Chew v. Flint

Bullard, J., delivered the opinion of the court. The controversy in this case, grows out of sundry oppositions to the appointment of the appellee, to the curatorship of the estates of Meriam & Broaddus. Only two of these oppositions are to be considered by this court, to wit: that of R. Chew, in his own right, and as the attorney in fact of numerous creditors, in New-Orleans, and of E. Hayes, who alleges himself to be a creditor. Separate appeals were taken, and prosecuted by these two parties, and have been argued together. ' The opposition of Chew was overruled, and that of Hayes not received by the court below, on the ground that it was not filed within the ten days limited by law. Two . questions, therefore, present themselves: 1st. Did the court err in overruling the opposition of Chew, upon the merits ? and, 2d. Was the opposition of Hayes in time, and based upon such grounds, as authorised him to make opposition 1 The person making opposition to an appiitoisWp°of a”*cant succession, must state in mi-ting the reasons the curatorship hi i demíiiu] i n g it, and that he than pafty appointed otherwise his opposijected with costs, of attomey Tn more° creditoi™' cannot claim thé vacantsuccessíon dUors°orstrangers. A preliminary inquiry presents itself, to wit: who has a rjg.plt to maice opposition to the appointment of an applicant for the curatorship of a vacant estate. The 1112th article of the Louisiana Code, requires that the opposition should be in writing, stating the reasons why the party opposing, claims , r . rr .. . T the curatorship m preference to the party demanding it. In that part of the Code of Practice, which treats of the appointment of curators of vacant successions, and to absent heirs, .... ... . . _ . . the legislature is still more explicit. Article 972 declares that, “ this opposition can only be founded on the allegation a better right on the part of the person opposing, than of the person claiming the tutorship (in the French text Curatelle), otherwise it shall be rejected with costs,” &c. The opposition of Chew, which was tried on the merits, and which we are called on to review, .was founded on the twofold grounds, that he was a creditor, and that he was the special agent of sundry other creditors in New-Orleans. One of those grounds has been explicitly abandoned in the argument, and it is not now contended, that he is a creditor in his own right. We are, therefore, to regard his claim, only as the special agent of others, who are shown to be creditors. Several powers of attorney are spread upon the record, all of similar import, signed by various creditors, authorising the appellant, R. Chew, to apply for the appointment of a curator, to the proper tribunal, and further authorising him, in their behalf, to have the said R. Chew, appointed said Curator. . The inquiry, therefore, as relates to Chew, is narrowed down to this: whether a special attorney, in fact, who is authorised to apply for the curatorship, in his own name, shows a better right than the appellant. The Code establishes the order of preference, article 1114. 1st. The surviving partner, unless the partnership has been a commercial one. 2d. The heir present or represented in presence to the surviving husband or wife. 3d. The surviving husband or wife, in preference to the creditors of the deceased; and, 4th. The creditors in preference to those who are not- This part of the Code, does not give expressly to an attorney in fact of creditors, any preference, either over [403] other creditors or strangers, to the curatorship. Upon his appointment, he would necessarily cease to act as the attorney in fact of particular creditors, because he would be bound to give security, and take an oath, and would be bound to administer for the interest of all the creditors, and not specially for that of his constituents. His authority to apply in his own name for the curatorship, in their behalf, would cease on his appointment, for it is clear, they cannot authorise him to administer for their benefit. Admitting that any one of his principals had a better right than the appellee, it does not follow, that their joint procuration confers a legal right on their attorney in fact, however respectable it may be, as a recommendation to the judge of the Court of Probates. But it is urged, that, in the administration of estates, a beneficiary heir, who is absent, may administer by a special agent, or attorney in fact, and that ube eadam est ratio eadam est lex. The Louisiana Code, article 1038, which is relied on by the counsel for the appellants, provides that, “ if the beneficiary heirs are absent, but represented in the state, then-attorneys in fact can claim, in the name of their constituents, the preference for the administration over every creditor of the succession, provided they have a special power to accept or reject this succession, or a general power to accept or reject all successions, which may fall to their principals.” This part of the Code, regulates the administration of successions accepted with the benefit of an inventory, and gives to the heir at law, the preference over all others in the administration. He administers, not for the exclusive interest of creditors, but has, in his own right, the residuary interest in the estate. The Code, therefore, even in cases of his absence, does not exclude him; but his attorney in fact is authorised to demand the administration in his name, on furnishing the necessary security. In the administration of vacant successions, a different principle is established: the eventual and residuary rights of the heirs, who are absent and un,known, are to be protected by a counsel of absent heirs, whom it is the duty of the court to appoint, and