
    No. 12,646.
    Succession of R. J. Francez.
    The fact that pending administration of a succession the widow in community and heirs have made' extra-judicially, without objection on the part of the administrator or creditors, either a partial or complete partition does not dispense the administrator from the obligations of filing a final account, making the widow in community and heirs parties, and accounting for everything which came under his administration, or for which he might have been responsible.
    If any portion of the property has by such consent been withdrawn from his control and possession, he should introduce the acts which evidence such fact, and leave the effect of the same to be determined on trial of his application for homologation and discharge between all parties in interest. The administrator can not plead by way of estoppel, as against a demand made upon him by the heirs for a final account, the fact of an alleged complete extra-judicia. settlement between the heirs and the widow in community and the heirs inter se.
    
    When such an act has been produced, and shows on its face that it is not a final petition as to one of the heirs, the heir has the right to question its scope, and the opening of the settlement opens it for discussion as to all. O. 0. 1412; Gay vs. Marionneaux, 20 An. 358.
    
      A PPBAL from the Seventeenth Judicial District Court for the Par--L* ish of Lafayette. Ii. W. Elliott, J. ad hoc.
    
    
      Wm. Campbell and Crow Girard for Administrator, Appellee.
    
      Orther C. Mouton for Opponents, Appellants.
    Submitted on briefs December 15, 1897.
    Opinion handed down December 29, 1897.
    Dr. Romain J. Francez, a resident of the parish of Lafayette, died in said parish on the 28th of October, 1892, leaving a widow, Athenais Bernard, and nine heirs:
    1. J. P. Francez (a son by a first marriage).
    2. Romain Francez.
    3. ■ Aloysia Francez, wife of Lucien Cayret.
    4. Maurice Francez.
    5. Cecile Francez, wife of Galbert H. Guilbeau.
    6. Agnes Francez, wife of M. Lazaro.
    7. Ernest Francez.
    8. Gaston Francez, and
    9. Aristide Francez.
    In December, 1892, an inventory was made in the matter of the succession, and J. P. Francez was appointed and qualified as administrator.
    The inventory showed, under numbers from one to eight therein (both inclusive), different tracts of land, amounting in value, in the aggregate, to the sum of fourteen thousand two hundred and seventy-four dollars; corporeal movables to the value of five thousand four hundred and sixtyefive dollars; notes and accounts to the value of one thousand and ninety-five dollars and seventeen cents, or a total active mass of twenty thousand eight hundred and thirty-four" dollars and seventeen cents, and a passive mass or debts due by the succession to the amount of seven hundred and forty-four dollars.
    On October 6, 1893, the administrator filed what he termed a final account.
    
