
    (53 South. 117.)
    No. 17,295.
    Succession of GUILLEBERT.
    (April 26, 1909.
    On Rehearing, June 30, 1910.)
    
      (Syllabus by the Court.)
    
    1. Inventory — List of Property.
    There were errors in the inventory, and un-collectible debts charged. They were corrected.
    2. Tutrix and Co-Tutor Held to Account-in®.
    The tutrix and co-tutor, administering the estate in that capacity, were held to an accounting for amounts collected.
    3. Account of 1S86.
    The first provisional account was approved only in part.
    4. Items of Account.
    As between the tutrix and her wards (at the latter’s majority), the accounts were subjected to careful examination, and the items sustained by the account of 1886 and evidence admitted at the time it was approved were taken into account as a basis for a settlement.
    5. Account of 1890.
    The errors in a subsequent provisional account were corrected.
    6. Final Account.
    Approved; it contains list of debts and credits, properly allowed with very few changes. It was recast by the district judge.
    7. Rentals.
    The rents of places of the estate ■ were charged from the end of each year. It was an equitable basis of settlement.
    S. Interest Account.
    In computing interest, dates and amounts were taken and reduced in order to arrive at an equitable settlement.
    9. No Dates.
    The dates of receipts and expenditures not having been kept by the tutrix, it was decreed advisable to calculate on a basis as just as possible because of the want of sufficient dates.
    
      10. Administration by Tutor — Tutors Administering- Succession.
    The acts of the tutrix and co-tutor administering the estate are binding upon the nonop-posing creditors. There still remains the right to the minors to inquire into the accounting.
    11. Tutorship — Accounts — Repairs on Minoe’s Property.
    The tutrix has a right to amount expended by her for necessary repairs of the property of her wards.
    12. Tutorship — Accounts—New Buildings Built on Ward’s Property.
    It is different as to the new buildings built on their property.
    13. Attorney’s Fees.
    Where a firm of attorneys or an attorney is authorized to settle a succession, and ample fee is paid for the services, the legal representative has no right to credit for fees of other attorneys she employs, except when, because of long absence and illness of the attorney of the succession, such an employment is necessary to attend to pressing demand requiring immediate attention.
    14. Commission Allowed.
    Under the exceptional circumstances of the case, commission is allowed. It enters into the 'equitable consideration which prevailed in bringing the succession to a close.
    
      (Syllabus by Editorial Staff.)
    
    On Rehearing.
    15. Tutor —Annual Accounts — Final Account-Evidence.
    Where a tutor has been required to attach his prior annual accounts to his final account, he need not prove affirmatively and de novo facts on which lost vouchers were based, if the vouchers were once furnished and were lost without his fault.
    [Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. § 157.*]
    16. Tutorship — Final Accounts — Proof Respecting Annual Accounts.
    On final account, judgments homologating provisional accounts, being prima facie correct and covering the subject-matter homologated, required no affirmative proof to support them to that extent; the burden being on opponents to set out disputed items and overcome their presumptive correctness.
    [Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. § 157.*]
    17. Final Account — Findings—Evidence-Sufficiency.
    Evidence on opposition to a tutor’s final account held to sustain the trial judge’s findings on the correctness of the inventory.
    [Ed. Note. — For other cases, see Guardian and Ward, Dec. Dig. § 157.*]
    Breaux, C. J., dissenting in part.
    ; Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; G. H. Couvillon, Judge.
    In the matter of the Succession of Constant Guillebert. On opposition of Adele Constant Guillebert and others to the final account of Mrs. Alfred J. Mayer and husband. The opposition was in part maintained, and both parties appeal.
    Reversed and remanded .on rehearing.
    Lafargue & Lafargue, for accountants. Coco, Couvillon & Coco, for opponent Guillebert.
   BREAUX, O. J.

On the 17-th day of April, 1905, Mrs. Alfred J. Mayer, tutrix, and her husband, Alfred J. Mayer, filed their account of tutorship and of administration of the succession of the late Constant Guillebert.

The children of Mrs. Mayer, to wit, Adele Constant Guillebert, wife of Dr. A. T. Bar-bin, assisted and authorized by her husband, and Camille Modistine Guillebert, opposed this account on a number of grounds.

The late Constant Guillebert came to this country years ago from France and settled at Moreauville, in the parish of Avoyelles, where he engaged in mercantile business and farmed on a small scale.

He several times returned, to the place of his birth and to his former home.

On one of these visits to his former home, he contracted marriage with Marie Grenier, who was the adopted daughter of Mrs. St. Laurent, his sister.

After his marriage, -the three, the husband and his wife and Mrs. St. Laurent, came to this country to reside permanently at the home of Constant Guillebert, in Avoyelles parish.

Some time after they had established themselves, the sister, Mrs. St. Laurent, married J. A. Boyet.

She died, and on her deathbed left a will.

Opponents attacked the will.

The suit came up to this court on appeal.

Tlie plaintiffs, representing their wards, entered into a compromise with J. A. Boyet, the surviving husband of their late aunt.

This compromise was authorized by the court.

The complaint of opponents is that, owing to the negligence of the accountants, appellants, they lost their inheritance.

Of this later.

We infer that the Guilleberts were fairly prosperous. Constant Guillebert acquired property. He advanced largely to his customers and secured his advances by ventes á réméré.

This has no significance save that it accounts for the large number of claims, many of them small, nearly all secured by ventes d réméré, which formed part of his estate.

The many claims of the succession, nearly all small in amount, as Just stated, required attention of the accountants in settling the succession. Expenses were incurred to effect collections, and some of the claims were lost.

In November, 1884, Constant Guillebert was called from' his room in Moreauville about midnight and murdered by a person unknown.

The year following his death, his widow became the wife of A. J. Mayer.

Just prior to her marriage to Mayer, she was duly retained in the tutrixship of her children, and her husband, Mayer, became the co-tutor of the children.

It may be said here that the children were not neglected, and it seems that they were kindly treated by their stepfather and by their mother and tutrix. They enjoyed about the same opportunities in their rearing as young persons in the neighborhood having means.

Whatever there was of neglect was in not keeping accurate accounts of expenses incurred in the management of the property of the estate.

The accountants relied in some respects on estimates in fixing amounts of indebtedness and in preparing .their final account.

That is not satisfactory.

We take up in the first place for consideration the inventory of the property of the succession.

