
    No. 12,265.
    Succession of Alphonse Levy.
    While the Supreme Court recognizes the right of persons having exclusive interests in a particular matter .to make such compromises and agreements concerning the same as to them may be deemed advisable , provided they be not contrary to the law, it can not be controlled by stipulations and agreements relatively to subjects in which third persons may be concerned. If the judgment of the District Court fixing an amount of an administrator’s bond be legally correct, the Supreme Court could not reverse it and remand the case with directions as suggested by the parties to the proceeding which provoked the judgment appealed from.
    Where a notary taking an inventory of the effects of' a succession has failed to follow the requirements of Art. 1107 of the Civil Code that he should note the distinction between property which the deceased owned entirely, and that in which he simply had an interest, it can not be required fn order to qualify as administrator of the succession that bond be furnished to an amount one-fourth beyond the estimated value of the effects belonging wholly to the deceased, and also to the estimated value (as fixed in the inventory) of the properties in their entirety which belong -to commercial partnerships and joint stock companies in which he had an interest.
    Article 1041 of the Civil Code, which provides that “ as soon as the inventory or inventories of the succession are finished, the judge shall name an administrator to manage the property thereof and oblige him to give bond and sufficient security for the fidelityo£ his administration, unless the administrator pre fer to furnish, instead of this security, a special mortgage on unincumbered property of a value sufficient to serve as a guarantee for his administration,” justifies the exercise of judicial discretion,in determining under some circumstances and to some extent the amount which an administrator should presently furnish as a guarantee for his administration, the amount so fixed being liable to be increased as changing conditions call for.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.
    
    
      H. L. Garland and Bernard Titche for Lazare Levy, Plaintiff in Rule, Appellant.
    
      JB. D. JBstiUelte, for Creditors, Opponents, Appellees.
    Argued and submitted December 14, 1896.
    Opinion handed down December 19, 1896.
    
      This case was before the court upon the following agreed statement of facts:
    “ Alphonse Levy died in St. Landry where he resided in February, 1896.
    “ He had business relations as partner, with several persons, as joint owner with others, as member of stock companies, etc.
    “ His partners Julius Meyers of J. Meyers & Co., and Mentor Andrus of Sunset Mercantile Company, Limited; Lazare Levy of Lazare Levy &Bros., have obtained by orders of court possession of the assets of said firms, and other persons, to-wit: W. W. Duson and Eraste Durio, have possession of the properties belonging to the stock companies by virtue of their rights as managers, etc.
    “ Inventories were made in several of the parishes of the State wherein Alphonse Levy had properties belonging to him separately or with others as partners, joint stock company, etc. Lazare Levy, who was his heir at law, applied to be appointed administrator of the estate of Alphonse Levy.
    “ The inventories taken included all the properties in which Alphonse Levy had an interest, and their amount aggregated three hundred and forty-two thousand nine hundred and eighty-six dollars.
    “ With the exception of the individual properties of Alphonse Levy included in these inventories, and the aggregate value of which is twenty-eight thousand nine hundred and twenty-nine dollars, all of the properties inventoried are in the possession of the liquidators, managers and eo-proprietors entitled to administration, etc.
    “ These have actual or constructive possession of said properties.
    “To qualify as administrator of the estate of Alphonse Levy, Lazare Levy took out á rule to have the court determine the amount of bond which said administrator should give.
    “ The rule was served on the attorney of the absent heirs, who put the matter at issue by filing a general denial. Creditors (to-wit: St. Landry State Bank; H. & C. Newman; Hyman, Hiller & Co.) intervened in the rule and opposed the fixing of the bond for less than one-fourth over amount of inventories.
    “ The St. Landry State Bank, H. & C. Newman and Hyman, Hiller & Co. intervened in the rule and opposed the application. The attorney of absent heirs pleaded the general issue.
    
      “The twenty-eight thousand nine hundred and twenty-nine dollars is the aggregate of valuation of separate individual properties of estate of Alphonse Levy which the administrator jvould be put in charge of.
    “ Lazare Levy, as surviving partner of Lazare Levy & Bro., has been put in possession of all the assets of said partnership, amounting to one hundred and seventy-one thousand dollars.”
    In the rule taken out by Lazare Levy, referred to in the above statement, his prayer was that he be permitted to qualify as administrator of Alphonse Levy on furnishing a bond “ fixed on the basis of twenty-eight thousand nine hundred and twenty-nine dollars and sixty cents, the aggregate valuation of appraised properties with which petitioner is to be entrusted. ’ ’
    The court dismissed the rule, stating “ the law was plain that the bond of the administrator should be for the amount of the inventory of the estate plus one-fourth over and above said amount, deducting bad debts. The inventories showed the assets of the estate of all kinds, movables, immovables, rights and credits far exceed twenty-eight thousand nine hundred and twenty-nine dollars, and consequently the court was without power to accept a bond differing from the provisions of Art. 1048 of the Civil Code.”
    Lazare Levy, the mover in the rule, appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The succession of Alphonse Levy, although opened in February, 1896, has remained up to the present time without an administrator, though the properties of the various partnerships, corporations and joint companies in which the deceased had an interest had been placed by the court in the hands of liquidators, etc. Who has had, up to the present time, the custody of the property other than those so administered, which belongs directly to the deceased, does not appear. Lazare Levy declares he has accepted the succession as beneficiary heir; it is possible and probable that he has had charge in that capacity. C. C. 996, 997, 998.

