Succession of Boatwright

Spohfobd, J. Fergus Sathorn, testamentary executor of the last will of M. E. Boatwright, having filed an account and tableau, the heirs opposed the same “ on the ground that the commissions of said executor are overcharged; that the said executor never had the seizin of said estate, and that the amount of said commissions ought to be reduced.” The commissions opposed are estimated upon “ $55,944, amount of the half of the deceased in the partnership of Boatwright & Swa.yze, and his personal property,” to wit, $1398 66. The only expression in the will from which it is possible to infer an intention to give a general seizin to the executor is the following: “ I leave the whole of this foregoing, as written, to the management of Fergus Sathorn, to have my request carried out fully and faithfully.” The fair construction of this clause would seem to be that the executor was only requested to see to the execution of the legacies. It cannot be held to confer a seizin of the entire succession under the Article 1658 of the Code. “The testator may express his intention to grant the seizin of his estate to the testamentary executor, either in express terms, by authorizing him to take possession of the whole or [894] a part of the estate of his succession after his death, or by merely a.ppointing him testamentary executor and detainer of his estate, the word detainer sufficiently announcing that the executor is to be seized of the property of the succession. But if the executor testamentary be merely appointed testamenta^ executor without any power, his functions are confined to see to the execution of the legacies contained in the will, and to cause the inventory and other conservatory acts of the property of the succession to be made.” But bjr Article 1677, if the executor has not had a general seizin, his commission shall only be on the estimated value of the object which he has had in his possession, and on the sums he has had in his hands for the purpose of paying the legacies and other charges of the will.” It has been held that parol evidence is admissible to show what property of the succession has passed through the hands of the executor, even when seizin has not been given by the will. Anderson’s Executors v. Anderson’s Heirs, 10 La. 29. The account in this case shows that the executor received the sum of $31,-468 49 wherewith to pay the debts and the legacies. We are of opinion that his commission should be reduced to two and a half per cent, upon this sum. No opposition was made to the separate allowance of $850 to Robert Bw'guerel for special services rendered to the succession. It is, therefore, ordered, that so much of the judgment of the District Court as dismisses the opposition of the heirs of Michael B. Boatwright to the account and tableau of Fergus Ilathorn, testamentary executor, bo avoided and reversed; it is further ordered, that the said opposition be sustained so far as to reduco the commission of the said executor from the sum of thirteen hundred and ninety-oight dollars and sixty-six cents ($1398 06,) as charged, to the sum of seven hundred and eighty-six dollars and seventy-one cents ($786 7l), which sum is hereby allowed to the said testamentary executor in full for his commissions, the account and tableau to be amended accordingly; and it is further ordered, that in all other respects the judgment appealed from be affirmed; the costs of this appeal to be paid by the said Fergus Hathorn, appellee.