      In this account he describes the entire mass of the succession as being:
    1. The property described in the inventory.
    2. Two thousand one hundred and seventyreight dollars and forty ■cents, proceeds of the crop of 1892; and
    3. Seven hundred and seventy-two 'dollars and fifty-six cents, an •amount of separate funds of the deceased received from Prance.
    The date of his death is taken from the brief of appellant’s counsel. The debts of the estate are declared by him to amount to sixteen hundred and eighty-seven dollars. He states that the seven hundred .and seventy-two dollars and fifty-six cents received from Prance had been distributed between the nine heirs each receiving eighty - ■five dollars and eighty-four cents, and that the residue of the community property, consisting of the property as inventoried and the balance of cash, had been placed in the possession of the widow as usufructuary.
    Accompanying this account was a petition in which the administrator prayed that due notice be given by publication of the filing of the •same; that the heirs be cited, and that after due proceedings the account be homologated and the administrator discharged. No prayer was made for the citation of the widow in community, and neither she nor the heirs were in point of fact cited.
    On the 29th of December, 1893, the heirs of the deceased transferred and delivered to his widow, Athenais Bernard, property described as a tract of land, situated in Lafayette parish, containing two hundred and fifty superficial arpents, bounded north by public road, leading to Arneauville from Carenero; south by Ro Simon Mouton and Romain Prancez; east by land of estate of R. J. Prancez, and west by public road and land of Romain Francez, together with all the buildings and improvements thereon and all the movables as ■ shown by inventory of succession of R. J. Prancez.”
    The sale and transfer is declared to have been made “ for and in consideration of the price and sum of six thousand one hundred and seven dollars, being her full share as coming to her from the community rights between her and her deceased husband, Dr. R. J. Prancez,” and it being further declared “ that in consequence of having received said amount in property she did then and there renounce and relinquish all her rights that she had or might have ■against the sucession of her late husband in favor of the heirs; this 'being a full settlement on the one band and a quit-claim on the •other.”
    On the same day J. P. Francez, for himself and as agent of the other heirs of Dr. R. J. Francez, sold and transferred to Maurice Francez (one of the heirs) property which in the act of sale was described as “ ñve hundred and thirty arpents of prairie land situated in Lafayette parish, being lots Nos. 2 and 3 and part of No. 1 of the i iventory of said succession of their deceased father; also two hundred and seventy arpents of wood land situated in Lafayette parish, and being parts of lots Nos. 4, 5, 6 and 7, of the said inventory; also seventy-two acres of wood land situated in St. Martin parish, being all their interest in said succession.”
    The consideration was declared to be “thirteen thousand dollars ■cash in hand paid, for which due acquittance was granted.” Maurice Francez, holding the legal title of all the property so transferred to him, proceeded at once to sell and transfer different portions of the same to each of the different Jieirs, retaining a portion himself; the portion so retained by himself, when added to that sold by him to his co-heirs, making up the whole of the real estate inventoried other than that conveyed to the widow. These transfers were evidently based on the interest or proportion which each of the ven-dees held at the time in the suceession'.of Dr. Francez, as the price mentioned and declared to have been received by the vendor in each act was fifteen hundred and fourteen dollars, except in that to J. P. Francez, where'it was declared to be three thousand and twenty-eight dollars. This difference in price is accounted for by the fact that J. P. Francez had in th.e meantime acquired, in addition to his own interest, that of Romain Francez, in his father’s succession. In each of these acts of transfer the vendee accepted the property as “being his full share in succession of R. J. Francez,” with the exception of the acts to J. P. Francez and to Agnes Francez, wife of Mark Lazaro.
    In the former of these the property was declared to be accepted as the share of the purchaser and Romain Francez in the succession, and in the latter as “ the share of Agnes, wife of Lazaro, in the lands partitioned between the heirs of Dr. R. J. Francez on the 29th December, 1893, it being understood and agreed that this sale was to be construed simply as so much received by the purchaser on account of her share as an heir of her father.”
    
      On April 11, 1894, Agnes Praneez, wife of Mark Lazaro; Ceeile, wife of Galbert H. Gilbean, and Aloysia, wife of Luden Cayret, filed an opposition to the administrator’s account, but subsequently Oecile Francez and her husband withdrew their opposition.
    In this opposition it was charged that the account was incorrect in many particulars; that the administrator had failed'to account for the crops of the years 1892 and 1893 received by him. That in the year 1892 the cotton crop amounted to sixty-eight bales of cotton, five hundred barrels of corn net, one hundred barrels of potatoes, thirty loads of pea vine hay and nine barrels of peas.
    That in the year 1893 one hundred and three bales of cotton were made; five hundred barrels of corn, besides potatoes, peas and hay, and a large quantity of hay was sold. That the administrator failed to account for the ginning fees for the years 1892 and 1893; that he failed to account for the claims due by the laborers on the plantation of deceased due for the years 1892 and 1893, and he failed to account for claims, accounts and notes due the deceased and carried on the inventory, and the administrator should be charged with the value of property sold by him, to-wit: one old saw-mill rigging, one circular saw and one double barrel shotgun. They especially opposed the claims of L.' Querouze for $474.97 as not being due by the estate and they reserved all their rights to the property in Prance.
    To this the administrator filed an exception that opponents had no standing in court nor any right of action by reason of having executed and signed in notarial form a full and final partition of the property of the succession situated in the parish of Lafayette as inventoried, and in the same act accorded and gave to the administrator a full and final discharge of all responsibility for all matters conceiving the said succession and prayed for a dismissal of the opposition.
    The administrator filed another exception by way of estoppel, alleging:
    1. That said succession had been finally settled by an understanding and agreement by all the heirs in this, that all the property and effects were partitioned among said heirs by notarial act passed before Cochrane, notary.
    2. That said heirs signed an acquittance to all and any amounts coming to them from said succession, as would appear by reference to the acts passed and signed by each and all of them before the said Cochrane, notary.
    