The presumptive heirs in Europe do not appear to have taken any steps themselves in the way of either acceptance or renunciation of their brother’s estate, nor have creditors made any move to force them to declare their intention in that respect.

The inventories which have been taken are doubtless correct as inventories of the property of the different partnerships and stock companies in which the deceased had an interest (C. C. 1103, 1138, 1139); but the notaries who took them do not seem to have complied with Art. 1107, which requires them to make a distinction between properties held in entirety by the deceased, and that which belonged to him in part only. There should have been an estimate made of the value of the present or eventual interest of the deceased in such properties.

An administrator is responsible, not simply for the property in his possession and under his direct administration, but for a proper legal supervision over the administration of that in which the succession has an interest by those who have primarily the administration thereof and who are primarily responsible for the same. The extent of this responsibility may be hard to fix and determine, but none the less it ought to enter as a factor in the determination of the amount of the bond the administrator should give. It is a variable, a fluctuating and not a constant factor, and the amount can be added to from time to time as the court directs. It is obvious that the property of this succession should be placed under the charge of some person authorized to that effect by the court. Since this case has been submitted for decision, a motion has been made by all parties that we reverse the judgment of the lower court, and remand it with directions to the District Judge to grant the application made by Lazare Levy to be permitted to qualify as administrator upon giving security as proposed to be given by him. While we recognize the right of persons having exclusive interests in a particular matter to make such compromises and agreements concerning the same as to them may be deemed advisable, provided they be not contrary to the law, we can not be controlled by stipulations and agreements relatively to subjects in which third parties may be concerned. If the judgment of the District Court was really legally correct we could not reverse it and remand the case with directions as suggested (Succession of Hardy, 46 An. 1309). We-are, therefore, to inquire whether the District Judge, in reaching his conclusions, did not give too rigid an interpretation to a particular article of the Code, leaving other articles out of consideration.

Article 1048 of the Civil Code unquestionably declares, that “the security to be given by every administrator appointed under that article should be one-fourth beyond the estimated value of the movables and immovables and of the credits comprised in the inventory exclusive of bad debts;” but this does not mean that the inventories, as made, should conclusively fix and determine the amount of the security. If they are obviously defective as succession inventories, they are not absolute guides. In the case at bar to require a bond to be given to cover all the properties of all the partnerships and companies in which Alphonse Levy has an interest would practically be prohibitive of an administration of the succession, or lead to ruinous charges by way of administration commissions.

The District Oourt was clearly wrong in exacting the giving of such a bond. While Art. 1048 fixes the amount of the security to be given as therein provided, Art. 1041 seems to contemplate that there might exist a condition of things such as to allow some flexibility in the court in its decision as to the full amount. The variable factor we have mentioned is one which justifies the exercise of judicial discretion in determining to some extent the amount which an administrator should furnish as a guarantee for his proper administration (Labranche vs. Trepagnier, 4 An. 560), the amount so fixed being liable to be increased as changing conditions will call for.

If there were no one willing to take upon himself the duties and obligations of “ regularly appointed administrator ” of this succession (if we may so express ourselves) a question might arise whether we could not and might not be called upon in the exercise of our equitable powers to place its property in charge of a custodian or provisional administrator under temporary special bond as the court has sometimes deemed itself authorized to do in matters of abandoned property of corporations.

In the succession of De Flechier, 1 An. 21, one Domingon, who had been appointed administrator of that succession on condition of his complying with the requirements of the law, having assumed the administration without giving security as required, De Flechier, a beneficiary heir, alleging said fact, moved that he be dismissed from office. The fact alleged having been established, Domingon was removed’, and the court forthwith, without advertisement, appointed De Flechier in his stead. Domingon appealed. On appeal the judgment was affirmed. In its opinion, the court said: “ The appellee (De Flechier) was one of the beneficiary heirs of the deceased, and was a person to be preferred by the judge in selecting an administrator in place of the one removed (Old C. C. 1035; Rev. C. C. 1042). On the removal of the administrator it was necessary to appoint some one to take charge of the effects of the succession. The selection made by the judge we think a proper one. He appointed the appellee, and his appointment can stand provisionally until an application be made for the appointment of a regular administrator under the forms required by law, which, in a succession like this, we trnst, will not be necessary.”

It is enough for us, at the present time and on the issues made, to say that the judgment appealed from, as rendered, is erroneous.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the cause is remanded to the District Oourt for further proceedings according to law.  