
    Succession of Ambroise Calleri Dubreuil—Henry R. Lee and others, Appellants.
    Prescription running in favor of a debtor is not suspended by his death. C. C. 3487. The rule contra non valentem, &e., does not apply to the creditors, who may interrupt prescription, by presenting their claims to the administrator, and obtaining his acknowledgment thereof, and an order from the Judge classing them among the acknowledged debts of the succession, or, in case of the refusal of the administrator to acknowledge them, by suit C. P. 984, 985, 986.
    The provision of art. 1176 of the Civil Code, which gives an action to the creditors of a succession, who present themselves for the first time after the distribution of the assets among the other creditors, to compel the latter to refund so much as may be necessary to give the rest the proportion they would have been .entitled to receive, had they presented themselves at the time of the payment of the debts, can only avail those creditors whose claims hare not been prescribed before the expiration of the three years within which such an action may be ‘brought. The acknowledgment of an administrator of a claim against a succession, unaccompanied by ail order of the Judge directing it to be ranked among the acknowledged debts of the succession, merely interrupts prescription, which will commence to run anew from that time ; and where sufficient time subsequently elapses before any further action on the part of the creditor, the claim will be prescribed.
    
      Appeal from the Court of Probates of Iberville, Dutton, J,
    
      Sigur, for the administratrix.
    A succession may be released by prescription, like an individual. Troplong, Prescrip. No. 807. Merlin,Repert. verbo, Prescription. Ib.Questionsde Droit, Succession Vacante, § 2. Civ. Code, art. 3492. Durnford v. Clarke, 3 La. 201. Sainare v. McDonough’s Ex’r. 6 La. 357. And this, whether solvent or not, 3 La. 201.
    
      ,Labauve, for the opponents.
    All the provisions of the Code relative to the administration of estates by curators, syndics, administrators, &c. contemplate necessarily .a suspension of prescrip-on. Civ. Code, arts. 1167, 1168, 1169, 1171 to 1176, 1042. tl0o6, 1057, 1058, 1060, 1061. An administratrix cannot shelter herself from the consequences of her own neglect, under the plea of prescription. 2 La. 183. Bethany v. His Creditors, 7 Rob.
   Morphy, J.

Ámbroise C. Dubreuil died in the parish of Iber-ville, on the 15th of October, 1833. His widow was appointed administratrix of his estate, in February, 1834, but rendered an account of her administration only in November, 1844. It was opposed by three creditors, Henry R. Lee & Co., R. P. Gaillard, and R. P. Gaillard & Co., on various grounds, charging the accountant with gross neglect and unfaithfulness in having disposed of, or failed to account for, upwards of ten thousand dollars worth of property belonging to the estate. The notes of the deceased held by Lee & Co., and R. P. Gaillard, became payable a short time before his death, and that due to R.P. Gaillard & Co., fell due in March following (1834). The administratrix pleaded prescription against the claims of those creditors, which had not been placed on the account, or tableau, of distribution. By agreement between.the parties, the plea of prescription was alone submitted to the Judge below, who sustained it in relation to the claims of Lee & Co., and R. P. Gaillard, and overruled it as to that of R. P. Gaillard &. Co. Both the administratrix, and the opposing creditors, whose claims were rejected, appealed.

