Hisem v. Lemel's Curator

Bullard, J. delivered the Opinion of the court. The curator of the vacant estate of one Lemel, is appellant from a judgment sustaining in part an .opposition, on the pari of one of the heirs, to several items in his account rendered and tableau of distribution. The items opposed consist, Istá Of a sum of $114 35, for a coffin and paling round the grave [427] of the deceased and his wife, the daughter of the opponent, 2d. For tombs erected over their graves in the open prairie, $150. 3d. The small sum of $10 56¿ for trimmings of the ® coffin of the opponent’s daughter, who died a few days before her husband, Lemel. 4th. The fee of the attorney of absent •heirs; and, 5th. An account of A. Stubus for $105. He further objects to the amount of board charged to the opponent, and to $46, the proceeds of certain furniture received by him. °f absent heft's is properly eharg-. able to the. estate coming. of erecting tombs, over the grave ofthedeceased, of ™ienfuncral; ^ curator has n0 authority to expend the means of the. estate for this purpose with-r. of the hefi-"sent’' We concur in opinion .with the Court of Probates, that the fee of the attorney of absent heirs is properly chargeable to i, . , , ' tiie share or the estate coming to him. The opposition, as to that item, was therefore correctly sustained. The charge for erecting tombs over the graves of the ceased and his wife, was rejected. This would be undoubtedly J correct, if the curator had expended the means of the estate for that purpose without the consent, either express or implied of the heir. The cost of such a work forms no part of the funeral expenses, according to the definition of the Code, art. ° . 3159. The charges incurred for the interment of the de-_ , , , . , . . _ . , . ceased, wb.eth.ex with or without a tomb, precede the appoint-. ment of the curator. But it is jjjhown in evidence that Lemel said before his death, that he intended to do. some work on the. tomb-of his wife, but if he never recovered he wished Martin, to do it, and Martin spoke to the plaintiff about building the. tombs, and plaintiff said nothing on the subject, hut afterwards. complained of the high charge for them. Although no effect could be given to the verbal request of the deceased alone, yet when communicated to the heir, together with notice of an intention on the part of Martin, to comply with it and to erect tombs both over Lemel and his wife, and no objection was made by the opponent, hut he stood by and saw the work done. without opposition; his silence must he regarded as evidence. of assent. “Assent is implied,” says the Code, “when it is. manifested by actions, even by silence or by inaction in cases jn which they can from circumstances he supposed to mean ox428 by legal presumption are directed to, be considered as evidence an art. 1§05. When the father of a deceased daughter is informed, by a person having charge of a fund destined ta he paid over to, him as heir, that he is about to ex-p6n¿| a 0f j( in erecting a tomb, over her remains, and ^10se ber husband, in compliance with his dying request, and he makes no objection, it is so natural to. suppose that he would himself desire it, that we can only interpret his silence ., - . ,, , , , . , , evidence oí an acquiescence, and if he is not restrained by a propriety, he is by law, from afterwards objecting to 9,11 exPense thus tacitly authorized by himself. The court thetefore, in our opinion, erred in rejecting the credit claimed by the curator on that account, one-half of which, to wit: $75, . , . , 18 a proper charge against the opponent. Where the curator, in with a verbal request of the deceased in ind of plthe ^¿r* erects tombs over the deceased and his wife, he will be allowed the in^hi^account against the estate*. ^be pri0® boarding the plaintiff, was correctly reduced to $25 per month. The forty-six dollars for furniture was improperly charged to the plaintiff, as it appears that the furniture belonged to his daughter, before her marriage. The result is a balance in favor of the appellee of $285 59. , The judgment of the Court of Probates is therefore reversed; and proceeding to render such judgment as ought, in our opinion, to have been rendered below, it is further adjudged and decreed that Valentine Hisem recover of the defendant, John Martin, the balance in his hands belonging to. the succession of Lemel, to wit: the sum of two hundred and eighty-five dollars and fifty-nine cents, with interest at five per cent, from the date of the first judgment, with costs in the court below, the cost of the appeal to be paid by the appellee.