Heirs of Sharp v. Klienpeter

By the court: Rost, J. This is a suit by the heirs of Mary B. Sharpe, some of whom are descendants of brothers and sisters of the whole blood, and others are descendants of brothers and sisters of the half blood of the deceased, against her executor, to compel him to account for, and distribute among them, the funds in his hands. The executor rendered his account, showing a balance of $15,760 86 in favor of the , succession, after paying the debts and particular legacies. He averred, at the same time, that he was one of the heirs of the whole blood, and denied the right of the descendants of the brothers and sisters of the half blood to inherit any portion of the succession. The district judge homologated the account of the executor, and ordered him to pay three-fourths of the amount in his hands, to the heirs of the whole blood, and the other fourth to the heirs of the half blood. He allowed legal interest on that balance, from the judicial demand, instead of the interest of 20 per cent claimed by the plaintiffs, on the ground that the executor failed to deposit the funds of the succession in bank, as required by the act of 1837. [267] The plaintiffs have ail appealed, and the executor has asked that the judgment be amended, so as to reject the demand of the heirs of the half blood, and the allowance against him of legal interest. As all the heirs of the whole blood, except the defendant, have joined in the same suit with the heirs of the half blood to claim the succession as heirs at law, and have set up no claim under the will of Mary B. ,%harpe, the district judge properly ordered the distribution between both classes off heirs to be made in conformity with article 909 of the code, and the executor has no capacity to contest, in behalf of the heirs of the whole blood, claims which they have judicially admitted. The executor being himself an heir both at law and under the will, had undoubtedly the right to claim, as testamentary heir, and to contest the rights of any of the plaintiffs as heirs at law; but he has not done so, he simply alleges that he is one of the heirs of the full blood, and denies that the heirs of the half blood are entitled to inherit any portion of the succession; the will is no where mentioned by him, and his rights, as heir at law, being fully recognized by the judgment, he has no cause of complaint. The question, who the testatrix meant by her lawful heirs, when she ordered her property to be equally divided between them, does not occur, and if it did the result would certainly not be favorable to the appellee. The words lawful heirs are free from ambiguity, and no evidence was admissible to. prove that she only meant a portion of her heirs at law; that evidence would virtually defeat the prohibition to make verbal testaments. The executor having purchased property from the deceased, and being a debtor of the succession for the price of it, to the entire amount remaining in his hands when the motion to produce his bank book was made, we think ¡that the Act of 1837 is not applicable to him, but the property which he purchased being productive, we are of opinion that he should have been charged with legal interest from the maturity of the different installments of his debt. The plaintiffs object to the charge of $1500 made by the executor, for a like sum paid by the testatrix to D. Smith, in April, 1839 ; he was the agent of the testatrix, and had the sole management of the plantation which he purchased rom her shortly after; he has charged himself, in his account, with the proceeds f the cotton crop of 1838, and, as it may be fairly inferred from the evidence lat she had no other means besides the crop to pay that sum, we cannot say. lat the district judge erred in deducting it from the proceeds of the crop. The allowance of interest from the maturity of the installments, and the iglect of counsel to submit a decree, showing the share of each of the parties by represent, after deducting the amounts they have received, makes it tessary to reverse the judgment and to remand the case. That interest will irease the balance against the executor in his account from $15,760 to $,528 40, to be distributed as follows: three-fourths to the heirs of the whole bid, and one-foui'th to the heirs of the half blood. is therefore ordered, that the judgment be reversed. It is further ordered, til the executor distribute among the heirs of the half blood, the sum of $92 12. It is further ordered, that he account to the heirs of the whole bio, for sixteen thousand one hundred and forty seven dollars thirty-six cents, decting from their respective shares the amount paid each of them, with legal intost from the date of payment to this day. It is further ordered, that the accat of the executor, as amended, be approved and homologated, and the [268] case remanded for a partition among the heirs, in conformity with this decree, and with directions to the district judge to allow legal interest from this date upon half of the amounts coming to them on the final partition. It is further ordered, that the coBts of this appeal be paid by Andrew Kleinpeter personally.