It is lengthy and takes up considerable space in the six good sized transcripts before us. Unfortunately, the inventory was not, in all respects, correctly taken.

The total of the property inventoried is $51,207.61, detailed as follows by accountants in their final account:

Personal property .$40,727 50
Lands belonging to estate. 4,050 00
With right of redemption. 6,430 00
Making .$51,207 57

The tutrix and the stepfather of the opponents ask that the claim of the opponents be limited to an estate of $20,847.48 as coming to them. In lands, $10,480, which remain of the assets, and which they offer to deliver in personal property, $10,847.48.

The contention of plaintiffs and appellants is that many claims of the estate were worthless; nearly all good claims were collected at some expense, and that there was little in cash realized for the succession; that no wrong was done, as they acted in accordance with legal advice throughout and at times under the decree of court.

The opponents, on the other hand, urge that the accountants, early in their administration, left this country and dwelt abroad three years, left the property in charge of an agent, who neglected the affairs of the estate, and that there was a loss to them for which the accountants should be held liable.

This opposition was, in part, maintained in the district court.

The first account, as recast by the district judge, was homologated.

Plaintiffs appealed.

Opponents joined in the appeal and asked for an increase of the judgment of the district court in a number of particulars.

We took up the different issues brought up by the appeal and discussed them as follows:

Provisional account of 1886:

It was not sustained by vouchers save two. The others were lost, or could not be found. They were applied for on the trial of the opposition to the final account, but were not produced. There is no reason to infer that the accountants are responsible for their loss. It seems that they were deposited in court.

The note of evidence taken on the application to homologate this account shows that vouchers were offered in a bunch.

The attorney of the succession, in 1886 (who was not the attorney who now represents the tutrix and co-tutor), as a witness, as appears by the note of evidence, filed in 1886, when the account was partially homol-ogated, stated that the privilege claims placed on this tableau, and the ordinary claims as well, were due and settled as such by the tutrix.

In regard to one of the items of the inventory, he testified as follows: The amount which was in the hands of P. G. Gibert was properly reduced, the witness stated, from $10,566.06 to $7,224.33.

He also testified about cotton in gin of the late Constant Guillebert: He stated that this cotton did not belong to Guillebert; that it was in the possession of Guillebert for the account of some of his debtors; and that it did not become his property.

The amount involved is $1,200. We will have occasion to specially refer to this item later, as it is strenuously opposed by the opponents.

The attorney, Mr. Hall, at that time (in 1886) next asked the court to homologate the account as prayed for by the plaintiffs.

The undertutor of the minors, on applica-1 tion to homologate this tableau of 1886, answered the application and alleged that the tableau was correct.

The judge, despite the testimony of the attorney, and the consent of the undertutor, did not homologate the whole account of 1886. He only homologated some of the items of the account as follows:

1. Amount deducted from amount in hands of P. G. Gibert. $3,042 43
2. 'Credits not allowed by inventory on note of A. C. Gremillion_ 740 00
3. Cotton inventoried, claim for cotton before mentioned, but it is claimed belonged to other parties 1,228 00
4. Note of J. J. Baptiste, which it is claimed was not due. 21 00
5. Account of Norma Lavallais. 34 75
6. Note and judgment against B. Mayeux . 37 go
7. Note of Jos. Lacour on inventory, but it is claimed was not found 6 50
8. Mortgage note of Oliver Johnson, which it is claimed was paid by vente a. réméré. 200 00
9. Credit omitted in judgment of E. Coincon . 30 00
Total . $5,695 68

The other items on the account were not homologated.

Tlhe statement of the judge in homologat-ing this account is incongruous. For instance:

In the first part of the judgment of homol-ogation, he ordered the debts as classified to be paid and that all the credits claimed be allowed. And thereafter, as a part of the reasons for judgment, he directed that credits not supported by proof be disallowed, reserving to the tutrix the right to prove them up in a subsequent tableau, and that, with the exception of credits a® made, the provisional tableau be homologated.

These so-called “reasons” are not clear. They are conflicting.

This left the question of indebtedness to a considerable extent open for future accounting. We none the less are of opinion that the items, of which we give a list above, were homologated.

We pass from title tableau of 1886 to the provisional account of 1896.

On the credit side of the account, the first article contains the following:

1. Debts and errors in inventory allowed by judgment of court homologating first account.... $ 5,690 18
2. By claim paid and recognized by judgment homologating said first account. 18,196 79
Total . $23,886 97

And then follows a long list of claims of different amounts paid for costs, taxes, and attorney’s fees and for improvements on the property of the succession.

On this account also, there is a list of bad debts, amounting to a considerable sum.

This second account was regularly homolo-gated, and vouchers supporting the different items were produced and introduced in evidence.

We will have occasion later to again briefly refer to these two accounts (1886,1890).

Pinal account:

The facts relating to this account do not require any extended statement at this time. Part of the items are taken from the first and second tableaux, especially the uncollectible debts and errors carried in these accounts (1886, 1890). There are a number of items for taxes, fees, costs, and other charges taken from these accounts, besides others of a date subsequent.

The opponents met this account with an opposition detailing their complaints in full.

The issues it presents are before us for decision.

The learned judge on the trial of this opposition changed a number of the amounts and wrote another account in full and made it part of his elaborate opinion.

The account consists of a recasting of the account presented by plaintiffs.

The district judge allowed $19,156.96, balance due to Mrs. Barbin, the opponent; and to the other opponent, Camille, an heir, $18,-300.81.

With this statement, we will take up the decision of the issues.

Recurring to the tableau homologated in 1886, i. e., the first tableau:

The contention of the accountants is that it is a complete tableau of debts; that they are completely protected by the decree of its homologation; that it is res judicata.

That contention does not commend itself. In our opinion the first tableau, as already in effect stated, was only a partially homol-ogated account. It left the question as to the approval of a large number of debts open for future proof to be offered by the accountants in another account.

They were provisional accounts.

To the extent that the account was homol-ogated, it affords some protection to the accountants, it is true.

Where no testimony has been introduced to show error, they may, under certain state of facts, be given some effect.

The following rule regarding tutors is sustained by authority:

The tutor’s annual account is provisional and does not conclude the minor. Tutorship of Scarborough, 43 La. Ann. 315, 8 South. 940; Cochran v. Violet, 37 La. Ann. 221; Stafford v. Villain, 10 La. 319; McGehee v. Dupuy, 7 Rob. 229; Lay v. Succession of O’Neil, 29 La. Ann. 722; Succession of Tucker, 13 La. Ann. 464 ; Rev. Civ. Code, art. 356.