The question is, whether a succession can be released by prescription from obligations as well as individuals, or in other words, whether the death of a debtor suspends a prescription which was-running in his favor? The Civil Code, article 3487, provides that, prescription runs against all persons, unless they are included in some exception established by law.” We find none in favor of the creditors of a succession, and they must be prescribed against, unless they can invoke the general rule, contra non valen-tem agere non currit pres crip tio. This rule applies to all cases where the impossibility of acting arises from other causes, than the personal incapacity of the individual against whom prescription is pleaded. 2 Troplong on Prescription, Nos. 700 and 701. 7 Mart. N. S. 481. 1 La. 281. Although, under our laws, no executory judgment can be obtained against a succession, the creditors are not without the means of asserting their claims, and taking the necessary steps to interrupt prescription. All demands for money, may be presented to the curator, ór administrator, to be acknowledged by him. If the debt is admitted to be a just one, he shall write on the evidence of it, a declaration which he shall sign, stating that he has no objection to the payment of such claim, after which the debtor shall submit it to the Judge, that it may be ranked among the acknowledged debts of the succession. Code of Pract. arts. 984, 985. From the time that this is done, which is equivalent to a judicial demand, prescription we apprehend, must remain suspended, as the .debtor can do nothing more against the estate, except it be to coerce the administrator to a prompt settlement of the estate. If a claim be unliquidated, or objected to by the administrator, the creditor may bring an action in the Court of Probates, where the succession is opened, and there obtain a judgment against it. Art. 986. These proceedings, by which the creditors can interrupt prescription after the death of the debtor, may be resorted to whether the succession be solvent or insolvent. If a creditor takes no step whatever, but remains silent, as in'the present case, a sufficient time for his claim tobe barred by prescription, why should he have the protection of the rule contra non valeutem, &c., when prescription is opposed by any of the other creditors, or by their legal representatives ? The Civil Code, art. 3492, provides that prescription does not run against a beneficiary heir, with respect to the debt due to him by the estatethus placing the beneficiary heirs who administer it, upon a different footing from the other creditors against whom prescription is not suspended. The same article provides, that prescription runs against a vacant estate, thongh.no curator has been appointed to the same. The reason of this provision is, that the creditors of a vacant estate, who have an interest in the preservation of its claims and rights, can provoke the appointment of a curator to assert and enforce them. The well settled doctrine in France is, that prescription runs in favor of, as well as against successions. 2 Troplong on Prescrip. Nos. 884 to 808. Merlin, Repert. vol. 17, p. 431. In Durnford v. Clarke’s Estate, 3 La. p. 201, the plea of prescription was interposed by two creditors of Clarke’s estate, against the claim of another creditor which had become extinguished by prescription, only some time after the death of Clarke. It was not pretended in that case, that prescription had been suspended j but it was decided, that one of the opposing creditors, who had an ordinary claim, was without interest to make the plea, not having shown that the estate was insolvent ; that a mortgage creditor can plead prescription against the claim of another creditor whose mortgage clashes with his own, on the proceeds of the same property ; and that, when pleaded by one creditor, prescription does not enure to the benefit of the other creditors. From this decision it is clearly to be inferred, that had the plea been set up by the representative of the estate, it would have been upheld, and that no suspension of prescription results from (he mere fact of an estate being under administration. To show that such a suspension is contemplated by the Code, the counsel for the opposing creditors has called our attention to the several articles in it, regulating' the manner of settling estates, administered by curators or administrators, and particularly to articles 119? and 1176. The first provides, that the administration may be prolonged from year to year, during five years ; and the second allows three years, after the distribution of the assets, for creditors who have not yet been paid, to claim against those who have been paid the proportion they would have been entitled to, had they come forward at the time of the payment of the debts of the succession. It does not appear to us, that the articles relied on authorize the inference drawn from them, nor that the action given by article 1176, can avail any creditors except those whose claims have not been barred by prescription, before the expiration of the three years allowed by that article, Had the intention of the lawgiver been, that prescription should be suspended for claims against an estate under administration, such intention would have been expressed in that part of the Code which treats of the causes which suspend the course of prescription.

As to the note in favor of R. P, Gaillard & Co., the plea of prescription was properly overruled, as the claim was presented to the administrator, and admitted to be ranked among the just and acknowledged debts of the estate ; but the Judge erred in passing on the merits of the claim, as the question of prescription was alone submitted to him.

Bonford, for tbe administratrix, for a re-hearing.

The acknowledgment of the administratrix amounted but to an interruption of the prescription, which commenced to run anew from that date.

