
    (42 South. 776.)
    No. 16,262.
    Succession of WEINCKE.
    (Jan. 7, 1907.)
    1. Appeal — Questions to be Determined.
    Two judgments, signed the same day, the one making absolute a rule to annul the premature appointment of an administrator, and the other maintaining an opposition to his appointment, may be brought up by the same appeal.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 59, 60.]
    
      
      2. Administrators — Appointment — Opposition.
    Where an opposition to the appointment of an administrator of a succession is filed before the expiration of the delay required for the publication of the application, and before the clerk has made any order of appointment, the issuance of letters before such opposition has been heard is unauthorized, and the letters will be annulled.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§■ 192, 194.)
    3. Same — Necessity.
    Where an intestate succession owes no debts, save those incurred in connection with the last illness, death, and burial of the decedent, which are trifling compared to the assets, and the holders or creditors of which appear and disclaim any desire for an administration, and there are no minors, an administration should not be ordered at the instance of one (of eight) of the major heirs, who applies to be appointed administrator, even though he claims the benefit of inventory.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 3, 4, 10.]
    4. Same — Inventory—Costs.
    Where an applicant for appointment as administrator has caused an inventory to be made, the costs may be imposed upon the mass, though the application be defeated upon the opposition of his co-heirs. In such case, however, all other costs should be imposed upon the applicant.
    (Syllabus by the Court.)
    Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.
    In the matter of the succession of Malvina 5. Weincke, deceased. Joseph H. Moss filed petition for administration, which Madora Farquhar and others opposed. From a judgment for opponents, applicant- appeals.
    Amended and affirmed.
    Joseph Gilbert Fournet, for appellant. Cline & Cline, for appellees Farquhar and others. Thomas Kleinpeter, for appellee Malcolm.
   Statement of the Case.

MONROE, J.

Malvina Sallier (Widow Weincke) died, intestate, in May, 1906, leaving children by three marriages, viz.: By the first marriage, Joseph H. Moss, Madora Moss, wife of Geo. W. Farquhar, and Catherine Moss, wife of Joseph Malcolm; by the second marriage, Rosa Wilson, wife of Geo. Miller; by the third marriage, Elise Weincke, wife of Harry Cash, Ida Weincke, wife of Ed. McCormick, Mollie Weincke, wife of Charley Stenious, and Dela Weincke, wife of William Cheney.

She also left property, inventoried as belonging to her separate estate, consisting of town lots in West Lake and Lake Charles, and 2S0 acres of land, with improvements, in the parish of Calcasieu, valued, together, at $4,295; two notes, made by her son Jos. H. Moss, amounting to $90; two notes, made by her daughter Mrs. Cash, amounting to $140; one note, made by her daughter Mrs. McCormick, amounting to $140; and $790, cash in bank — to which is to be added an interest in 40 acres of land and a lot of household furniture, inventoried as belonging to the last community, and valued at $185.

On May 30th Jos. I-I. Moss filed a petition for administration (signed, also, by counsel representing Mrs. Malcolm), to which, on April 9th, an opposition was filed on behalf of all the other heirs, who allege that the succession owes no debts, save those incurred in connection with the last illness, death, and burial of decedent, not exceeding $150, and that an administration is' unnecessary; and to this opposition there is appended the written consent of the persons who are said to be creditors that the heirs be put in possession.

