opinions thus expressed, have no need, in our opinion, of being repeated at the end of the deniah The re-hearing is, therefore, refused.