The French law and mode of procedure in cases of insolvency, furnish an analogy of so strong a character to the case before the court, as to be almost decisive of the question. The creditor under the French insolvent system, is not, as with us, stayed from proceeding against the property of the insolvent, or his representative, the syndic. Under that system, it is the duty of the creditor, by article 506 of the Code de Comm, to present his claim to the syndics, who sign upon it, in case of approval, “ ad-mis aupassif de lafaillite de — pour la somme de — /’and it is then required to be presented to the Judge. These are precisely the formalities required to be gone through with, by art. 985 of our Code of Practice, on the part of the creditor of a succession. What effect a compliance with these forms produces on the prescription running against the action of the creditor, is a matter discussed at length by several of the most distinguished French commentators, and has been the subject of decision by the highest tribunal known to the French law. Troplong, Prescription, No. 719, considers it unquestionable that every step taken by a creditor in the insolvent proceedings, amounts to a simple interruption only, and not to a suspension of the prescription. His language is applicable to this case. “ La verification a lieu : le créancier afirme la sincerity de la créance, et il est udmis aupassif de la faillite {art. 505, 507, Code de Com.) De la résulle une reconnaissance qui est elle méme une nouvelle interruption de la prescription. Enfin aprés que le créancier a conquis cetle position, les occasions se pressent encore et se multiplient-. Si les syndics sont oisifs ou négligents ilpeut étre utile de provoquer des reunions de créancierspour les rem-placen: si les operations de la faillite languissent, il faut les ac-tiven et presser les repartitions. Loin done que la faillite com-porte un état d’inaction forcée, elle oblige au contraire le créan-cier a faire les diligences les plus actives. Aussi n ’y a-t-il de suspension á aucune de ses phases, el il a été jugó avec grande raison par la cour de cassation que la prescription inferrompue par les actes dont nous venons de parler recommence a compter des derniéres diligences, et reprend son cours régulier.” A decision of the Court of Cassation in accordance with these views will be found in Sirey, Yol. 32, 1, 537. And see Dalloz, Prescription, p. 273. Taking in view the articles in the Code of Practice, in the chapter on the settlement of successions, commencing with art. 983, but particularly arts. 985, 988, 990, 991 and 993, it will be perceived that the position of the creditors of a succession with us, strikingly resembles that of the creditors of an insolvent in France. And the remark of Troplong applies with as much force to the former as to the latter, that so far from their position implying inactivity, it, on the contrary, calls for the exercise of the greatest diligence.

It is, therefore, ordered and adjudged, that the judgment of the Court of Probates be affirmed, so far as it sustains the plea of prescription in relation to the claims of Lee & Co., and R. P. Gail-lard, and overruled as to that of R. P. Gaillard &, Co.; and that it be reversed in all other respects ; and that the case be remanded to be tried on its merits ; the costs tobe borne by the opposing creditors.

Same Case. — On a Re-heaRing.

In the opinion of the court, it is stated that the claim of R. P. Gaillard &. Co., was presented to the Judge, and ordered to be ranked among the acknowledged debts of the succession. This is a mistake. It was never presented to the Judge.

Sigur, on the same side.

Labauve, contra.

Art. 986, of the Code of Practice, provides that, “ If the claim be not liquidated, or if the curator or administrator have any objection to it, and consequently refuses to approve it, the bearer may bring his action against the curator or administrator, in the ordinary manner, before the Court of Probates where the succession tvas opened, and may obtain , udgment in the same manner as in other courts.” The claim of R, P. Gaillard & Co., was liquidated, and admitted by the executor. They had, consequently, no right to sue thereon ; and the principle, contra non valentón, &c., applies to them. Were the Judge even to refuse to approve the claim, and to order it to be ranked among the acknowledged claims against the succession, the creditors could not sue the executor,.

SimoN, J.

A re-hearing was granted in this case, in relation only to the overruling of the plea of prescription set up by the administratrix against the claim of R. P. Gaillard & Co., founded upon a note of hand executed by the deceased, made payable on. the first day of March, 1834, (the defendant was appointed ad-ministratrix in February preceding,) and at the foot of which, the administratrix, op the 13th of June, 1834, wrote the following declaration ; “ Je rCai aucune objection a ce que ce billet soit payé par la succession concurremment avec les autres crcan-ciers de ladite succession,” Hence, it has been contended, on the part of the opposing creditors, that their claim could not be prescribed, as it was acknowledged by the administratrix, who was bound to place it upon the tablemi; and that, having done all that the law required them to do, the prescription was suspended, or interrupted as long as the estate was not finally settled. Qn the other hand, it has been insisted that the acknowledgment of the administratrix, amounted at most to an interruption of the prescription then running against it, and that the only effect of such acknowledgment, was to cause the prescription to, begin anew from the date of the written declaration of the administratrix.

We are free to confess, that the question here presented is nota very clear one. The opponents suffered their claim to lay dormant for a period of more than ten years, after procuring the acknowledgment of the administratrix. It is not shown that they ever called upon her to file a tableau, and it is only when .she filed the account of her administration, and sought to obtain her discharge, that they awoke from their slumber, and attempted to make opposition to her demand.

