Penelope McGill, Plaintiff in error, v. Josephine H. Armour, 11 How. 142

Mr. Justice McLEAN delivered the opinion of the court. A writ of error to the Circuit Court of the United States for the District óf Louisiana brings before us this case. A suit was commenced by the plaintiff in the Circuit Court against the defendant, on a claim of debt amounting to the sum of $ 7,510, with interest, which James Armour, husband of the defendant, in his lifetime owed to the plaintiff. He died, having executed a will and made the defendant his executrix. Ehe filed her petition in the Probate Court at New Orleans, and was duly authorized to act as executrix..

At the decease of her husband, it is alleged, a large amount of property came into her hands as executrix, which she usecl for her own benefit, and neglected to pay the debts of the estate. And it averred that a misapplication of the funds has made the defendant _ liable in her individual capacity, and the plaintiff prays that' she may be condemned to pay the above sum, &c. . The defendant demurs to the petition, on the ground that it is not sufficient in law to charge' her, for want of parties, and that the matters are only cognizable in chancery.

And she answers that she has fully administered, having made a full inventory of the property of said succession, and used all proper diligence to collect the debts, and disposed of the property in obedience to the order of the court; made reports of her acts, and presented a formal tableau of distribution, which was duly approved and homologated by the. Probate Court. That the estate proved to be insolvent, and that the defendant is a creditor, recognized as such by the proper tribunal, and is entitled to a preference, &c. At the trial the suit was dismissed, at the plaintiff’s costs.

This was a procedure at law under the forms adopted by Louisiana, and the question is, whether it is maintainable. The plaintiff demands a judgment de bonis propriis, against the defendant, no other step having been taken, or notice given, before the commencement of the present action. At common law an executor or administrator is not chargeable on a devastavit, until a judgment shall be obtained against him.

He is bound to defend himself by legal pleading, and can have no relief in equity; If he suffer judgment by default, it is an admission of assets, and also if he file a plea in bar which he knows to be false. So if he pleads only the general issue, and has a verdict against him. If he plead pi ene administravit, and on this plea assets ■ are found to be in his hands, he is liable only to the amount of such assets. 3 Bac. Abr., Executors, (M). Estates by the law of Louisiana are administered under the special orders of the Probate Court. By the.

Code of Practice, Art. 984-988, no' creditor is permitted to bring suit without first presenting his claim' to the administrator. If the claim be . admitted by the administrator-in writing, it is filed among the acknowledged debts of the succession. If the claim be rejected, the' creditor may bring suit. But a judgment gives no priority. By articles 1167,1168, and 1169 of the Civil Code, the curator of a vacant succession can pay no debts, except privileged ones, until three months after the succession. is opened, and then under the order of the judge.

When the time for payment arrives, he must present his petition to the judge, with a statement- of the debts due. And if the funds in his hands shall be insufficient to pay the debts in full, he is required to make a tableau of the distribution and present it to the judge, with a prayer that he should be authorized to make the payments accordingly.

But if the administrator or curator “ neglect or refuse to file a tableau of the estate, and obtain the order of the judge to make payment, he can be compelled to do so on the demand of the interested, or in default thereof render himself responsible in his personal capacity.” Kennei et al. v. Duncan’s Executors, 3 Martin, N. S. 570. This last procedure is as indispensable under the Louisiana law to authorize a proceeding against the executor or administrator to make him personally responsible, as an action and judgment are necessary at common law to charge him with a devastavit.

And it does not appear from the petition in the case before us, that any order of the judge was obtained as required, or that any proceedings were had to compel the defendant to exhibit á tableau of distribution, by which it would appear whether the executrix had assets in her hands to pay the whole or any part of the debt of the plaintiff. This action was commenced at law, and the fact is alleged that a large amount ,of assets came into the possession of the defendant which have been misapplied, on which ground a personal liability is sought to be enforced against her. . This the law does not authorize.

An executor or administrator by the laws of Louisiana is considered, in this respect, ,as a Syndic of an insolvent estate. In 6 Martin, N. S. 126, the courCsay, when' a syndic has been legally appointed, and has taken charge , of the. estate intrusted to him, no individual creditor can sue him for a debt or interfere with his administration. He may be ruled to produce his bank-book, file a tableau of distribution, &c., but he should not be suffered to be harassed by suits brought by individual" creditors,- who allege or fear mismanagement oh his part. The judgment of the Circuit Court is affirmed, with costs.

Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here.ordered and adjudged by this court, that the judgment of the said Circuit Court in this case be. and the same is hereby, affirmed, with' costs. .