BROWNSON, ADMINISTRATOR, ETC. vs. BAKER'S CREDITORS, 11 La. 409

Carleton, J., delivered the opinion of the court. The succession of Isaac L. Baker being insolvent, the creditors met, with the exception of the heirs of James Keith, and agreed that the property should be sold, payable at three instalments, in March, 1831, 1832 and 1833. The proceedings were homologated, and the sale tools place accordingly. The heirs of Keith were creditors of the deceased, in virtue of a promissory note, drawn on 1st November, 1825, payable on 1st March, 1826, bearing eight per cent, interest from the date of its execution.

The administrator filed his tableau of distribution, upon which he had calculated the interest on the sum due the heirs of Keith on the note, up to the period only of the death of the deceased. The heirs made opposition thereto, on the ground that they were entitled to interest subsequent to that period. The court overruled the opposition and confirmed the tableau. From this decree the heirs appealed. We think the court erred.

A promise to pay interest enters into the obligation of the contract, and constitutes as much a part of the debt as any portion of the principal sum; and as long as the debt, or any part of it, remains unpaid, the creditor will have the same right to demand the interest, that he has to claim the debt itself. 3 Louisiana Reports, page 159. Ibid., 9, page 72 and 268. But defendants’ counsel contends, that interest should cease to run from the day each instalment was paid to the administrator, whom he regards as merely the agent of the creditor; and that payment made to the agent is payment to the creditor.

We do not perceive the force of this reasoning. An agent is appointed by his principal, whose will he obeys. The principal may, if he please, come into the immediate possession of whatever his agent receives. Not so of money paid an administrator. He derives his power from the Court oU Probates, whose officer he is, and all payments made by him are under the decree of the court, after a course of judicial proceedings, which are often attended with much litigation and delay.

The appointment of a curator to a succession as a vacant estate, fixes conclusively the capacity in which he acted, although, in fact, the estate was not vacant, and the minor heirs were known. Hisres-ponsibilitieswil! he those attaching to the office of curator, and not those of a tutor, who should have been appointed. Another question in the cause has been presented for the decision of this court, at the instance of Jane Webb, tutrix of the minor children of Sutherland. It appears that Baker had been appointed curator to the estate of Sutherland, as a vacant succession.

It is, however, contended, in behalf of the tutrix, that instead of curator, he should have been appointed tutor to the minor children of the deceased, who were in the state of New-York at the period of their father’s death, and that the succession could not therefore be vacant, under the provisions of

article 1092 of the Louisiana Code; that if he had been appointed tutor, his estate would have been affected by a mortgage in favor of the minors, which mortgage does not exist upon the property of a curator; that notwithstanding he was not appointed tutor, his responsibility was the same, for having interfered in the administration of the property of the minors. Louisiana Code,

article 3282-3. To show that the minors were in New-York at the time of the appointment of the curator, and that the succession was not vacant, reliance is had on the testimony of the probate judge, taken, subject to all legal objections. Without expressing any opinion upon the point raised in this bill of exceptions, we think that the position taken by the counsel for the tutrix, altogether untenable. The appointment of Baker to the curatorship of the succession as a vacant estate, fixed conclusively the capacity in which he acted, and the responsibilities to which he was liable.

We think the Court of Probates erred in disallowing interest on the note due the heirs of Keith, up to the period of final payment, but correctly overruled the opposition of Jane Webb, tutrix of the minors Sutherland.

It is, therefore, ordered, adjudged and decreed, that the tableau of re-partition filed by the defendants, be so amended as to allow the heirs of Keith interest on said note, of eight per cent, per annum, up to the period of final payment; that the judgment of the court, overruling the opposition of Jane Webb, tutrix of the minors Sutherland, be affirmed; that the costs accruing in both courts, on the opposition of the heirs of Keith, be paid by the succession of Baker, and those of the opposition of said tutrix, incurred on the appeal, be borne by her.