whose functions do not expire until the heirs make their appearance, or until the [404] curator is finally discharged. He is required to represent the a}3seiat heirs, not only in the inventory, but in all the acts required by law to be done. We do not think ourselves authorised to extend the provision of the Code relied on, to cases not expressly embraced by it, and particularly to a case, where the distinction is so obvious. A transferee of claims against a collection, is but uTiieSasferYs simulated .that is guisefortiiepmF°|e 7 eura'toroperate1 to^'the prejudice of boná jide cieditois. The opposition of E. Hayes, which we are next to consider, was founded on the allegation, that he is the largest creditor of the succession, that the other applicants,, except Chew, are unfounded in their pretensions, that they are not bond fide creditors of said succession, and that if they present any claims, which are entitled to be considered debts, they are not the owners of them: that the same have been transferred by persons, who had no right to transfer them, and in addition to this, the transfers are simulated and without consideration, to enable the applicant M. P. Flint, to obtain the curatorship of the estate. This opposition is based upon a better right, than that of the applicant, if it be true, that Hayes is a real creditor, and Flint only a fictitious one; for we cannot doubt, (without inquiring at this time, into the question much discussed in the argument, whether the transferee of a debt be a creditor of the deceased, as contradistinguished from a creditor of the estate,) but that the law intended to confer the curatorship on a reai bond fide creditor, in preference to one who is only nominally so, and who acts merely as a person interposed. ^ tjle application of Hayes, did not come too late, our opinion is, that it shows on the face of it, a case which, if the facts are taken as true, would entitle him to the preference, if he possesses, in other respects, the necessary legal qualifications. A transfer merely for the purpose of collection, is but a mandate, and if the transfer in this case be simulated, that is, a mandate in disguise, for the purpose, as it is alleged, of obtaining the curatorship, it cannot operate to the prejudice of bond fide creditors, in their own right, who have really something to gain or lose by the admission or rejection of their claims. As a mere mandatory, we-have already said, he can have no legal preference, and if he be"not in truth and [405] in fact the owner, although nominally so, he is not a creditor in relation to other creditors, in a contest for the curatorship. The law requires applicationsfor curatorships of vacant successions, to be published in the gazette, as well as a notice at the door of the court house, and it is made the duty of the judge to make these publications. Publication of applications for curatorships is to operate as a constructive notice to all persons having a righttomake opposition, and as in all cases of constructive notice, it must be strictly proved. An entry on the minutes of the Probate Court stating the fact, that a publication of an «application for a curatorship was made, is not evidence of the fact as relates to persons to be affected by such notice. ^ The party claiming the benefit of a publication of an application for a curatorship, is bound to show it was duly made. But the judge below rejected or refused to receive ' the opposition, on the ground, that it came too late; that more than ten days had elapsed since the publication of the notice of application by Flint, after which the Code forbids any opposition to be made. The only evidence of the notice having been published and advertised, appears in the record, to be endorsed beneath the order of the judge, in these words, “ which petition was duly advertised, on the day of the filing thereof.” This is extracted from the minutes of the court. The Code requires a publication in the gazette, as well as a notice at the door of the court house, and it is made the duty of the judge to make these publications. C. P. 968, 969. The publication thus provided for, is to operate as a constructive notice to all persons, having a right to make opposition, and as in all cases of -constructive notice, it must be strictly proved. It is true, it is the duty of the judge to give notice, but it does not, in our opinion follow, that an entry in the minutes of the court, stating the fact, is evidence of the fact, as relates to persons to be affected by such notice, and is to conclude them. The party who claims the advantage of such notice, is bound, in our opinion, to show it. In this case, it was not shown, by sufficient legal evidence, and we think the court erred in refusing to receive the opposition. The court cannot forbear to add, that the scramble too common in our courts, in which gentlemen of the bar are interested, in relation to the administration of estates, the struggles per fas etper nefas, which mark these contests; the protracted delays which attend them, regardless of the rights of honest, and it may be of suffering creditors, are calculated to defeat the ends of justice, and reflect no credit on the profession. ’ ■ It is, therefore,' ordered, adjudged and decreed, that the judgment of the Court of Probates, be annulled, avoided and reversed ; that the case be remanded, with instructions to the [406] judge, not to refuse to receive, and act upon the opposition of jy Hayes, unless the appellee shows the publication of the notice according to law, and that so far as it overruled the opposition of Chew, the judgment of the Court of Probates be affirmed, with costs in both courts. The costs of the appeal, as to E. Hayes, to be paid by the appellee.