Succession of Harkins

The judgment of the court was pronounced by Slidell, J. In April, 1845, feeder, as administrator of Harkins, :filed -an account of his administration. He states payments of several claims made -by him, and a mortgage claim held by himself individually for $6,240 and.interest, evidenced by the notes of the deceased, and a mortgage executed by him in feeder’s favor. He also gives the estate credit for various sums of money and notes received by him from.sales .-of property of the succession, stating the whole amount of notes, cash, and assets that have come into his hands at $5,850. Ho alleges that the debts set forth in the account rank .in-the order in which they appear, that they were privileged debts against the succession, and that lie has paid them; that there are large amounts of money owing by the estate to different persons as ordinary creditors, but that he has .not placed their debts on this statement or account, as there are no funds to pay the ordinary creditors, the entire property having been .absolved by the privileged debts. He prays for the homologation of the account, and to be dismissed from the administration; also for judgment in his.favor for the balance due him as exhibited by the account, and for the recognition of his mortgage and privilege. The account .was accompanied by certain vouchers, among which is one show [924] ing that the administration had given Robinson certain mortgage notos, proceeds of sale of the property of the succession, on account of his claim, and had taken from Robinson a bond of indemnity, with a surety, to hold Veedor harmless from any injury he might sustain in consequence of such transfer to Robinson. To the account and petition of the administrator, Robinson filed an opposition. He represents that he is a privileged creditor of the succession, as the holder of .a judgment for $2,070 and interest, rendered and recorded before the -death of the deceased, .by which he acquired .a privilege on all the .real estate and slaves of the deceased, which took effect on the 27 May, 1840, the date of registry. Ho opposes the.allowance of any of the items charged by the administrator in favor of any other creditors, and .alleges that no tableau of distribution has ever been homologated authorising their payment, nor any judicial authorisation in any way obtained with regard to such claims and their payment. He opposes, specially, the claim of Feeder, alleging that the deceased never received any consideration for tho notes held by the administrator individually; that they were given in fraud ; that if there was any indebtedness of the deceased to .Feeder, it did not exceed $1,860 ; that .Feeder had .promised .the opponent that he would not claim a privilege over him for said amount of $1,860 ; and that if tho opponent would not bring an action to annul .his mortgage, he would share pro rata with him, and-upon the basis of $1,8G0 for Reeder's claim; and that, in consideration of .this promise, he did not bring an action to annul the mortgage in favor of Feeder. He prayed for the disallowance and rejection of the account, and-for judgment.for his, claim, with privilege. The administrator .answered the opposition by a general denial, and .plea .of the prescription of five years.against the alleged right and claim of Robinson to annul the mortgage. At the trial of this.opposition, Robinson offered in evidence the judgment in .his favor, and the.certificate of .its registry. The judgment .appeared .to have been rendered on confession. The proces-verbaux of sales of the property of ;the succession were also offered. It was admitted, “ that the legal notices were made b.y the administrator.” It was also admitted that one Sarah O. Madden, had a recorded judgment prior to Feeder’s, and that the judgment rendered in ,the cause was not .to prejudice her rights. The administrator offered his account.and vouchers, including the notes of the deceased and the mortgage in Feeder’s favor. The certificate of registry of this mortgage, appended .to .a .copy of the mortgage which was passed before the parish judge, states that •** it is a true and correct.copy taken from the original act,on file.and of record in ,-my office” ; .but it does .not state whether it was .recorded in the .mortgage book. The testimony (if,a witness, who is acknowledged to have been an attorney at daw. was offered and rejected. The purport of his testimony ,was that, in ,1840, the witness, at the request of Feeder and Harkins, drew up .the form of .an act of tiiortgage.from Harkins to. Feeder, on several slaves .and .a tract of .land, to secure the payment of $6,000; that, he thinks, Feeder was tho creditor of Harkins lor.about $1,800.only, .but that .Faeiier-was to pay some other .debts for Harkins, which would make an indebtedness of $3,000, and that the object of the mortgage was not only to secure Feeder, but to protect Harkin's property from being seized by Robinson, who had then sued him, and was .about to obtain judgment at the term of the court then in session. There was also an admission that Feeder had made Robinson a partial paygment, in notes which belonged to the succession. There was also offered the testitnony of [925] IlarToims’ widow, going'to impeach fee existence .of the indebtedness acknowledged .in the mortgage. This testimony was rejected. The attorney and counsel of record of the opponent Robinson was also offered as a witness, and notwithstanding the exception of 'Veeder, was received. He states that he called upon Veeder and threatened him with a revocatory action to set aside the mortgage, unless he made some arrangement about it in favor of Robinson; that Veeder said, that he would not claim more than was due to him, .which was about §2.500 ; that Robinson should have the benefit of an equal privilege wife him; and that they should be paid pro rata for what was really due ; that, .in consideration of this understanding, in which Robinson acquiesced, fee revocatory action was not brought; feat he received the partial payment in notes for his client, in carrying out this agreement. It is also proper to remark feat we find no prayer for an order of publication, nor any order to that effect, nor any appearance at fee trial by other creditors. Upon these proceedings and evidence the court below rendered a judgment, sustainingthe opposition of Robinson, ns to a portion of the debts paid, and,as to the claim of Veeder by reducing it to §1,850, placing the two parties litigant on an equal rank as creditors, establishing fee amount due to Robinson, and de~ creeingtheir claims to be paid pro rata out of the proceeds of fee sales of the slaves of fee succession. The rights of Sarah O. Madden were reserved by the decree. From this judgment Veeder has appealed. He claims a