Mudd v. Stille's Heirs

Martin J., delivered the opinion of the court. The defendants and appellants complain of the judgment of the Court of Probates, urging that it erroneously charged them, jointly and severally, for a debt of their ancestor, and with interest on interest. On the first point we have most positive legislative provision in our code, that heirs are liable only for the part which they have in the succession. La. Code 1376,2107: and this is the case, even where they have made no inventory, 1374. The plaintiff has referred us to the articles 982, 983, 984, 1332 of the La. Code, none of which supports the position he contends for: he, however, contended that a particular circumstance, takes the present case out of the general rule, i. e. that an administrator of the estate was appointed, against whom suit was brought, but before its termination he died. Whether the heirs of the administrator be liable for his conduct in the administration, need not be enquired into, for the suit was not revived against the present defendants in that capacity, nor are they charged as such. °n tlle general question whether the heirs’ liability is in creased by the appointment of an administrator, we arc ccificfinrl í-f -jo nof' oablbUCU 11 lb UUU 1I> As to the second point, the Code of Practice, 989, . .1, t. r .. , . ,, provides that creditors of estates administered by curators. ... „ J ’ executors, administrators,&c., shall receive interest from the death of the debtor, if the debt was due at that time, otherwise from the time it falls due. This suit was commenced against an administrator by a creditor. In an action against the administrator of a succession founded on a claim for the - interest stipulated in the intestate’s obligation, legal interest will be added, as upon other claims against the estate. ‘A real tender cannot be made so as to stop interest, unless the legal formalities are pursued: thus a tender to the plaintiff’s attorney at law, is insufficient. It is attempted to take the case out of the rule, because suit is brought for one year’s interest on a sum due by a contract, in which the interest was stipulated to be paid annually, and it is urged on the opposite side, that interest cannot be stipulated on interest. La. Code, 1934. This is true, no such stipulation was made, but according to the stipulation, a suit for a year’s interest might be maintained at the end of every year. By the laws of Spain a contract stipulating for interest on interest was prohibited, but if the interest was assumed distinctly from the principal, according to a stipulation authorising it, interest was allowed on such interest. Curia Phil. Interest, 29. It has been contended that interest ought not to have been allowed, because a tender was made to the attorney of the plaintiff. But this tender was not made to the person, nor in the manner prescribed by law, to constitute a real tender, and none other has the effect of stopping the interest. Code of Practice, 606, 615. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and that the plaintiff recover from the defendants in the following proportions, viz: From Ferdinand Gayoso, sixty-eight dollars fifty-seven cents; from Joshua Baker, tutor to Anthony Baker, Margaret Baker and Caroline Baker, eighty-two dollars eighty-five cents; from Caroline Brunson, eighty-two dollars eighty-five cents; from Edward Stille, eighty-two dollars eighty-five cents; and from Joshua Baker,' tutor to Saul Stille, eighty-two dollars eighty-five cents, with interest on the respective sums aforesaid, from the 1st April, 1832, until paid, with costs in the court below. Those of appeal to be paid by the plaintiff.