ANDERSON'S EXECUTORS vs. ANDERSON'S HEIRS, 10 La. 29

Bullard J. delivered the opinion of the court. The executorg 0f the jagt w¡u 0f Anderson having surrendered the estate to the instituted heirs before the year of their executorship had expired, presented their account of administration to the Probate Court, showing a small balance in their hands in money. They pray an allowance of about two thousand dollars for their commissions on the amount of the inventory, deducting some bad debts.

They further demand of the heirs to pay the one thousand dollars as a legacy left by the will to a servant, who had been emancipated by the will, and to whom that sum was given to be invested in bank stock, but which the executors had not paid or invested during the time they were charged with the care of the estate. They further demand a young slave, the chii'd of one of the slaves, given as a legacy to the same servant, born after the will was made.

The heirs.made opposition to the account thus rendered, on several grounds, most of which are not now insisted on, but more especially to the amount of commissions, and to that part of the petition which relates t.o the legacy to Pbebe. They deny the jurisdiction of the Probate Court, and the right of the executors to recover of them. The Court of Probates allowed full commissions asclaimed, and gave judgment in favor of the executors for one thousand dollars, to be invested by them for Phebe, the emancipated gervant, as well as for the young slave : and the heirs . jo ’ appealed.

It is contended by the appellants, that by the will the executors - had not seizin of the property of the estate, and consequently, according to

article 1676 of the Louisiana Code, they are not entitled to commissions upon the amount of ^Ie inventory. Admitting that the will by its terms does not confer the seizin in a legal sense of the word, yet the next

article of the Code (1677) declares, that “ if the executor has had a general seizin, his commissions shall only.be on the estimated value of the objects which he had in his pos- • . T \ •, , ,, , session, &c. In the present case, it appears that all the heirs wer'e absent from the state, and that the executors proceeded to take, possession of all the property of the estate, as they had clearly, under such circumstances, a right to do. J J ? .-11 The seizin spoken of in the Code is derived from the testamentary law of France.

According to the doctrine of Pothier, Such seizin is not incompatible with that of the-heir, for it is not a true possession ; the executor possesses in the name of the heir, and it is the heir who is the real possessor : the executor is constituted sequestrator of the property. Potluer ties Testamens, 90. When seizin is not given by the will, the heirs may retain possession, except so far as it may be necessary to pay debts and legacies.

But in the present case, the executors were, in the absence of -the heirs, instituted by the will, put in possession of all the property ; and it was under their charge and responsibility, until the heirs appeared and possession was delivered to them. To show the extent of the'ir real possession, we think the parole evidence excepted , -it,,.. , , . . to was properly received. Believing that the possession of the executors was legal and beneficial-to the heirs, we are of opinion that they are entitled to commissions according to the ,

article of the Code, just cited. . in the absence testamentary executors who are of all the proper-Séir’ohmge'a^ e^0”jíen there is no express givei^LiTare ™mnüssíonsfu11 Parole evi-s¿pft0lssh0^m,e nature and extent of the possession of the ecutorsy Ü when there is no express seizin given by the ^1*1' After the executors have sur-taü^totheheirr legatees who are unpaidnaveaai-rect action a-for theamouiitof ^d^niust^resoii to H for redress, As it relates to a legacy of one thousand dollars, to be i ■ o ^ j invested in bank stock for Phebe, the executors would have been authorized to retain sufficient funds in their hands to execute that part of the will.

But they appear to have sur- . , 1 j \ r reudered the whole without insisting upon that right; and the will being as obligatory on the heirs to deliver the legacy as upon the executors, the legatee v^ho is not j'oined in the present suit, has a direct action.against the heirs, for this purpose.

We are, therefore, of opinion, that the Court of Probates erred in rendering judgment against the heirs for that sum and for the child of one of the slaves, bequeathed to Phebe. ' It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed and annulled ; and it is farther considered and adjudged, that-thc account rendered by the executors, be confirmed and approved, and that they retain in their hands the balance of five hundred and fifty-eight dollars and twenty-six cents ; and that they recover from the heirs the further sum of fourteen hundred and fifty-three dollars and ninety four cents, with costs in the Probate Court; those of the appeal to be paid by the plaintiffs and appellees.