
    Succession of John Rice — On Appeal of W. Rice.
    A mandato is gratuitous, unless there lias been a contrary stipulation.
    The dismissal from office of a curator, does not involve the forfeiture of his commissions.
    from the Second District Court of New Orleans, Morgan, J.
    
      Colletts & Wooldridge and Hunton & Miller, for appellants. T. Gilmore T. G. Morgan, Jr. and Hyams & Jonas, for appellees.
   Buchanan, J.

Appellant claims to be a creditor of this succession for services rendered, as agent of Dr. John Rice, during fifteen years, at one thousand dollars per annum. The District court rejected the claim.

We find no error in this judgment. There is nothing in the evidence to support the claim. The case has a great resemblance to that of the Succession of Fink, 13 An. 103.

The claim is for compensation as mandatory. But Article 2960 of the Civil Code says : that a mandate is gratuitous, unless there has been a contrary stipulation. Besides, this claim is stale and suspicious. There is no evidence that the defendant ever demanded from, or was promised by his uncle, the deceased, any compensation for collecting his rents; especially a compensation amounting to about one-fourth of their gross amount. As was said in the case of Simpson v. Powell, 1 An. 555, the long delay in making such a claim, and the fact that it was never made of Rice in his lifetime, are to be taken into consideration and require explanation.

Appellees have answered the appeal by praying that the allowance made to appellant of commissions as curator of the estate, should be reversed, on the ground, that the appellant was dismissed from his curatorship.

The appellant was dismissed from office, and condemned to pay twenty per cent, per annum on a sum of $2,500, collected by him for the estate, and not deposited in bank. This is the full extent of the penalty prescribed in such a case by law. We do not find that a forfeiture of commissions is superadded by the statute. Of course, the penalty will offset the commissions, as far as it goes.

Judgment affirmed, with costs.

Yoorhies, J., absent.  