Succession of Heffner

On the Motion to Dismiss Appeal. "The opinion of the court was delivered by Nicholls, C. J. Appellant contends that he has paid the parties whose claims were opposed, and he is vitally interested himself in having their claims sustained. He calls our attention to the fact that the capacity in which he acted was as executor and not as administrator, and to the decision in the matter of the succession of Ames, 33 An. 1317, in which a distinction is drawn in respect to the questions raised in the motion as to his right of appeal between an executor and an administrator. He also directs our attention to the fact that, while the judgment is against him personally, it is also against him as executor. This ease does not present the question of the right of an administrator or executor, who has filed an account or tableau of proposed payments on which he has placed certain parties as creditors, to appeal in his official capacity from a judgment of the District Court rejecting the claims on an opposition made to the claims, as being really succession claims. We have decided a number of times that if the parties aggrieved by the decision do not themselves appeal, it is no part of the duty of the administrator or executor to champion their rights. In this case the executor has already made, as executor, payment of the claims which were contested below, and it is the legality and correctness of such payments made by him which were litigated below. Under that phase of the question the executor had a direct official, and also personal, interest in sustaining the payments if he could. The second clause of the motion to dismiss refers, we presume, to that portion of the judgment appealed from by which opponents were decreed “ to recover of James Heffner, individually and as late executor of the succession of William Heffner, the sum of ten thousand two hundred and thirty-eight dollars, being three-fourths of said balance (shown by the account filed), with legal interest from this date (date of judgment) until paid, and by which opponents were recognized as the legal owners of three-fourths of the real [414] estate described in said inventory, with the right to sue for a partition of the same and to demand in such proceeding the collation of what might be due them by James Heffner, the owner of the remaining fourth, reserving, however, their right to execute this judgment according to law.” The judgment from which the executor has appealed was one rendered upon an opposition filed to his'account as executor. It undertook to fix and determine the rights of the opponents to the funds in the hands of the executor, and to direct what disposition should be made by the executor. The executor had a direct official as well as personal interest in the subject matter of that judgment which carried with it a right to appeal from it. What issues can be legally raised and what legally passed on on this appeal, we can determine and declare after hearing. The motion to dismiss is overruled.