
    (36 South. 941.)
    No. 15,042.
    Succession of DAUPHIN.
    (June 20, 1904.)
    APPEAL — DISMISSAL — JURISDICTION — DATIVE TESTAMENTARY EXECUTOR — APPOINTMENT.
    On Motion to Dismiss.
    1. While the active assets to be distributed in accordance with a provisional account filed by the dative testamentary executor were less than this court’s minimum jurisdiction, it appeared from the pleadings before the court, and from the facts shown in the principal suit, made part of the record of the appeal here, that the succession interest was large.
    The issues, with the record as made up, are not confined to the provisional account. They embrace questions relating to large amounts of the succession.
    The motion'to dismiss is denied.
    On the Merits.
    2. The appointment of the dative testamentary executor was a nullity. It has been decided in the succession, in which the appointment attacked was made, that the executrix could not be called upon to account, and no appointment of a‘dative executor could be made, m the present situation of the case (Succession of M. A. Dauphin, 112 La. 103, 36 Sonth. 287), and, further, that the setting aside of the judgment discharging the executrix was a condition precedent to the demand for a further accounting.
    3. The whole trend of the decision in the cited •case excludes the idea that it was possible to reopen the succession in the manner it was sought to reopen it.
    The decision cited is controlling.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.
    In the matter of the succession of M.. A. Dauphin on an accounting of Harvey Wilber Smith, executor. Eosa L. Dauphin filed an opposition, and from the judgment on the accounting she appeals.
    Eeversed.
    Clegg & Quintero and Saunders & Gurley, for appellant. George W. Flynn, Thomas Marshall Miller, Henry Laurence Lazarus, and Herman Michel, for appellee H. W. Smith.
   BREAUX, C. J.

Harvey Wilber Smith was appointed dative testamentary executor of the last will of the late Dr. M. A. Dauphin by tbe judge of the district court.

Some time after his appointment — that is, on the 18th March, 1903 — he presented a provisional account to the court for its homologation and approval.

It consisted of items of expenses with which this executor had charged himself. .

To this account Mrs. Eosa L. Dauphin objected, and filed an opposition on a number of grounds — mainly, that she was at the time contesting the proceedings by which he (Smith) was appointed dative testamentary executor, and attacking the legality of his appointment on appeal before this court. She averred that Smith had not been legally appointed, and that his asserted appointment was a nullity; that the succession of M. A. Dauphin had been settled, and the executor discharged; and that the appointment was beyond the jurisdiction of the court.

She urged that her property had been seized and sold, and that the proceeds were in the hands of said Smith, and that, in event of judgment in her favor on appeal, she would be entitled to its return to her, and that, without regard to result of her appeal, she was entitled to have the proceeds of the sale of her property legally disfribitted. She sets out in this opposition that the sale of her property in satisfaction of a fi. fa. was null; that the items charged on the account are not due by her.

The prayer of the petition of opposition has special bearing in this case regarding the extent of the relief asked — that the account be disallowed and rejected, and that it be adjudged and decreed that H. W. Smitli is not dative testamentary executor of the estate of M. A. Dauphin; that the estate is closed; and that all her rights against Smith, personally and as asserted executor, be reserved.

Tbe account was approved and homologated. It is from the judgment approving and homologating this account that Mrs. Eosa L. Dauphin appeals.

On appeal the pleadings and proceedings had in the succession of M. A. Dauphin and in the suit of Sherburne G. Chojipin and others against Mrs. M. A. Dauphin were made part of the proceedings in the present case before us for decision.

The following offer was made by counsel for Mrs. Dauphin in the district court on trial of the case:

“The pleadings and proceedings had in the succession of M. A. Dauphin and in the suit of Sherburne G. Choppin and others against Mrs. M. A. Dauphin, as they appear now in the transcript now on file in the Supreme Court; it being agrega and understood that the transcript there, in case of appeal by either party, shall be taken and deemed part of the transcript in this matter, which shall be completed by the making of the transcript of ail the pleadings and proceedings, together with such pleadings 'and proceeding's as have been had since the date of the appeal.”

Counsel for plaintiff in the ease offered in evidence, and it also was admitted, “Brief in the Case of Succession of M. A. Dauphin.”

After the judgment of homologation and approval had been entered, this court, in the case before mentioned, of Choppin et al. against Rosa L. Dauphin, rendered a decision setting aside the judgment.

On Motion to Dismiss the Appeal.

In this court counsel for appellee moved to dismiss the appeal on the ground that the fund distributed by the dative testamentary executor, Smith, was $1,448.50, total amount in his possession and subject to his control. This motion to dismiss the appeal for want of jurisdiction ratione materise presents the first issue to be disposed of in the case.

It is, as alleged by appellee, as relates to the provisional account: The alleged asset of the succession is the sum set out in the motion, and, if there were no other evidence before the court, the grounds urged in the motion would have to be sustained.

