Succession of Desorme

Garland, J. This is the third time that this case has been before us. See 15 La. 15. 17 La. 111. After it was last remanded, the heirs of Desorme, who had obtained a reversal of the [475] judgment and a new trial, filed a specific opposition to the account presented by the syndic, in which they allege that it does not present a fair and full view of the manner in which he has administered the estate ; that a portion is concealed; and that the proceeds of the sale, and of a crop of cotton, are not fully accounted for. They aver that the account of debts paid is erroneous, and not supported by vouchers or legal proof; that compound interest, at the rate of ten per cent per annum, has been allowed on many claims against the estate which bore no interest at all, or only at the legal rate ; that improper charges against the estate have been made, and that just and legal credits have not been allowed; and, finally, that as an unfaithful administrator, the said syndic is not entitled to any commissions, or to be credited by a sum of $200, which is given as the cost of making out the account. When the cause came on for trial, the syndic presented a number of vouchers in support of his account. They seem to have been admitted in evidence without objection, and we shall, therefore, give them all the weight they are entitled to. Previous to paying the debts, he did not seem to have considered it necessary to make out a list arid classification of them, to be presented to the Probate Court for its sanction and order for payment, but took upon himself to judge of their validity. In many instances, he allowed .interest at the rate of ten per cent per annum, on claims bearing no interest at all, and compounded at that rate. He did not show that he had used due diligence to collect all the money for which the estate was sold; and other irregularities in the management of the succession, and delays in rendering an account were proved. The property was sold, in May, 1833 ; about $2500 was received, in cash, at that time, and the remainder became due in the month of March, in the years 1834, 1835, and 1836. By the terms of the sale, good security was to be taken for the purchase money, and a mortgage was retained upon the lands and slaves. No account was presented to the Court of Probates until the month of October, 1838, and then a credit for more than nine hundred dollars is claimed, for sums not collected, without the least evidence of [476] any diligence to collect the various sums composing that amount. The Probate judge, after an examination of the account and vouchers, decided that the syndic must account for the proceeds of all the property sold, as he had not shown any diligence to collect the sums said to be still owing. Secondly, that he had no right to allow interest at the rate of ten per cent per annum on debts hot bearing interest at that rate by agreement, much less to compound that interest, as was done in many instances. He held, as it finally appeared that the estate was able to pay all the debts, that interest at the rate of five per cent per annum was properly chargeable from the time of the decease of Desorme, and so reduced the account. Thirdly, it was decided, that the charge of compound interest on the claims bearing ten per cent per annum, was incorrect, and ought not to be allowed. Upon these principles the account was settled and reduced, and a judgment for $1,467 44, with interest at the rate of ten per cent per annum, from the 1st day of April, 1836, was given against the syndic, from which he has appealed. The charges for commissions, and the sum of $200, the expense of render-” ing the account, were allowed. The present counsel for the appellees, asks us to dismiss this appeal, because the record was not filed in this court in proper time. We think this motion ought not to prevail, as the counsel for the appellant was, in our opinion, fully excused, if not entirely justified, in keeping the record in his possession, after the letter he received from the counsel of the appellees who preceeded the gentleman now employed, and the understanding consequent upon it. The motion involves no question of law, but depends upon the interpretation of an agreement entered into by counsel, then competent to conclude it. Upon the bill of exceptions taken to the rejection of the deposition of judge Robin, we do not find it necessary to express any opinion. The object of it was simply to prove, that when the syndic filed his account in 1838, the usual notices, by advertisement, were given, and a call made on all persons interested to come forward and oppose its homologation, if they thought proper. The present opponents do not complain of a [477] want of notification, and the appellant is not in any manner^injured by the rejection of the evidence. The objections to the account are entirely to the merits, and vouchers filed in support of it; and the fact of notice being given, has not the least influence upon our minds in coming to the conclusions we have arrived at. We are of opinion upon the merits, that the probate judge was correct in holding the syndic