Succession of Sterry

[855] The-opinion of the Court was delivered by Bermudez, C. J. The opponent prays to be placed on the account rendered by the executor, under a judgment of court, to the heirs of the deceased. His claim is for services rendered that functionary in a suit brought against-bim and the heirs, by one alleging herself to be the widow in community of the deceased. Exceptions were filed to his opposition, resting mainly on two grounds: 1. ' Want of jurisdiction in the court. 2. lies judicata. The exceptions were overruled, but with a reserve to urge them on the merits. After trial, the court sustained the opposition, ordering the opponent to be piaced on the account for the amount claimed. The parties concerned appeal from that judgment. I. The court was vested .with jurisdiction over the subject-matter of the succession of the deceased and all subjects growing out of it, from the moment that the case was alloted to it, in furtherance of constitutional requirements, and that jurisdiction continues exclusively in it from the inception to the final winding up of all proceedings necessary for a liquidation and transmission of its assets, .if any, to the heirs. Const, art. 130. In the present instance, it is true that.the heirs have been recognized and ordered to be put in possession, but it is equally true that the executor has not been discharged and is still acting in his official capacity. The accounts which he has rendered and which is opposed, is- that. which the court directed him to submit to the heirs under the provisions of art. 1003, -C. P. That account, under the very terms of the following article, is open to opposition not only on the part of the heirs, but also of u other claimants.” . The word is broad enough to include all creditors, as well those of the deceased as those of his succession. The opponent does not pretend to be a creditor of the heirs, for he does not aver that he was employed by them to defend the suit of the alleged widow in community. He distinctly asserts .that he was employed by the executor, who was. a party .to the s,uit and that he appeared.and defended it in the name of that official, who was and has not ceased to be the succession representative. The rights which parties may have against such representatives are [856] probate in character and determine only where the latter cease to have any legal existence and become fwncbi officio. Such is the clear spirit and meaning of the several- articles of the Code of Practice under the title of “settlement of successions,” ranging from article 983 to article 996. The exception to the jurisdiction was, therefore, properly overruled. II. It appears that the executor first filed a provisional account, on which he placed the attorney of the succession, for $2500, on account for his professional services; that the account was then opposed by the attorney, who, on averment of his services and of their value, prayed to be placed thereon for $13,000; that the controversy, having been compromised by the executor, the heirs and the opponent, the latter was recognized as entitled to $10,000, and was by judgment of court ordered to be put ón the account, but only for that sum. It is that judgment which, is invoked in support of the plea of res judicata. An examination of the written compromise and of the surrounding circumstances satisfies us that the allowance of the ten thousand dollars to the attorney was designed to be in full compensation for all his services, rendered and to be rendered, to the executor, with the •exception of those in the case of Howard vs. Sterry, for which provision was already made in the account. The evidence establishes that, at the date of the compromise, the opponent knew that the suit of the alleged widow would to all appearances be instituted. ■ It shows also that the services which he rendered in that case to-the executor, who was a nominal party to it, as it was brought against the heirs, consisted in merely filing what is practically nothing but a denial of her pretensions, as having been the wife of the deceased, coupled with the assertion that, if she was ever such, she has ceased to be such because of the dissolution of the marriage, in due course of law, more than thirty years prior to the death of Mr. Sterry. It further shows that the suit was compromised and therefore was never tried, the services ending with the answer.' The compromise and the judgment on the opposition to the first account debar the opponent from setting up the claim urged by his opposition to the final account rendered to the heirs'. The defense of res judicata should have been maintained. It is therefore ordered and decreed that the judgment appealed from be avoided and reversed, so far as it maintains the opposition thereto [857] .and orders that the opponent be placed on the account for the'amount claimed; and. It.is now ordered and decreed- that the exception of the res judicata to said opposition be sustained, and the Said opposition be rejected; the said judgment in .other respects to remain undisturbed, and the opponent to pay costs in both courts.