
    Nos. 12,441 and 12,444.
    Succession of Hester Calloway, Widow of David Chambers McCan, and Succession of David C. McCan.
    
      On Motion to Dismiss Appeal. — Trial judge had legal discretion to fix different return-day than that named hy law, if he deemed more time requisite for preparation of transcript. Sec. 4, Act 45 of 1870, E. S.
    An appeal lies from a judgment homologating a succession account whether opposed or not.
    Nothing to show that judgment appealed from was a consent judgment, hut if such, it was in nature of a compromise, and tutrix can not enter into a transaction or compromise respecting minors’ rights without authority of the judge, granted on advice of a family meeting. B. C. C. 353, 3072.
    Delivery of property ana funds of succession to tutrix, not such execution of judgment of homologation of account as precludes appeal on behalf of minor heirs to correct error in matter of commissions charged by executor.
    
      On the Merits. — The law fixes compensation of executors, and courts are powerless alike to diminish or increase It.
    Where husband dies and entire community property is inventoried in his succes ^ sion and administered there, and executor charges two and a half percent, commissions on the whole, he will not be permitted, on becoming executor of wife’s succession a year later (husband’s succession being still under administration), to charge two and a half per cent, commissions on wife’s portion of community property inventoried in her succession.
    Executor charging full commissions on appraised value of property of estate under his administration, can not make additional charges as trustee, of ten per cent, upon revenues of the succession coming into his hands.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard and Ellis, J. J.
    
    
      Benjamin Rice Forman and E. Howard MeOaleb for Mrs. Mary G. T. Stempel, Guardian, Plaintiff, Appellant.
    
      W. 8. Parkerson, Ghas. J. Théard and Harry H. Hall for Defendant, Appellee.
    Argued and submitted April 2, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused May 31, 1897.
    These appeals, from different divisions of the Oivil District Court of the parish of Orleans, were submitted upon the same oral argument and the same briefs filed, and considered consolidated in the Supreme Court for determination.
    
      David C. McOan died in the city of New Orleans in 1898, leaving a last will and testament. This will was probated, and Harry H. Hall qualified thereunder as testamentary executor.
    A little less than one year later, his widow, Mrs. Hester Callo-way McOan, died, leaving a last will and testament, the duplicate in all respects of that of her predeceased husband.
    This will was probated, and Harry H. Hall qualified thereunder as-testamentary executor.
    On January 6, 1896, in each of these successions, the executor filed an account of his administration.
    These accounts were exact duplicates of each other.
    On February 14, 1896, judgment was rendered in each succession homologating the accounts filed as aforesaid.
    On January 19, 1897, Mrs. Mary G. T. Stempel, mother and guardian of the minor heirs of D. O. and H. 0. McOan, obtained an order for a devolutive appeal from each of the aforesaid judgments of homologation.
   ON Motion to Dismiss.

The opinion of the court was delivered by

Blanchard, J.

The executor, appellee, moves to dismiss on various grounds, which will be considered seriatim.

I.

The first ground is that the appeals were made returnable on the first Monday of March, 1897, whereas the legal return day was the first Monday of February, 1897, unless the intervening time was not sufficient within which to prepare the transcripts.

The order of the court granting the appeals directs that they be made returnable on the first Monday in March “ in order to give time to complete transcript.”

Under Sec. 4 of Act 46 of 1870, extra session, the trial judge had the legal discretion to fix a different return day than that named by law, if more time be required to prepare the record for appeal.

The statement contained in the order of appeal, quoted above, is a sufficient declaration that there was not sufficient time to prepare the transcripts by the next regular return day for appeals, and that for this reason it was necessary to fix another return day, which was done. It does not avail appellee, if it be true, that the trial judge acted, in fixing another return day for the reason given, upon the suggestion of counsel for appellant. The act must be held as emanating from the judge himself, and that in entering the order of appeal as was done he did not abuse the discretion vested in him by. law. Bartoli vs. Huguenard, 39 An. 411; Brabazon vs. City of New Orleans, 28 An. 64; Goodwyn vs. Perry, 26 An. 292; Watkins Banking Co. vs. Lumber Co., 47 An. 581.

II.

The second ground for dismissal is that the judgments sought to be appealed from are judgments homologating an executor’s account which was not opposed, and wherein no issue was raised between the executor and the appellant, though the latter was duly cited and the accounts duly advertised.

