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State v. The Heirs of W. R. Leckie, and his Sureties
Merrick, 0. J.
The proceeding in this case was commenced by rule against the representatives of William R. Leckie and his sureties, for defalcations in the collection of the taxes of 1846. The suit having been compromised under an Act of the Legislature as to the sureties, is now before us as an appeal taken by the State from a final judgment rendered in favor of the defendants, on the plea of prescription.
The first question presented by the record is, the exception to the action on the part of the heirs, on the ground that they have not accepted the succession of the deceased purely and simply, but only with the benefit of inventory, and praying that an administrator may be appointed.
W. R. Leckie has been dead some years. He left seven children, four majors and three minors. The right of the heirs to accept the succession with benefit of inventory, is not questioned by the State. But it is argued that the suit can be maintained against the beneficiary heir, and that it is not essential that an administrator shall be appointed.
The object of the suit is to obtain a judgment against the succession. Oan the beneficiary heirs, as such, stand in judgment for the succession ? Have they, as such, the detention of the effects of a succession ? Oan they acknowledge debts? It appears to us, under our present jurisprudence, the answers to these questions must be in the negative. The Civil Code and Code of Practice contemplate the appointment of an administrator, in the case the succession is accepted, with the benefit of inventory. C. C. 1030, 1042; C. P. 974, 982.
This administrator, thus appointed, must give bond and take an oath of office, and thus he becomes, quasi, an officer of court, subject, in certain cases, to the summary rules and motions of parties and the penalties denounced by law. This could not be the case if the beneficiary heirs could administer without these formalities.
As the law gives one or more of the beneficiary heirs preference in the administration, and confers upon them, by such appointment, a power over the estate, so also the extra judicial action of the beneficiary heir of age, who should attempt to acknowledge debts, collect revenues and debts by suit or otherwise, and administer the estate, would be liable to misconstruction and would end in charging him as unconditional heir.
Where all the heirs are minors, represented by the tutor, this reasoning has not the same force, and the case is made an exception to the general rule, if the
[642] creditors do not require the appointment of an administrator. See 2 An. 464 Bryan v. Atchison ; 3 An. 502 ; Phillip’s Dig. p. 3, sec. 8.
It seems to us quite clear, that the exception of the defendants to theii’ capacity to stand in judgment, ought to have been maintained.
The dismissing of the suit as to the beneficiary heirs, will not prevent the plaintiff from proceeding to make the proper parties.
A final decree in favor of the defendants was erroneous, as we have already shown that they did not properly represent the succession.
It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the suit be dismissed as to the said defendants, the beneficiary heirs of said W. R. LecJcie, deceased, without prejudice to the right of the State to amend, by making the proper parties.