
    John Close v. Charles Close, Administrator.
    An executor under a will is bound to pay tlie costs and attorney’s foes for presenting tlie will for probate and defending it wlion attacked by the heirs, if there should be judgment against him annulling the will, on account of the agency which ho had in its dictation.
    PPBAL from the District Court of the Parish of St. Landry, Martel, J.
    
      B. F. Linton, for plaintiff.
    
      J. E. King, for defendant and appellant.
   Spofford, J.

The plaintiff acted for nearly two years as executor of the last will of Emilie Barré, deceased.

Upon a contestation with the heirs, the will was finally declared null by this court. Thereupon the defendant was appointed administrator.

The present suit was brought to recover of the succession certain moneys alleged to have been disbursed by the late executor for its benefit.

The payments proved to have been made amount to $163 94; and only one item of this sum, to wit, $250 lor counsel fees, seems to be disputed by the defendant. The receipt shows that these fees were paid “ for presenting for probate the will of Emilie Barré, veuve Gradenigo, and for defending it when attacked by the heirs, both in the District and Supreme Courts.” The will was annulled partly on account of the agency the present plaintiff, a legatee under it, had in its dictation, and ho was personally condemned to pay the costs of the litigation. Por the same reasons, he should pay the counsel fees, which wore for his own benefit, and not for the benefit of the heirs. The Judge erred in allowing this part of the demand.

To the rest of plaintiff’s claim for disbursements (which enured to tlie benefit of the estate) the defendant pleads in compensation and rcconvention two demands amounting to $1500, both of which were rejected below. He alleges in his answer that “ plaintiff received $500 from'the deceased, Mrs. Gradenigo, just previous to her death, on deposit, and to pay the expenses of settling her succession, which he has never given to respondent as administrator.” This averment the plaintiff in reconvention has failed to prove. The evidence is, that John Close said some money (how much is nowhere intimated) *• had been given him for special purposes.” The single witness who relates this conversation, says ho “ understood ” the money was to be applied to the deceased’s funeral expenses ; he also speaks of the costs of a suit in St. Martinsville, in the same connection. This is quite too vague to fasten a specific pecuniary liability upon the plaintiff. It was competent for the deceased to make a manual gift of money to him, or to intrust him with money for special purposes. To make him liable to the succession, the administrator should show what was given, for what purpose, and that it had been misapplied, Neither of these things arc shown. The District Judge correctly rejected this item of the reconvcntional demand.

The defendant also claims $1000 for the revenues of the property while in the hands of plaintiff, as executor. The proof is, that the slaves were divided out amongst the heirs shortly after the plaintiff became executor. But he had two at liis house, Maria and Marie, appraised and sold for less than $1000. One witness thinks the hire of those slaves .worth $200 per annum; another thinks such slaves worth $6 per month each. The plaintiff is not charged with any improper acts in Ms gestión as executor. The heirs should account cither to tho administrator, or in their partition inter se, for the hire of such slaves as they have received. Tho plaintiff is only responsible, under the evidence, for tho hire of such of the property as he used for his own benefit. We think $300 should be allowed for tho use of Maria and Marie, a claim which was also rejected by tho District Judge. There seems to have been an amicable demand, and an answer amounting to a denial that anything was due tho plaintiff; the point as to costs, made by the appellant, is therefore, untenable.

It is, for tho foregoing reasons, ordered and decreed, that the judgment of the District Court be avoided and reversed; and it is now ordered and decreed, that the plaintiff have judgment against the defendant, as administrator, for the sum of two hundred and thirteen dollars and ninety-four cents, with five per cent, interest thereon from the 30th October, 1856, until paid, the same being the balance due upon a consideration both of the principal and reconventional demands ; it is further ordered, that said sum be paid by defendant in the due course of his administration, and that tho costs of this suit in the lower court be paid by the defendant administrator, and the costs of appeal by the plaintiff and appellee.  