The tutor who administers ex virtute officio presents a tutorship to the minors none the less. Succession of Scarborough, 43 La. Ann. 315, 8 South. 940.

The administrator’s account is not binding on the minors. Succession of Mitchell, 33 La. Ann. 353.

Be that as it may, we have seen that the first account was only partially homologated, and, as to the second, we will state that plaintiffs and appellants urge that, even if the account of 1886 was not entirely homolo-gated (only partially), the claims thereon were carried on the second tableau (1S90), and that these unapproved claims (if unapproved) were thereby approved when the tableau of 1890 was homologated.

There would be great force in this contention if the accountants had presented their different items of homologation with some detail on the tableau and had sustained each with proper voucher and approval.

This was not done. On the contrary, many of the claims were charged in" a bunch in the second tableau as having been approved in the first account, when in reality they had not been so approved and homologated.

At first blush, on examining this item on the second tableau (1890), it is apparent that an error has been committed by carrying claims thereon before mentioned.

This error vitiated the second tableau at least to the extent that it approved claims introduced as having been homologated in a prior tableau that had not been homologated.

Now, as to the tableau of 1890 (of which we have already had something to say in so far as it relates back to the tableau of 1886):

The order of homologation is in regular form, and, with the exception of the statement it contains of claims homologated that had not been homologated, it must be given some effect as a provisional account. We will give it effect as an homologated account, although, owing to the errors before mentioned, it is not to a great and unlimited extent binding. It will serve as a statement of debts and credits.

We will consider it in that light.

They are only tableaux of debts, and, while absolutely binding as relates to creditors, they have not an absolutely binding effect as between the accountants and their wards. Hansell v. Hansell, 44 La. Ann. 548, 10 South. 941; Reihl v. Martin, 29 La. Ann. 17; Curatorship of Beecroft, 28 La. Ann. 824.

It unquestionably devolved upon the 'accountants to prove that they had paid claims due by the estate and to account for all that they had collected. While uncollectible debts should have been deducted, it must be evident that they were uncollectible debts; and, while errors may be corrected in the inventory, it must be proved that they were errors.

The accountants, unfortunately for them, kept no regular account.

They, in accounting, reduced the balance coming to the heirs to a small sum, while the heirs claim a large amount and seek to minimize the expenditures charged against the estate.

The accountants gave too much importance to the two tableaux homologated, one in 1886, and the other in 1890. They desire to have them accepted as correct and satisfactory, although the first particularly is not "sustained by proof.

The opponents, however, do not attach the least importance to these accounts even in those respects that they are sustained by evidence.

We will, as briefly as possible, take up the final account, and occasionally go back so as to trace some of the items to the tableaux of debts of 1886 and 1890.

In the last account, the total amount of the inventory was taken as a basis. The rents were added and interest thereon, and certain claims not previously accounted for were charged. In that manner the grand total of $78,180.86 was reached.

The total amount of credits, which the judge allowed in the account prepared by him, amounted to $31,710.73, as due accountants, leaving balance to be accounted for to the two heirs, according to this account less individual indebtedness to the tutrix, $45,-469.63.

After individual indebtedness deducted, it leaves to Mrs. Barbin, one of the opponents, $19,156.98, and to the other opponent $18,-309.81.

These amounts are increased by comparatively small sums as will be seen by our decree.

We may as well now dispose oí tlie individual indebtedness of each of these heirs to their tutrix by the statement that it consists of amounts due by them for their support and education during their minority.

The opponents do not contest the amount charged on the tableau as allowed by the district judge for this item, and this much, we are pleased to state, is settled and requires no further 'attention, for we are of opinion that the amounts allowed by the district judge are ample.

Passing from this uncontested item, we take up another, very much contested by the opponents.

The tutrix admits that she is indebted to her children for rents collected on the estate in the sum of $9,500.

The contention of opponents is that this is entirely insufficient.

The leased lands consist of seven separate small tracts:

Home place.50% acres
Lacour x>lace.31 “
Johnson .25
Hayes .20 “
Total .131% acres

The foregoing are classed as bayou lands and have more value for cultivation.

The following are prairie lands, having less value for cultivation:

Carmoucke tract.15 acres
Descalet place.13 “
Guillory .20 “
Total ...65 acres

Rental account:

We leave other questions and take up the question of rents.

At first the amount of rental allowed on this account appeared to us somewhat large. After having read the testimony and upon reflection, reduction to any extent does not commend itself.

The amount is fixed on the testimony of witnesses who testified as to rental values. Five dollars is about the rate. Learned counsel for plaintiffs admit that $6 an acre is about correct.

The accountants admitted quite a sum as due for rental; but this admission was made without an accounting. In other words, the accountants admit that they are indebted in the round sum; how made up does not appear. They do not state amount collected each year or for any period.

If we were to take as a basis for this account the testimony of the co-tutor, the rental would not amount to much. It would be much less than was admitted by the accountants. In other words, he admits $9,500 rental due, and that is all.

A minor on arriving at age has a right to know something of the management and how his account was made up.

We will have to let that amount stand as it is. The testimony does not justify us in making any changes in that respect. There is considerable said upon the subject on the part of witnesses for the accountants; but it is disconnected, and no testimony is made with reference to any account.

The question to J. Boyet was in regard to rents.

“Q. What is the rental value of land now?
“A. Five dollars an acre.
“Q. What would you consider the average price of land in the last 20 years on Bayou Des Glaise?
“A. Five dollars.” (T. p. 88.)

Counsel for plaintiffs in the brief mention $5 an acre as the rental value.

Counsel, however, do not admit the number of acres claimed by the opponents.

The testimony proves that 25 acres of the Descant lands were cleared (T. p. 24), and again about 50 acres of this land were cleared on the west side of the road. (See, also, p. 107.)

It was even stated: The Carmouche tract contains 200 acres.

The Guillory tract contains 80 acres. (T. p. 583.)

This, together with other lands in regard to which there is no dispute as to acres, we have found, in regard to the number of acres, is over the number for which rental is claimed.

