
    GUESNO'S HEIRS vs. CUCULLU, EXECUTOR, &C.
    Easters Dist.
    
      May, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.
    The heirs have the right at any time to claim and take the seizin and possession of the estate from the testamentary executor, on offering him a sufficient sum to pay the moveable legacies. ,
    Where the executor refused to pay over the funds of the estate to the heirs, on a rule requiring him to do so, but appealed, he was mulcted in five per cent, damages on the amount in his hands for the delay.
    In this case the heirs of Madame Guesno, deceased, took a rule on the defendant who was testamentary executor of the deceased, to show cause why he should not deliver over the seizin and possession of the estate to the heirs, and file an account to ascertain the amount coming to them. The executor filed his account, to some parts of which opposition was made.
    On the trial of the rule, the judge of probates made it absolute so far as regards the sum of ten thousand four hundred and eighty-six dollars, which remained in his hands, undisputed. The executor appealed.
    
      L. Janm, for the heirs and appellees.
    
      De Armas, for the appellant.
   Bullard, J.,

delivered the opinion of the court.

The appellant being executor of the last will of the widow Guesno, rendered an account- of his administration at the instance of some of the minor heirs of the testatrix, who demanded seizin of the estate, to which an opposition was filed in relation to some of the items. There appeared to be ^ae io ^)<3 minors who had made opposition, a sum of about ten thousand dollars, independently of the disputed items of the account. The minor heirs claim a right to receive that amount under article 1664 of the code, which declares that the heir can at any time take the seizin from the testamentary executor, on offering him a sufficient sum to pay the moveable legacies. Accordingly, pending the contest on the disputed items, they took a rule on the executor to show > j cause, why he should not, deliver to the heirs such portions °f the estate as he acknowledged to be coming to them, reservtng the disputed items; and why a writ of fieri fiadas and possession, or a writ of distringas should not issue in case °f refusal to comply with the order of the court. This rule a^ter argument was made absolute, and the executor after an ineffectual attempt to obtain a new trial, appealed.

The heirs have the right at any time,' to claim seizin and pos-estate"from the testamentary ex-ing- him°a snffi-themoyeabie'ie-g-acies.

Wheretiieexe-pay oyer the tatetothcheir^ inghimtodosT hut appealed, he five 'peí-0 cent! amountS in" his hands, for the c ,iy’

We have looked in vain into the record for any legal ground upon which the defendant alleges any right to retain possession of any portion of the estate, to which be admits ^le fieú’s are entitled. Nor has he thought proper to favor US any argument, either written or oral in support of such pretensions. The article of the code relied on by the appellees would be a dead letter, if its provisions could be frustrated by such proceedings. Believing that the only object in taking this appeal was delay, we feel bound to grant the prayer of the appellee, and to award damages.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed with five per cent, damages, on the sum of ten thousand four hundred and eighty dollars and eighty-three cents, and costs of the appeal.  