
    ANDERSON’S EXECUTORS vs. ANDERSON’S HEIRS.
    Eastern- Dist.
    
      June, 1836.
    APPEAR FROM THE COURT OP PROBATES FOR TIIE PARISH OF EAST BATON ROUGE.
    Where the will does not give the seizin of an estate to the testamentary executors, in the legal or technical sense of the word, yet when the heirs are absent from the state, and the executors took possession of the whole estate, as they clearly had the right to do, they are entitled to full commissions on the amount of the inventory, after deducting bad debts, Sic.
    
    In the absence of the heirs, the testamentary executors who are put in possession of all the property, have it under their charge and responsibility, even when there is no express or legal seizin given, and are entitled to full commissions.
    
      Parole evidence is admissible to show the nature and extent of the possession of the estate by the executors, when there is no express seizin given by the will.
    After the executors have surrendered the estate to the heirs, legatees who are unpaid have a direct, action against the heirs for the amount of their legacies, and must resort to it for redress.
    This is an action commenced in tbe Court of Probates for the parish of East Baton Rouge, by the executors of the late John Anderson, in which they present their account of the administration of the decedent’s estate, accompanied by the proper vouchers, with a detailed statement of the moneys received and disbursed by them. They allege that one of them, as he was authorized by the testator to do, took into his possession the plantation and slaves of the deceased, and administered them from August to October, 1833, when one W. A. Anderson, for himself, and as attorney for the other heirs, caused themselves to be recognized as such, and were put in the possession of said property and estate.
    The executors further allege, that they are bound to see that the provisions of the will are carried into effect; but that the- heirs have refused to do so, especially, to pay a legacy of one thousand dollars, bequeathed to Phebe, a colored woman, and also a negro child, borne since the date of the will, from Louisa, the latter of whom was also bequeathed to Phebe.
    The executors likewise claim the sum of two thousand and twelve dollars, as a commission of two and one half per cent, on the inventory of the testator’s succession, amounting to eighty thousand four hundred and eighty-eight dollars, after deducting two thousand four hundred and eighty-eight dollars, for bad debts.
    ; They pray that they may be allowed and may have decreed to them the several sums and objects specified, and for the purposes alleged; and that the account of their administration be approved and homologated, and that they be discharged.
    The attorneys for the heirs filed exceptions to the petition and account of the executors, and specially deny that they are entitled to commissions of two and one half per cent, on the whole amount of the estate of the decedent, but only on' such part as actually came into their possession, to wit, the. J proceeds of sixty bales of cotton, sold by order of the Court of Probates, the executors not being constituted detainers of the estate by the will. The defendants also except to so much of the executors’ demand as requires the payment of one thousand dollars for the legacy to Phebe, and the delivery of Louisa’s child to. her. They aver that the Probate Court is without jurisdiction of the latter claims, the District Court alone having jurisdiction of such matters. They conclude with a prayer that their exceptions be sustained, and for general relief.
    The will under which the executors acted, is in the olographic form, and contains the following clauses, to wit:
    
      “I hereby will and bequeath to my brother William Anderson, merchant, in Richmond, Virginia, Helen Anderson and Margaret Young, my youngest sister, both residents of the same city, all my property, real and personal, to be equally divided to each, except the following donations, viz: I leave to Phebe, one hundred acres of land, known by the name of Taguinos Place, with all the improvements thereon, and four negroes, viz : Phil, Jeanny, Big Louisa and Long Frank, and one thousand dollars in cash, to be invested in bank stock. At the death of Phebe, the said land and negroes, and increase, .to become the property of a yellow boy by the name of Alexander, son of Jeanny; and in case of his death, to revert back to my said heirs. This I do for Phebe, for her long and faithful services to me.
    “ I hereby appoint A. Bird, general P. Thomas and major Vail, my executors of this my last will and testament, and earnestly request them' that every thing may be settled amicably between my heirs, and that no law-suit on any account shall be between them. If they cannot agree, let it be settled by arbitration,” &c.
    The testator also annexed a schedule of his estate to the will, estimated by him at one hundred and seventeen thousand and one hundred dollars. The will was duly admitted to probate, two of the executors, Bird and Vail, qualified and acted under it.
    On the trial, the plaintiffs proved by witnesses their possession and seizin of Anderson’s succession. This testimony was excepted to on the ground that no parole evidence of seizin or possession could be received. The will must authorize and show it.
    The judge of probates overruled the exceptions of the defendants. He considered that under articles 1676 and 1652 of the Louisiana Code the executors had a right to the seizin of the estate, and that under the will they had possession and administered the whole property of the testator, and that they were entitled to their commissions on the amount of the inventory as prayed for.
    Judgment was rendered in favor of plaintiffs against the defendants, homologating the accounts of the executors; allowing them their full commissions, and that they recover one thousand dollars to pay the legacy to Phebe, and the. slave child of Louisa, born since the date of the will, and that the defendants pay costs. The latter appealed.
    
      Brunot for the plaintiffs, contended :
    1. That the executors had the actual possession and the seizin of 'the testator’s estate, as appears from the face of the will itself. It shows that the heirs were all non-residents, and they did not obtain possession for several months after the succession was opened.
    2. In the construction of olographic wills, effect should be given to the intention of the testator, as gathered from all the circumstances of the case, and the relative position and situation of the parties. It is not to be expected, that men unacquainted with the niceties of the law, will execute then-olographic wills with that technical accuracy specified. That seizin was intended to be given to the executors in this case, is evident from the general power conferred on them to manage the estate.
    3. The Probate Court is required to appoint an attorney to represent the absent heirs, which was done in this case, as they were all absent. He is to act until the succession is liquidated and settled, and how could it be settled, if the executors have not the seizin 1 Louisiana Code, articles Í 654-5, 1705-6 and 8.
    4. The judgment homologating the executors’ account, is correct, not having been opposed by the attorney for the absent heirs. So far as any account might be claimed by the heirs, they are precluded in this casé, by the judgment and proceeding putting them into the possession of the estate, which is res judicata. 3 Martin, 481. 9 Ibid., 727. 2 Louisiana Reports, 587. Code of Practice, 1004, 1008, 997.
    5. The part of the judgment decreeing the payment of the legacy to Phebe, and the delivery to her of the slave child, is correct. The executors are required to see the provisions of the will are complied with, and the intentions of the testator carried into effect. Until this is done, the executors are bound to act. Louisiana Code, 1655.
    
