
    No. 13,517.
    Anna Billington,Wife of, vs. Ella Sims, Wife of, Tutrix et als.
    Syllabus.
    1. The property owned by two persons, but assessed exclusively in the name of one was considered as to its value, and it was found that the taxes paid thereon were charged properly, in proportion to the interest of each of the owners.
    •2. The value of rental was not larger than fixed in the judgment of the District Court.
    3. The “bridge fund” was properly expended and sufficiently accounted for.
    4. The fee of attorney was properly charged to the interest safeguarded by the services; and the costs of the settlement of the succession, in which the minor was concerned, were also correctly passed upon in the court below.
    APPEAL from the Tenth Judicial District Court, Parish of Avoyelles — Laforgue, J.
    
    
      Joseph Olifton Gappell for Tutrix, Appellee.
    
      William Hall and J offrion & J offrion for Opponent, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This cause was remanded to the District Court with instructions to Ella Sims, wife of W. II. Jackson, and W. II. Jackson to ■file a full and final account of their administration as tutrix and co-tutor of Anna Billington, wife of Charles L. Younger, in conformity with the views of the court. Sims, Tutor, vs. Billington, 50th Ann. 968..

The first item left open to be examined and passed upon in matter of the final account was: the amount of the taxes paid on the property belonging to the Succession of. George Billington;

.Second: The amount to be charged for rental of “home place”;

Third: The matter of the expenditure of the amount received from the “bridge fund”;

Fourth: The costs of attorney’s services in the matter of the Succession of Rachel Billington, which are to be equally divided between Mrs. Hardee and the opponent heirs of the late Mrs. Rachel Billington,, also matter of the debts of the Succession of Rachel Billington;

Fifth. Costs in the Succession of George Billington.

In accordance with the direction of the court, the final account was filed. Opponent opposed its homologation on a number of grounds.

On the trial of this opposition, evidence was heard .regarding the taxes charged of which we have made the following summary.

The deputy assessor made an estimate of the amount of taxes paid by William Jackson for the estate of Billington showing amount j)aid by t'he former on the whole property. The amount due by each interest is not clearly set out in' the statement of this officer. The judge of the-District Oourt, in order to close the litigation, adopted a basis of settlement which 'we have determined to approve. He found that the taxes-paid on the community, property.was nine 64-100 dollars, one-half of which was charged to the opponent, who owned one-half, and the other one-half to the accountant, who was the owner of the other half of this «articular tract of land, which was of little value. This left one hundred and nine 62-100 dollars' of taxes paid on the separate property, adding- the one-half of nine 64-100 dollars ($4.82). Opponent contends that upon this basis, to which he does not seem to object greatly, there was error to the amount of four 80-100. dollars. We see that tlie property of the two persons had, for a great many years, been assessed in bulk and the taxes paid by one of these parties. In. ascertaining the amount due by each, the small difference ($4.80), in view of' the difficulty of establishing the amount to a cent,, comes within the rule de minimis. The judgment as to these taxes does substantial justice between the parties.

The rent of the “home place” gives rise to the next question before-us for decision. This land is only ten acres in extent. Some six acres of it was cultivated. It was occupied by Mr. and Mrs. Jackson, accountants, after their marriage. Rent is unquestionably due by these parties. Some of the witnesses have estimated -this rent at a considerable sum per month, and some have not been impressed by its value: The judge of the District Court placed the rental value of the place at sixty dollars a year. We feel confident, after having considered the evidence, that that amount .is fully all that it is worth. It might even be something less, but he having fixed it at that amount, being doubtless familiar with the locality and personally acquainted with the witnesses, we- deem it proper not to reduce the amount.

With reference to the “bridge.fund,” another subject which has given rise to contention, and which is numbered three (3) in the foregoing statement of the grounds of opposition, the facts are: The sum of five hundred and twenty-three 50-100 dollars was a community fund received by the widow, Mrs. Jackson (who is the accountant), after the death of her late husband. Three hundred and fifty dollars was deducted by the judgment rendered by the District Court. She produced .a list of the debts, which she swears she had paid. The question propounded to her as a witness was:

“Q. Mrs. Jackson, will you state what you did with five hundred and twenty-odd dollars which was paid to you by Mr. Hardee, after the death of Mr. Billington, and between his death and your marriage with Mr. Jackson; what became of the money ?
“A. I paid debts with it, most of it, and the balance of it went to the support of myself and child.”

These debts, as decided by the District Court (though Mrs. Jackson claimed they were twelve dollars more) footed three, hundred and fifty dollars, and included the funeral expenses of the former husband of Mrs. Jackson and the father of the opponent, Ella Billington, child of Mrs. Jackson, by her first marriage. Twelve dollars of the claim of Mrs. Jackson was not allowed by the District Court. The tutrix says that she kept memoranda of a few of the items, not all. She lost all the receipts except one. This is scarcely a compliance with the requirements of law, but in this settlement between the mother and daughter, we think that we are justified in the conclusion that the mother’s statement is true and for that reason, in our view, it was proper to allow the deduction as made.

This brings us to the fee of attorney in matter of the Succession of Rachel Billington, the fourth ground of the opposition, as before stated. Opxionent’s co-heir (there were only two heirs in this succession) testified that the property was divided equally between them, and that each paid one-half of the debts. The minor’s one-half of the indebtedness was paid by Jackson, to whom proper credit is given. We have not found, as relates to Rachel Lillington, any indábtedness which was not settled as just stated.