An appeal lies from a judgment homologating a succession account, whether opposed or not. Succession of Cloney, 29 An. 327; Succession of Bellocq, 28 An. 155; In the matter of the Pelican Saw-Mill and Manufacturing Co., in Liquidation, 48 An. 711.

III.

The third ground urged for dismissal is, that the judgments sought to be appealed from are consent judgments, from which, under the law, no appeal lies.

The executor makes affidavit to the correctness of the averment of ■consent, and appellant — an absentee — makes counter affidavits ■through her counsel and attorney in fact, denying it.

The record does not show the judgments were consent judgments, and from tho presence in court of the counsel representing the guardian, at the time of the homologation of the accounts, it can not reasonably be inferred chat she, through him, was there consenting to the judgments of homologation.

If there was an agreement to this effect, it should, both under the rules . of the District Court and of this court, have been in writing and filed in the record.

/ Nor would such agreement, if made, have been binding on the McCan minors, who are appellants herein. It would have been, in the nature of a compromise, and a tutrix or guardian can not enter into a transaction or compromise respecting minors’ rights without .authority from the judge, granted on the advice of a family meeting. R. C. C. 353, 3072; Heirs of Burney vs. Ludeling, 47 An. 73; Chambers vs. Chambers, 41 An. 443; Metcalfe vs. Alter, 31 An. 389.

A tutrix is without authority to acquiesce in a judgment from which an appeal lies, by voluntarily executing it to the prejudice of the minors.” Succession of Flower, 3 An. 292.

The fourth ground advanced for dismissal is that the judgments homologating the accounts have been acquiesced in and voluntarily ■executed by the appellant. This rests upon the averment, supported by the affidavit of the executor, that the guardian of the minors has received from the executor all the assets, property and funds of the two successions, as shown by the accounts.

The counter affidavit of the guardian, through her attorney in fact, while admitting the reception of the assets, property and funds, denies any execution of the judgments of homologation equivalent to acquiescence in the accounts upon which they were based.

The delivery of the property and funds of these successions to the guardian of the minors can not be held to be such an execution of, or acquiescence in, the judgments homologating the executor’s accounts, as prevents, later, a seasonable appeal on their behalf, for the purpose of correcting an error to their prejudice, in the matter of commissions charged by the executor. Succession of Kaiser, 48 An. 973; Milliken vs. Rowley, 3 R. 253; Dwight vs. Brashear, 12 An. 860; Liles vs. Canal Banking Company, 6 R. 273.

This being so, it follows that it would avail nothing to remand the ease on the averment of acquiescence and execution.

V.

Where an appeal is taken from a judgment homologating an executor’s account, the fact that the clerk of the court a qua copies into the transcript all the mortuary proceedings of the succession constitutes, in itself, no ground for the dismissal of the appeal. On an appeal like the present one, it is proper the entire record of the succession should be brought up.

VL

As to the complaint of the executor that the note of evidence, in the matter of the homologation of the account, was omitted from the transcript, it suffices to say that a writ of certiorari, seasonably invoked and issued herein by this court, has resulted-in the production of the missing document.

The motion to dismiss is denied.

ON THE MERITS.

There were two wills, but both operated on the same property.

There were two successions opened, but one and the same executor sufficed for both.

There were not two estates to be eared for, managed, administered, and finally delivered over to the heirs; there was but one.

The property was practically all community property. There were no debts.

The heirs under the two wills were the same, and the dispositions of the wills identical.

The husband died first and the entire community estate was inventoried in his succession.

It all passed into the hands of the executor, who was given seizin and dispensed from bond.

The widow in community died a year later and before the husband’s estate was settled.

The property appearing upon the inventory of her succession had been previously inventoried in that of her husband, except some-articles of jewelry, silverware, china and glassware, valued at three thousand eight hundred and fifty-eight dollars and fifty cents, conceded to be the separate property of the wife.

Both wills were attacked, as being in contravention of law, by the-grandchildren of the deceased, who were alike forced heirs and legatees under the wills.

In Succession of McCan, 48 An. 145, this court decreed the nullity of the wills.

This terminated the executorship and placed the heirs in possession of the estate.

"Whereupon the executor filed the duplicate accounts which are-under review on this appeal, and settled with the guardian of the-minors to the extent of delivering to her the property, assets and funds of the succession.

