On Rule of O. H. P. Sample v. Scarborough

[289] The opinion of the court was delivered by McEnery, J. This case was before this court in March, 1891, and the pleadings are stated in the opinion in 48 An. 316. This suit was remanded for further proceedings to ascertain whether the succession was under administration when the debt upon which the plaintiff in rule proceeded to enforce its payment was created. The law applicable to the administration of successions by tutors in the interest of both creditors and minors was fully discussed in the opinion remanding the case. It is not necessary to refer to this question, which is referred to in the brief of counsel. When the case was reinstated in the lower court, in addition to the form of proceedings, the defendant put at issue the validity of the claim sued on. To defendant’s answer the plaintiff by exception filed the plea of res jxidieata. The defendant objected to the filing of the plea, on the ground that it was a “ replication” or “rejoinder ” to defendant’s answer, which is prohibited by Article 320, Code of Practice. The objections were overruled, to which'the defendant excepted and reserved his bill. The plea may be presented by petition, exception or rule, or by intervention, or in any form of-proceeding, and whenever the same questions recur between the same parties, even under a different form of procedure, the exception of res judicata estops. There is no particular form required for pleading it. It may be pleaded either by way of exception or in the answer, the only requirement being that it be specially and specifically pleaded. There is noway in which the plaintiff can plead it unless by exception or special plea. The form is immaterial. Plaintiff’s claim was presented for approval to the court by the defendant as tutor. All parties, the plaintiff, creditor, the under tutor and the defendant as tutor, were represented in the judgment homologating the account. There was no opposition to the account and it became final and definitive as to all parties, and the judgment thereon operated as an effectual estoppel to all parties thus represented. While presented [290] as the account of the tutor, it was in fact an account of his administration of the succession which he, with the consent of the creditors, was administering by virtue of his office as tutor. The facts disclosed by the record and before the court are as follows : Henry F. Fullilove died in February, 1885. He left an estate consisting of plantations, a storehouse and stock of goods. He was a merchant and planter, and was engaged in the usual line of business conducted in a country store. Henry F. and Thos. F. Scarborough, grandchildren, were his heirs. R. N. Scarborough, the father of the children, and surviving hus band, qualified as natural tutor of his minor children. As tutor, he took possession of the effects in the succession of Fullilove. On March 24, 1885, a family meeting was convened on the petition of Scarborough, tutor. He represented that said succession owed about $4000, and that there were no funds on hand to pay this amount; and he also recommended that the mercantile and planting business conducted by the deceased should be continued. The family meeting advised as the tutor had recommended, and also advised that he be authorized to contract debts to the amount of $5000 in the interest of said business. The succession really owed $3703.02, and its assets were large, the indebtedness only being about 10 per cent, of the value of the succession effects. A profit was made by the business for the year 1886. Another family meeting was convened, and the tutor authorized to borrow $5000 and to continue the business. At the end of the year 1887 he procured another family meeting, which authorized him to borrow $3000 and to continue the business to March 28, 1888. On February 23, 1887, the dehts of the succession had been paid by money obtained from Perrin & Zeigler, of Shreveport. All the old debts of the deceased Fullilove were paid through this firm. It took all the money in the hands of the tutor to pay this debt. In the meantime there were other debts which had been created since the opening of the succession, and only a short period before the account was filed by the tutor. There were debts created by the tutor in carrying on the business authorized by the family meeting. The defendant contends that when the debts of the [291] succession were paid by Perrin & Zeigler this put an end to the succession and the tutor held the property of the succession for the minors, and that they, through the tutor, the moment the sueces-sion ceased to exist by the payment of the succession debts, went into possession of their inheritance from their grandfather; that all debts created after this were debts of the tutorship. The distinction makes a material difference in the means employed to secure the payment of the debt, as well as to the effect of the homologation of the final account. To pay the outstanding indebtedness created since the payment of the debts of the succession by Perrin & Zeigler, the tutor Scarborough borrowed the money from the plaintiff. This is the amount now in controversy. Prom the abbreviated statement of the facts in the case it will be ■observed that the efforts of the tutor in the administration of the succession were to pay its debts, which were small in amount, not exceeding $4000. The mercantile and planting operations were conducted for this purpose. In his acts of administration he found it' necessary to borrow money to pay off the indebtedness of the deceased and to continue the business to pay off the amounts that he borrowed. If he paid the debts from money obtained from one source, others were created equal in amount in an endeavor to pay that which was borrowed. The acts of the tutor in administering for the heirs and for the creditors can not be distinguished. His administration was an entirety — one effort of administration to make money to liquidate the indebtedness. The minors only had a residuary interest in the succession after the payment of the debt of the succession.. The old debts against the succession, it is true, were paid. But it was in the course of the administration of the succession in conducting the business left by the deceased. The debts were paid either by money borrowed for the purpose or from the profits of the business. It is immaterial from what source the debts were paid. The succession had never been freed from its debts, for as rapidly as the old debts were paid new ones were created from the necessity of paying the old ones. These were but substituted for the debts left by the deceased, and all the acts of the tutor were done in the line of administering a succession to pay its debts. [292] In remanding the case we said that “it does not appear from the pleadings and account that the minors Scarborough have entered into possession of their grandfather’s estate as an inheritance, yet upon issue joined and trial had the fact may be made to appear. Until this fact is made to appear affirmatively we must hold that a tutor acting as administrator of an open succession does not possess apparently for the heirs, and that the property will not pass to him as' tutor until his administration as such is terminated.” The account filed by the tutor was an exhibit of his administration of the succession. It showed debts still existing against the succession. It was a provisional account. Until the tutor’s administration of the succession is terminated the property will not pass to him as tutor. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that the rule granted herein be made absolute, and the prayer of the plaintiff in rule be granted.