
    No. 1089.
    J. U. & H. M. Payne vs. Heloïse Dejean.
    The creditor of a Succession, who has obtained judgment against the Administrator thereof, to he paid from the funds in his hands, can coerce payment of his claim out of the individual property of the Administrator, if the latter fail to satisfy the judgment from the funds of the estate.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Henry L. Garland for Plaintiffs and Appellees :
    A creditor of an estate, whose claim is liquidated, and who has obtained by order of court a rendition of account of the administrator, is entitled to an execution against the property of the administrator, upon failure of said administrator after the delay allowed by law to pay him the amount fixed by the judgment homologating the account. C. P. 993 and 1057 ; 13 An. 416 ; 18 An. 220.
    B. A. Martel for Defendant and Appellant:
    The court not having ordered the homologation of the tableau of classification, but merely its amendment, and no new tableau having been filed, and no final tableau having been as yet homologated, and an appeal having been duly taken by the administratrix, and bond Vgiven and accepted according to law, plaintiffs herein had no cause of action against defendant personally, or even as administratrix, and this suit is premature. 14 A. p. 43 et seq.; 10 A. p.. 224 ; C. P. 986 and 1054 ; 21 A. p. 43.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs were twice judicially recognized as creditors of the succession of A. R. Hawkins, contradictorily with the defendant herein, in her capacity as administratrix. By judgment homologating the account presented by her, they were to receive as a pro rata of the funds in her hands the sum of two thousand six hundred and twenty-nine dollars and thirty-six cents. From that judgment the administratrix had taken a devolutive appeal, which has just been dismissed. Had it not been so disposed of, being merely devolutive, it could not arrest the execution of plaintiffs’ judgment.

The lower court recognized the claim which the plaintiffs now urge against the administratrix in her individual capacity.

The plaintiffs had three remedies :

First. To compel her, as administratrix, to pay them.

Second. To proceed against her sureties on her official bond on her failure to pay.

Third. To coerce payment out of, her individual property, a right clearly accorded them by law.

They have preferred the last remedy, and are entitled to recover.

C. P. 993,1057; 13 A. 416 ; 18 A. 220 ; L. D. 690, B. No. 4; 23 A. 573.

The plaintiffs and appellees have asked for damages for a frivolous appeal. We do not feel justified to allow any.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Mr. Justice Fenner recuses himself on the ground of affinity.  