Succession of Beattie

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On Motion to Dismiss. The deceased made her will by public act, making a certain distribution of her estate and appointing two executors. The legal heirs unsuccessfully opposed the probate thereof, and have appealed. The executors move that the appeal be dismissed as asuspensive appeal.

I. A judgment probating a will and ordering the execution thereof comprises essentially two distinct propositions, the one recognizing and confirming the executors named in the will and placing them in charge of the estate, and the other directing the distribution of the estate in accordance with the provisions contained in the will. These two are not necessarily inseparable; on the contrary, they may, and do, stand entirely separate. Thus, a part or even the whole of the disposing portion of the will may fall or be void, whilst the appointment of executors may be entirely valid; and vice versa, the disposing portion may be entirely valid, but the appointment of an executor lapse or be void.

II. Our law provides (Code Prac. arts. 580, 1059), ex necessitaterei as it were, that judgments appointing curators of vacant successions, "or other administrators of successions," shall be executed provisionally notwithstanding an appeal, i.e., that no suspensive appeal shall lie from such judgments. Succession of Damico, 150 La. 888, 91 So. 286. And the term, "other administrators of successions," is broad enough to cover all other representatives of successions by whatever name called, the term administrators being there used in a generic, not a technical, sense. Succession of Lefort, 139 La. 52, 71 So. 215, Ann. Cas. 1917E, 769. We therefore conclude that the appeal herein taken cannot be allowed to suspend the appointment of succession representatives made by the trial judge, even though termed executors and appointed by him because named as such in the alleged will of the deceased.

III. On the other hand, in so far as the judgment admitting the will to probate authorizes, in effect, the distribution of the estate in accordance with the terms of the alleged will (in other words, recognizes the validity and force of the disposing portions of the alleged will), we think the judgment is suspended by the appeal. In that respect it is (by reason of a controversy raised and issue joined thereon) a final judgment as to the validity of the will and of the disposition therein made of the estate, which, if allowed to become final, will obtain the force of res judicata between the parties; manifestly, such a judgment may be suspended by appeal so that the appellants may not be prejudiced by a distribution of the estate pending the outcome thereof. And our conclusion is that the appeal must be heldsuspensive as to that feature thereof.

Decree. It is therefore ordered that, in so far as the judgment appealed from names executors to administer the estate of the deceased, same be dismissed as a suspensive appeal and maintained as devolutive only, and that in all other respects the motion to dismiss be denied.

On the Merits.