
    No. 11,943.
    Succession of Mrs. Henrietta Kaiser.
    On Motion to Dismiss.
    when the subjects oí a judgment are distinct acquiescence in one will not defeat the appeal as to the judgment on other and distinct demand.
    On the Merits.
    where executors have the administration of a succession composed entirely of stocks which have a market value, hut fluctuate, and they sell the same at private sale in small lots for the interest of the succession, when a public sale would have had the effect of depreciating the value of the stock, by putting on the market large amounts at one time, they will not be held responsible for the loss in value estimated at the highest market quotations, when no demand has been made upon them by particular legatees, or the universal legatees, to pay the legacies, and for this purpose demand a public sale of the stocks by an order of court.
    
      APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.
    
    
      Percy 8. Benedict and Robert G Rugué for Executors and Appellees,
    
      Benjamin Rice Forman for Residuary Legatees, Appellants.
    ON Motion to Dismiss.
    Submitted on briefs December 16, 1896
    Opinion handed down January 6, 1896.
    On THE MERITS.
    Argued and submitted April 8, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused June 1, 1896.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Miller, J.

Under the will of the deceased, there was, after some special legacies, the usufruct of a sum of money to Mrs. Siegel, at her death to accrue to her children, who were constituted her uni - versal legatees. The executors filed an account which was opposed by Mrs. Siegel individually, and as tutrix of one of the children, and by the children of age as universal legatees. The opposition claimed the executors were liable for a large amount for loss alleged to have arisen from their administration, and opposed a number of items of the liabilities placed on the account. The judgment sought by the opposition was that the executors be decreed liable for the alleged loss, that the items opposed be stricken from the tableau, and that they be ordered to pay the money the usufruct of Mrs. Siegel. From the judgment amending the account in some respects in favor of Mrs. Siegel for the money constituting her usufruct and awarding the residue to the universal legatees, the executors appealed. Soon after their appeal they paid the money to Mrs. Siegel, taking her receipt, concurred in by her children, who waived any security from her usufructuary. Subsequently the universal legatees apprehensive the executors would abandon their appeal, obtained an order as appellees to bring up the record with a view of answering the appeal and they have filed the record. They also obtained an appeal, and hence are here as appellees and appellants. They are met in this court with a motion to dismiss, based on the payment of the money given in usufruct by the will to Mrs. Siegel, and awarded by the judgment of the lower court. The receiving of this money, it is claimed by the executors, is acquiescence by the universal legatees in the judgment of the lower court on their opposition, and, therefore, a bar to their appeal.

Acquiescence in a judgment precludes any appeal, and it will make no difference that it is acquiescence iü part only of the judgment. C. P. Art. 567. But this rule applies to the judgment on the demand, the subject of the settlement or other form of acquiescence. If the demands passed on by the judgment are distinct, it is not easy to see that a settlement tendered and accepted as to the one, can be deemed acquiescence in the judgment rejecting other demands, not at all connected with that settled or abandoned. Whenever the subjects of the judgment are distinct, it seems to us the adjustment and withdrawal of one of the demands will not prejudice the appeal as to the other subjects of controversy. In this case the executors, after their appeal, paid from the succession funds the usufruct legacy to Mrs. Siegel. The universal legatees joined in the receipt for the reason, as we infer, to waive any right that the executors might have to require security from the usufructuary. This settlement undoubtedly put an end to the appeal of the executors so far as the judgment directed that payment. It was the voluntary execution of the judgment by them. It was the acceptance of the money Mrs. Siegel claimed in the opposition. But the demands of the. universal legatees against the executors that they should be charged with the losses on the succession property, and that certain items should be stricken from the account, were not at all connected with the demand of the usufructuary. On the appeal of the universal legatees, they had the right to be heard on their demands. They had fortified that right by their own appeal. Code of Practice, Arts. 688, 589, 590. There was in our view no acquiescence to bar the right of the legatees, growing out of these appeals. Their assent to the payment of the money due to their mother, not contested, and whether contested or not, is immaterial, was not acquiescence in the judgments on the other and different demands of the universal legatees. Liles vs. The New Orleans Canal and Banking Company, 6 Rob. 273; Clements vs. Cassily, 3 An. 358; Mitchell vs. Lay, 3 An. 593; Dwight vs. Brashear, 12 An. 860; Flowers vs. Hughes, 46 An. 439.

