
    No. 119.
    Succession of Mahala Sprowl.
    An executor is not permitted to make any charges against the estate he administers for services rendered, other than the two and a half per cent, commissions allowed him by law on the amount of the inventory.
    An executor, having received the funds of the estate he administers and afterward disposed oí them for notes of the so-called Confederate States will be held liable to the heirs lor the amount thus received.
    from the Parish Court of the Parish of Natchitoches. Lems, J.
    
      Pierson ffi Levy, for executor, appellee. A. Lomee, attorney for absent heirs, appellant.
   LudeliNG, C. J.

Daniel Brown, the executor of the last will of Mahala Sprowl, filed an account of his administration on the sixth of February, 1866.

An opposition thereto was filed by the attorney for the abscut heirs, praying that the following items of the account be disallowed, to wit: Two hundred and ninety-six dollars due the executor for ginning and pressing the cotton in 1860, five hundred dollars duo the executor for superintending the plantation in 1859, and sixteen thousand nine hundred and ninety-seven dollars and fifty-two cents claimed as a credit for Confederate notes collected by the executor. The judge a quo sustained the oxiposition made to the item for five hundred dollars, and dismissed it as to the other two items, and- the opponent has appealed.

We think 1he charge for ginning and piclsing' thé' cotton Should net he allowed. A family meeting, convoked on the ninth day' of November, 1859, recommended the Sale of the plantará n, mules', slaves, éfce;, and the sale was not made until the fifth day of January, 1800. No reason is shown why the cotton was not ginned and pressed befólo thé sale. It was the duty of the executor to have fcansbd this tó be done, and wo will not permit him to take ádvanta'g’o of his hiélies tó cniicíi himself. "

The charge made by the executor for superintending tlíe plantation is not a proper charge. The commissions allóWed him by kiw ¡ire intended to compensate him for his superintendence and care of the property of the estate. C. C. article 1676; 1 II. 400. The facts in' the case of the succession Of Isaac Pipkin, reported in 7 Ah. p. 017, may have justified the court in coming tó thé conclusión which they did, but we think the ruling in the case of Baldin’s'execútors v. Carlo-ton more salutary and iu consonance with the Civil Code, which declares that the executor “ shall be entitled, for his trouble dnd care, to a commission of two dud a half p"er cent, on the whole áino¡ü¿t' o'f the estimate of the inventory,” etc. '

We cannot allow' the executor the credit for sixteen thousand nine hundred and ninety-seven dollars and fifty-two cents claimed by him to be for balance of Confederate notes on hand at the surrender. There is no evidence in the record to show that the. notes of W. W. Brown, given for slaves, were paid in Confederate notes. The only evidence offered to prove this fact is the testimony of the executor himself; and his testimony shows tliat.W. W. Brown settled these notes iu February, 1862, by transferring‘to the executor sufficient funds, which he had iu the hands of Payne, Huntington & Co. And the same testimony satisfies us that the funds in the hands of Payne, Huntington & Co., belonging to W. W. Brown in February, 1862, consisted of lawful money, and not Confederate notes. Having collected the slave notes he must account for them. “He is bound to restore to his principal whatever he has received by virtue of his procuration, even should he have received it unduly.” C. C. 2974.

It is contended by thé executor that he áéted as a prudent man, and that he believed the settlement with Páyne, Huntington & Có. a good one, and that therefore he should be i'oleased from responsibility. The: evidence does not satisfy us tliat fke executor administered the property prudently or faithfully. Whatever may have' been -his Opinion or the opinions óf his neighbors réláiivó to the eventual sü'éc'eés of tlie Confederate States iii insurrection, thé ékécutor tvás not authorized to' speculate in stocks of the said States with funds belonging tó thé estáte administered by him. In this cáse the executor’s duties- were plainly indicatéd by his mandáté, thé testament óf Mahala* Sprowl. 3 Ah. 468. “ If i), man Undertakes áñ ófficé o’f kindness he must discharge thé dilty faithfully and prudently, otherwise he is responsible for the consequences.” 10 M. 708; Fitz v. Richard, 20 An. 549, and succession J. W. Wilder, 21 An. The evidence shows that the notes of Mrs. Manning for three hundred dollars, given for a slavo, were collected in Confederate notes, and for this sum the executor would not be responsible. But having used it in the payment of Confederate taxes, which are not opposed, he is not entitled to any other credit for it. We do not consider that the letters of Mrs. V. G. Sprowl, one of the legatees of the testatrix, ratify the acts of the executor in any manner, even if she had the power to do so.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed; that the opposition of the attorney of absent heirs be sustained, and that there be judgment against Daniel Brown, executor of the last will of Mahala Sprowl, and in favor of the heirs and legatees of Mahala Sprowl for the sum of seventeen thousand seven hundred and ninety-three dollars and fifty-two cents, with five per cent, per annum interest thereon from the sixth February, 1860, till paid, and the costs of this appeal. It is further' ordered that in other respects the account be homologated.

Rehearing refused.  