This is not a case where an executor has paid creditors, pursuant to an account, or tableau of distribution, duly approved. It is-merely a contest between the heirs and the executor as to the commissions the latter is entitled to under the law. The accounts filed and the judgments homologating the same are not questioned, except as to the commissions aforesaid.

The question is a simple one of law. An executor’s commissions are fixed by the Code at two and one-half per cent., calculated upon the appraised value of the property as shown by the inventory, deducting bad debts and unproductive property. C. 0. 1683.

This is the compensation determined by the law for executors, and -courts are powerless alike to diminish or increase it.

It appears from the inventory taken in the succession of David 0. MeOan that all the property there listed belonged to the community, and that the husband owned no separate property.

It appears from the inventory taken in the succession of his widow, Hester O. MeOan, that all the property there listed belonged <• to the community, except the jewelry, silverware, etc., hereinbefore mentioned as being the separate property of the wife.

The property, then, owned by David 0. MeOan and his wife in community, which passed into the hands of the executor, is as follows:

In the parish of Orleans. $1,396,699 70
In the parish of Plaquemines. 55,000 00
In the parish of Iberville. 1,000 00
Total community property. $1,452,699 70
Now add to this the value of the wife’s separate property, as same appears upon the inventory taken in her succession. 3,858 50
And now we have a grand total of. $1,456,558 20

Upon which the executor was entitled to commissions of two and •one-half pet centum,, or thirty-six thousand four hundred and thirteen dollars and ninety-five cents.

From the accounts filed in the two successions, we find the executor has paid himself commissions as follows:

August 1,1894, three checks aggregating. $36,292 49
July 20.1895, two cheeks aggregating. 17,892 03
December 20, 1895, one check.. 14,676 00
Total commissions charged and received. $68,859 52

This sum is thirty-two thousand four hundred and forty-five dollars and fifty-seven cents in excess of his legal commissions.

The fact that in the foregoing calculation no deduction has been made for the executor’s commissions on account of bad debts and unproductive property (if there were such) is a circumstance of which he can not complain.

The executor’s overcharge of commissions is attributable to two errors into which he has fallen:

First, that he was legally entitled to charge 2l% per cent, commissions upon the property appearing on the inventory taken in the succession of Mrs. Hester 0. McOan, notwithstanding he had previously charged his full commissions upon the same property as inventoried in the succession of her deceased husband.

We hold this can not be done.

The administration of the succession of the deceased husband carried with it the administration of the community, and there can be but one charge for executor’s commissions against the community property. Baldwin vs. Carleton, 11 R. 109; Succession of McLean, 12 An. 222; Succession of Lamm, 40 An. 312; Millaudon vs. Cajus, Executor, 9 La. 307; Succession of Milne, 1 R. 400.

Second, that he was entitled to charge tec per cent, on one hundred and forty-six thousand seven hundred and fifty dollars and seventy-one cents interest collected on mortgage notes, bonds, etc.,, owned by the successions. While this charge appears upon the account only as commissions paid to H. H. Hall, testamentary executor, his counsel in their brief explain it as above, and seek to justify it upon the ground that under the McOan wills Mr. Hall was not only executor, but trustee or qwasí-tutor to the minors. Upon the theory that the commissions of a tutor are ten per cent, of the revenues of the minors, this charge is made. Mr. Hall was not the tutor of these minors. He was never appointed, recognized or qualified as such. Their grandmother, Mrs. Mary F. Tobin, was first their tutrix, and afterward, their mother, Mrs. Mary G. T. Steinpel, became such. We hold the charge to be untenable. Succession of Milmo, 47 An. 126. The ingenuity of argument by which counsel for the executor seek to uphold this pretension, while eliciting our admiration can not receive our sanction. Conceding that this-administration has been advantageous to the estate, the compensation the executor is permitted to receive therefor is defined and limited by the law. His right to receive this compensation in full will be rigidly upheld; his demand for more as rigidly denied. See Succession of Milne, 1 R. 400; Succession of Sprowl, 21 An. 544; Succession of Turnell, 34 An. 888; Baldwin’s Executor vs. Carleton, 15 La. 394.

But it is insisted, on behalf of the executor, that if it be true the commissions he has charged and paid himself are excessive, it is too-late now for the heirs to have the same corrected.

This insistence is pi-edicated upon the judgments homologating the accounts — one in each succession — filed by the executor prior to his final account, and upon the provisions of O. P. 1004, which counsel for the executor interpret to mean that in a case of accounting like-the present one, unless the heirs, within three days after the account is rendered, file written objections thereto, they can not be heard) subsequently, in an appeal from a judgment homologating the account, to raise objections thereto.