The testimony shows that part of the land was flooded by water, but in a general way without specifying whether the water remained on the land, to what extent there was damage, or what was done in that connection ; and the years of the overflow are not stated with absolute certainty; only the most general reference limited to 1890 and confined to the Johnson place.

With this testimony before us, we do not think we should change the amount.

Although we arrived at the conclusion slowly, we concluded, at last, that we would leave the annual rental, as found by our learned brother of the district court, as it is.

He divided the rental period into four and gradually increased the amount of rent as the value of land increased.

Considering these different years and the difference in the respect stated, we are of opinion that the total is about right.

Interest:

The item as relates to interest, dating from the homologation, will not be changed. It was properly calculated from the date of homologation of the last account, and, taking that date as a basis, an average was arrived at for the calculation.

The opponents seek to have this interest calculated on an amount in hand on the date of the inventory, made not many months pri- or to the date of the homologation of the tableau.

We do not agree with the opponents.

The inventory was not carefully made; it did not serve as a basis such as a carefully made inventory is in the proper settlement of a succession. It has in some respects the appearance of slighted work on the part of those by whom it was taken and made; and, besides, the amount did not pass from the-hands of the tutrix, administering the estate as tutrix, on to the tutrix and co-tutor at that time.

A tutor who administers a succession with the consent of the debtors can hold the property as tutor only after he had fully administered its affairs. Tutorship of Minors, 44 La. Ann. 288, 10 South. 858.

But, above all, the tutrix had paid some debts, and the affairs of the succession were in such an unliquidated condition that interest from the date of the inventory would scarcely be a fair and legal charge.

The interest will, therefore, remain as it is.

We will add as to interest:

The judge of the district court allowed $4,546.87 interest.

1-Ie, to the end of determining this expensive litigation, fixed an amount for interest on equitable consideration. In a general way he allowed certain credits to the accountants and interest on the credits.

In regard to many of the credits, their dates are not established.

On the other hand, as relates to the asset side of the account, the judge allowed the amount stated, which he conceived to be fair.

The accountants are charged for rent during a period ,of 19 years.

The places rented were small. The lessees were farmers, who dealt on small scale, as we understand, made partial payments at different times.

It may be, for all we know, that they paid by delivering a part of the crop in settlement.

The testimony shows that a horse was taken in part payment.

In another instance, one of the lessees constructed a house, and his wages as a carpenter went to the payment of his lease.

In this way it seems that the amounts were collected at different times, but the dates were not given.

It was after having considered, the situation brought about by this illegal way of doing business that the learned judge of the district court in some respects assumed data sufficient to arrive at a conclusion in regard to this instance.

We have gone over the account and have made calculations of our own only to find that we could not make them exact.

By calculating the interest from a certain date, it is easy enough to arrive at another conclusion. But after having done this, we have not found it more satisfactory.

We arrived at the conclusion that in this succession, involving considerable sums, we would adopt the conclusion of the judge of the district court, although it was reached differently from the one at which we had arrived. It was a matter of a few hundred dollars. We do not think it would justify us in setting aside the amount found by the district judge, after painstaking care and attention on his part.

The interest found by him will remain — a conclusion we have reached after thought and mature deliberation.

This litigation must be brought to an end. These accounts must be settled. They can only be settled on an equitable basis. A precise and exact calculation is out of the question because of the want of dates of amounts charged against the accountants and of amounts paid by them.

On leaving this point, we will state: $12,-125 was taken in the district court instead of the whole amount of rent, $15,025, and interest was computed thereon for 7% years. We will not take another amount as the basis for calculating interest; taking into consideration the entire case, the interest should not be increased.

The complaint of opponent at this point is that the learned judge should not have allowed interest on the former amount and for that length of time, but that instead the whole amount of the rent should have been taken and interest allowed from year to year at the end of each year to the date of the filing of the account.

We have already said: Evidently the rent was collected with difficulty. Many of the amounts were lost for which the tutrix and co-tutor must account. We think that there would be injustice in increasing the amount of interest.

Even the opponents are at a loss about dates.

Opponents have it, relative to the amount of $3,047.57, an item not connected with rent, that the judge adopted 8 years; that it should have been 12 years instead.

There is no more basis for the 12 years than there was for the 8; the only difference is that the S years appears to us equitable and just.

Leaving opponents’ ground abodt interest, we take up the objection of the accountants:

The latter object to the payment of any interest at all.

We can only say that it is not possible to, relieve them from the payment of all interest under our jurisprudence.

The following decisions explain in full and relieve us from the necessity of any comment: See Hollingsworth Case, 45 La. Ann. 134, 12 South. 12; Succ. of Trosclair, 34 La. Ann. 326; Vance v. Vance, 32 La. Ann. 180.

Tutor’s commission:

Opponents ask to have the amount of the commission of the tutrix on rents and revenues stricken from the account and in that respect amend the account.

It is not often that occasion arises before the courts requiring decision as to such a commission between the natural tutrix and her wards.

The contention, on the part of the opponents, is that the administration has been prejudicial to the minors; that there has been decidedly bad management.

We readily concede that there was want of judgment in the management, a failure to attend closely to the affairs of the succession; hut we are not of the opinion that the result was detrimental to the succession. We are firmly of opinion that, if accurate accounts had 'been kept o'f all the dates in the administration, the heirs would have received considerably less.

The losses by the poor administration really fall upon the accountants, not upon the heirs.

True, the answers of the tutor were vague and general, not satisfactory at all. These answers did not prove beneficial to the accountants ; but, on the contrary, they were properly construed against them. It was for them to render a full, fair, and complete account.

As they failed in that respect, they were condemned to pay at least as much as they would have had to pay if they had kept a regular account.

The presumption is that certain claims were paid in full. This is another proposition pressed upon our attention by opponents.

The contention is that the claims that were not carried on the inventory as worthless or uncollectible are presumed to have been collected in full.

Some of the claims were valued by the appraisers at less than their face value. They were collected in full, but in accounting, owdng to a very gross mistake on the part of the accountants, they charged themselves only with the amount at which these claims had been appraised.

Without any difficulty, this was brought to light.

The co-tutor, without any attempt at concealment, on question propounded, owned at once the true amount of the collection whenever he was questioned, and in every instance the judge of the district court charged him with the full amount collected.

There are a few claims in regard to which no direct question was asked, for the reason, we infer, that a larger amount was collected of these claims than the amount at which they were appraised. If a larger amount had been collected, learned counsel would unquestionably have brought it out.

