
    No. 3851.
    Mary E. Brown and Husband v. James A. Ventress, Dative Testamentary Executor.
    A dative testamentary exoeutor will bo removed from office, if it be shown that he lias disobeyed tho orders of the court directing him to lile an account within a given time, or that ho has otherwise neglected or refused to discharge the duties imposed upon him as testamentary executor.
    from the Parish Court of the parish of Iberville. A. Petit, Parish Judge.
    
      Maiheios <& Wailes, lor plaintiffs and appellees. Barrow & Bope, for defendant and appellant.
   Taeiaberro, J.

This is a suit to remove from office a dative testamentary executor, and for judgment against him for ten per cent, per annum on all sums he may be found liable for in that capacity. The action is brought by one of the heirs of James N. Brown, who died in 1-859, leaving a large estate, the principal part of which is situated in the parish of Iberville. He appointed as executors of his will, John N. Brown, a son, and Hilbert S. Hawkins, a friend of the testator. Both the executors died within three or four years after the opening of the succession, and in December, 1864, the defendant was appointed dative testamentary executor, and he qualified as such by entering into bond and taking the oath required by law. The testator directed that certain real estate he owned in Baton Rouge and New Orleans, should ho sold; that after the payment of his debts and certain legacies, the mass of Ms property consisting chiefly of two large sugar plantations should he kept together until his youngest child became of ago, the plantations to he cultivated, and the net annual reveneus to he equally divided among his heirs. The plantations have been superintended and cultivated by the defendant since ho came into office as dative testamentary executor. No account was filed by tlie executors appointed by the will. On the sixteenth of November, 1869, the plaintiff obtained an order of the probate court of Iberville, directing the defendant to file an account of his administration as dative testamentary executor, which he had failed and neglected to do prior to that time. The order then rendered was tardily obeyed. No account was filed until the fifth of October, 1870. On the twenty-fourth of that month he filed a second account, and on the sixteenth of October, 1871, ho filed a third account. These accounts were promptly and vigorously opposed, and it seems no judgment has been rendered on the oppositions.

This suit to remove the defendant from office was filed on tho third of October, 1870, two days before he filed his first account, and nearly a year after the order was rendered directing an account to be filed.

The grounds upon which the defendant is sought to be removed, are:

First — That he lias been unfaithful in his administration of the estate of James N. Brown.

Second — That he has made use of money and property entrusted to him as dative testamentary oxecutor for his private account.

Third — That ho has neglected and failed to obey tho order of this court commanding him to render a full, fair and perfect account of Ms administration.

Fourth — That tho sureties on his bond as dative testamentary executor are insufficient, and that he has failed to account for the proceeds of the plantations under his charge amounting to $275,000.

A judgment was rendered by the judge a quo, dismissing- from office the defendant, but ho did not feel authorized under the allegations of the petition to impose upon him the penalties prescribed by statute. Prom this judgment the defendant has appealed.

We think tho evidence in the record abundantly justifies the decree of dismissal. Por about five years before he was called upon for an account he had never presented one; and, after an order was rendered for the purpose of compelling him to account, another year elapsed before he,complied, the account then filed being the first during his administr atio n.

Whatever obstacles may have been presented to the executor’s efficient and careful discharge of his duties during the confusion and trouble arising from the war, there was nothing in his way for several years after it ended to prevent him from complying with the law requiring executors to render an account annually. Revised Statutes, sec. 1465.

It is shown that the dative testamentary executor made a surrender of Ills property in March, 1865, claiming the benefit of the insolvent laws, that one of his sureties has since gone into bankruptcy, and that the other owns no property.

Upon the whole, it is clear, from the entire evidence adduced by the plaintiffs in support of their allegations, that sufficient grounds are shown for the removal of the defendant from the office of dative testamentary executor of James N. Brown.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.  