Walmsley et al. vs. Levy.

No. 9155.

H. A. WALMSLEY, EXECUTOR, ET AL. VS. CATHERINE E. LEVY, EXECUTRIX

CATHERINE E. LEVY, EXECUTRIX, VS. S. P. RAINES, SHERIFF, ET ALS. (Consolidated.)

A mortgage creditor can proceed via executiva to enforce his claim, nothwithstanding the death of the mortgagor, and even though the property is under administration.

If he does not thus proceed. the executor may obtain an order of sale in the mortuary pro ceedings as the representative of all the creditors.

But the mortgage creditor cannot be forced to submit to a sale of fractional parts of the mortgaged property, nor can he be compelled to run the risk of diminishing its saleable value, by submitting to a sale in lots and on credit on the theory that, if sold piecemeal, the property will realize more than if sold in block and for cash.

If the executrix has been forced to give security for the mortgage debt at the instance of the party holding it, he is protected against all contingencies, and cannot complain if the sale proceeds under her order, where the terms and mode of sale have been changed to conform to his demands.

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PPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

Jack & Dismutes for the Appellees.

Watkins & Scarborough for the Appellant.

The opinion of the Court was delivered by

MANNING, J. These suits are cross-injunctions.

Mrs. Levy, as executrix of her husband's will, obtained on November 8, 1882, an ex parte order of sale of the succession property to pay debts, the terms being one-third cash and the residue on one and two years' credit, the land to be sold in lots of one hundred acres or less. The sale was advertised to take place on December 13th. The Walmsleys obtained, on December 8th, an order of seizure and sale of the same property, in block, to pay a special mortgage overdue. On the 11th, they injoined the sale under the order in the succession proceedings, and on the same day Mrs. Levy injoined the sale under the executory process.

The single question is which order shall prevail.

In the Walmsley injunction the sweeping allegation is made that the succession is "notoriously and confessedly insolvent." Mrs. Levy denies this and avers that the sale, as ordered by the court on her petition, will realize a sufficient sum to pay all the debts of the deceased, and that the execution of the order of seizure and sale will result in a ruinous sacrifice.

Walmsley et al. vs. Levy

The judge perpetuated Mrs. Levy's injunction, and maintained her order of sale, altering the terms so as to require the Smith plantation to be sold in block and for cash. Both parties appeal.

The inventory appraisement of the property is $32,880 39, and the acknowledged debts amount to $22,284 92. The mortgage claim of the Walmsleys, including interest to December, 1882, and attorneys' fees, is $13,895 15, and they have compelled the executrix to give security for a sum exceeding their debt by one-fourth. The witnesses, touching the value of the Smith place-the bone of contention-vary greatly, W. B. Walmsley fixing it at $10,000 and C. H. Levy at $30,000. The inventory of September, 1882 has that place appraised at $18,000, and after it had been divided into lots preparatory to the sale under the succession order, it was re-appraised by lots in sum total $15,688 70-a result unfavorable to the theory that it was worth more and would bring more if sold in lots than in block. For it was but theory after all, and nothing but the actual event of sale can test the correctness of the witnesses' opinions upon that matter.

A mortgage creditor has an undoubted right to proceed via executiva notwithstanding the death of the mortgagor, and to enforce his process against the mortgaged property even when it is under administration. Gally vs. Powling, 30 A. 323; Lamorere vs. Suc. Cox, 32 A. 246. If he does not proceed via executiva, nor by application in the mortuary proceedings, the executor may initiate and perfect the sale by obtaining an order therefor as the representative of all the creditors. Suc. Hood, 33 A. 470. But he cannot be forced to submit to a sale of fractional parts of the property since his right attaches to the whole, Lallande vs. McRae, 16 A. 195; Hughes vs. Patterson, 23 A. 681; nor can he be compelled to run the risk of diminishing the saleable value of the mortgaged property by submitting to a sale, other than his mortgage contemplates, on the theory that the property if sold piecemeal will bring the amount of his mortgage, or bring more than if sold as an entirety. The figures already stated show the Walmsley mortgage debt, with interest added to the present time, is only a little below the new appraisement of the sub-divided lands. The lower judge was therefore correct in altering the terms of sale, upon the demand of the mortgage creditor, so that the Smith plantation shall be sold in block and for cash.

We do not find it necessary to say here, authoritatively, whether the precedence in point of time of the order of sale in the mortuaria is determinative of the question, which order shall prevail. The dictum in

Samuels et al. vs. Brownlee et al.

Poutz vs. Bistes, 15 A. 636 is seemingly based on the embarrassment which would be produced by a conflict of jurisdiction. Such embarrassment could not exist in this case. The lower judge maintained the creditor's injunction so far as to prohibit the sale proceeding on the terms first prescribed, and dissolved it as to the absolute prohibition of sale under the order in the mortuaria, and ordered that sale to proceed. The only reason for a modification of that judgment must be that the creditor prefers to be the instrument, through the sheriff, of making the sale, and distrusts the fidelity of the executrix in accounting for the funds. He has provided for this contingency by obtaining special security for himself, and it matters not under that state of facts therefore, whether the executrix make the sale under her order or that it be made under his process. Judgment affirmed.