The court and attorneys went through the whole of these claims. It was a thorough investigation.

We do not think that the amount should be charged unless it appears that it has been collected and not accounted for.

George L. Mayer debt:

There is testimony showing that the amount was collected from the debtor. See pages 551 and 55ü of the Transcript.

The co-tutor admits having collected the amount.

We therefore give credit to the minors for it with interest from the time that it was collected on April 7, 1891.

Relative to the George Mayer note, the following is of record:

“Q. Well, the amount of the claim against George L. Mayer was $450, was it not?
“A. Yes, sir.
“Q. Then you got the clerk’s costs?
“A. Yes, sir.
“Q. And then you have interest from September 9, 1884, until paid (T. p. 135), $154.31?
“A. Yes, sir.
“Q. That would make a total of $611.01?”

And this amount is allowed by us as due by accountants to the succession.

The next item we will take up to which objection was urged by opponents was No. 136 of the inventory, as uncollectible.

There are several objects forming part of this item.

The judge of the district court allowed $95.33. An additional amount of $50 is claimed. It is not evident that the last.amount is due. We concluded to leave this item as it is. It includes also the price of a horse. Taken together, it appears as correct as fixed by the court a qua.

Item No. 23 we will also pass without any comment for similar reasons. The $100 claimed will not be added.

These claims were carried in the second account in greater part, not collectible, and the balance, as worth $1. The court allowed $16. The facts sustain the correctness of the amount allowed.

We haye not found anything in the testimony to lead to the conclusion that there was error in the decision regarding this item.

We think that, considering all the testimony, the decision has done justice between the parties on this particular point.

Another serious objection urged by the opponents, also connected with this first account, is that the item of $1,220 on that first account, cotton in the possession of the succession, as stated in the account, and for account of certain clients of the late Constant G-uillebert.

The homologation as made of this first account included this item. It must remain. There is no testimony before us sustaining the contention of opponents. It does not appear that any part of the cotton was ever in the possession of accountants.

This amount was properly deducted in the first account. It is not a claim for which the accountants can be held.

Complaint is urged by opponents as relates to the St. Laurent claim, $7,500.

Opponents claim this large amount without sufficient evidence to sustain the claim.

There was a compromise made with J. A. Boyet, who, as we have noted before, late in life became the husband of Mrs. St. Laurent.

It was charged that by improper influence at the death of his wife he was made her universal legatee.

The opponents were the heirs of their aunt, Mrs. St. Laurent, in case of the nullity of the will. A compromise was made.

Boyet failed to comply with its terms. The property ánd amount he was to pay under the compromise was not paid. He, as we take it, circumvented the tutrix of the children and escaped from a legal liability.

The opponents charged that J. A. Mayer offered in payment an amount of United States bonds.

There was error of judgment possibly on their part in not accepting the bond. This is a matter for which the husband would be liable if we were itching to find liability.

The whole business is veiled in mystery and uncertainty. Above all, however, it does not appear that the mother and tutrix, and the co-tutor also, for that matter, were anxious to collect the amount.

It is not a loss for which they should be held.

It remains that the tutrix never collected the claim. She lost it. The compromise had been advised by counsel.

Another claim of opponents as to property under the names of Dowdy:

The opponents claim two lots of ground in Markville.

They were bought by J. A. Mayer in 1891 as agent of his wife.

The title passed to her, and it remains as hers.

The complaint of the opponents is that it was bought with their funds. This complaint is not sustained by proof.

The further complaint is that they (Mayer and his wife) have admitted that it was the property of opponents, and that they err in refusing to be bound by their admission.

There is assumption by the opponents on this point.

Mayer and his wife explain, through the testimony of the former, that they applied to be permitted to sell certain of the minors’ property, and to that end to cancel the mortgages thereon; that through error of the attorney this property was included in the petition made by them in their respective capacity to cancel the mortgage; that they never intended to admit that the property belonged to the succession of Guillebert; that it was paid for from their own funds. It was bought years after the death of Guillebert, and it was never intended to include it among the assets of his succession.

This claim has nothing upon which to stand save an illegality made by the attorney in error in describing the property in a petition.

It is true that when Mayer, agent of his wife, bought this property, he included the names of the opponents, minors, as vendees; but Mayer was only agent of his wife and had no authority to represent the wards in the transaction. They had naught to do with paying for the property and in reality have no claim to it. There is no claim made by accountants for any amount paid by . them on this property.

We take up for consideration and decision the items which are carried on the final account as amended by the district judge to which accountants object, and other items which they contend should have been allowed by the district court.

The first is the amount paid to the late L. J. Ducote, as notary and attorney, $15:

Fees of attorney:

, This is the first claim in the order that claims are listed.

The attorney to whom a fee of $150 was paid by the accountants was not the regularly retained attorney of the succession. There was a fee of $15 due to this attorney as notary for holding two family meetings.

The court a qua did not allow this claim on the ground that there was no necessity of retaining the services, as there was another attorney regularly employed to settle the succession at a stipulated fee of $3,000, which was ample.

Despite -this employment, a number of attorneys had been employed at different times.

It is settled by repeated decisions that only one attorney or one firm should be employed to assist in administering and settling a succession.

Since the decision in Succession of Gayle, 27 La. Ann. 547, this court has always decided, when the succession has a retained attorney to settle its affairs, other counsel should not be employed to conduct its ordinary business and settle the estate.

We must adhere to the decisions as to the fee of attorney. There is no reason to make an exception in this case. The fee for services as notary public is due. The accountant testified, and his testimony is accepted, that one of the fees was paid to the late Judge Cullom. He was employed while the attorney of the succession was away and ill, a period of about 12 months.

Now as to the sum paid E. North Cullom:

The amount of $130 will be allowed. There is direct testimony proving that there was necessity for the services, and'that they were tendered while Mr. Hill, the attorney of the succession, was ill and absent from the parish. Services rendered under the circumstances disclosed must be allowed.

A house on the Descamp place:

This house was built in 1886 or 1888.

At first the amount claimed on the account was larger than now claimed. It was reduced during the trial in the district court; none the less it was disallowed by the court.

They now urge that it cost them $500. The costs are not detailed. They are based on an estimate.

The price was properly disallowed.

Tutors cannot put up new buildings on minors’ property and claim their value at the end of the tutorship.

