Succession of Elliot

Wyly, J. In January, 1875, this court settled the controversy between Davis, Mrs. Risley, Mrs. Burke, and Mrs. Elliot in regard to the. property belonging to the succession of Hampton Elliot, deciding that the deed to Davis was a simulation whereby Elliot sought to conceal his property from his wife, whom he had abandoned; that the pencil will set up by Mrs. Risley was invalid; that the will made by Hampton Elliot in Mississippi, the place of his domicile, whereby he made Mrs. Virginia Burke his universal legatee, was valid; that tin*, charge of concubinage set up against Mrs. Burke to show her incapacity to receive the legacy was not sufficiently proved, and that Mrs. Elliot, the surviving widow; was by the laws of Mississippi entitled to one-half of the personal estate after paying the debts of the deceased. See 27 An. 42. Soon after this decision Mrs. Burke, the testamentary executrix and universal legatee, filed an account which was opposed by Mrs. Elliot; it was also opposed by several creditors. Mrs. Elliot also sued for a partition, which was ordered. Both these cases were consolidated, and from both judgments Mrs. Burke has appealed. Mrs. Elliot, also joining in the appeal, prays that the judgment be amended as to three items which we will mention hereafter. The creditors have not appealed. In this court the controversy is between Mrs. Elliot, the. surviving widow, and Mrs. Burke, the universal legatee, in regard to the settlement and partition of the estate. The universal legatee contends that one-half of the large amount of attorneys’ fees incurred by her in the course of the litigation between herself and the other three contestents, to wit: Mrs. Risley, Davis, and Mrs. Elliot, should be charged up to Mrs. Elliot; that as testamentary executrix she incurred this expense for the common benefit, and Mrs. Elliot, the surviving widow, should pay one-half thereof; that it is a succession debt, and Mrs. Elliot occupying the position of heir must allow this sum to be deducted from the estate before the partition thereof. By the laws of Mississippi, the domicile of Elliot, his surviving widow is entitled to one-half of the personal estate after paying the debts of the deceased. The attorneys’ fees in question were not the debts of the deceased. They were expenses incurred by Mrs. Burke, mainly for her own benefit, and to defeat the claims set up by Mrs. Elliot. To Mrs. Elliot it was a matter of indifference which of the wills of the deceased should be de185 torminod 1 lit' valid ono. Tho rights accorded to her existed independently of tilt' trills. Site had an interest, however, in defeating tlie simulated title set np l)y Davis to the personal estate oí Elliot. She employed able eounsel, not only to defeat the J'iglits set up under the two wills, hut also to resist the pretensions of Davis; and to the defeat which the latter sustained tho eounsel of Mrs. Elliot contributed quite as much as the counsel of Mrs. Eurico. There is no more reason why Mrs. Elliot should contribute to pay Mrs. Burke’s attorneys than tlu1 latter should contribute to pay the, fees of the attorneys of tho former. Mrs. Elliot does not occupy the, position of heir. The moment the deatli of hor husband occurred slio was, by the laws of the place, of their domicile, vested with tho ownership of one-half of the personal estate after paying the debts of tho dee,eased. Wo think the court a (pia did not err in deciding this point in favor of Mrs. Elliot. \Ye turn now to the errors assigned by tlu* appellee, Mrs. Elliot, in respect to which she prays an amendment of the judgment: first — Mho objects to the claim of Winchester <fc North placed on the account. Hccond — To tlie item of $:-57(>l 2J-, 1 he loss sustained by tho failure of Cavaroc's bank or by the fault of the'clerk of the court, M. 0. Tracy. Third — To the item of $5(575 5(5, the balance due on the note of Elliot 1<> Mrs. Bishop after exhausting tho mortgage. As to the last item, the balance due on the note of Elliot after exhausting the. mortgage given to secure it, we think there is no doubt tho court decided properly in requiring it to be deducted from the mass of the ('state before the partition. It was a debt of tlie deceased. The consideration thereof is immaterial Mrs. Elliot must contribute to pay it, because the statute1 of Mississippi only gives her ono-hali of the personal ('state “after paying the debts of tin1 deceased.” As to the item of $87(51 -24, we think tho judge below did not err in deducting it from tho mass oí tho estate. Tho assets had been placed in bank by order of the court ponding tin1 litigation, and the loss occurring by the failure of tin1 hank must fall equally upon both the owners. We do not lind Mrs Burke under any obligation to protect Mrs. Elliot, from loss occurring to tlu1 funds not under her control. Being a half-owner, Mrs. Elliot had as good opportunity to .pursue the delinquent bank, or clerk, if he was in fault, as Mrs. Burke. As to the claim of Winchester ¿t North for alleged services as attorneys of Hampton Elliot, we are of opinion that it should be rejected to the amount of $2050, on the bar of prescription set up by Mrs. Elliot. The item of live hundred dollars charged by said attorneys for entering uimn tlie business of securing evidence ” for, a contemplated suit for [186] separation between Elliot and his wife, which was never brought, we do not regard as legitimate; an attorney ought not to recover on such a demand. We think the court erred in not rejecting this item so far as Mrs. Elliot is concerned. It is therefore ordered that, as to @2050 of the claim of Winchester & North, the judgment of the court below bo amended by rejecting it as to Mrs. Elliot, and, as amended, that the judgments hi these consolidated cases be affirmed, appellant paying costs of appeal.