The former is urged in the nature of res adjudícala and is sought-to be erected as a barrier against any inquiry touching the executor’s right to charge two and a half per cent, commissions on the-appraised value of the property inventoried in the succession of Mrs. Hester O. McOan, even though he had charged like commissions-upon the same property in the succession of her predeceased husband.

And the latter is leveled particularly against inquiry into the item of fourteen thousand six hundred and seventy-five dollars, which the executor charged as trustee or quasi-tutor’s commissions of ten per cent, on one hundred and forty-six thousand ssven hundred and fifty dollars and seventy-one cents collected as interest on mortgage-notes and bonds.

In the succession of the husband, the executor filed an account of his administration on July 14, 1894. There is no item of commissions paid himself entered on this account, but at the close of the account is this statement: “Prom sum total of funds and property on hand will be deducted the executor’s commission of two and one-half per cent, upon the amount of the inventory.

This account, it is claimed, was unopposed, was homologated, was not appealed fi’om, and is res judicata.

Whether it be res judicata or not as against these minor heirs, it is not necessary to decide. But, conceding it to be res judicata, it is only so as so to matters of receipt and disbursement actually made and entered upon the account, and the executor’s commissions was not one of these. On the contrary, it is distinctly stated “he will” deduct his commissions, “ he will ” pay himself. This was, clearly, something to be done after the account was filed, and something to form the subject matter, in part, of a future account, where it could be resisted or not, as the interest of the minors might then appear.

The only other account filed in the succession of D. 0. McCan was the one of January 6, 1896, from the judgment homologating which, on February 14, 1896, this appeal was within the year taken.

In the succession of the wife, the executor filed an account on July 11, 1896.

The succession was pending in a different division of the Civil District Court of Orleans parish, and before a different judge. Yet, in his account filed therein on July 11, 1895, the executor puts down as an expenditure, under date of August 1, 1894, the commissions (thirty-six thousand two hundred and ninety-two dollars and forty-nine cents) which he had stated in his account filed in the husband’s succession on July 14, 1894, he would deduct from the funds and property on hand, as shown by the inventory of that succession.

This account of July 11, 1896, filed in the wife’s succession, was homologated December 2, 1896.

It is difficult to see how this judgment of homologation in the wife’s succession can have the effect of res judicata as to commissions due the executor in the succession of the husband pending in a different court, even though it could be pleaded as against the minor heirs herein.

At the close of this account, filed in the wife’s succession on July 11, 1895, the executor states he “ will deduct his commission of seventeen thousand eight hundred and ninety-two dollars and three cents,” being two and a half per cent, upon the amouut of inventory of the wife’s succession. This statement was written into the account on July 10, 1895, and the account, itself, was filed the next day. The judgment homologating this account was signed December 2, 1895, but it brought the administration of the succession down only to the date of the rendition of the account — June 29, 1895, the date of the last entry thereon.

The executor’s commission of seventeen thousand eight hundred and ninety-two dollars and three cents was not actually paid until July 20, 1895 (some time after the filing of the account), and forms the subject matter, in part, of the second and last account filed in the wife’s succession.

Turning, then, to this second account, we find the entry of this charge, under the head of disbursements, on the date of July 20, 1895. This is the account filed January 6, 1896, from the judgment homologating which this appeal is taken.

Yet it is claimed that the judgment of December 2, 1895, on the account of July 11, 1895, is conclusive of this charge of seventeen thousand eight hundred and ninety-two dollars and three cents, the executor’s commissions in the wife’s succession.

We can not hold it so. The manner in which it is presented in the the account of January 6, 1896, shows it was not intended to be concluded by the judgment on the account of July 11, 1895, and it was, and is, as fully open to question and dispute as any other item on the account of January 6, 1896.

This is verified by the fact that the first two items on the account of January 6 show the bringing forward, to the new account, of the exact balance of sixty-five thousand six hundred and nineteen dollars and nine cents in money, with which the account of July 11, 1895, ended, without' any deduction therefrom of the executor’s commissions of seventeen thousand eight hundred and ninety-two dollars and three cents,- which it is now claimed were settled and allowed by the former account and the judgment based thereon.

