
    (52 South. 175.)
    No. 17,837.
    Succession of BURBANK.
    (April 11, 1910.)
    
      (Syllabus by Editorial Staff.)
    
    1. EXECUTORS AND Administrators (§ 314*)— Right to Possession oe Property oe Succession.
    A petition by some of the heirs for a judgment putting the heirs in possession of the property of the succession on a compliance with Rev. Civ. Code, arts. 1012, 1671, denying to the heirs the right to take the seisin from the executor without leaving in his hands a sum sufficient to pay the movable legacies and giving bond to meet the claims of creditors of the succession, cannot be defeated on the ground that the only way in which the amount which the executors must be left in possession of can he ascertained by the executors filing, an account; for, though Code Prac. art. 1000, imposes on the executors the obligation to file an account, it does not impose on the parties the expense of a settlement in court, when they can effect one out of court, and where the unpaid legacies and claims against the succession are known, and the only dispute is over the proper amount to allow inheritance taxes and fees, the court should order the executors to retain an amount sufficient to pay the claims as made and the legacies and the highest possible amount that may be due for taxes, and then put the heirs in possession of the remainder of the property.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. § 314.*]
    2. Executors and Administrators (§ 314*)— Right to Possession oe Property oe Succession.
    Executors cannot by agreement among themselves divest their seisin as executors, and turn the property over to themselves as heirs, and with or without such an agreement the court may not divest the seisin of the executors without a compliance on the part, of the heirs with Rev. Civ. Code, arts. 1012, 1671, and with or without such an agreement the right of the heirs to be put in possession on compliance therewith is absolute.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. § 314.*]
    Appeal from Civil District Court, Parish of Orleans; George H. Theard, Judge.
    Petition by T. Scott Burbank and others, children and legal heirs of Edward W. Burbank, deceased, against Nellie G. Burbank, for judgment putting the heirs in possession of the property of the succession. From the judgment, all parties appeal.
    Reversed and remanded.
    Alfred E. Billings and Charles S. Rice, for plaintiffs. J. Zach Spearing, for defendant.
   PROYOSTY, J.

The defendant contends that the only way in which the amount which the executors must thus be left in possession of can be ascertained is by the executors filing an account. We know of no law which so requires. Article 1000 of the Code of Practice imposes upon the executors the obligation to file an account when required; but it does not impose upon the parties the trouble and expense of a settlement in court when they can just as well effect one out of court. Succession of Duffy, 50 La. Ann. 795, 24 South. 277.

In the present case the assets amount to $380,570. The unpaid legacies and claims against the succession are as well known now as they ever will be. They are a $100 legacy for the care of the tomb of the de cujus, and the fees of the notary who took the inventory, and of the attorney of the defendant executrix, and possibly a few dollars of inheritance tax. The real and only trouble between the parties is -over the proper amount to allow for the said fees. The trial' court should have ordered the executors to retain an amount sufficient to pay the claims as made and the legacy and the highest possible amount that could be due for taxes, and have put the heirs in possession of the remainder of the property.

The petition also alleges an agreement on the part of the defendant coheir and executrix that the heirs should be put in possession at once, and we find that there was such an agreement; but we do not see what it has to do with the case, unless as a general waiver on the part of the defendant of any right she might have had as heir to demand an account of her coexecutors — a barren right, since there would have been nothing to account for. The said agreement cannot be given any greater effect than this; for the executors cannot by agreement among themselves divest their seisin as executors and turn the property over to themselves as heirs. Townsend v. Sykes, 38 La. Ann. 859; Succession of Kate Townsend, 37 La. Ann. 405. With or without such an agreement, the court is powerless to divest the seisin of the executors without compliance on the part of the heirs with articles 1012 and 1671, supra; and with or without such an agreement their right to be put in possession upon compliance with said articles is absolute.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that this case be remanded, with instructions to the lower court to proceed in accordance with the views expressed in the foregoing opinion.  