      On the day the last exception was filed the opponents filed a plea to the effect that the acts referred to by the administrator as an estoppel and settlement of their rights in said estate were only intended to effect a partition of the property included therein for the purpose of effecting a partition thereof. That if considered as proof of a settlement same was signed by Aloysia Francez (wife of Lucien Cayret) and by Agnes Francez (wife of Mark Lazaro) in error, and they pleaded error. They prayed that said acts, in so far as they showed a settlement, be declared null and void and having been signed by error — that the plea of estoppel be overruled and set aside and the cause be tried on its merits.
    The administrator objected to the filing of this plea on the ground that it was in the nature of a replication, or an answer to an answer, and that it came too late. The objection was overruled, the court assigning as the reason for its ruling “ that it was a rule of law that all agreements and obligations could be attacked for fraud or error.”
    A bill of exceptions was reserved to this ruling.
    On the trial of the exception or plea of estoppel the administrator, over the objection of the opponents, was permitted to have the testimony of a number of witnesses taken as to the conversations between the parties to the acts passed between the widow and heirs of the deceased, on which the administrator based his claim of estoppel, before and at the time those acts were passed, in order to show the conclusion reached between the parties, and whether those acts were or were not intended as a final settlement of the succession and a compromise of all the differences of the parties in the settlement of the succession, and whether same did not include also an abandonment in favor of the widow of all notes, accounts and crops on the plantation up to that time, in consideration of her assuming the payment of the debts.
    The introduction of this testimony was resisted on the ground that no parol evidence was admissible against or beyond what was contained in the acts pleaded as an estoppel, nor as to what may have been said before or at the time of making them or since. The reason assigned for overruling the objection was that under the allegations of error parol evidence was admissible to show the true nature of the transaction. Bills of exception were reserved by opponents to this ruling.
    On the trial opponents themselves asked to have G. H. Gilbeau and Lucien Cayret, two witnesses sworn on their behalf, and answer the following questions:
    “Was there any understanding or agreement between the heirs, during their discussion and conversation preceding or at the time the acts of the 29th of December were being signed, that what was being done that day was to be a final and complete settlement of the rights of the heirs in said estate?
    State if G. H. Gilbeau, one of the parties to those acts, did not categorically refuse to Mr. Campbell the request to sign a discharge in favor of the administrator on that day?”
    Opponents in propounding said questions stated that their object was through the answers thereto to contradict the parol evidence offered by the administrator in his evidence in chief.
    The administrator objected to the questions on the ground that no parol evidence was admissible against or beyond what was con-, tained in the acts pleaded to alter, vary or contradict the statements contained in said acts.
    The objections- were sustained by the court on the ground that parol evidence was not admissible to contradict one’s own statements contained in a notarial act.
    Opponents reserved a bill of exceptions to this ruling.
    Opponents offered in evidence a certified copy of a notarial act signed by Maurice Francez, on the 13th February, 1894, in which he declared that on December 29, 1893, by act before D. A. Oochrane, notary public, the heirs of Dr. R. J. Francez sold to him (the said Maurice Francez) certain tracts of land fully described in said act; that said sale was made to him in order to effect a partition of said lands, and was not intended to convey and sell to him anything more than the lands therein described, and that said sale did not include any other rights his co-heirs might have in the succession of Dr. R. J. Francez, and that thereafter he sold to each of his coheirs his proportion of said lands which was not in full of each of said co-heirs in said succession of Dr. R. J. Francez.
    The administrator objected to the introduction in evidence of said act, on the ground that a voluntary party to an executed contract, who has reaped and retained the benefit of it, is estopped from assailing said contract. That a party would not be permitted to deny in his own interest a state of facts which he had caused others to believe, and on the faith of which t*hey had acted.
    