Nor can we sustain the contention that the item of fourteen thousand six hundred and seventy-five dollars charged on the last account can not be inquired into on this appeal, because objection thereto in writing was not filed by the heirs within three days after the filing of the account. Authorities hereinbefore cited sustain the right of appeal from a judgment of homologation, even though the same has not been formally opposed. See also Succession of Mouton, 23 An. 527.

The object of appeal from such a judgment is to test the sufficiency of the evidence adduced in support of the account, or to-apply to the account as made up and approved the test of the law itself. It may be assimilated to an appeal from a judgment making final a default taken in a case under our practice.

In the instant case it is claimed by appellant that the evidence adduced by the executor on the homologation of his account does not sustain the charge of fourteen thousand six hundred and seventy-five dollars, and also that the charge itself is without warrant in law. The appeal was taken within the year. We hold the charge is reviewable here.

Where, on an account filed by an executor, there are charges in favor of himself unauthorized by law, the same must be considered still as money in his hands as executor, for which he is accountable. Baldwin’s Executor vs. Carleton, 15 La. 395.

Nor do we consider Art. 1004 of the Code of Practice applicable to this case. The executor’s account filed in these successions on January 6, 1896, can hardly be considered as having been filed in obedience to an order of court on the demand of the heirs for an accounting and settlement, such as contemplated by that article. The petition to revoke the wills was filed December 3, 1894. It is true there was a prayer for an account and settlement, but on April 4, 1895, there was judgment in the lower court, rejecting the demand for revocation and for account, and though this judgment was reversed on appeal, ihe decree of this court, while directing the heirs to be put into possession of the estate and annulling the wills, did not specifically order the executor to file his account. Besides the judgment of this court did not become final until February 10, 1896, whereas the executor filed his account January 6, 1896. In his petition accompanying the account he refers to no order of court, but merely states “that he files herewith an account of his executorship from the date of the filing of the last account herein up to the 1st of January, 1896,” and his prayer is that the account be published, the attorney in fact of the guardian be cited and that the account be homologated and confirmed — all as though it was a mere ordinary or annual account of his administration. There was no prayer for acquittance and discharge as executor upon settlement with the heirs, as there would have been had he been rendering a final account to them upon the order of court on the demand to turn over the estate.

The wife’s share of the community property having been administered in the husband’s succession, and the executor having charged and received his commissions in full thereon in that succession, he can not be permitted to make another charge of two and one-half per cent, commission upon the same property, merely because of the fact that when the wife died the inventory taken in her succession included the same property. To sanction this would be to allow the executor five per cent, commissions on the wife’s share of the community property, when the law permits a charge of only two and one-half per cent, as compensation for his administration of such property.

Pull justice is done the executor when he is allowed two and one-half per cent, upon the total appraised value of the community property, plus two and one-half per cent, upon the value of the wife’s separate property, as shown on the inventory of her succession.

Therefore, treating these successions as one for the purpose of this decree, it is ordered and adjudged that the claim of the executor, H. H. Hall, for commissions in excess of thirty-six thousand four hundred and fourteen dollars and seventy cents ($86,414.70) be rejected and disallowed; that the judgments appealed from be amended so as to reduce his commissions in the two successions to that sum, and that, as thus amended, they be and are hereby affirmed, with costs of appeal to be taxed against the executor individually.

On Application por a Reheaeing.

H. H. Hall in propria persona, W. S. Parlcerson and Chas. J. Théard of counsel, on the application:

D. O. McOan died on July 27, 1893. By his last will he appointed his wife and H. H. Hall his testamentary executors. Mr. Hall, on July 31, 1893, alone qualified. He alone conducted the administration of the succession.

Mr. McOan’s estate consisted of his half of the community. The entire community was inventoried of the value of one million four hundred and fifty-one thousand six hundred and ninety-nine dollars and seventy cents.

The administration of Mr. McOan’s succession involved, legally and actually, the administration and settlement of the entire community and the ascertainment, through its liquidation, of the exact sum coming to Mrs. McOan, as surviving widow in community.

Mrs. Hester McOan, widow of D. O. McOan, died on July 1, 1894. By her last will she appointed H. H. Hall her testamentary executor. He qualified July 16, 1894.

The inventory of Mrs. McOan’s succession showed that it consisted of—

(а) Separate paraphernal effects. $8,858 60
(б) Her net one-half of community as determined hy liquidation in her husband’s succession. 711,826 92
Total. $715,685 42

On July 14, 1894, Mr. Hall filed an account of his administration as testamentary executor in the succession of D. C. McOan. This account, duly homologated on August 1, 1894, showed the net liquidated value of the community, to the one-half of which Mrs. McOan, or her succession, was entitled.