If, however, it is their building, they should have it, if the opponents do not choose to pay the price asked, as it is on their land.

The opponents are given 30 days within which to make up their miuds whether they will take the property or not. In case they do not, the property shall be rémoved within reasonable time after the 30 days.

The next item, being for $400, was reduced to $272, a reduction to which the accountants object.

The receipt in evidence shows that the amount was partly due by the succession and partly by Mr. and Mrs. Mayer.

A compromise was entered into.

We have arrived at the conclusion that the reduction affords no good ground of complaint.

The attempted explanation of the accountants about amounts previously paid on account of this claim of Dr. Lougare does not to our mind explain to the extent of showing that the judgment is erroneous in this respect.

The néxt item, $27, was for improvements on the Moreauville home place. First, as forming part of this item, is an amount charged for an addition to a store. This part of the item was properly disallowed, as it was in the nature of a new building and not strictly a repair of the building. Besides, it appears that this addition to the store was made for the convenience and occupancy of the accountants.

New fences and repairs amounting to $250 on the Moreauville place:

With reference to this part of the item, the accountant, J. A. Mayer, of the witness, was asked:

“In the years 1886 and 1887, your charge was for making all the fences and repairs, and so forth, on the home place?
“A. That was what I charged.”

These repairs, the testimony shows, were necessary. They are different from new buildings and improvements. This item in our opinion should be allowed.

The next item, being a small amount, was properly rejected. It was for fees of constables and justices of the peace. It does not show that it was for services rendered for the succession.

The receipt of officers should show that the service was for benefit of the succession, or for the benefit of the minors.

The next item is identified by referring to the names of J. D. and A. Lacour, for repair materials, $75. Their receipt reads: We hereby acknowledge having received of A. ,J. Mayer the sum of $75 for shingles and block and general repairs, Numa Lacour place, paid us by two years’ rent, 1895 and 1896 of said place, signed by the creditors.

As the accountants have accounted for the rental of the property, it necessarily includes this property for which rent has already been charged for opponents’ account.

The accountants are, therefore, entitled to credit for this rental which became their own from the moment they became the debtors of the opponents for the rent.

We are informed by statement in brief of counsel for accountants that this item No. 42, paid to O. Moreau for lumber, posts, and other material used on the Descamp place in 1902, amounting to $57.85, was not allowed because the judge said it was included in item 34.

We have considered the objection after having referred to the testimony. It was properly charged by the court a qua.

We are led to that conclusion by the statement in applicants’ brief (page 35) expressive of acquiescence, which leaves scant ground for complaint.

The judge increased item 34 to $92.85, instead of $38. (T. p. 490.)

Another item is for fee of attorney for defending suits brought by one of the opponents for ousting tire tutor from the tutorship, and to compel an accounting, and other litigation between these parties. The sum allowed covers the fee due by the succession; there is no good reason for an increase against the opponents.

The days of the parties to this litigation have at times been rugged and dark. They had to consult attorneys, and valuable services were rendered. As valuable as they were, we cannot charge them all to the succession. Jurisprudence forbids it.

We will stop a moment and digress, perhaps, slightly to state: The widow Guille-bert was left without property at the death of her husband. The management of a large estate fell into her hands.

She married a second time, and with the husband and the children of the first marriage they went to France, not to enjoy the gayeties of Paris, as averred by one of the opponents, but, on the contrary, they lived economically, occupied a pavillion on one of the sea shores of France, and sought there to earn a livelihood.

On leaving their home in Avoyelles, they placed the affairs of the estate in charge of an agent and paid him an extravagant commission on amounts collected by him.

There were a number of small claims. A number of suits were brought. The usual result followed when suits are too freely brought for small amounts; large bills of costs were incurred, and comparatively small amounts were collected.

On leaving France to return to America, they left one of their daughters at Maison de Santee, at which place she has been taken care of since; the mother paying the expenses. This heir was weak and infirm from birth.

On the return of Mr. and Mrs. Mayer from France, where they had been about three years, they found a neglected succession.

Thereafter they made some repairs on the property and collected some of the amounts due the estate.

A sister of Guillebert, who came to this country with him, married. A few years thereafter she died and left a will made on her deathbed written with her husband’s pen, it was charged.

This will was attacked by the tutrix. She employed special counsel. There was a heated contest. Counsel well earned the fee charged; but it should not be charged to the succession, under our decision, as an attorney amply paid was employed to attend to the business affairs of the succession and to settle it.

A compromise was arrived at with the surviving husband of the deceased sister. The husband never paid the amount he promised to pay. He circumvented the representatives of the succession.

Opponents sought to charge their mother with the amount lost. The mother acted in good faith. She is not charged with that amount. It was not due to her negligence that it was lost.

The elder of the daughters was sent.to a female institution of learning for four years. About the end of her studies, she married without her mother’s consent, who opposed the marriage only because of the youthfulness of her daughter, not that she had any objection to the son-in-law.

After the marriage, differences arose. The daughter, not of age, sought to oust her mother from the tutrixship.

Several appeals were taken to this court and are reported.

This suit followed, and after a lengthy trial it is now before us.

The minors secured as much as they are entitled to.

As to the appellants, they have none to blame but themselves. It was for them to keep account and render a satisfactory account.

It is evident in all this that the mother managed the estate as that of her children without much thought of law. As is frequently the case between mother and daughters, it was all for her daughters. That feeling seemed both in incurring expenses and in receiving amounts.

These sentiments and the confidence to which they give rise, and which continue until differences arise, cannot be taken into account.

The different items allowed on the above demand of the accountants- amount to (with interest) $666.25, to be added as claims which should not have been rejected and which form part of the sum to which accountants are entitled in settlement. The items to opponents, with interest, amount to $840.13.

It only remains for us to amend the decree and to affirm the judgment after the amendment.

It is therefore ordered, adjudged, and decreed that the amount due to the accountants be increased by adding thereto the sum of $646.25, which is to be deducted from the assets; and that the amount due to the succession, i. e., its assets, be increased by adding thereto the sum of $840.13; that these amounts be carried and distributed as ordered by the judge of the district court in regard to the other amounts allowed by him; that ijie plaintiffs and appellants are authorized to move the house on the Descamp place in case the opponents are unwilling to pay the price claimed therefor within the delay mentioned above.

With this amendment, for reasons assigned, the judgments of the district court are affirmed; half of the costs of appeal to be paid by opponents and appellees, and the other half by accountants and appellants.