The motion to dismiss is therefore denied.

ON the Merits.

McEnery, J.

The deceased died in Germany. She left a will in which she made a number of particular legacies, and disposed of the residuum of her estate.

The particular legatees and the universal legatee pursue the executors to make them responsible for not disposing of the personal effects in time, claiming that a failure to do so has resulted in loss to-them. The particular legatees have no cause of complaint as there is enough in the succession to pay them in full. There was a usufruct of six thousand dollars, and a particular legatee for the amount This has been paid, and the payment is evidenced by a receipt for the amount.

The estate consisted entirely of stock in corporations. The contention of the universal legatee is that this stock should have been sold under an order of court in ten days, the same as is done in the case of the administration of vacant successions. We express no opinion on this, because it is unnecessary. But conceding the law to be the same for a succession administered.by executors, as that of a vacant, succession, the executors could only be charged with the difference in value between what it would have brought had an order for the sale been provoked and its value at the time it was disposed of. The testimony shows that at the opening of this succession there was financial depression; that to put the large amount of stock that the succession owned on the market would have caused its decline and it would not have realized the value of the stock. It could be better disposed of at a private sale in small blocks. Some shares of the same kind of stock were sold above the inventoried value, but these sales were exceptional. On the whole, the-evidence discloses that the executors were careful and prudent, and acted upon the most conservative line of conduct in order to realize as much as possible from the stock. Letters were issued to the executors on the 29th day of June, 1893. In November following the •judge of the Civil District Court, parish of Orleans, issued an order that they should dispose of the stock at private sale. He was evidently impressed with the same idea which controlled the executors in the discharge of their duty.

The stock was of high class, paying good dividends. There was, apparently, no use for its immediate sale. There was no formal demand made upon the executors by the particular legatees for the payment of their legacies. With propriety had such demand been made the executors could have satisfied the particular legacies at the market value of the same, had the legatees been disposed to accept the same.

The Citizens Bank stock was appraised at eighty-five dollars, but the executors realized one hundred dollars for the same. The St. Charles Street Railway stock was appraised at seventy-five dollars per share, and sold from seventy-six dollars and twenty-five cents to fifty-four dollars and fifty cents. The New Orleans City & Lake Railroad stock, appraised at one hundred and thirty dollars per share, sold for one hundred and twenty-four to one hundred and eleven dollars.

The stock fluctuated in value, and it was problematical whether if sold in ten days after the succession was opened it would have realized a greater price. At any rate there was no formal demand made upon the executor to pay the legacies, either by the particular legatee or the universal legatee. They finally provoked a sale of the stock remaining in the succession, and it brought less than the market quotation; that is, it steadily declined as it was offered. The executors were only able to sell in small quantities. The testimony of the brokers as to the inexpediency of offering the stock in large quantities at public sale was confirmed by these public sales. The bidders were limited in number. There can be no doubt that the executors acted for the best interest of all concerned. They are business men of high standing and evidently knew the market and the best means of disposing of the stock. We are satisfied that the succession has lost nothing by their administration.

Objection is also made to the payment of the fees of the notary, appraisers, attorneys and the commissions of the executors. The attorney for absent heirs, the appraisers and the notary were paid on the order of the judge, and the executors are protected by this decree. The lower judge fixed the fees of the attorneys for the executors on the amount of the estate in Louisiana, and we think his estimate of the value of the legal services rendered is correct, and we will say the same in reference to the' fee of the attorneys who-provoked the exhibition of the will.

The executors’ commissions were properly calculated upon the-estate administered here by them.

Judgment affirmed.  