In the said account filed on July 14, 1894, in the succession of D. C. McOan,jMr. Hall charged and was allowed the regular executor’s legal commissions of two and a half per cent, on the entire amount of the community.

On July 10, 1895, Mr. Hall, as testamentary executor of Mrs. McOan, filed an account in her succession. On this account he charged his regular executor’s legal commission of two and a half per cent, on the entire amount of her succession.

The charge of the said commission on this account was made in the following terms :

From the balance of cash on hand in bant, as shown by the foregoing account, to-wit. $65 619 09
The executor will deduct his commission of. 17,892 03
Leaving cash on hand. $47,727 06

Mrs. Stempel, guardian, on July 22, 1895, filed an opposition to this account. She objected that—

“ The items charged as law charges and privileged claims are illegal, excessive, unreasonable and exorbitant, and the same are not lue and owing by this estate.”

This opposition of Mrs. Stempel, guardian, was regularly tried on November 22, 1895, and was dismissed. She was represented at the trial of this opposition by E. H. McOaleb, Esq., the counsel who represented her in the present appeal.

A suspensive appeal from the judgment dismissing her opposition was asked for by Mrs. Stempel, guardian, on December 9, 1895. But this suspensive appeal was abandoned.

On December 2, 1895, this court decided that the provisions in the wills of Mr. and Mrs. McOan directing Mr. Hall to retain under his administration and control the property bequeathed to Mrs. Stempel’s children until their majority, was void. The result of this decision was that it became Mr. Hall’s duty, -his administration as executor having terminated, to deliver the property of the two successions to Mrs. Stempel, guardian.

An application for a rehearing of the decision of December 2, 1895, on the wills was made, and was not refused until February 10, 1896.

On January 6, 1896, Mr. Hall filed an account showing the results of his administration of all the property contained in the succession of D. O. McOan and in the succession of Mrs. McCan. Due notice of this account was served on Mrs. Stempel, guardian, through her agent, Mr. Albert Baldwin. This account being entirely satisfactory to Mrs. Stempel, represented by her agent, Mr. Baldwin, Mr. Hall on February 12, 1896, turned over all the assets and cash of the two successions to Mr. A. Baldwin, as agent of Mrs. Stempel, guardian, with the understanding that the account should subsequently be homologated. The account was accordingly homologated on February 14, 1896, two days after Mr. Stempel, guardian, through her said agent, had been put in possession of all the assets of the succession, and of all the cash on hand remaining after deduction of the charges shown on said account.

•On the said account filed January 6, 1896, and homologated February 14, 1896, there was a charge in favor of Mr. Hall of ten per cent, on the amount of the revenues and income collected by him during his administration of the property of the succession. This charge was fourteen thousand six hundred and seventy-five dollars.

Not only was it impossible for Mrs. Stempel’s agent, Mr. Baldwin, and her attorney, Mr. McOaleb, to overlook an item of such magnitude, plainly stated on an account with which they were so well satisfied that they accepted it and settled on it two days before its formal homologation, but, as a matter of fact, they were informed of the intention to make the charge, and approved it before the account was filed.

On January 19, 1897, Mrs. Stempel, guardian, still represented by Albert Baldwin, as her agent, and E. H. McOaleb, as her attorney, took a devolutive appeal from the judgment of February 14, 1896, homologating the account which she had approved and accepted through her said agent and attorney.

This appeal does not allege that there is error in any item of the account, but only that there is error in the judgment homologat-ing the account.

The executor filed his final account, which was duly published. The heirs were cited. No opposition was made to the account, which was regularly homologated upon due proof, the legal representative of the heirs, as the record shows, participating in said homologation. No proof was offered by the heirs and no objection raised. Eleven months later the heirs appealed from that judgment and brought up to this court, not simply the account and evidence offered by the executor, but a transcript arbitrarily made up of any or all parts of three succession proceedings, no portion of which had been offered in evidence in the court below.

And this court took cognizance of the cause, and, upon issues and proof not raised or made in the court below, but first suggested in argument and brief and produced in this court, has rendered judgment against the executor for thirty-two thousand four hundred and forty-two dollars and eighty-two cents.

