
    
      DELACROIX vs. PREVOST’S EX’RS. Ante 276.
    Former judgment confirmed
    In this case, the defendants obtained a rehearIng on the question, whether the confession of an executor, drawn by an interrogatory, be sufficient to charge the estate in his hands.
    
      Morel, for the defendants.
    The defendants are not sued on a contract entered into by themselves or their ancestor, but upon a contract of their testator. It follows from thence, that if the stipulation to pay interest, at the rate of ten per cent, had been sought to be enforced during his life, it could, not have been established by testimonial proof. 2 Martin’s Digest, 159, n, 7. 3 Febrero, cinco juicios, 43, n. 112, 121, n. 284, Cede Civil, 315, art. 256,2 Fothier, Obligations, n. 754.
    The nature of the case is not altered by the death of the defendants’ testator. They are neither his heirs nor his legatees. If the testimony must have been rejected before his death, it cannot become admissible by it.
    The defendants, though they be in name parties to th.e suit, have no interest in it. They are mere witnesses, introduced by the plaintiff against an estate in their possession, and of which they have the management. The real parties to the suit are the plaintiff and the heirs.
    
      The proof upon which the judgment is ground. ed is the extra-judicial confession of Prevost to Soulie, who has since become his executor. ñ¡ confession not made to the plaintiff, and not attended, with any of the circumstances that the law requires to make it evidence. It was not made on oath, nor in the presence of the plaintiff : it was uncertain, as it did not express the time during which this interest was to be paid. Cur Phil 109 n. 1 & 2. Nothing proves that interest was to be paid at the rate mentioned, until the payment of the debt. 2 Pothier, Obligations, n 801 Such a confession cannot be rew ceived in lieu of the litteral proof,-which the law requires of an agreement for conventional interest.
    The second agreement, said to have been en tered into by the plaintiff and defendants, the only one in which according to Pothier, the de= cisory oath could be resorted to, in order to supply the literal proof required by the code, is expressly denied on oath, there is no proof of it. The consequence is, therefore, that as the plaintiff alledges two agreements to pay interest, one at 10, the other at 6 per cent, and he admits that the first was at an end, and m rged in a second, which he cannot prove, he cannot recover on either.
    The interrogatory was answered, because the executorithouerht himself bound by law, so to do. Vv ° ; - Surely, this cannot affect the heirs who were not parties to the suit, and who, if they had been, would have excepted to the testimony. An executor is bound to declare what he knows, when legally called on, and in the present case, the executors were not competent to object to the demand of an answer on oath, because they were without interest in the suit, and considered themselves as witnesses called upon to the first agreement, and that the real parties, viz : the heirs, should thereafter be made parties to the suit or a defensor appointed to them on the plaintiff’s application, who might have excepted to the testimony. The now defendants, the executors, could neither refuse to answer nor except to their own testimony: At all events, the answer to the interrogatory cannot affect the rights of the heirs : the executors representing only the person or estate of the deceased, and not the heirs, to whom they are accountable.
    The counsel for the plaintiff declined making any reply.
   Martín, J.

delivered the opinion of the court, The defendant’s counsel contends that the confession of the executors, drawn by an interrogatory, is not sufficient to chargethe estate, because ^ ^e> t^ie rights of the heir, máy be a^cted by parol evidence, in cases in which that kind of proof js inadmissible.

4 The law authorises every party to probe the conscience of his adversary, and to draw from him any evidence in his possession : it makes no distinction in cases of executors, and it is not easy to discover on what grounds it should. The executor is the chosen friend, who possessed the confidence of the testator in his last moments : the person whom he selected to protect and defend his estate, after his death. He may bind the estate by confessing judgment, by not availing himself of certain exceptions, which it is his conscientious duty to decline to use, when he knows the demand to be fair. It is true, he may possibly do an injury to the heir : but he is accountable for his conduct to him. But the testator, if he had no forced heirs, might have disposed of his whole estate, in favor of the executor, or any other person. The forced heir may prevent the interference of the executor, by paying or securing the payment of the legacies. This, it is true, the heir may, sometimes, be unable, to do: but the case of a father, on his death bed, colluding, in order to destroy the rights of his children, with the person whom»he is about to appoint his executor, in the hope that he may, by paying, and collusion with, feigned creditors, charge his estate is too remote to authorise us to conclude, that the legislature did not intend that the general law, authorising an appeal to the conscience of the party, should reach the case of an executor.

It is, therefore, ordered, adjudged and decreed, that the judgment formerly rendered, in this case, remain in force as if no rehearing had been granted.  