      The objections were sustained and the act excluded, the court -assigning for further reason that it was in the nature of an ex parte statement, and offered for the purpose of doing indirectly what the law forbids, the contradiction by a party of a solemn statement made by him-in a notarial act. Opponents reserved a bill of exception to this ruling.
    The District Court rendered judgment sustaining the plea of •estoppel and dismissing the opposition, and reserving to the administrator the right to file a proper account for his discharge. Opponents appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

We have upon several occasions referred to the •course to be pursued by an administrator, seeking to have his final account homologated and himself discharged. Succession of Van Hoven, 46 An. 920, 921; Succession of Gaines, 46 An. 252, 1238; State ex rel. Evans vs. Judge, 48 An. 931.

The administrator in the present case has not caused the widow in community and the heirs to be cited as he should have done, and issues have sought to be passed upon in this proceeding in the deci.sion of which they are interested. The failure of the administrator to make them parties is evidently due to the belief on his part that what he claims to have been a complete extra-judicial partition of the succession had the effect, ipso facto, of making further action thereafter in the premises unnecessary. In this position he is mis-'takeni It is his duty to file his account, make proper parties, and by proper evidence offered by himself account for everything which •came under his administration or for which he might have been responsible. This whether the final account be tendered by himself •or rendered in response to an “ action en d&livrance ” brought by the •heirs.

If pending the administration the widow and heirs have made, without objection on his part and that of the creditors, either a complete or a partial partition, and by reason thereof have withdrawn by consent from his possession and control the whole or a portion of the succession property, he should introduce the acts which evidence such fact and leave the effect of the same to be determined on the trial of his application for homologation and dis-charge. That application should, in case of oppositions, be regularly assigned for trial and tried contradictorily between all parties: in interest.

While it is true that the duties and obligations of administrators, may as between themselves and the widow and heirs of a deceased person be lessened or entirely done away with by extra-judicial settlements between themselves, where the rights of creditors are not jeopardized and the administrator urges no legal objection to such a course (C. C. 1320; Westholtz vs. Westholtz, 19 An. 293, 294; Denton vs. Woods, 19 An. 358; Succession of Charmbury, 34 An. 21; Succession of Baumgarden, 36 An. 46; Succession of Sterry, 38 An. 855; Hewes vs. Baxter, 46 An. 1284), we think the heirs are not cut off from having a legal examination gone into as to the scope, and effect of settlements claimed to be suclrin any given case, and that the administrator should pursue the regular course mapped out by law for the homologation of his account and his own discharge.

In the case at bar the heirs and widow evidently disagree as to the scope of the various acts which were passed between them. One of them on the face of the act, which has been produced as evidencing on her part a consent to a final and complete settlement, expressly limited the effect of the various acts to a partition of the particular-property referred to therein. As to this particular heir there has apparently been no consent to a final settlement. If so the opening-of these matters as to this heir opens the question for discussion as-to all of the parties. C. C. 1412; Gay vs. Marionneaux, 20 An. 358. We see no objection to the administrator’s (he being also one of the heirs) placing of record a plea of estoppel, but we think that in matters of this character the case should be sent to trial after all parties, have been called in, leaving the effect to be given to that plea to be determined after hearing and knowledge of the whole case.

We think the court erred in sustaining the plea of estoppel; that the administrator should file an account de novo based on what he-considers the present rights and obligations of parties to be. That the widow and all the heirs should be cited and the legal situation fixed and determined contradictorily between themselves as well as between themselves and the administrator. The latter can renew hereafter all exceptions and objections to which he deems himself legally entitled for his protection and defence.

In view of the absence of parties interested in the subject matter-of the settlement of this succession, we think it best to express no-opinion upon the incidental questions referred to in the briefs of counsel. It may not be amiss, however, to call attention of counsel to the cases of Boyle & Co. vs. Sibley, Admr., 22 An. 446; Tutorship of Davis, 22 An. 497, and Thezan vs. Thezan, 28 An. 442, and to their possible bearing upon the issues in the future which the present controversy foreshadows.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and the cause is remanded with directions to the administrator to file a new account and tableau — to cite the widow in community of the deceased and his heirs and contradictorily between said parties and between said parties and himself, to have the rights and obligations of the parties in interest fixed and determined —leave being granted to the administrator to renew hereafter all exceptions and objections to which he deems himself entitled for his protection and defence. Costs of both courts to be borne by the succession.  