The executor asks for a rehearing and for relief from that judgment, because rendered in violation of the Constitution, which prohibits the Supreme Court from taking original jurisdiction. He asks this relief because, while appeals have been allowed to persons not filing oppositions, from judgments homologating accounts prematurely, or without evidence, this court has never entertained jurisdiction of such appeal, but has invariably remanded the cause for trial in the courts below. 29 An. 327; 28 An. 155; 48 An. 711; 23 An. 527; 20 An. 376; 29 An. 576; 39 An. 224.

Never in its history has the Supreme Court of Louisiana permitted a party who had not opposed an account to appeal from a regular formal judgment homologating that account, and to obtain, on appeal, relief which he had not asked below. 4 M. 222; 4 La. 300; 14 La. 237; 12 R. 157; 4 An. 475; 20 An. 86; 38 An. 832; 39 An. 474; 10 E. 118; 1 E. 385; 3 An. 664; 19 An. 488.

The executor is prepared to prove that the judgment appealed from was consented to and its execution acquiesced in. Whatever may be the legal effect of such proof, he should be allowed, in vindication of the perfect candor of his administration, to put this proof of record, and for that purpose he asks that the cause be remanded. Such has been the uniform practice of the court. 29 An. 576; 30 An. 224; 3 An. 115; 14 An. 329; 28 An. 272; 28 An. 743.

The court holds that, under no circumstances, can an executor who is not a tutor charge a commission upon rents and revenues not embraced by the inventories, and yet, in exactly similar conditions as prevailing herein the court recently allowed such commission. Succession of Robertson, Sr., 49 An., p. 81.

If that judgment be permitted to stand as law, then the executor in the succession should have the relief granted in that succession.

The opinion of the court on this application was delivered by

BLANCHARD, J.

We have gone over these cases a second time with great care, and find ourselves unable to reach, on any part of the ground, conclusions different from those already announced.

The proposition of the finality of the judgments of homologation, which, it is contended, deprive the minors of any right to question the charges for commissions has, perhaps, been sufficiently discussed in our original opinion. It is appropriate to add that the defence of res judicata, never admitted on doubtful grounds, is to be received with greater caution when urged against minors.

The charge of thirty-six thousand two hundred and ninety-two dollars and forty-nine cents is sustained by law. It is charged on the entirety of the community property already in the hands of the husband’s executor when the wife died, and in his hands for an administration which embraced within its scope her. residuary community interest.

We can not find sanction for the charge of another commission, in the wife’s succession, on her share of the community, when, confessedly, it was being administered in the husband’s succession, where •the full charge had already been made.

Our conviction remains unshaken that the charge of seventeen thousand three hundred and ninety-two dollars and three cents and that of fourteen thousand six hundred and seventy-five dollars— the last introduced for the first time on the accounts of January, 1896 — are both reviewable on this appeal, unless we can hold that judgments of homologation admit of no appeal, a proposition not capable of support.

It is to be observed, too, that these accounts comprise, in large part, receipts derived from investments for the minors by the tutor, and charges for such investments, as well as for his commissions. They are not the ordinary administrator’s accounts of debts of a succession, i. e., due by the deceased, their payment, etc., in reference to which our courts have had occasion heretofore to deal, in respect of the effect of homologation of such accounts. The executor himself claims to have stood in the relation of a trustee toward the minors — a trusteeship or quasi-tutorship attempted to be created by the wills. When rendered by tutors such accounts are but prima facie evidence. Throughout our law there is declared the purpose not to bind minors irrevocably by such accounts. C. C. 356; 10 La. 329; 7 R. 229; 1 H. D., p. 921, No. 3.

The analogy afforded by our legislation and jurisprudence on the subject of tutor’s accounts carry a suggestiveness in dealing with judgments of the character of those in question here, and our conclusion accords with the law, as well as with the spirit of that jurisprudence.

In the opinion heretofore handed down it must not be understood that any implied charge is intended that the executor had not discharged the trust imposed upon him with honor and fidelity.

His administration of .the affairs of the successions has not been questioned before us, and certainly no imputation upon the same is east by the court. The executor deservedly ranks high in character, standing and ability as a member of this bar and as a citizen. His overcharge of commissions resulted simply from a mistaken view of the law and of his rights thereunder, and from the impression he had formed that the legal representative of the heirs sanctioned the same.

Our view of the law differed from his; and we have felt it incumbent upon us to apply its provisions with strictness in a case involving the right of minors.

Rehearing refused.  