But there is other evidence before us regarding the active assets. They amount to many thousands. The record introduced in evidence, before mentioned, shows that the sums involved are' surely within the jurisdiction of this court:

The brief introduced also contains a statement of the facts, and shows beyond all question that the issue is not limited to the small amount mentioned on the provisional account.

As to the amount of $1,448, the statement is correct. It is evident, however, that the dative executor will necessarily have possession and management of large sums, were he to continue in his trust as executor under the appointment heretofore made.

The question is jurisdictional, and, where it is made to appear that the dative executor will be called upon to settle a large succession, although the amount carried on the first account is small, this small amount will not be taken as controlling in determining an issue of jurisdiction. This testimony was admitted without objection, and cannot well be overlooked in deciding whether or not this court has jurisdiction.

The motion to dismiss is overruled.

On the Merits.

Appellant asks that it be decreed by this court that the dative executor appointed by the judge of the district court is not the testamentary executor of the estate of M. A. Dauphin; that the estate is closed; that the account be disallowed and rejected, and “all rights of appearer, as against this executor, individually, and as so-called dative testamentary executor, be reserved to her.”

From the point of view heretofore expressed by the court, in decision cited infra, the appellee could not be appointed dative executor. From the view heretofore expressed in said decision, our conclusion is not only the unavoidable result of the situation, but it is, in terms, said in the case heretofore decided that, under the issues as presented, there was no good ground for an appointment of dative executor. The court held heretofore that the judgment which had discharged the dative executor stood in the way of another appointment of a dative executor; that it was neces"sary, to attack and set aside the judgment before Mrs. Dauphin, dative executrix, could be called upon to account, or before the succession could be reopened and a dative executor appointed.

The court said, in substance, in the case to which we refer, that the purppse as expressed in the original petition was to conduct the litigation as a distinct suit for the recovery of one-half of the property which they claim; that a specific demand was made for particular property. Succession of M. A. Dauphin, 112 La. 103, 36 South. 287.

In the original petition in the suit just cited, the issues raised were as to whether the property had not been acquired by the first community, and whether a compromise which had been entered into by a number of heirs, named, on the one part, and Mrs. M. A. Dauphin, on the other, was legal and binding; also for a judgment fixing what property belonged to the first community.

The supplemental petition in that ease substantially raised the same question, with the additional ground of attach that the judgment itself mentioned was null, and, in consequence, the discharge of the executor also; that the succession had not been closed; and that the executor should be destituted. The supplemental petition was dismissed for inconsistency with the original petition, and the points which the original petition-raised were decided adversely to the plaintiff in that suit, at whose instance the dative executor, Smith, was appointed by the district court.

We will here state that the heirs of Mrs. Barbara Fauti Dauphin, who was the mother of Dr. Dauphin, filed a petition of intervention, and on the same day plaintiff filed a supplemental petition.

The court held in the case cited above that the second supplemental petition should not have been allowed to be filed, as it changed the issues.

After setting forth the original petition in extenso, the court sustained the defense to an extent that renders it impossible, in law, to sustain the appointment of a second executor at the present time and in the present state of the proceeding. '

The whole trend of the decision, in effect, is against such an appointment and a second administration. The court’s insistence is that the proceedings cannot be passed over as attempted by plaintiffs in the cited suit.

In the face of the pronouncement of the court, we cannot maintain the appointment of a second executor. His appointment must fall. It carries his provisional account its well.

To sustain that which we have just stated regarding the effect of the decision rendered by this court, we insert a few excerpts from the decision:

“In this first amended petition there was not a word said of annulling or setting aside the judgment by which the executors of the succession of Dauphin had been discharged and the succession closed, and it is hardly necessary to say that the setting aside of this judgment ivas a condition precedent to the demand for a further accounting from Mrs. Dauphin.” Italics ours.

And of this judgment the court further on says “that this judgment is res judicata of the present suit, and must operate as a bar to it, unless set aside in an action of frahd.” The court sustains the plea of prescription, and rejects plaintiffs’ demand, and dismisses the intervention without prejudice.

The proceedings now before us were ancillary to the main suit, to which we have referred at some length.

Under the issues as made up, it must follow the main suit, as it falls within its grasp.

The decision cited supra is the law of the case. It has passed into the body of jurisprudence. As all others, it will have to stand the test of time and experience.'

In the meantime it behooves all concerned to give it the weight and respect due to a final decision.

For these reasons, it is ordered, adjudged, and decreed that the judgment appealed from is avoided, annulled, and reversed.

It is further ordered, adjudged, and decreed that Harvey W. Smith is not dative executor of the succession of M. A. Dauphin, and his appointment was null ab initio, and his account is not allowed. It is rejected as null, and all of appellant’s rights against Harvey W. Smith, asserted dative testamentary executor, are reserved.  