Succession of White

The opinion of the court was delivered by Blanchard, J. The administrator of this succession presented a provisional account and supplemental tableau of debts, for the homologation of which, after legal notices and delays, he prayed, and asked for authority to pay, out of the funds in hand, the balance of privileged debts, shown by his first tableau, relnaining unpaid, as well as the privileged debts shown by the supplemental tableau then presented, and to apply the remainder of the funds left over, as well as that which may subsequently como into his hands, to the payment pro-rata of certain judgment creditors named and other ordinary creditors appearing upon his tableau of debts. [1704] Several oppositions were filed, but this controversy, so far as it is now before us, is narrowed down to one. T. F. White opposed the tableau and account as presented, on the ground that an is .debtedness he asserted against the succession had been omitted therefrom. . This claim arose out of the following facts and circumstances: In 1890 William White, father of opponent, deeded to the latter a tract of land, 160 acres. It was intended as a donation, though made in the form of an act of sale under private signature. A nominal consideration was expressed, but nothing was ever paid or intended to he paid. It was proved before the clerk of court by one of the attesting witnesses and recorded. The vendee or donee entered into possession, cleared a portion of the land, erected improvements thereon and lived there. The father, old man White, died in 1895. He had been twice married and there were two sets of children. His succession was opened and W. L. White, a son of the second marriage, and brother of opponent, qualified as administrator. The second wife survived as widow. The succession was insolvent. The widow claimed the homestead right. There was dispute between the two sets of heirs. The sons of the first marriage, asserting claims 'against the succession of their father, sued and recovered judgments. Then, as heirs and creditors, they brought an action some two years after the succession was opened, against T. F. White (opponent herein) to annul the title by which he held the 160 acres donated by the common ancestor. They averred its nullity as being a simulation —not intended as a sale and no price paid; that if intended as a donation, it was null for want of form — not having been executed by public, authentic act before a notary and two witnesses. Their object was to bring the tract of land back into the succession and make the same amenable to its debts. For answer to this suit, T. F. White admitted he had paid nothing for the land, conoeded there had been no sale, and that the act under which he held could not be sustained as a donation, though intended as such. He denied that there had been any demand made upon him prior to the suit to restore the land to the succession, and announced his willingness to surrender it to the succession. He claimed the value of improvements put upon the land, asking that his rights thereto be reserved in the judgment. [1705] Thereupon, a decree was entered annulling his title to the land and restoring same to the succession, but reserving his rights as to improvements, and the rights of the succession as to rents. Following this, the administrator applied for an order to sell this 160 acre tract, thus restored to the succession, and other property, to pay debts, and at or about the same time filed the provisional account and tableau of debts now under consideration. Finding the land he had surrendered to the succession advertised for sale, together with the improvements thereon", to pay the debts of the succession, and finding that the tableau of debts, presented at the same time the order of sale was applied for, omitted any mention •of his claim for the improvements, T. F. White filed an opposition claiming the value of the improvements, which he fixed at $830, and asserting a privilege on the proceeds of the sale of the land and improvements and priority of right to he"paid by preference out of same. He prayed judgment against the succession for the amount claimed and for payment by preference. He was opposed on the ground that he had permitted a previous tableau of debts to be filed in the succession and had not appeared to demand that the same be amended so as to include his claim. Based on this the pleas of estoppel and res judicata were urged against him. These pleas are without merit. He waived no right by not opposing the first tableau, and the judgment homologating same by no means concludes him from, later, but seasonably, asserting his claim against the succession. Besides, these matters of defense are not mentioned in appellees’ brief and, presumably, are not insisted on here. It should be mentioned, too, that at the time the first tableau was filed, no question had been raised as to opponent’s title to the 160 acres, of which he was then in possession as owner, and, hence, had no occasion to appear and set up any claim for improvements. The court a qua rejected the demand of opponent and dismissed his opposition, giving as a reason that his claim for improvements had been compensated by what he owed as rent for the use of the land up to the year 1898. For what years he was charged rent, in this adjustment, does not appear, but from statements in the briefs of counsel we are led to believe he was held accountable for rent from the date of his possession of the land (1890), prior to the death of his father. Opponent’s appeal here is met by a motion to dismiss for want of [1706] jurisdiction roblone materias. It is urged that his opposition is a suit upon an unliquidated claim for $830, and must be asserted in a direct' action. We hold differently. Appellant opposes the distribution of a fund-exceeding $2000 upon which, or part of which, he claims a privilege, and his right to demand compensation for the improvements upon the land surrendered to the succession was reserved to him by the judgment of the court rendered in a proceeding to which the succession must be held to have been a party, and which judgment awarded the-land, upon which the improvements had been erected, to the succession. When the land with its improvements came to be sold at succession sale to pay debts, opponent, under the reservation aforesaid, could present his claim for the value of the improvements by way of opposition to a tableau and account which denied recognition of the-same. His claim for the improvements arose after the succession was opened and in consequence of action taken to recover the land' as the property of the succession. It is not to be likened to an ordinary debt against a succession, claimed to have been incurred by the-deceased, and which, when denied recognition by the legal representativej must be established by direct action. The motion to dismiss is denied.