LONGBOTTOM'S EXECUTORS vs. BABCOCK ET AL., 9 La. 44

Bullard, J., delivered the opinion of the court. The testamentary executors of Joseph Longbottom, deceased, being ordered by the Court of Probates to file an account of their administration, an account and tableau were after some delay filed, to which numerous oppositions were made on various grounds, by creditors of the estate. The court, after hearing evidence and argument, gave judgment sustaining some of the oppositions and overruling others. The executors appealed. Their counsel relies for a reversal of the judgment on the following points: 1st.

That the oppositions to the account of the executorship were filed after the legal delay. 2d. That the executors are made liable for a lease at n higher rate than the same was sold for. oThtíieltCocié°of Practice, re-sitim shouldPbe cutor’s° oi-'ciu-ator’s account, within three days after filing- it, prohibiuhe mí tío? o/í°rP0¡i/Í¡ lapse of three theSfinaí 'jídgment of liomoio-count. Executors are biefoí purohas-ofS suecessfons administered by provoked a Sby themselves; and cannot gain at the expense of administer. they 3d.

That the executors are charged with all the accounts standing on the books of Eongbottom, and notes contained in the inventory, although many of these accounts and notes are shown to be not oily not received by them but to be utterly bad and worthless. suPPort of-his first point, (the counsel relies upon articles 1004 and 1008 of the Code" of Practice, and upon several decisions of this court relating to the filing of opposition- to the proceedings had before notaries in cases of surrender of property. The first

article above mentioned requires that .; , , , - . . opposition should be made within three days after the filing ^ account. But that

article does not prohibit the making opposition after the lapse of three days and before the final homologation of the account. In this respect there is an essential difference between this provision of the Code and (hat of the act of 1817, in relation to the filing an opposition to the proceedings before notaries. In the case of Griffith vs. Minor, we held, as a general rule, that “when

an act is to be done within a given time, as the filing an answer and the like, it may be done afterwards if nothing occurs to prevent iti Thus,'if a judgment by default has not been taken, an answer may be put in to the merits, although more than ten days have elapsed from the service of citation.” 7 Louisiana Reports, 344. In relation to the second point, it appears that one of the executors at the sale of the property of the estate, purchased the unexpired time(of a lease at the sum of four hundred dollars and sold it soon afterwards at nine hundred.

The Court of Probates condemned the executors to account for the lease at nine hundred dollars. We think he did not err. Executors are in our opinion legally incapable of purchasing the property of successions administered by them at a sale P1'0^5^ by themselves, and cannot gain at the expense of the estate. The Court of Probates charged the executors with the amount 0f claims mentioned in the inventory and not J accounted for, and the appellants complain that injustice has been done them, because these are bad debts and cannot be recovered.

In the judgment rendered below, the right is reserved to the executors of showing within ten days the non-payment of those claims by any satisfactory evidence, This part of' the judgment is highly favorable to the executors. They had notice by sundry oppositions that the creditors would endeavor to hold them liable for those debts not collected by them, or if collected, not accounted for.

On . . ., ,. ■ tne trial of the opposition, no evidence or diligence was offered by them, and in strictness they might have been rendered finally liable; but the judge, thinking a great injustice might be done them, reserved to them the right within ten days of showing by legal evidence the insolvency! of the debtors or ineffectual diligence to make collections. The executors surely have no right to complain of this part of the judgment. If by appealing within the ten days they have delayed or defeated the right reserved to them, it is their own fault.

We cannot look at the evidence offered . under this reservation after the judgment was pronounced, because it has not been acted on by the court below, and after a suspensive appeal had been allowed, the court below was 1 11 . ' divested of all jurisdiction m the case. We can only examine the judgment such as it was originally rendered. The appellees and opposing creditors complain of that exercise of discretion on the part of the court below, and contend strenuously that the court had no right to suspend the effect of its own. judgment by reserving such a right to the defendants.

The proceeding is certainly not common and perhaps not strictly correct, but the judge had a right in his discretion to set aside the judgment and award a new trial if he thought injustice had been done. In exercising his discretion, he has thought proper to reserve to the executors a right to exonerate themselves from a part of the judgment within ten days, instead of opening the whole case under its peculiar circumstances.

His discretion appears to have been soundly exercised. 1,11 tlie clol)ts iu the inventory not. accounted 'collect aad the estate, or to'coiiéeí, aud , A.fter a sus: pensive / appeal has heen allow-voV'is nUrcsted °.r “l1 jurisclic" lion m the case. - One of the opposing creditors and appellees, Cotton Henry, prays that the judgment below may be so'amcnded as to allow his claim for one thousand one hundred dollars to be. paid by privilege, as for a special deposite, that sum being found in the store of the deceased.

The depositor, to be entitled to his right of privilege must make proof of the identity of the tiling deposited : tor it is of the essence of deposite, that the depositary should be bound to keep the thing deposited andre-store it in kind to the depositor. A sum of money found in the store of a deceased agent,making* part of a sum put into his hands to be -disbursed on account of his principal, does not entitle the owner to a privilege on the succession of the deceased, as in case of a special deposite, when there is no evidence to show that this sum is the same money received by the deceased agent.

The evidence in the record shows that the deceased was the attorney in fact of Cotton Henry, during his absence from the State, and that before his departure he had given his agent a check on one of the banks for one thousand three hundred dollars, to be disbursed on his account, and that the sum of one thousand one hundred dollars was found in the store of the deceased at the time of his death. But there is no evidence tovshow that this sum is the same money received by the testator.

Article 3189, relied on by the opponent, requires, in order that the depositor may exercise his right of privilege, proof of the identity of the thing deposited. It is of the essence of deposite that the depository should be bound to keep the thing deposited and restore it in kind to the depositor. In this case the money appears to have gone into the hands of Longbottom as the agent of Cotton Henry. He was bound to account for it, but n.ot to restore it in kind. He did disburse a part of it for the use of his principal.

We therefore think the court acted, correctly in rejecting the opponent’s claim as a privileged one. The same opponent makes in this court a further point, to wit, that the item for rent of the store ought to be rejected, as it is not shown to have been owing by the deceased. This does not appear to have formed any ground of opposition in the court below, and cannot be noticed here. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.