As we have already said, prescription runs in favor of a succession against its creditors, and may be opposed to their claims, whenever they have failed to make themselves known ; to assert their claims against the executor, curator or administrator, in the manner pointed out by law ; and have taken no step to interrupt it. Those steps consist in presenting the claim to be acknow-lodged by such administrator or curator, if it be liquidated, who is to write on the evidence thereof, a declaration that he has no objection to its payment, (this has been done in this case,) and in submitting the same to the Judge, that he may order it to be ranked among the acknowledged debts of the succession. Le porteur de la créance la fera riser par le Juge,” (this has not been done here,) Code of Pract. art. 985 ; and if the claim be not liquidated, or the executor or curator objects to it, in bringing an action against the latter, in the ordinary manner, and obtaining judgment upon it; (Code of Pract. art. 986 ;) — in both cases; the creditor, who has obtained a judgment, or the acknowledgment of his debt, (le visa de sa créance,) can only obtain the payment thereof, concurrently with the other creditors. Code of Pract, art. 987. He must wait until a tableau of distribution is presented. Code of Pract. art. 988. But he may demand that the property of the succession be sold for cash. Code of Pract. art. 990. The administrator cannot be compelled to pay the ordinary debts until the expiration of three months. Code of Pract. art. 1054. Civ. Code, art. 1167. When the time for payment of the debts has expired, he must present his account or tableau, in which he ought to put down the creditors who have made themselves known. Civ. Code, art. 1168- But ten days after the classification and order of payment fixed by the Probate Court, and as often as required by a majority of the creditors, it is his duty to account and pay over to each of the creditors, his proportion of the sums which he may have in his hands, and in default thereof, after due notification, execution may issue against him personally. Code of Pract, art. 993. If the administrator has no funds in his hands, he must then inform the Sheriff of the fact; (Code of Pract. art. 1055 ;) but the creditor may compel him to prove the truth of his declaration ; (Code of Pract. art. 1056 ;) and if said administrator fails or neglects to pay the amount due, or to prove that he has no funds in his hands, then bis property shall become liable to satisfy the execution that may issue against him. Code of Pract. art. 1057,

Now, is it not clear, that, although a creditor can only obtain the payment of his claim concurrently with the other creditors, yet he cannot be considered as one of those persons to whom the legal maxim, “ contra non valentem agere non currit prescrip-tio,” is applicable? He must wait for three months, and cannot issue his execution, if he has obtained a judgment; but does not the law authorize him to act, if the administrator fails to comply with its requisites ? See B. &. C.’s Digest, 2. 3. Case of the Succession of Williams, yet unreported. His hands are not tied; his remedy is explicitly pointed out; and, if he remains inactive and does not present his claim, or, if after having presented it and obtained the acknowledgment of his claim by the administrator, he does not pursue the course pointed out by the law, and permits the prescription to run out from the time of such acknowledgment, can he.be allowed to hold the succession, or the administrator, liable forever ? We think not; the acknowledgment of the administrator amounts, undoubtedly, to an interruption, but like all other interruptions, it does not prevent the prescription from beginning anew, and from continuing to run until the expiration of the time necessary to prescribe. A similar doctrine is entertained by Troplong, Prescription, No. 719, in which he says: “ Si les operations de lafaillite languissent, il faut les activer et presser les repartitions. Loin done que la faillite comporte un état d’inaction forcee, elle oblige au con-traire le crSancier a f aire les diligences les plus actives. Aussi n’y a-t-il de suspension a aucune de ses phases, et il a été juge avec grande raison par la cour de cassation que la prescription interrompue par les actes dont nous venons de parler recommence a compter des derniSres diligences et reprend son cour» rSgulier.” See also Sirey, 1S32, part 1, 537. Ib. 1836, part 1, 841.

We conclude, therefore, that, in our opinion, the Judge, a quo, has erred in overruling the plea of prescription set up by the ad-ministratrix, against the claim of R. P. Gaillard & Co., and that said plea ought to have been sustained.

it is, therefore, ordered, that with regard to the claim of R. P. Gaillard & Go., our former judgment be changed and amended ; that the judgment appealed from be, in this respect, avoided and reversed; and that the plea of prescription set up by the admin-istratrix be sustained, with costs in both courts. And it is further ordered that, as the said plea of prescription is sustained with regard to all the opposing creditors, there be a final judgment in favor of the administratrix, against them, without remanding the case as previously ordered. 
      
       This is a mistake. See opinion on re-hearing, infra.
      
     