
    (53 South. 485.)
    No. 18,305.
    Succession of BLANKS.
    (Oct. 31, 1910.)
    
      (Syllabus by the Court.)
    
    Appeal and Erro» (§ 1106*) — Disposition of Cause — Remandment.
    Where a plea of prescription is filed on appeal, the cause will be remanded, where the evidence is too vague and uncertain to enable the court to pass intelligently on the question of the interruption of prescription.
    [Ed. Note.- — For other cases, see Appeal and Error, Cent Dig. §§ 4386-4398; Dec. Dig. § 1106.*]
    Appeal from Civil District Court, Parish of Orleans; E. K. Skinner, Judge.
    In the matter of the succession of Mrs. Zenobia P. Blanks. From the judgment of homologation of the executor’s final account, N. M. Davis appeals.
    Reversed in part, and remanded.
    Ernest T. Floranee, for appellant. M. M. Boatner, for appellee.
   LAND, J.

Mrs. Z. P. Blanks died in the city of New Orleans in January, 1910, leaving a will containing a special legacy of $1,-000 to N. M. Davis, her half-brother. The will was duly probated, and a few months later the executor filed his final account, and caused N. M. Davis to be cited to show cause why said account should not he homologated. N. M. Davis was placed on the account as entitled to the cash legacy of $1,000, less 5 per cent, legacy tax, and the executor proposed to impute the net amount of said legacy to the payment pro tanto of a certain note of N. M. Davis for $2,000, payable to Mrs. Blanks, due March 6, 1901, with 8 per cent, interest from March 6, 1909, leaving a balance of $1,210 due as principal. On the same account it was stated that N. M. Davis owed $197.32 on four unmatured notes payable to Mrs. Blanks.

N. M. Davis filed no opposition to the homologation of the account, but has appealed from the judgment of homologation, and has pleaded in this court the prescription of five years against the demand on the note for $2,000 and interest. It appears that the note, with indorsements thereon, was filed in evidence, and that the executor testified in general terms that the note was secured by a certain policy of insurance for $2,000 on the- life of N. M. Davis, payable to Mrs. Blanks, or, in the event of her prL or death, to N. M. Davis, his heirs and assigns, and that a few days prior to her death Mrs. Blanks sent the policy to Mr. Davis, with the understanding that he should negotiate a loan from the insurance company on the policy and apply the proceeds in part payment of interest and note.

On this vague evidence, the court finds itself unable to pass intelligently on the plea of prescription, and is of opinion that the cause should he remanded for further evidence and proceedings on said plea.

It is therefore ordered that the judgment below be reversed as to item 39 on the account, and it is now ordered that the case be remanded for further proceedings on the plea of prescription filed in this court; costs of appeal to abide the final result.  