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 *416instance 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.