Desfarge v. Desfarge

Martin, J.

delivered the opinion of the court. The will ot the late A. M. Desfarge, the brother of the petitioners, and natural father of the defendants, free persons of co-lour, appointed one of the latter testamentary executor, and contains a bequest of all the testator’s property in Louisiana to his said children, and all his property in France to the petitioners; and the testator avers, that the latter property is much more considerable than the former. The estate, in Louisiana, having been liquidated, the defendants obtained a surrender of the balance to them, on their giving bond and security to account for one half to the absent legal heirs.

On suit being instituted on this bond, they pleaded that the petitioners had in their possession estate of the testator much more valuable than what is now in the defendants’ hands, and filed interrogatories, by the answer 'to which they sought to establish this fact. The judge directed the answer of the defendants to be served on the petitioners, and the latter to answer the interrogatories. Several years had elapsed after this, when the defendants’ counsel had the cause set down for hearing, and at the trial contended, that as the interrogatories wore not answered, they ought to be taken pro confessis. The petitioners’ counsel urged, that the order to answer was conditional and contingent, dependent on the service of the answer, which had not taken place; and that if the order was absolute, still the interrogatories could not be taken pro confessis, as they were framed in such a manner as to render specific answers, to which affirmative or negative answers could not be substituted. The questions not being, whether an estate of the testator, equal to that in the defendants’ hands, was not in the possession of the petitioners; but what was tho amount of the estate of the testator, in the petitioners’ possession? and the like.

if the court dí-rect the answer tobe served on the plaintiff, and that he should answer the interrogatories, it is a conditional order and the plaintiff is not bound to copy^of the'an* ewer be served on him.

On the first proposition, we think the petitioners had not an absolute right to have their interrogatories answered; and the judge’s ° . . . . ° order was conditional or contingent, and the petitioners were not bound to answer, till 1 served with a copy of the answer.

We are not ready to admit, that the form ^ ^ interrogatories would have prevented their being taken pro confessis, had the order been absolute.

But we are of opinion, that as the order 1 Was in an unusual form, the defendants, who in our opinion , had a legal and equitable de* fence, ought not to be the victims of the view which their counsel took of it; and more especially, as the will presents the idea which they rely on, of the testator having a larger estate in France than in Louisiana; and our remanding the case, may subject the petitioners to delay only, while our affirmance of the judgment may eventually deprive for ever the defendants of the provision for their support, left them by their natural father.

The legislature has made a provision for a case like the present, Code of Practice, 906. It has authorised us, when we believe we cannot definitively pronounce on the case, in the state in which it is, because the parties have failed to adduce the necessary testimony, to remand the cause.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be annulled, avoided and reversed, and the case remanded, with instructions to proceed therein according to law, the appellees paying costs in this court,

If a tableau be homologated, in all parts which have not been opposed, &c. the homologation is absolute.

,, It a tableau bo homologated, m all parts which have not been opposed, &c. the homologation is absolute,

Appeal from the court of the parish and city of New-Orleans.

The facts are fully stated in the opinion of the court.

Porter, J.

delivered the opinion of the com-t. The tableau of distribu ton in this case was returned into court, in the month of June, 1827. On the 22d of that month, and 7 in the same year, several oppositions were filed to it. Among others, the executors of Benjamin Morgan, the heirs of Wm. Kenner, James Brown, , and J. Humphreys, opposed the recognition on the tableau, of Thadeus Phelps Co. as creditors,

On the 12th June, 1828, the following judgment was rendered by the parish courts “It being proved to the satisfaction of the court, that the rule taken on the creditors and others, to show cause why the tableau of distribution, filed in the premises, should not be' homologated, had been duly published according to law; therefore, it is ordered, by the court, on motion of George Eustis, Esq. , . of counsel for the syndics herein, that the said tableau of distribution be homologated and confirmed in all and every respect, in which they are not opposed by the different creditors who have filed their opposition thereto.

On the 11th of February, 1830, the cause was set for trial, on the opposition of Brown, Humphreys, Morgan’s executors, and others, and no proof having been offered by them in support of their allegations, the court directed their opposition to be dismissed, and the tableau, so far as it regarded the claim of Phelps & Co. to be confirmed.

Six days previous thereto, however, an opposition was filed by the appellants to the tableau, on the same grounds as those set forth by Humphreys, Morgan and others. It was set for trial on a subsequent day, and the judge being of opinion it was filed too late, dismissed it. From that decree, the present appeal is taken.

On behalf of the appellants, it is contended, that their objections to the tableau did not come too late; that the court, in its judgment of 1828; reserved the matters aow contested, and that until a decree of homologation, signed by the judge, any creditor may contest the correctness of the tableau. 652.

The reservation relied on, is in these words: “that the said tableau be confirmed, in all and every respect in which they are not opposed by the different creditors who have filed their opposition thereto,” and we do not thinlc, that on a fair construction of it, the appellant’s case is sustained. Its phraseology does not certainly possess all desirable clearness, but we do not think it was intended to reserve to creditors, other than those who had already made opposition, the right of opposing it at a future time. The delays too frequently attending the settlement of insolvents’ estates, are often a source of great expense, and work a serious injury to all concerned. Unless, therefore, the judgment now under consideration, clearly extends the time of making objections to the tableau, further delay should not be allowed. To our minds it is doubtful, and we cannot open the case for further litigation. If we did, the insolvents’ estate wopld not be much nearer settlement than it was two years ago* It is now, we believe, nearly five since the bilan was filed. If the J . appellants considered, that the opposition made by other creditors on this ground, dispensed them from the necessity of filing one, they ought to acquiesce in the judgment rendered. If they did not, they had two years to present their objection, and at the end of that time, we think it would be a great hardship to the other creditors, to await the litigation of this question, before a dividend could be made.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.