      T. G. & M. Morgan and Turner, for the defendants.
    
      Elam submitted the following additional points on the part of the plaintiffs.
    1. The judgment of the Probate Court is contrary to law and evidence, and should be reversed.
    2. The executors had not, either by the will or law, seizin of the whole estate, and could not charge commission thereon. See Will, Louisiana Code, articles 1652, 1653. Napoleon Code, 1026.
    3. That part of the will which gives a donation to Phebe, contains a substitution; hence it is null and void. Louisiana Code, articles 12, 1567. 5 Martin, N. S., 302. 6 Louisiana Reports 321. Therefore, the executors could not demand the slave child, nor the investment of the one thousand dollars as a legacy.
    4. There is no proof that, this child is the offspring of Louisa, or that Louisa had any child bom subsequent to the making of the will.
    
      , does not give the tate'to the^esta-meniary exeen-tors in the legal or technical word, yet when sent^from6 the state, and the possession of the they cieSy had a right to_do, to^uli^ommis-mountof ventory after dedncting- had debts, &c.
   Bullard J.

delivered the opinion of the court.

The executorg 0f the jagt w¡u 0f Anderson having surrendered the estate to the instituted heirs before the year of their executorship had expired, presented their account of administration to the Probate Court, showing a small balance in their hands in money. They pray an allowance of about two thousand dollars for their commissions on the amount of the inventory, deducting some bad debts. They further demand of the heirs to pay the one thousand dollars as a legacy left by the will to a servant, who had been emancipated by the will, and to whom that sum was given to be invested in bank stock, but which the executors had not paid or invested during the time they were charged with the care of the estate. They further demand a young slave, the chii'd of one of the slaves, given as a legacy to the same servant, born after the will was made.

The heirs.made opposition to the account thus rendered, on several grounds, most of which are not now insisted on, but more especially to the amount of commissions, and to that part of the petition which relates t.o the legacy to Pbebe. They deny the jurisdiction of the Probate Court, and the right of the executors to recover of them.

The Court of Probates allowed full commissions asclaimed, and gave judgment in favor of the executors for one thousand dollars, to be invested by them for Phebe, the emancipated gervant, as well as for the young slave : and the heirs . jo ’ appealed.

It is contended by the appellants, that by the will the executors - had not seizin of the property of the estate, and consequently, according to article 1676 of the Louisiana Code, they are not entitled to commissions upon the amount of ^Ie inventory. Admitting that the will by its terms does not confer the seizin in a legal sense of the word, yet the next article of the Code (1677) declares, that “ if the executor has had a general seizin, his commissions shall only.be on the estimated value of the objects which he had in his pos- • . T \ •, , ,, , session, &c. In the present case, it appears that all the heirs wer'e absent from the state, and that the executors proceeded to take, possession of all the property of the estate, as they had clearly, under such circumstances, a right to do. J J ? .-11 The seizin spoken of in the Code is derived from the testamentary law of France. According to the doctrine of Pothier, Such seizin is not incompatible with that of the-heir, for it is not a true possession ; the executor possesses in the name of the heir, and it is the heir who is the real possessor : the executor is constituted sequestrator of the property. Potluer ties Testamens, 90. When seizin is not given by the will, the heirs may retain possession, except so far as it may be necessary to pay debts and legacies. But in the present case, the executors were, in the absence of -the heirs, instituted by the will, put in possession of all the property ; and it was under their charge and responsibility, until the heirs appeared and possession was delivered to them. To show the extent of the'ir real possession, we think the parole evidence excepted , -it,,.. , , . . to was properly received. Believing that the possession of the executors was legal and beneficial-to the heirs, we are of opinion that they are entitled to commissions according to the , article of the Code, just cited. .

in the absence testamentary executors who are of all the proper-Séir’ohmge'a^ e^0”jíen there is no express givei^LiTare ™mnüssíonsfu11

Parole evi-s¿pft0lssh0^m,e nature and extent of the possession of the ecutorsy Ü when there is no express seizin given by the ^1*1'

After the executors have sur-taü^totheheirr legatees who are unpaidnaveaai-rect action a-for theamouiitof ^d^niust^resoii to H for redress,

As it relates to a legacy of one thousand dollars, to be i ■ o ^ j invested in bank stock for Phebe, the executors would have been authorized to retain sufficient funds in their hands to execute that part of the will. But they appear to have sur- . , 1 j \ r reudered the whole without insisting upon that right; and the will being as obligatory on the heirs to deliver the legacy as upon the executors, the legatee v^ho is not j'oined in the present suit, has a direct action.against the heirs, for this purpose. We are, therefore, of opinion, that the Court of Probates erred in rendering judgment against the heirs for that sum and for the child of one of the slaves, bequeathed to Phebe. '

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed and annulled ; and it is farther considered and adjudged, that-thc account rendered by the executors, be confirmed and approved, and that they retain in their hands the balance of five hundred and fifty-eight dollars and twenty-six cents ; and that they recover from the heirs the further sum of fourteen hundred and fifty-three dollars and ninety four cents, with costs in the Probate Court; those of the appeal to be paid by the plaintiffs and appellees.  