On Rehearing.

NIOHOLLS, J.

As stated in the original judgment in this case, Mrs. Marie Grenier, the widow of Constant Guillebert, was, after his death, appointed and qualified as natural tutrix of their minor children. She shortly after married Alfred J. Mayer, but was retained in her tutorship under advice of a family meeting.

On the 2d "of October, Mrs. Marie Grenier, wife of Alfred J. Mayer, representing herself as natural tutrix of her minor children, Adele C. and Camille M. Guillebert, issue of her marriage with Constant Guillebert, deceased, and as such administering the succession of said Constant Guillebert, filed a petition with the district court for the parish of Avoyelles, in which she alleged that she had filed therein a provisional account of said succession. She prayed that same be advertised as the law direct; that, after legal delays and due proceedings had, the said tableau be homolo-gated in all its parts and particulars; that she be allowed to pay debts placed thereon and given credit as claimed. She prayed for all orders necessary in the premises and for general relief. The court ordered on the same day that the prayer of petitioner be granted; that the tableau be advertised as the law directs; and, after the legal delays and due proceedings had, and there be no opposition thereto, that it be homologated in all its parts and particulars.

On the 12th of October, the undertutor of the minors by his counsel appeared and declared that he had carefully examined the said provisional tableau, and, finding the same correct, he recommended the homologation of the same in all its parts and particulars.

On the 22d of October, 1902, the district court rendered judgment “in the matter of the provisional account of the succession of Constant Guillebert, rendered by Marie Gren-ier, natural tutrix administering the same,” ordering, adjudging, and decreeing that, “with the exception of credits not therein allowed, the said provisional tableau be homologated in all its parts and particulars.”

On the 29th of August, 1890, representing herself as the natural tutrix of her minor children issue of her marriage with Constant Guillebert, and as such administering his succession, Mrs. Marie Grenier, wife of Alfred J. Mayer, filed a petition in the said district court in which she alleged that she had filed in said court a tableau showing her gestión o-f said succession up to said time.

She prayed for advertisement of same, and that, after legal delays and due proof had, said tablean as filed by her be homologated in all its parts and particulars, and for further orders necessary in the premises, and for general relief. The district court ordered that the prayer of petitioner be granted; that the tableau filed by Marie Grenier, natural tu-trix administering the succession of Constant Guillebert, deceased, be advertised according to law.

George L. Mayer, undertutor, accepted service of and waived citation of this tableau. On the 29th of February, 1891, the district court rendered the following judgment:

“The matter of the homologation of the provisional account of Constant Guillebert, deceased, rendered by Marie Grenier, natural tutrix, administering said succession, coming up to be heard in open court, and due proof of advertisement of said account, of correctness of each and every item on said account, of notice to under-tutor and all legal requirements, and the law and the evidence being in favor of the homolo-gation of same, it is therefore ordered, adjudged, and decreed that the provisional account he homologated and approved in all its parts and particulars; that said tutrix be allowed credit for all items placed thereon as bad debts. It is further ordered, adjudged, and decreed that said tutrix be authorized and ordered to pay all claims placed on said account as due creditors of the succession of Constant Guille-bert, deceased.”

Adele Guillebert, one of the children of Constant Guillebert, of whom Mrs. Marie Grenier was tutor, married when a minor without her mother’s consent to Dr. Barbin, and shortly after her marriage instituted a suit seeking to compel her mother to file an account of tutorship and to deliver to her possession of the property belonging to her which was in her possession as tutrix, on the ground that she had become emancipated by marriage and because her mother had lost the tutorship by reason of her having failed to have an inscription to be made in the mortgage office so as to secure to her the benefit of a legal mortgage on the property of her stepfather. The mother pleaded an exception of no cause of action, which the district court sustained, and on appeal that judgment was affirmed. Mrs. Adele C. Guillebert v. Mrs. Marie Grenier, 107 La. 614, 32 South. 238. Mrs. Adele Barbin took in 1905 two separate devolutive appeals from the judgments of the district court for the parish of Avoyelles in the matter of the succession of Constant Guillebert, one from a judgment homologating the provisional account of 1886, in the succession of Constant Guillebert, and the other from the judgment homologating the second provisional account of 1890. The Supreme Count on motion dismissed both appeals for the reason that none of the creditors whose claims were recognized in those accounts had been made parties to the appeals. It held that the provisional accounts sought to be appealed from were accounts of administration, not of tutorship, and the creditors should have been made parties thereto.

The writer of this opinion was the organ of the court in the matter of the first provisional account of 1886; Mr. Justice Monroe in that of 1890. In announcing the decree (in the case in which he was organ of the court) the dismissal of the appeal was predicated upon the fact assigned by him that minors reaching the age of majority were entitled to require the tutor at the termination of the tutorship to render an account of his entire gestión including the period covered by the annual provisional accounts, but that they were not entitled to separate and distinct appeals from each annual provisional account; that the tutor should file his final account and attach thereto as part and parcel thereof the different annual accounts. The accountants have in the present proceeding followed those suggestions and attached to and made part of the final account the prior provisional judgments of homologation. The opponent seeks here to avail herself of the fact that the prior accounts are not supported by a separate and distinct voucher for each item appearing in the provisional accounts and identified therewith, and that any item not so specially supported by a distinct voucher should he placed on the footing of an item appearing for the first time on the final account and unsupported by any evidence. The liability to loss not only of the vouchers but of the pleadings, of judgments and of entire records, has been frequently alluded to by this court. The present proceedings disclose the loss of almost all the papers in a record in which the litigants hereto are concerned. We do not think that the disappearance of vouchers which were once furnished' (a fact over which the parties to the suit had no control) should carry with it injury and loss and require them to prove affirmatively and de novo facts which happened 20 or 30 years before, the details of which they could not be expected to remember. We had occasion to refer to that subject in Rosenthal v. Rosenthal, 117 La. 793, 42 South. 270. See Payne & Joubert v. Schaeffer-Gaiennil Co., 119 La. 386, 44 South. 134. We are of the opinion that the judgments of homologation of the two provisional accounts in this succession were prima facie correct and covered the subject-matter therein homologated to 'the extent of the ho-mologation, requiring no present affirmative proof to support them to that extent. The items disputed should be set out by direct allegations of opposition. Those allegations would not prove themselves. Facts or circumstances sufficient to overcome the presumption of correctness should be shown. The mere maxim “de non apparentibus” has no application in such a case. A question arose in this case as to the person upon whom the burden of proof rested (under the circumstances on which the case was presented) as to the establishment of the correctness of the items upon the two provisional accounts.