preference over Robinson, or at least feat the amount allowed to Robinson should be reduced. The appellee in his answer to fee appeal prays an amendment of the judgment in .his favor, so as to allow him fee whole amount claimed by him." We have been feus-minute in our statement of this case, because we have come to fee conclusion,feat we cannot grant fee prayer of either party, but must remand this cause for further proceedings. The property of a succession is fee .common pledge of fee creditors, except so far as privileges have been lawfully .acquired. An administrator is the trustee of fee creditors ; his first duty is to them, and his imperative obligation is to watch over their interests. The law has carefully defined the special duties of fee administrator wife regard to fee distribution of fee funds of fee estate, &c. A tableau of distribution must not only be filed, but its filing published, so feat all creditors may have an ample .opportunity to present their rights; and fee same publicity must precede an administrator’s discharge. A judgment of fee court rendered after a strict observance of fee formalities prescribed by the Code, is fee warrant of fee administrator for paying creditors. We cannot, wife any propriety, take fee loose admission made by fee administrator at fee trial, as .proof that these formalities have been fulfilled, in a case where, according to his own statement, the estate is insolvent, and a preference is claimed by himself, which exhausts fee funds in his hands; to say nothing of fee state of facts presented in this cause. Nor. as regards fee opponent, who has received a-partial payment, without any order of court, out of -fee funds of the estate, .under fee circumstances stated, can we hold that there .is sufficient evidence feat the tableau has been duly advertised. His judgment may have been upon a just debt; but its payment can only be enforced contradictorily wife fee other creditors, upon due -publication. ’There are cases in which it is fee imperative duty of fee court-to interpose its authority, even when not called upon ¡to do so by fee parties immediately before it. [926] ■In-remanding this cause we shall, express no further opinion-upon the facts presented, nor the legal consequences of those .facts upon the rights of the parties. They- can be discussed contradictorily with the other creditors of the estate, who are not now before us. It is proper, however, to notice some bills of exception, presented by the record, with the view to simplify and facilitate the future proceedings in this cause. A bill of exceptions, :taken by Robinson, states-that he offered the testimony of the.attorney at law, taken under commission.as already stated, .which 'Was objected to>by .Feeder, .upon the ground that the information was obtained hy the witness-from Veeder and Harkins, in a communication .made by them to him as.an,attorney at law, which objection was sustained by.the.court. We are not able to,say with perfect certainty, uuderthe case as presented, whether the attorney was-employed by both parties. If he was, he-was incompetent to state what was communicated to him by either of them in the course and business of .his professional .employment. The law protects suchxommunications, and “the seal of .the law once fixed upon them remains .forever, unless removed by the party himself.” It appears by .another bill of exceptions “that Robinsonis attorney offered himself as a witness, to .prove an agreement -between him and Veeder, that Veeder .was not to .claim the benefit of his mortgage, that .Veeder acknowledged that Harkins only owed him about $1,800, and that in,paying the debts of the .succession Robinson should come in pro rata with him, Veeder, according to,the amount of their claims; to which testimony defendant by his counsel objected,.on the ground that parol testimony could not be admitted to contradict a notarial act of sale ; that it could not be received to annul a mortgage evidenced hy .a notarial act, after twelve months had elapsed from the date of Robinson'.s judgment; and, on the further ground that, if a fraud was attempted to be practiced by Veeder, Robinson became ,a .participator therein, and he cannot, now, an.a court of .justice, avail himself of any benefit resulting from his own turpitude”; which objection the court overruled. We are of-opinion that the creditor, Robinson, had a right to show the declarations of Veeder, that the whole.mortgage debt had never existed as declared in-the.aet. Robinson was not a party to the act, and the evidence went to show fraud, for which .purpose oral -evidence was cleariy admissible. The weight.to be given to proof of oral acknowledgments, was a matter -which concerned the weight.of the evidence, and not its admissibility. Whether the facts stated.established the turpitude of the party.offering the testimony, we do not consider it necessary now to determine ; but .upon a tableau of distribution, which is .practically a concurso of creditors, if a party chooses to show that he has combined with the administrator to .injure other creditors, we know of no rule of law that will prevent him .from doing so, nor the creditors from availing themselves of its legal consequences in their favor. The argument of .counsel has pointed to the fact that the witness was the attorney of record of the party for whom he offered himself, and to his testimony as being that on which the cause turns. In the view .which we have taken of this case, as one in which we are not finally acting, we are not called upon to discharge the disagreeable duty of .weighing this testimony. But we take this occasion to observe, as an imperative act of judicial duty, that although an attorney at law is under our laws a competent witness for his client, yet the position of an attorney thus offering himself as a witneas is one of extreme deli [927] caey to the witness and to the court-; and that it is always desirable, for the harmony of the profession, the independence of the bench, and the public confidence in the administration of justice,, that an attorney should not be a witness, except in extreme cases, when all other means of proof are impossible; and then, as it seems to us, the attorney-should withdraw from-professional participation in the cause. So far as the benchis concerned, it is a duty of the most painful nature to be called upon, as we sometimes have been, to weigh the evidence of a member of the bar. It is therefore decreed that the judgment of the eourt below- be reversed, and that this cause be remanded to the'court below for further proceedings in the matter of the succession of William, Harldns, upon due publication of notice of the tableau of distribution filed in this cause, and according.to law; the appellee paying the costs of this appeal.