Upon the same day (April 9th), but after the filing of the of>position, the applicant executed a bond as administrator and received from the clerk letters of administration; and thereafter the - opponents moved that the applicant be ordered to show cause why said letters should mot be annulled, on the ground that they were prematurely issued. Upon the trial (together) of the rule and opposition, counsel producéd written authority from each of the opponents; but Mrs. Gash, though stating that she did not want an administration, if it could be helped, said that she would like “to get out of it all,” and counsel thereupon asked that they be allowed to withdraw as her representatives, and it was so ordered. There was testimony going to show that the counsel who represented Mrs. Malcolm in applying for administra, tion had good reason to think that he was authorized to that effect; but her written authority to oppose the administration bears a later date. Several of the creditors were examined, and testified, in substance, that they did not care to meddle in the matter, and would be satisfied with or without an administration. As between the heirs, it seems that the decedent had sold to her son Jos. H. Moss, and' to her daughters Mrs. Cash and Mrs. McCormick, each, a lot in Lake Charles, for $150; that some of the others thought that they should be accorded the same privilege, the lots being worth more money; and that Farquhar, representing his wife, not being able to get a satisfactory assurance from Mr. Moss on that subject, stirred up the opposition to his appointment. Moss testifies that the decedent wanted the others to buy the lots, and that he wanted them to do so, with a view, by extending the payment over several years, to give their mother a small income, but that they neglected to buy, thinking that they would, eventually, get the lots by inheritance. There was some testimony as to claims by the children of the first two marriages for settlement of the successions of their fathers, and, whilst Mrs. Farquhar and Mrs. Miller disclaimed any intention of pressing their claims, Mrs. Malcolm and Mrs. Moss (wife of the applicant) were not heard on that subject. Mrs. Malcolm, it may be remarked, lives in the parish of Yernon (adjoining Calcasieu), and the other heirs reside in Calcasieu. Mr. and Mrs. Farquhar testify that they think the succession could be settled without an administration, if the applicant, Moss, will agree with the other heirs. Mrs. Miller and Mrs. McCormick testify that they oppose an administration because of the expense. Moss testifies that he thinks an administration necessary, because there are debts to pay, notes to collect, and matters of difference between the heirs to be settled. There is nothing in the evidence to justify the conclusion that the applicant is not, personally, a proper person to be appointed, should an administration be ordered. There were two judgments rendered and signed the same day — one making absolute the rule to cancel the letters of administration, and the other rejecting the demand for an administration; and, the applicant having appealed by motion and having given a bond which refers to one judgment, the appellees move to dismiss on that ground.

Opinion.

On Motion to Dismiss.

From the reading of the minutes, the motion of appeal is applicable to both judgments, and, as the matters were tried together and tend to the same result, we think the appeal may be sustained as bringing up both judgments for review. Succession of Clark, 80 La. Ann. 801.

On Rule to Cancel Letters.

The petition for administration having been filed on May 30th, and the opposition on April 9th (before any order had been made by the clerk, and before the bond had been filed or the letters issued), the latter was in time, and the issuance of the letters before it was heard was .premature. Succession of McKinney, 4 La. Ann. 25; Succession of Picard, 33 La. Ann. 1135; Succession of Block, 6 La. Ann. 810; Succession of Gusman, 35 La. Ann. 407.

Opinion on Merits.

The heirs of this succession are all majors; there are no debts disclosed, save those incurred in connection with the last illness, death, and burial of the decedent; and the creditors are not only not demanding an administration, but have placed themselves on record to the effect that they do not desire one, or are indifferent upon the subject. There is, therefore, practically nothing for an administrator to do. Counsel for appellant calls attention to the fact that, in answer or replication to the opposition, his client and Mrs. Malcolm claim the benefit of inventory, and he refers us to Civ. Code, art. 1047, as conclusive to the effect that in such a condition an administration is required. So far as Mrs. Malcolm is concerned, she is, as we have seen, of record both as opposing and as demanding an administration, and the counsel through whom she makes the opposition seems to hold the later credentials, in writing. Apart from that, however, it was held, many years ago, that the article relied on is controlled by the provisions of the Code of Practice (articles 975, 976, et seq.), and that the appointment of an administrator is not a matter of course, but is to be made when any of the creditors require it, though, no doubt, it may be made in cases where there are no debts. Bryan v. Atchison, 2 La. Ann. 462; Succession of Story, 3 La. Ann. 502. In the instant case, as has been stated, there are no debts which require an administration and no creditors demanding one, and, as to the debts due to the succession, they are due by the heirs, and they, as well as the other matters to which counsel for the applicant refers, will come up in the partition proceedings, and we can discover no good reason why to the expense of those proceedings there should be added the expense of an administration. Succession of Graves, 50 La. Ann. 435, 23 South. 738; Alleman v. Bergeron, 16 La. Ann. 192; Succession of Wintz, 111 La. 40, 35 South. 377.

The judgment appealed from condemns the succession to pay the cost of the application for administration and of the opposition thereto, with attorney’s fees to a reasonable amount, and the appellees pray that it be amended in that respect. We are of opinion that the inventory which the applicant caused to be made may inure to the benefit of all parties, and that the costs, including the fee of the attorney incurred in the taking, should be borne by the mass, but that all other 'costs should be borne by the applicant

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended, in so far as to condemn the appellant for all costs, save those incurred (including attorney’s fee) in the taking of the inventory, and, as amended, affirmed; the appellant to pay the cost of the appeal.  