
    FILHIOL'S HEIRS vs. HEMPKIN ADMINISTRATOR.
    APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF OUACHITA.
    Opponents of a deceased administratrix’s account, cannot blend what may have taken place by her administrator, subsequently, in relation to her estate, with her account filed of her administration of another person’s estate. Her administrator represents her judicially, and the opposition must be confined to her account of her own administration.
    The administration of the estate of a deceased administratrix, is separate and different from her account of her administration. In the latter, her administrator represents her judicially, and in the former he renders his own account, which must be homalogated contradictorily with all the creditors of her estate.
    In this case, Lucy Hudson, widow and administratrix of the estate of J. J. Filhiol, deceased, rendered her account as she alleges, of moneys paid out for the estate, of her own funds, amounting to five hundred and twenty-two dollars, and for which she prays judgment with interest, against the estate. She died and Hempkin was appointed her administrator.
    The heirs of Filhiol made opposition and objected to several items in the account, and alleged that there was property of the estate not accounted for. That a negro slave Margaret and her four children, who were sold at the probate sale of Lucy Hudson’s estate as her property, in fact belonged to her late husband J. J. Filhiol, and made part of his estate, of which they are the only heirs, and that they have a right to the proceeds of these slaves, and pray that the notes given for the purchase money be given up to them. They allege they have presented all these claims to B. Hempkin, administrator of Lucy Hudson’s estate, and he refuses to allow them, wherefore they pray judgment.
    The administrator answered and averred that the oppositions were too general, and the part claiming one hundred and twenty head of cattle and ninety head of hogs is erroneous, as these are inventoried and accounted for as pommon property, and the wife was entitled to one-half, and has paid for the other. The slave Margaret was brought in marriage as dower, and they have no right to her or her increase. He prays that the opposition be rejected and the account homologated, with the addition of the price of the cattle and hogs, &c.
    Marie B. Filhiol, one of the heirs of J. J. Filhiol, filed a motion to dismiss all these proceedings, as the account filed by Lucy Hudson is represented to be her account of the administration of J. J. Filhiol, on which no action was had in her lifetime, and none can be taken since her death.
    Hempkin, administrator, moved to dismiss this motion.
    Both the heirs of J. J. Filhiol now pame forward and filed their petition, alleging the administratorship of Lucy White alias Lucy Hudson, deceased wife of Filhiol, and that she collected and received his estate and never rendered a final account, but died, and that Hempkin is her administrator. Wherefore they pray for the rendition of a general account of the estate of Filhiol, and judgment for five hundred dollars, which she owed them.
    The administrator answered, and says he has no knowledge of the estate except from the records of this court, and cannot be required to account for property which never came into his hands, and refers to the inventory. He prays that these proceedings be dismissed, &c.
    There was a mass of accounts and documents produced to show the state of the affairs of Filhiol’s succession, but appear in a very confused and unintelligible manner.
    The probate judge, however, seemed to reject all the accounts produced as evidence under the opposition, and gave judgment homologating the account filed by Lucy Hudson, before her death, and gave judgment for the amount, being five hundred and twenty-two dollars and thirty-four cents. The plaintiffs in opposition appealed.
    
      Downes and Copley, for the plaintiffs.
    
      M‘Guire, for the defendant.
   Bullard, J.,

delivered the opinion of the court.

On the death of J. J. Filhiol, it appears that his widow, Lucy White, became administratrix of his estate. She after-wards intermarried with one Hudson. In 1S35 she filed an account of her administration, but no further proceedings were had until after the death both of her last husband and herself. Hempkin was then appointed administrator of her estate, and finally the heirs of J. J. Filhiol, in 1839, filed I heir opposition to the account thus rendered by his widow. They deny the existence of the debts which she claims to have paid, contest the interest and a fee to an attorney. They further charge that she ought to account for one hundred and twenty head of cattle belonging .to the estate, together with about seventy-five head of hogs. They then set up a claim for the price of a slave Margaret and her children, which had been sold as a part of the estate of Lucy Hudson, who had rendered the account; but which they allege belonged to the estate of J. J. Filhiol, her first husband. They allege that they have submitted their claims to Hempkin the administrator, and that he refuses to allow them, and they concluded by praying that after legal notice the said claims may be allowed, and the administrator condemned to pay them. The administrator answered this opposition and claim, by excepting to the sufficiency of the opposition in point of form, it being too vague; averring that the counsel .fees were necessary and useful, and had been paid, and that the payment of the debts were authorized. He alleges, that his intestate had already accounted to the heirs for the cattle and hogs claimed, and that she, and not J. J. Filhiol, was the owner of the slave Margaret and children.