No. 9028.

E. H. SAMUELS ET AL. VS. ISABELLA H. BROWNLEE ET ALS. Usufructuaries dispensed from security are entitled to the possession and enjoyment of the property as soon as the debts and charges of the succession of the testator making the bequest of the usufruct have been satisfied.

Testamentary executors, who, after the debts and charges have been paid, deliver possession to such usufructuaries, cannot be held responsible in case of waste and damage by the usufructuaries, who are accountable only to the owners of the property burdened with the usufruct.

A testamentary disposition authorizing executors to administer the succession property does not require them to interfere with such usufructuaries during the course of the usufruct, after such putting in possession.

The exclusion of the tutor of minors, to whom the naked ownership of part of the propert subjected to the usufruct belongs. from interference with the executors. does not prevent him from protecting the rights of his wards as against the usufructuaries. Executors authorized by the will to administer the portion of the estate bequeathed to such minors, as they may deem proper, until the youngest of them arrives at his majority. cease to have the right to administer after the usufructuary has been put in possession. but may be called upon to resume and continue the administration of that portion, for the benefit of the minors, only should the usufructuary die previous to the attaining of his majority by the youngest legatee.

A judgment homologating an account of such executors, rendered after putting the usu fructuaries in possession and discharging them from liability until then, but retaining them conditionally in office, in case events provided for by the will require them to resume the administration of the property, may help in the construction to be placed upon the will.

Samuels et al. vs. Brownlee et al.

A testator has a right to confer the usufruct jointly or in divided portions. A bequest of the usufruct of the same property in the last mode. does not require the executors to place the usufructuaries separately in possession, when they accept a delivery of the whole to both.

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PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

Egan & McEnery, R. H. Marr and Ellis & Ellis for Plaintiffs and Appellants.

Jos. P. Hornor and F. W. Baker for Defendants and Appellees.

Singleton, Browne & Choate on the same side.

The opinion of the Court was delivered by

BERMUDEZ, C. J. This is an action sounding in damages for upwards of $15,000.

It is brought by the legatees of the naked ownership of one-half of the estate of a testator, against the executors of the latter and the representatives of the usufructuaries of that and of the other half.

The complaint is, that the executors in violation of their trust and of the law, have voluntarily placed the usufructuaries in the undivided possession of all the effects of the succession; that they have permitted those usufructuaries to waste and squander the movables and to dilapidate the real estate; that the usufructuaries, or their representatives, having failed to return the misused property and to repair the damage done, the executors and such representatives are responsible for the denounced wrongful acts, unlawful conduct and neglect of duty which have occasioned the injury and should be held liable in solido.

From a judgment on an exception of no cause of action, filed by the executors, sustaining the defense and dismissing the suit, the plaintiff's have appealed.

For the purpose of the exception all the facts set forth must be taken

as true.

From that standpoint the question to be determined is simply : Whether the plaintiffs are entitled to recover from the executors. The following is a substantial statement of the averments of the petition.

George Heation died in 1873, leaving a will, by which, after making several particular legacies, he gave the usufruct of one-half of his estate to his sister, Mrs. Samuels, and the usufruct of the remaining

Samuels et al. vs. Brownlee et al.

half to another sister, Anne Heation, dispensing both from furnishing security.

The naked ownership of the first half he bequeathed to the plaintiffs, subject to administration from the beginning until after the usufructuary's death and until the youngest of them would become of age. A like ownership of the other half he gave to his two nieces. The testator also appointed a number of executors, dispensing them from security; but two only of them accepted the trust and qualified accordingly, Stringer and Middlemiss, who are made defendants herein.

They caused the property left by the testator to be inventoried, took possession of it, satisfied the charges against the succession, delivered the residue to the usufructuaries, that residue consisting in real estate, stock, securities, ready money, etc. They next presented an account which was homologated in 1874, the court discharging them from responsibility up to then and retaining them conditionally in office, in case events provided for in the will would require them to resume the administration of the succession property. Those events never arose, the first named usufructuary, Mrs. Samuels, dying in April, 1882, and the youngest child, joint legatee of the naked ownership of the half subjected to Mrs. Samuels' usufruct, attaining his majority in March, previous to her death.

The claim is, that, under the terms of the will, which the executors had accepted, they were bound to take and continue in possession of the entire estate, and administer the same, from the moment of the death of the testator to the putting in possession of the naked owners, which was to be, as concerned the plaintiff, when the youngest of them would have attained the age of majority, if the usufructuary, Mrs. Samuels, was then dead'; and that as the executors have without authority delivered undivided possession to the usufructuaries, and injury has in consequence resulted, they must be held responsible.

The defense is that, under the terms of the will and the law, the executors were enjoined and bound to put the usufructuaries in possession, as they have done, that when they did so, their administration and responsibility ended, subject to resumption in the event that Mrs. Samuels would die before the youngest of the plaintiffs became of age, a circumstance which did not occur, as that youngest legatee attained his majority before his grandmother, Mrs. Samuels, had departed this life.

In order to determine that issue, it is necessary to consider the terms used by the testator, in order to ascertain his intention and test the construction put upon it by the plaintiffs.