Hart v. Boni

Porter, J., delivered the opinion of the court. . This case presents for decision the question, whether the executors of a will can maintain an action to annul a donation, inter vivos, made by the testator. The court of the first instance was of opinion they could not, and the plaintiffs appealed. It has been contended that as the testator gave to the executors seizure of the estate, they are entitled to the possession of it, and that they are consequently authorised to bring an action to obtain that possession. It is urged on the other side, that however true this may be as a general proposition, it is not so when the question as to the validity of a donation, grows out of the claim which the executors set up, or is presented by the pleadings. We think the executors, where seizure is given to them by the will, are authorised to bring an action to recover the J . .. -i-lili possession of any property which may have belonged to the r j r x j j ° testator at his death. The article 1669 of the Louisiana Code, recognize their right to bring actions on behalf of the succession, and we cannot imagine a case in which this right could be more properly exercised, then where object of the suit is to obtain possession of effects making a part of the estate. The question then is, whether the assertion of title on behalf of the possessor, the truth and validity of which cannot be assertained, until after trial shall deprive them of this right. If it can, it is very clear that the A_ . _ i _ authority we have iust supposed they possess, would he a J ° xx- -j x mere illusion, for the claim would be set up in all cases where the possessor was in bad faith. We therefore, think, that in such cases the action should should not abate. If a claim be set up which involves the rights of the heirs or legatees, they should, if present, be made parties to the suit; and if absent, their representatives should be brought in. In countries having laws in no material respect different from ours on this subject, it is held, that although executors cannot alone maintain an action in relation to the rights of heirs, they may, if those who are [100] interested are made parties to the suit. See Merlins A Repertoire, ed. 1826. 6 and 7. Verbo Exécuteur Testamentaire, Nos. 6 and 7. It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and it is further ordered and decreed, that the execution filed in this cause be overruled; that the case be remanded to be proceeded in according to law, and that the appellee pay the costs of this appeal.