accountable for the'whole amount of the proceeds of the sale, as it appears on the procésverbal. If a credit Jor any sum is claimed, it is thNsyndic’s"duty to prove that he had, in the first,instance, used all proper diligence to secure and collect the money. It is not sufficient, as is done in this case, merely to say that the debtors are in delay, without an effort being made to collect the debts alter a lapse of more than six years. This doctrine is too plain to admit of argument, or to require authority to sustain it. We are further of opinion, that the judge was-correct in de_ ciding that the syndic had no right to pay interest at the rate of ten per cent per annum, and to compound it on debts and claims not bearing interest by the terms of the contract. Article 989 of the Code of Practice allows interest on debts, if the estate be sufficient, from the death of the debtor, if the debts were due at that time, if not, from the time they became due. But this does not authorize an allowance of ten ppr cent. that is only due when specially agreed upon in writing. The legal rate is five per centum, and the syndic was wrong in paying any more. In the early part of his administration, the syndic seems to have had doubts as to the propriety of paying interest at the rate he charges, and, in some instances, it is specified in the receipts, that the interest shall be repaid if it is not legal or rightfully received. Contrary to all expectation this succession turned out to be solvent, and the creditors were entitled to all the law allowed them; but, in the first instance, there was every reason and inducement for caution and a strict compliance with the law, as the estate was supposed to be insolvent ; yet the syndic appointedjby the creditors, as we have before said, omitted entirely to make a_list.and classification of the debts, and to obtain the order of the judge to pay them. The [478] responsibility for any errors must, therefore, rest upon him. The allowance and payment by the syndic of compound.interest on the debts bearing, by contract, ten per cent interest, was, in our opinion, equally unjustifiable and illegal as on the other debts, and the judge was correct in reducing the account in this respect also. The counsel for the appellant insists that, as these payments were made and an account of them presented to the judge, and approved by him, before the present opposition was filed, the appellant is not responsible, unless the creditors who received these sums be made parties, and he relies upon the decision of this court in the case of Millaudon v. Cajus, 6 La., 222. We do not think they are parallel cases. ■ It is possible that had the syndic presented a list and classification of the debts to the Court of Probates, charging the interest and compounding it as he has done, and obtained an order to pay in that manner, it might be necessary to bring in the creditors to get it back again; but when a syndic, or other fiduciary, entirely disregards the plain provisions of the law, and pays without authority, he must take the consequences. He cannot send the heirs in search of those to whom he has illegally paid the money of the estate, and get a credit for it in a settlement with them; he must himself take the necessary means to get it back again. The counsel further contends, that the appellant is not responsible for interest at the rate of ten per cent per annum on the sum he is indebted to the heirs. Until the act of 13 March, 1837 (Bull. & Curry’s Dig. p. 499), this was possibly true; but the 6th section of that act makes it the duty of every syndic, or other representative of a succession, to render an account to the Court of Probates at least once in every twelve months, and, on his failure to do so, imposes the obligation of paying ten per centum per annum interest. The appellant failed for.more than five years to render an account; he had money belonging to the estate in his hands for a long time, without paying the debts, and thereby caused the claims for interest to be considerably increased against the estate. We think substantial jus-, tice has been done between the parties. It is, therefore, ordered and decreed, that the judgment be affirmed, with costs. Under the 6th section of the act of 13th March, 1837, requiring executors, administrators, curators, and syndics to render full and fair accounts of their administration, at least once in every twelve months, under pain of dismissal from office, and of being condemned to pay interest at the rate of ten per cent a year on all sums for which they may be responsible, from the expiration of the twelve months, the payment of such interest is a part of the penalty, and necessarily coupled with the removal from office, and one cannot be imposed without the other; and such penalties can be only inflicted in eases which have arisen since the promulgation of the act. The syndic of a succession found, after an examination of his accounts, to owe a balance to the estate, should be condemned, like a curator or executor, to pay interest thereon, at the rate of five per cent a year, from the date of the judgment. C. P. 1007.