The heirs afterwards moved to dismiss all the proceedings in the case ; first, because no legal action was had upon the account in the lifetime of Lucy Hudson, and that none could be taken after her death, as the administration did not decend to the heirs or administrator, and neither appear to be parties; second, because she was a married woman and her husband did not to authorize her to appear in court. The administrator moved to dismiss this motion.

Before the court had acted upon these motions or exceptions, which were wholly irregular, the heirs having already contested the account rendered upon its merits, and a motion to dismiss an exception, being a novelty in practice which we are not disposed to encourage, the heirs came forward with a new petition, in which they state their heirship of J. J. Filhiol, his death in 1829, the appointment of his widow Lucy White as administratrix, her death, and the appointment of Bernard Hempldn as administrator of her estate. They represent that she never rendered any final account of her administiation ; that she took possession of the whole estate and converted a part of it to her own use, and that her administrator has failed to return what still exists, in kind, to the petitioners. They pray that he may be condemned to render a full account of the administration of his intestate, and to restore such property as exists, in kind, which came into his possession as administrator, belonging to the estate of J. J. Filhiol, or to account for the price on failure to do so, and to pay five thousand dollars, or such balance as is due by Lucy White, the late widow.

To this petition the administrator answered, that he had no knowledge of the estate of Filhiol, except that derived from the records of the court, and that he could not be required to restore property which never came into his hands. If the late administratrix made way with the property, be is not accountable for it, but the plaintiffs must look to her heirs.

It is obvious that, in these last proceedings, the parties figure in a different capacity from that which they had assumed at the commencement. In opposition to the account filed by Lucy Hudson, these opponents appear as the heirs of J. J. Filhiol, and the account opposed relates to the administration of his estate. In the last they appear as creditors of Lucy Hudson, claiming a debt due by her of the administrator of her estate, and whom they appear to treat at the same time, as the administrator of Filbiol’s estate. This blending of claims and qualities of the parties, has created confusion in the record. A part of the opposition to the first account rendered by Lucy Hudson, in 1835, relates to what f°°k place after her death, by Hemplrin the administrator, to wit: thesale of certain slaves which came into his hands as a part of her estate. The creditors of Lucy Hudson have an interest in that question, and are not parties. If we were ^ * now to adjudicate upon that claim, it would not be conclusiye uPon *be creditors. Indeed the question upon the homo-location of an account is whether it was correct when ren- . .. .. ... . . dered, and parties cannot insist upon its being amended by adding what took place afterwards; in other words, the ques(jon was what account was Lucy Hudson bound to render in 1835, and not what her administrator was accountable for as such, long subsequent to the filing of the account. Hemp-kin represented her in a judicial proceeding, commenced during her lifetime, and was not regularly called upon to account for his own administration of her estate in the same proceedings.

Opponents Of R d€C6RS6(í administratrix’s bíen<T?vha?may have taken place by her admimstrator snbsetioTto^eresto'e? vv.th her account ministration of estate?1 tier°ad? resentsherjudil ciáily, and the b^'confined'^o her ovra administration.

The administration of the estate of a deceased administratrix, is separate and different fromheraccouut of her administration. In the latter her administrator represents herjudicicially, and in the former he renders his own account which must be homologated contradictorily with all the creditors of her estate.

The opponents having answered to the merits, were too late in objecting to a want of authority from the husband to file the account of administration.

The Court of Probates does not appear to have acted upon many of these exceptions, motions, counter-motions, and petitions, but after a trial upon the merits, homologated the account as originally filed. It is shown that the cattle and hogs had already been accounted for to the heirs. The other items of the account v/ere satisfactorily established. But, we think, the question as to the slave Margaret and her children ought to be left open for final adjudication, contradictorily with all parties interested therein. The judgment is silent as to that claim, and it is left doubtful whether the Court of , Probates took it into consideration. }

It is, therefore, ordered and decreed, that the judgment of the Court of Probates be affirmed, with costs ; reserving, however, to the heirs of Filhiol their right, if any they have, to claim the price of the slave Margaret and her children.  