
    No. 535.
    Thomas S. Wells v. Annie Alexander & Husband.
    The sale from some of the heirs to a co-heir could not deprive the executor of his commissions. It was a charge due hy the whole estate, and where -the whole of the estate passed hy contract to one of the co-heirs, the whole of the charges were due to the extent of the estate by the co-heirs who purchased. There was no want of consideration for the note given by the defendant for the amount of commissions. The succession having merged in her she owed the debt.
    The plea of res judicata, is not well taken. It seems to rest upon the judgment homologating the executor’s account. It is conclusive, it is true, as to the amount due, but it is no reason why the plaintiff should lose his judgment for said amount.
    APPEAL from the Fourteenth. Judicial District Court, parish of Morehouse. Bay, J.
    
      James Bussey, for plaintiff and appellee. T. G. Barsons, for defendant and appellant.
   Morgan, J.

F. Wells died leaving a will of which the plaintiff was one of the creditors. The defendant was an heir for one-third of the succession. The succession was administered upon. The executors filed their account. It was homologated and made the judgment of the court. They were placed on the account for the amount of their commissions, $910 30 each.

After the homologation of the account the defendant purchased from her co-heirs their interest in the succession which they had inherited. She then gave to plaintiff her note for the amount due him for his commissions. The note was not paid, and he seeks to recover the amount.

The defense is error and want of consideration. The commissions allowed the plaintiff was a charge against the estate. The sale of some of the heirs to a co-heir could not deprive the executor of his commissions. It was a charge due by the whole estate, and when the whole of the estate passed, by contract to one of the co-heirs, the whole of the charges were due to the extent of the estate by the eoheir who purchased. Plaintiff had the right to claim immediate payment. Because he gave time it does not follow that he should not receive what the law and the court allowed him. There was no error on the part of the defendant when she gave the note, for she knew what she was doing. There was no want of consideration, for the succession having merged in her she owed the debt.

The plea of res judicata is not well taken. It seems to rest upon the judgment homologating the executor’s account. It is, as claimed by defendant, conclusive as to the amount due. But this is a reason why it should be paid by the person who has become liable therefor; it is no reason why the plaintiff should lose his judgment.

We agree with the plaintiff that this appeal was prosecuted for delay.

It is therefore ordered that the judgment of the district court be affirmed, with ten per cent interest for a frivolous appeal.  