We now come to the fifth ground of opposition, viz: costs in matter of the settlement of the succession of George Billington. Opponent contends, in the first place, that all cost for filing the tableau in the latter succession should be divided in proportion to the interests of each succession, those of George and Rachel Billington respectively. We understand that the costs in the succession of Rachel Billington were satisfactorily settled as before stated, and a division made between the two heirs, and now Mrs. Hardee, plaintiff’s co-heir in succession of Rachel Billington, is not before the court and can not be charged for the expense of a tableau to which she is not a party. If she owes any amount, she can not be charged at this time and in these proceedings.

The total assets in the succession of George Billington amount to one thousand nine hundred and twenty-eight dollars. The account filed shows that defendant’s interest in the succession of George Billington, growing out of the community existing between her and her said late husband was only two hundred and eighty-four dollars, and to that extent she has been held bound for costs and charges. No other amount, in our view, is to be taken into account in settling the rights of the parties and in fixing the amount of the defendant’s proportionate-indebtedness for fees and costs. Defendant owes in the proportion of one thousand nine hundred and twenty-eight dollars to two hundred and eighty-four dollars, and urges that it should be added to an item of and eighty-four dollars. The opponent claims that the amount is one hundred and forty dollars, and urges that it should be added to an item of three hundred and sixty dollars admitted by defendant. Part of this-item, viz: seventy dollars, was the subject of contest on the first trial, and it was not allowed. We do not think that the remaining seventy dollars making up the one hundred and forty dollars is sustained by fireproof.

Counsel for opponent invites our attention to the charge of three hundred and ninety dollars for expenses of minor, and contends that the question is still open for decision, and that it should be stricken from the record. This sum was allowed (in our first decision) to the tutrix on the condition that there is revenue, and that it is not deducted from the principal amount due the minor. ■ •

The testimony shows that there is revenue, and, therefore, this amount is properly deducted from it, Interest is claimed by the opponent on small amounts from the date they were respectively received. Interest on rental account cannot be allowed for the reason that in estimating the rent in bulk it is covered by the total at which the rent was fixed. As to the interest claimed on the other small items, it would amount to very little, and, in the main, is taken into account in arriving at the different amounts due.

We have considered the respective claims of' the parties and have arrived at the conclusion that the judgment appealed from should not be disturbed.

Although the tutrix was originally at fault in not obtaining the court’s order before paying certain debts of the succession in which the opponent, a minor, had an interest, yet when the minor is paid all to which she would have been entitled had everything been settled strictly in accordance with the law’s requirement, she no longer has good ground to complain.

For these reasons it is ordered adjudged and decreed that the judgment be and the same is hereby affirmed.

On Application for Rehearing.

The many issues presented, involving small amounts, has resulted in two escaping direct attention. We, at this time, make needful amendments.

In reference to the proportion to which counsel call our attention, i. e., opponent’s interest, “it is the difference between $1,928.00 and $284,” equal to $1,644.00. We have found no good reason for increasing the $284.00 by adding $300.00 to it, being the enhanced value of land through erection by the mother of a residence on it.

The next item to which objection is raised on this application for a rehearing relates to expenses of the minor. The amount claimed in the account is thirty dollars per p,nnum since 1883, amounting to $390.00. In the opinion of the District Court, which forms no part of the decree, there is a hastily written expression: “The minor must, however, be charged with the amount of thirty dollars a year, and this to be from the date of her father’s death.” The decree itself is correct enough, for, after making certain changes in, and amendments of, the account in which not the least mention is made of the thirty dollars a year, the court approves and homologates the final account. This approves the item in question as written in the account, and it cannot be affected in any manner by the hastily written words in the opinion of the district judge.,

. ■ We have reconsidered the. item claimed for interest on money received, and the result is that as between this mother and her daughter, we think that full justice has been done, and that no interest is due as claimed on rehearing. In allowing rent for the land, we took into account all values. It should not now be increased by adding interest to the $900.00 charged for rent.

As relates to the remainder, if account be kept of the indebtedness of the minor for her support, in matter of this interest the amount would be very little, if any, in hex favor.

As relates to the horse, counsel calls attention to this evidence: “When I married Mrs. Sims, I fo.und one horse on the place. It was there when first inventory was taken. I can’t say why it was not placed on the first inventory. I swapped it for a mule, which I have yet. The mule was worth about sixty dollars when I got it.”

This amount is, therefore, charged'to defendants in solido.

A further deduction of seven dollars from credits allowed the tutrix is asked. The husband of the tutrix testified that an item of seven dollars on the account is not correct. It will he deducted.

We have chosen to make the foregoing corrections at this time and on this application. We have given careful attention to each item of the account. In view of the details in matter of the settlement of this succession, nearly all of facts, we have given attention to all questions arising on the application fox a rehearing.

• It is ordered, adjudged and decreed that our decree on this appeal be and the same is hereby amended by charging the tutrix with one item of sixty dollars, and another of seven dollars; and to that extent, to-wit: $67.00, the judgment of the District Court homologating' the account is amended.

. It is further ordered, adjudged and decreed that our former judgment be amended by charging the costs of appeal to the appellee.

As amended, our former decree remains and the rehearing is refused.  