
    No. 8372.
    Succession of Pierre Claverie.
    A judgment cannot properly be rendered for more tb.an is demanded.
    The burden of proof is on the opponent, when he alleges assets beyond those acknowledgedia the account.
    APPEAL from the Civil District Court for the Parish of Orleans.Monroe, J.
    
      Olías. Louque, for the Tutrix, Appellant.
    
      A. J. Villeré, for the Opponent and Appellee.
   The opinion of the Court was delivered by

Manning, J,

The widow Claverie, as tutrix of the decedent’s minor children, rendered the account of her administration of his succession,which was opposed by Louis G-olis, a mortgage creditor. Two items of his opposition were sustained by the lower court, viz: the rents charged to herself by the tutrix as $265 were increased to $785, and the widow’s portion — one thousand dollars — which she charged as $!)50, fifty dollars having been received by her from the sale of the contents of a shop, was further reduced by $40, the proceeds of sale of household furniture also received by her.

The opponent avers, as to the item of rents, that they amounted, or should have amounted to over five hundred dollars, and prays that they be increased to that sum. The Judge went beyond the prayer, and charged the accountant with more than was demanded. A judgment cannot properly be given for more than is demanded. Morgan vs. McGowan, 4 Mart. 289; Barckley vs. Evans, 2 Mart. N. S. 241.

The property, from which the rental was derived, consists of three tenements, yielding $26 a month, and another worth $8 a month, occupied by the widow and children ; but Mrs. Claverie proved that she had not received rent for fifteen months of the time charged by opponent and allowed by the court, and the. opponent has not proved that she either did receive, or could have received, the rents for that time. The burden was upon him to show that the assets with which he sought to charge her were available. Deducting the rental of the three tenements for fifteen months, from the sum charged against her by the lower court, the rents with whicli she is properly chargeable are fixed at $395.

The widow’s portion was properly reduced to $910, she having received and appropriated $90 of the assets of the succession.

Therefore, it is ordered and decreed, that the judgment of the lower court is amended by reducing the sum charged against the tutrix for rents to $395, and as thus amended, that it is affirmed, the opponent to pay the costs of appeal.  