
    No. 1474.
    Estate of Mary T. Hardy.
    1. Under See. 10 of tbe Revised Statutes any creditor or person interested has the-right to require that administrators shall give new or additional security for • the faithful performance of their office as often as once in. every twelve months,, and oftener if the court, on motion to that effect, may judge it to be necessary. The tutrix of a minor who is an heir in a succession, by reason of representation of her deceased father, is authorized in her capacity as tutrix to make this-motion, although she be also administratrix of the succession of the father,. The minor is a “ party interested ” in the matter.
    2. Where, since the administrator of a succession qualified as such under Art, 1048 of the Civil Code, the United States Court of Claims has approved a claim-* against the government for over ten thousand dollars, the recognized claim i&a credit of the succession, and the District Judge acted correctly in ordering an inventory to be made of the same and the administrator to give additional security based upon it. The administrator has no right to have the giving of. the new bond postponed until Congress shall have made an appropriation to-pay the claim.
    3. The administrator has no right to limit the amount of the new bond so as to correspond with the share which the minor may have in the new asset by reason of the other heirs not having asked or exacted additional security.
    APPEAL from the Eleventh Judicial District Court, Parish of St.. Landry. Perrault, J.
    
    The record shows that in October, 1890, James M. Dowlingwas qualified as administrator of the succession of Mary T. Hardy,. wife of Thomas O. Anderson. That, for the purpose of qualifying as such, he furnished a bond for four hundred and sixty-four dollars, the only known property at that time being a small piece of land near the town of Opelousas, valued in the inventory at one hundred and twenty-seven dollars. That this tract, together with another-small tract in Acadia parish, which seems to have been overlooked, when the inventory was made, was sold at public auction, the price-of both amounting to two hundred and fifty dollars. Mrs. Anderson-left as her heirs a number of children and grandchildren. Prior to her death she had advanced against the United States a claim for-stores and supplies taken by or furnished to the government during the late war, which, after her death, was prosecuted in the name of her administrator, the appointment of Dowling having doubtless been made for that very purpose. The claim referred to has been recently approved by the Court of Claims to the amount of. ten. thousand six hundred and ten dollars, and although Congress has as yet taken no action in the matter, there is every reason to suppose that ultimately an appropriation will be made to pay the same and that it will be paid either to the succession representative or to the heirs.
    Matters being in this situation, E. K. Anderson, one of the sons of the deceased, and the minor'children of another son, William F. An■derson, represented by their mother and tutrix, served a rule upon the ■administrator to show cause why he should not furnish bond with ■security for one fourth over and above the said sum of ten thousand six hundred and forty dollars, conditioned as the law directs, in view of this newly obtained asset of the succession, and why, in the event ■of his neglecting, failing or refusing to furnish said additional bond, he should not be destituted of his office as administrator and Henry L. Garland, senior, should not be appointed and qualified in his place. 'The administrator excepted to the rule: (1) That it was premature in this, that there has been as yet no appropriation made to pay the claim; (2) that it is premature for all the demands therein contained; (3) that the only party in the rule is Mrs. Virginia Garland, who claims but one-fifth of the succession, the other four heirs objecting to said increase of bond, and she consequently has no right to ask a bond on the whole estate; (4) that the court can at the present only pass ■on the application for increase of bond, and can not, in anticipation of the failure to furnish a new bond for increased amount remove the present administrator, should he fail to comply; (5) that no one else can be appointed ex officio by the court; that no appointment can be made without previous publication required by law.
    Mrs. Virginia Garland subsequently intervened in the rule as administratrix of the succession of her first husband, William F. Anderson, making the same allegations and prayers in that capacity as she had previously made in her capacity as tutrix.
    This intervention was filed by reason of an exception taken to the application of the tutrix for an increase of bond on the ground that the succession of William F. Anderson had been placed under administration, with his widow as the administratrix thereof, and the ■administratrix was alone authorized to require an increase of the ■bond. The intervention was never served, and its consideration by the court was opposed on that ground.
    In the judgment pronounced by the court this opposition was held to be well founded, and all evidence taken under it stricken out.
    
      The District Judge sustained the fourth and fifth exceptions of the administrator, but overruled the first three. He ordered that an inventory be taken of the claim awarded to the estate by the Court of Claims, and ordered James M. Dowling, the administrator, “ to give additional bond, as required by Art. 1048 of the Civil Code, within ten days from the date of the judgment, upon the basis of the inventory and appraisement of said claim ordered to be made.
    The administrator appealed.
    
      H. L. Garland and E. N. Oullom Attorneys for Plaintiff and Appellee.
    
      A. Voorhies and W. S. Frazee Attorneys for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Article 1048 of the Civil Code says: “ The security to be given by every administrator thus named shall be one-fourth beyond the estimated value of the movables and immovables, and of the credits comprised in the inventory, exclusive of the bad debts. By bad debts are understood those which have been prescribed against and those debts due by bankrupts who have surrendered no property to be divided among their creditors.”

It is not pretended that this claim has been prescribed, or that the United States has gone into bankruptcy, and it certainly must be classed as a “ credit.” Art. 1048, C. C., is intended to safeguard and protect all partners in interest against misconduct on the part of succession representatives, and to insure the faithful administration and proper application of everything of value which passes or is liable to pass through their hands, and it has to be construed liberally in aid of that purpose. We think this claim has reached a point at which it may be fairly presumed that within a short period the government will provide for its payment, and that the amount paid will pass into the hands of the administrator in office when the period for that payment arrives. The heirs have the right to anticipate the happening of that event, and, in view of the law’s necessary delays in removing one administrator and replacing him by another, if such necessity should arise, to make certain that when the payment is made the administrator then in position shall have fully guaranteed the fidelity of his gestión. .

We see no good reason why the administrator should not give the security now. Whether it be given now or later, the responsibility of the sureties will not be advanced to a date prior to that of legal settlement, nor will it be a dollar less in one case than in the other.

We see no necessity for the continued existence of the administration of this succession except for the collection of this very asset. There seems to be no property in his hands and no one could be injured by the present exaction of a new bond, whilst on the other hand the rights of all parties will be protected beyond all possible contingencies. If the administrator be unwilling to give the bond, it will be very easy for him to resign and permit some one to qualify who will give it. No one could possibly be prejudiced by this course and we think the heirs entitled to have it followed.

It is argued that, granting that additional security can be demanded, the tutrix of these children, who represent only one of five branches of heirs of Mrs. Anderson, would be only entitled to exact a new bond to cover one-fifth of the government claim, and that counsel of the tutrix has admitted a willingness that this should be done. We presume that counsel meant that the tutrix would be willing if the minors could be legally secured by such a bond, but it is evident they would not. In the first place, though the value of the assets of the succession has been brought to our notice, we are ignorant as to who the creditors may be or to what amount they may have claims. Again, the court would not be authorized to vary the form in which it should be given nor the effect of the same. A bond given for one-fifth of the claim, made in legal' form, would necessarily enure to the benefit of all parties in interest and could not possibly be limited to the protection of the minors alone. The latter, therefore, would not receive from such a bond the security which this expressed willingness to receive must be held to have contemplated. The other heirs have done nothing which would estop them from claiming the benefit of any bond which may be given, though they might not themselves have asked for it. We think the judgment of the court appealed from is correct and it is hereby affirmed.

Rehearing refused.  