
    No. 5094.
    Myra F. Minor v. James L. Barker, Auctioneer, et als.
    An auctioneer is not the party to retain and pay out succession funds under order of court. He is to return bis sale and its proceeds to tbe court, and tbe representative of tbo succession is to make a distribution in court according to law and tbe rights of all creditor» settled contradictorily.
    Appeal from the Parish Court, parish of Iberville. Orowell, J.
    
      A. (& 33. 33. Talbot, William A. 33lmore, for plaintiff and appellee. Borrow & Bope, for defendant and appellant.
   Howeee, J.

The plaintiff having a judgment against the succession of James N. Brown, to be paid in due course of administration, instituted this as a third opposition to the payment to Isaac D. Brown, legatee, of the proceeds of the sale of the succession property in preference to her claim, and asking that the auctioneer be ordered to retain in his hands a sum sufficient out of said funds to pay her said claim. The dative testamentary executrix excepted to the form of proceeding on the ground that the proceeds of the sale must go into the hands of the said executrix, and plaintiff’s rights be settled in the account to be filed. This exception should have been maintained. The auctioneer is not the party to retain and pay out succession funds ■under order of court. He is to return his sale and its proceeds to the court, and the representative of the succession is to make a distribution in court according to law and the rights of all creditors settled contradictorily.

It is therefore ordered that the judgment appealed from be reversed, and that the exception herein be maintained, and the third opposition dismissed at cost of plaintiff therein.  