
    NO. 7404
    SUCCESSION OF FONTANA.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   O P I N I O N.

By his Honor John St. Haul.

Frank Fontana was a member of the Order of Druida. The by-laws Vjf the order provided that at his death a benefit of $600 should be paid, to his wife or to his children, or to hi3 relatives by blood, marriage or adoption; that said sum should be his only to the oxtont that he might select the beneficiary thereof, provided suoh beneficiary came within the above described limits; and that said fund would form no part of his estate, and be liable for no part of his debts, except when secured by pledge or assignment thereof; all in strict accord with the laws of this State- Act 116 of 1906 and 189 of 1914.

The deceased named aa beneficiary and left neither wife nor children; he had neither pledged nor assigned his benefit.

JuleB Fontana, residing in Italy and claiming to be the brother and only blood relative of the deceased, claimed the benefit as due to him. He executed a power of attorney in due form in favor of Charles fapini (acting Italian Counsel of New Orleans) gibing his attorney express and special power to claim and recover the said benefit, and take such legal proceedings a3 might be necessary to recover it. He also furnished certain sworn statements showing his relationship.

fapini opened the succession and was appointed administrator thereof. The Druids then paid over to him the ampunt of the benefit.

Thereafter Fapini filed an account in which he represented that he had received said sum, that it formed no part of the estate of the deceased but belonged to his principal for whom he claimed it.

Feter Bivona a creditor of the dec,ssed opposed this account. He claimed that the administrator by accounting for the sum had estopped himself from fftiitii denying that it was the property of the estate; that in any event there was no proof that Jules Fontana was a relative of the deceased.

The here- fact that tha administrator pat the item upon his aooonnt under the circumstances shore stated cannot hare the effect suggested fcy the opponent. She sane point was^iyde- before the Supreme Court and overruled in Sno of Mulledy, 47 An 1580. In that case the administratrix placed upon her account certain moneys whioh Congress had appropriated in faror of the "Heirs of legal Representatives" of the deceased {a victim of the Ford Theatre catastrophe),' and in the same account she claimed it for herself as a blood relative of the deceased. The court held that the said sum formed no part of the estate, and that the administratrix had not estopped herself by accounting for tU it in the manner indicated, and was entitled to recover it as her own.

11.

It is olaimed that exparte statements and affidavits, were inadmissible to show the heirship of Jules Fontana. This might be true were the contest over assets of the succession in whioh the creditors would then have an interest (Succession of Crousilles 106 La 448-Succession of Derigny 128 La. 853).

But it has no application here. This sum did not belong to the estate and the creditors had no interest whatever therein. Act 115 of 1906-Act 189 of 1914. Succession of LeBlanc 142 An 28, Succession of ####### Moberly, 13 Court of Appeal 371.

As the Braids were not obliged to pay this sum unless there were a blood relative, and as no one is presented to give, the presumption is conclusive that they must have been satisfied from the proofs as furnished, that Jules Fontana was the brother of the deceased.

The why and wherefore of their asking that an administrator ' be appointed is therefore wholly immaterial; they paid because and only because, they were satisfied an heir had appeared.

Uma«r the circumstances it would bo to "Out«2erod Herod" , to beooae "more royal than the king", for the oourte now to rejeot that evidence, and deolare in effect that no suoh heir exists, thus Xneidentlfjr declaring the payment made by the Druids os the payment of a thing not due, and therefore subject to reoovary by them.

Had the benefit been one of which creditors might have compelled payment, the matter would of course be different.

We are therefore oonvinoed, if law be based on common sense, that we ought to consider and be satisfied with, the evidence which was aooepted by and satisfactory to the Druids, who made the payment in good faith for the benefit of the legal heirs and not of the creditors who had no olaim whatever against the order.

111.

Insofar therefore as the Judgment appealed from orders the funds in the hands of the administrator distributed in accordance with the aooount, it is oorrect.

But it was error (probably oversight) not to recognize opponent as creditor of the estate,

This failure to reoognize opponent's claim is in effect to reject it and would be res Judicata in any future proceeding. His proof is regular and sufficient and he is entitled to judgment; for although there are presently no assets here belonging to the succession out of which he can make his olaim, nevertheless other assets may be found later on, here or elsewhere, out of which opponent may be üable to realize something.

It ilit therefore ordered that insofar as the judgment appealed from affirms the account and orders the funds distributed in accordance thereforth, the same is affirmed.

It is further ordered that insofar as said judgment fails to reoognize opponent as a creditor of the. deceased it is reversed and and it is now ordered that Peter-Bdvona be and he is hereby recog-nised as a oreditor of the deceased Prank Fontana and of his ■ucceasion in the full sum of $986.98 with interest at 5% per annum froayaanuary S9th 1918, and the oosts of both counts (this judgment however ut to interfere in any way with the distribution of ## the fonda reoeived from the order of Draids in the manner proposed by the aoooont)»

December 23rd, 1918.

Judgment Amended and Affirmed.

Hew Orleans, La,  