KEMP'S HEIRS vs. KEMP'S EXECUTORS, 11 La. 19

Bullard, J., delivered the opinion of the court. In this case, the heirs of Thomas Kemp sue to compel the executors of his last will, to render an account of their administration, and prosecute the present appeal from a judgment of the Court of Probates, by which their account was approved. The succession was opened as long ago as 1818, and from the confusion of accounts and proceedings cumulated in the record, we have found it extremely difficult to arrive at any satisfactory conclusion.

Under these circumstances, we shall proceed to notice only some leading questions of law, in which, we are of opinion, the court below erred. ’ 1 i ^ , , I. The defendants prayed that the widow of the deceased testator, who was in community with him, might be made a party, and she was accordingly cited, and excepted to the jurisdiction of the court. The court, in our opinion, erred in overruling her plea; not being one of the heirs, she had nothing to claim of the executors, and no account to settle with them.

If the executors had paid over to her a greater portion of the estate than she was entitled to, they could not compel her to refund by a suit in the Court of Probates; and we do not perceive the necessity of making her a party, for the purpose of showing how much she had received, in point of fact. Heirs cannot pro secute the executors of their ancestor in the Probate Court for any sums of money which they may have received from the estate of a deceased brother of the testator, who survived the latter.

If they received funds, they are accountable as negotiomm ges-tores, and can only be sued in a court of ordinary jurisdiction. After executors have taken notes from a'debtor of the succession they administer, bearing ten per cent. interest, they cannot af-terwards cancel these; and take another bearing less interest. II.

As it relates to the plaintiffs’ demand for a portion of the.claim against Bookter, which it is alleged they inherited from the estate of their uncle, David Kemp, and was received by the defendants to their use, we are of opinion, it cannot be inquired into, in this case; David Kemp survived his brother, and the defendants, as executors of Thomas Kemp, were without capacity to receive it for the plaintiffs, and if they did receive any part, they may be accountable for it, as negociorum gestores, but it cannot properly form an item in their account as executors of Thomas Kemp, to whom the fund never belonged; such a claim can be prosecuted only in a'court of ordinary jurisdiction.

III. In relation to the three notes of David Kemp, we are of opinion, that the order of the Court of Probates, directing those notes which bore interest at ten per cent., to be can-celled and replaced by one of his administrator, at a reduced rate of interest, is not conclusive upon the plaintiffs.

If the executors had stipulated for an interest of ten per cent, from a debtor to the estate, they had no authority to give up that benefit; and at the time the judgment was rendered, the year of their executorship had expired, and they had no longer any capacity to represent the succession in a judicial proceeding, unless such as had commenced during the year ; they are therefore accountable for the interest at ten per cent, up to the time the debt was paid to them. IV. The settlement made by Bradford and Kinchen, appears to us not conclusive upon the plaintiffs, as they were not properly represented.

Instead of taking that set-llement, homologated by the Court of Probates, in 1824, as the basis of the account to be now rendered by the executors, we think the plaintiffs authorized to demand their fourth of the inventory, together with the price of the negro Joe, eight hundred dollars, and such sums as the executors received in that capacity, after deducting, what they may show, was paid for debts, and that they are all accountable for inabilities to make collections. By the will, the executors were not authorized to dispose of the property for less than its appraised value.

The court below appears to have acted on the prin- • iii ii i /» i ii ciple that the executors are accountable only for what actually came into their hands ; but we think they were bound to administer faithfully, and are responsible for losses occasioned to the estate, by their negligence. s0, tesiamen-^¿not^niy^c-countable for came int<ftheir ^administer faithfully, and are respon-sibie for losses Srne"i4ence.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, be avoided and reversed; that Margaret Nettles be dismissed from the suit, and that the case be remanded to the Court of Probates, to be proceeded in according to law, and that the defendants pay the costs of this appeal.