
    (76 South. 704)
    No. 22664.
    Succession of LANDMAN.
    (Oct. 29, 1917.)
    
      (Syllabus by the Court.)
    
    Appeal and Error <&wkey;157 — Decree Appointing Administrator — Compliance witi-i Decree.
    A decree appointing an administrator is provisionally executed notwithstanding an appeal therefrom, and one who opposes an application for administration, and who is appointed joint administrator with the applicant, does not acquiesce in the judgment thus rendered so as to destroy his right of appeal by qualifying as administrator within the legal delays.
    It is otherwise when such opponent prays for and obtains jointly with his coadministrator, without legal necessity and without reservation, an order to sell the property of the succession in order to pay its debts; that is a voluntary execution of the judgment, and he thereby forfeits his right of appeal.
    Appeal from Twenty-Second Judicial District Court, Parish of East Baton Bouge; I-I. F. Brunot, Judge.
    Application for letters of administration by Mrs. Bertha Landman Freidlander, Mrs. Bose Landman Kaufman, and another, in the estate of Budolph Landman, deceased, opposed by Jonas Landman and Mrs. Bachel Landman. From an order appointing Mrs. Bose Landman Kaufman and Jonas Land-man joint administrators, Jonas Landman and Mrs. Bachel Landman appeal.
    Appeal dismissed.
    T. Jones Cross, of Baton Bouge, for appellant Jonas Landman. Taylor & Porter, of Baton Bouge, and Merrick, Gensler & Schwarz, of New Orleans, for appellees Mrs. Bose Landman Kaufman and others.
   LECHE, J.

Budolph Landman departed this life, intestate, in the city of Baton Bouge, February 17, 1917. Mrs. Bertha Landman Freidlander, Mrs Bose Landman Kaufman, and Morris Landman, issue of the first marriage of the said Budolph Land-man, instituted the present mortuary proceeding and applied for letters of administration, February 20, 1917.

Jonas Landman, issue of the second marriage of the deceased with Mrs. Bachel Weill, surviving widow, together with his said mother, opposed the application, on the ground that there was no necessity for an administration, and prayed, in the alternative, that, should the judge conclude otherwise, such appointment should be conferred upon him (Jonas Landman).

After due hearing, the trial judge appointed Mrs. Bose Landman Kaufman and Jonas Landman joint administrators of the succession. They each qualified by taking oath and furnishing bond as required by law.

The present appeal from the order of appointment was taken jointly by Jonas Land-man and Mrs. Bachel Landman on May 14, 1917.

■ On May 22, 1917, in conformity with a joint petition of the coadministrators, the judge entered a decree which ordered that the stock of goods, etc., belonging to the succession and contained in the store at the corner of Main and Fifth streets in Baton Bouge, should be sold according to law to pay debts.

The appeal was filed in this court on June 18, 1917, and on the same day appellees filed a motion to dismiss, on the ground that appellants, Jonas Landman and his mother, Mrs. Bachel Landman had acquiesced in the judgment from which they had appealed.

Appellees contend that appellants have acquiesced in the judgment appealed from by executing it voluntarily, first when Jonas Landman qualified as administrator, and second when he prayed for and obtained an order to sell certain movable property of the succession in order to pay its debts.

Opinion.

According to the provisions of article 1059, 'Code of Practice, when an appeal is taken from ai judgment appointing an administrator of a succession, such appeal shall not suspend the execution of the judgment, which shall have effect provisionally until the appeal is decided. The law further provides, in article 1041, O. C., that an administrator should qualify, under penalty of forfeiture, within 10 days of his appointment. It is then evident that when Jonas Landman qualified as administrator, and thus partly executed the judgment of which he complains in the present appeal, he was acting under legal compulsion in order to protect his rights, and in no sense was he voluntarily executing the judgment or acquiescing therein.

But it is otherwise with regard to the application which he signed jointly with his coadministrator, and in which he prayed for an order of sale of certain property to pay the debts of the succession. This act on his part was the next step in the ordinary and usual course of settling a succession, and seems to have been done voluntarily, without any legal necessity and without reserving his right of appeal. It was also a recognition on his part of the official capacity of his coadministrator whose appointment he was contesting. It is true that, in his petition for the order of sale, he incidentally says that the property is deteriorating in value; but the sole mentioned purpose of the sale is alleged to be the payment of the debts of the succession, and this we believe is a voluntary execution of the judgment and an acquiescence therein, which, under article 567, Code of Practice, destroys his right of appeal.

Mrs. Rachel Landman and her son, Jonas, seem to have pooled their interests in this proceeding, and, although the former joined her son in the motion for an appeal, she not only failed to furnish bond but became surety on her son’s appeal bonds.

For these reasons the present appeal is dismissed, at the costs of appellant Jonas Landman.  