Succession of Bougère

On Motion to Dismiss. The opinion of the court was delivered by Manning, C. J. Achille D. Bougére filed a tableau of distribution of the succession of Frangois Bougére, in his capacity of dative testamentary executor thereof, on July 3,1876. Notice of the filing was published, and on the nineteenth of the same month, no opposition having been filed, the tableau was homologated. On the twenty-second of the same month Amélie Richard filed an opposition to the tableau. She is as [379] signee of Elie Bougére, who is one of the legatees of the deceased. The' assignment of Elie Bougére is not contested on the one hand, and oh. the other it is conceded that the opponent has only such rights as her' assignor had. The executor moves to dismiss the appeal of opponent, for the reason that she has no interest in the affairs of the succession. On the fourteenth of February, 1876, a decree was entered in the suit No. 5475 of the docket of this court, entitled “ Succession of FrangoiS' Bougere,” on the opposition of Elie Bougére and others, appellants, in which a motion to dismiss was likewise made. The following extracts from the opinion then read are pertinent to the present controversy: “The appellee moves to dismiss the appeal on the grounds follow-mg: “ First — That the appellants have voluntarily executed the judgment appealed from and have voluntarily acquiesced in and ratified its execution. * * * “ Third — That the claim of Achille Bougere, Marguerite Bougere, Elie Bougere has been settled since this appeal was granted, as per affidavits and exhibits hereunto annexed. “ Fourth — That the appeal was granted to above parties upon condition that they should furnish bond; * * * and that they settled their claim and acquiesced in the judgment.” Other grounds are set forth, not relating to Elie, and the court proceeds: “ The executor rendered an account which was homologated. In it he had made a distribution or partition of the property among the legatees, after paying creditors. Some time after this judgment Elie, Marguerite, and Achille obtained an order for a suspensive appeal, but they subsequently received from the executor the shares or amounts adjudged to them by the judgment.” That appeal was dismissed because of the voluntary execution of the judgment. An appeal in another suit, No. 5872, was decided at the same time. A 'petition had been filed by Elie Bougere praying the dismissal of Filleul, the testamentary executor, and a judgment had been rendered to that effect, and also appointing Elie Bougere executor of the succession, and ordering its assets, including a considerable sum of money in bank, to be delivered to him. This was pending the appeal of the case just noted.- A prohibition was prayed and obtained by Filleul against Elie Bougere and the judge who had granted these orders and rendered the judgment of dismissal, upon presenting a petition in which is this allegation: “Thathe has duly administered said estate and filed his account and tableau of the full assets of the succession in cash, and credits, and values, which was duly homologated by final judgment of the parish court, the oppositions to which were all dismissed, and the oppo [380] nents took devolutive appeals, which are now ponding.” Further proceedings by the judge and the contestants were arrested by the writ of prohibition, and on the hearing in this court the writ was made peremptory on the same day that the decree was rendered on the oppositions to the account. The counsel for the executor is in error in his position that this court decided in the suit involving the account and the oppositions that Elie Bougere had received his share in this succession from Filleul. The language of the court is that Elie and his co-opponents subsequently received from the executor the shares or amounts adjudged to them by the judgment; i. e., the judgment on the account of Filleul rendered in 1875. The counsel is also in error in supposing that in the prohibition the question of interest was dither directly or indirectly decided. No exception was filed by Filleul, that we have seen, on the ground that Elie Bougere had no interest in the succession. The jDOtition praying the writ of prohibition recites the details of the litigation on the account and oppositions, and alleges that the same issues are there made as in the opponent Elio’s suit for dismissal, and that all parties are awaiting-the decision of the Supremo Court on the pending appeal, and the writ was granted to stay proceedings until that decision is made, which adjusted the rights of the parties, and by a construction of the will determined the interests of the various parties to the litigation. The judgment of this court in February, 1876, was that Elie Bougere had received all that appeared to bo due him by the account of Filleul, and that was embraced in it. But was that a final account and complete administration of the affairs of the succession ? Manifestly not, because another executor has been appointed to complete what Filleul loft unadministerod, and this dative executor has had something to account for, otherwise there would bo no suit before us now. The present suit has for its origin an account presented by that executor. We are also referred to the account in this record and the receipts of Elio Bougere as supporting the averment of his want of interest. If we' wore to assume that the items of the account are supported by vouchers, and the distribution of assets is in accordance with the rights of the legatees, and that this account is final and nothing more remains to be administered, we could then satisfy ourselves that Elio Bougere had been paid all, and more than all, he was entitled to. His receipts exceed his share, if we are to be guided by what appears on the face of the papers. But there are no vouchers in the record, no testimony having been offered on the homologation apparently, and there is something else to administer. The acceptance of service of notice by the attorney of some of the legatees is: “Notice of the filing of this account acknowledged, citation waived, and consent that the uncollected notes bo sold [381] as prayed for herein.” Referring to the prayer thus alluded to, we find the dative executor in his petition presenting his account, and the tableau of distribution says: “As to the balance of the assets, being the uncollected promissory notes mentioned herein, owing to the difficulty of collecting the same and the’ injurious delay it would occasion the final winding up of the succession, the executor proposes to sell them at public auction.” \Ye are not prepared to say that Elie Bougere has received all that he is entitled to under the showing made in the record, and is without interest further in the succession, and therefore the motion to dismiss can not prevail.