The court held the onus to be ordinarily upon the opponents. Under its special facts it permitted evidence to be placed in the record which should throw light upon the extent and scope of the judgments homologat-ing the two provisional accounts. This case presents exceptional features. Not only were most of the vouchers lost, and the terms of the judgments of the most uncertain and ambiguous character, but the, forms of the accounts as presented and acted on have added to the difficulty of the situation. The accounts fail to show affirmatively on their debit side what amounts of money were received by the tutors from the notes, judgments, or other assets which figure in the inventory other than from rents from land, nor from what quarter or source those funds were received. They simply announce and admit a liability by accountants for values to the extent of the values shown by the inventory, and as against that liability they offered to show disbursements or releases in different ways from such liability.

Accountants on the trial of the final account placed Alfred J. Mayer, the co-tutor (who seems to have had the complete control and management of the succession affairs), upon the stand, and took up one by one the items appearing on the inventory, offering to prove by his evidence what the different amounts were for, that they were correct, and that they had been paid by them.

Counsel of opponents on cross-examination of the witness questioned him closely upon the whole subject-matter covered by his testimony, and the district judge in his judgment acted on each separate item, either accepting the item as one for which accountants should be released in full, only partially, or rejecting it, or charging it up against the accountants entirely or partially, as the case might be. We have examined the testimony so taken, and we think that the conclusions of the trial judge thereon were in the main correct as announced in our opinion herein. We do not see under the evidence from what quarter the moneys came which were necessary to have been in the possession of the accountants at the time when the provisional accounts were filed, in order to have made the disbursements claimed to have been made, particularly the large amount of over $12,000 which was admitted to be due to Mrs. St. Laurent (the sister of Mr. Guillebert) for moneys received from her and owing to her.

The inventory as corrected did not show any amount on hand in cash sufficient to mate the disbursements, and the accountant made no showing whatever of having received moneys thereafter from the notes or judgments placed in his hands.

In passing on the case the district court said:

“The provisional accounts were prima facie correct unless rebutted by evidence of their incorrectness on the face of the papers.”

Both parties moved for a new trial from the judgment of the district court, assigning different grounds of complaint from their respective standpoints.

The court overruled both motions and in so doing used the following language:

“The court being of opinion that clerical errors, miscalculations, and omissions existed in the original opinion, considered a re-examination necessary in order to do justice between the parties; but, instead of granting a rehearing, the court has prepared a new account, which is now substituted in the place of the original account homologated by the court with proper corrections of errors and omissions; this being done to simplify matters rather than to render a new opinion and recasting of the account.
“The court will not discuss the different grounds and reasons urged by counsel for the changes demanded in this account, except as to the question of interest. On this question the counsel for opponent has prepared an able brief with calculation of interest, all of which no doubt would be of great assistance to the court; but a re-examination of all the accounts, vouchers, judgments, writs of fi. fa., date of execution, dates of payment, calculation of interest, and comparing of same with the appraised value as set forth in the inventory, which is pretty well mixed up, would be a task impossible to accomplish so as to arrive at a satisfactory conclusion. The court has therefore adopted an average for the calculation of interest as to the time of payment, and feels satisfied that the conclusion reached is fair, just, and equitable. This succession is not only complicated, but so improperly and carelessly administered that, when the court has completed its labors in this matter, it has accomplished all.that can reasonably be expected from it. The balance will be left to the Supreme Court for proper adjudication if errors were committed. The rehearing prayed for is therefore refused.”

Counsel for accountants make a very earnest appeal to us to remand the cause, urging that they were misled in the course they pursued as to the scope and effect of the homologation of the two provisional accounts, and maintain that if given an opportunity they can sustain before the lower court the correctness of the final account as presented hy them.

Counsel of appellee resists that prayer and urges the court to pass at once on all the issues in the case giving his client the relief prayed for by them in their prayer for an amendment of the judgment appealed from.

We do not feel that we would do justice to the parties if we attempted to finally decide their rights and obligations on the record as now presented. We have thought it right and proper that the judgment heretofore announced by us be set aside, as also the judgment appealed from, and that the accountants be ordered to recast their account; that the case be remanded to the district court for further proceedings. We desire particularly to be furnished with information going to establish the basis for calculating interest from any particular dates and showing the reasons why and the theory upon which the trial court adopted an average (and the par ticular average it did) for the calculation of interest.

Before closing, we desire to refer to the claim made by the opponent that the tutor and co-tutor should be charged with the sum of $7,500 for failure to enforce and collect from J. A. Boyet the amount of a compromise entered into between them and the said Boyet tinder advice of a family meeting in settlement of -a demand by accountants against him for tbe nullity of tbe alleged will of bis deceased wife, Mrs. St. Laurent. Opponent claims that this amount was Lost by tbe fault of tbe accountants. Tbe district court rejected this claim, and opponent urges that it should be recognized and enforced, as a just claim, against tbe tutor and co-tutor.

Tbe claim is one wbicb tbe succession of Constant Guillebert is not concerned in. It is one wbicb concerns alone two children of whom accountants were tbe tutor and tbe co-tutor. Tbe whole matter demands further investigation and evidence.

For tbe reasons assigned, it is hereby ordered, adjudged, and decreed that tbe judgment heretofore rendered by us in this case be, and the same is, set aside, as is also tbe judgment appealed from, and tbe case is remanded to tbe district court for further proceedings, with instructions that tbe tutor and co-tutor file a full and complete tutorship account connected and detailed showing amounts received by them and tbe dates on which received, tbe amounts paid out by them, and tbe dates on which paid, as accurately .as possible; that the opponents to said account make specific objection to whatever items of said account they object, stating tbe grounds of tbe objection to each item so objected to, and setting forth definitely and particularly with dates and amounts whatever other matters they may have to urge against tbe correctness and fullness and completeness of the said account of tutorship with leave to each party to introduce further evidence. Tbe costs of tbe present appeal to be paid by tbe party against whom tbe judgment is eventually increased, or, in case the judgment appealed from is eventually affirmed, then by tbe appellant.

BREAUX, G. J., dissents in part.  