Succession of Kerley

Tax,iai?eebo, J. The contestation presented in this case, grows out of conflicting claims of creditors litigated in the Court below upon the tableau of an insolvent’s succession. The tutor of a minor had caused to he placed on the tableau two claims in favor of his ward, for which he claimed a legal mortgage taking precedence of the claims of the other creditors. One of these claims is for $4; 434 92, alleged to be for the proceeds of sale of several slaves belonging to the minor, and which were sold by his father, then living, who was his natural tutor. The other claim is for the Bum of $1,729-19, alleged to be money which belonged to the minor’s mother, and which was received by Ms father and converted to his own use. For tMs last claim suit was brought against the administrator of the father’s estate, a judgment obtained, and the claim was placed on the tableau in that form. A judgment creditor for a large sum, claiming a judicial mortgage to precede that of the minor, opposed both the claims of the minor as being without any just foundation, and prayed that they be disallowed. Judgment was rendered in conformity with the prayer of the opposing creditor, and the tutor appealed. It appears that Y/m. Q-. Kerley, who was father to the minor, married Susan C. Kay at Nashville, Tennessee, in the year 1839 or 1840. That he afterwards lived in the State of Arkansas, and from there removed to Caddo Parish, Louisiana, about the year 1837 or 1838, and there died in 1856. His wife died in the same parish in the summer of 1850. Kerley qualified as natural tutor to his minor son, Dick Menifee Kerley, the sole heir of his mother. Kerley was unfortunate in his business pursuits, became much involved in debt, and several judgments were obtained against him by creditors. A suit was filed against him by Ms wife for a separation of property, in which it was alleged that she and her husband had- acquired a community property worth $5,000, and that her husband received, in 1844 or 1845, money of hers to the amount of $2,000. It is not shown that this suit was prosecuted to judgment. Under executions issued by creditors, ten slaves, the property of Kerley, or of the community existing between him and -his wife, were seized and sold in May, 1849, purchased by E. N. Wood, and by Mm sold to Mrs. Kerley in January, [584] 1850. The minor, not long after the death of his mother, was removed to Kentucky, where a guardian was appointed to him. The slaves purchased by Wood, and sold to Mrs. Kerley, were, after her decease, placed upon an inventory as the- property of the minor in right of his mother. Some of these slaves were sold by the tutor, W. G. Kerley, during his administration, and this sale forms the basis of the claim for $4,434 91. The other slaves under Kerley’s administration as tutor, were removed, after the death of Kerley, by the Kentucky guardian to that State. It is contended by the opposing creditor, Hickman, that the property treated as the minor’s was,- in fact, property of the community and subject to its debts. That the sale from Wood to Mrs. Kerley was a simulation and conveyed no title; and if valid, it did not change the character of the title. He avers that the judgment allowing Kay, the guardian of the minor, to remove the slaves to Kentucky was illegal, as it affected his rights as -a creditor, and prays that the slaves be returned to the estate. The tutor, Kay, the appellant, holds that an opposition to an administrator’s tableau Of distribution puts at issue nothing more than the question of rank among the creditors. That the issues tendered by the opponent are substantially suits to annul judgments, and can not be tried in the form of an opposition; and admitting they might be so tried, the judgment appealed from is a nullity for want of parties. The validity, as well as the rank of debts, may be contested in the Court of the concurso. On the arena of the tableau all the creditors are plaintiffs and defendants, and it' is there that their respective claims are to be contradictorly settled. 9 L. 387. 3 L. 559. 1 N. S. 481. 4 An. 195. 14 An. 648. The recpnventional demand of the opponent, Hickman, that the slaves, as he alleges, of the succession of Wm. G. Kerley, which were removed to Kentucky by the tutor, has been withdrawn, and we are left to determine only the validity of-the claims set up in behalf of the minor. There having been no dissolution of the community existing between Wm. G. Kerley and his wife, the property purchased by her from Wood necessarily fell into the community. In such cases the law looks to the time of the purchase rather than to the party purchasing. C. C. Arts. 237. Being property of the community, it was liable for the community debts. The minor’s rights were merely residuary. In regard to the claim of seventeen hundred and twenty-nine dollars and nineteen cents, it seems clear that no lien or privilege can be legally claimed for it. It is in proof by the testimony of the wife’s guardian during her minority that the money was paid over to her husband shortly after the marriage in the State of Tennessee, and before the parties came to reside in Louisiana. 2 Rob. 501. 6 An. 703. C. C. Arts. 3298, 3299, 3300. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both Courts.