delivered the opinion of the court.
This is an appeal from a judgment of the Court of Probates', rendered on the final settlement of his account by the executor of the last will of S. Elkins, by which a large balance was found due by him to the heirs. The executor complains of the judgment in three particulars, which we shall proceed to examine in the order in which they have been argued by his counsel.
1st. That he was not authorized to retain the sum of two thousand five hundred dollars allowed him by the auditors for services rendered by him to the testator in his life time, as his attorney in fact, in passing certain acts of sale of real estate, in the city of New-Orleans, where both parties resided at the time.
That the appellant rendered these services as mandatory of the deceased is not disputed, but it does not appear that any compensation was agreed upon, nor does it appear that the appellant had been in the habit of charging similar good offices to the knowledge of the deceased, from which we might infer a tacit agreement to pay a reasonable compensation. The general principle is not contested, that the contract of mandate is gratuitous unless the contrary be stipulated. It does not appear to have been in the contemplation of either party, that a charge was to be made for the services rendered in the present case.
2d. The executor complains that he was not allowed to retain the sum of ten thousand dollars for Mrs. Leavenworth. The will does not contain such a legacy, but it is shown that the testator in his last moments expressed a wish to make a present of that amount to Mrs. Leavenworth, and even directed a friend to take one of several promissory notes of *227the amount of ten or twelve thousand dollars, and hand it to her. But he died before it could be effected, and the notes remained a part of his succession. We concur with the court below, that the evidence is insufficient to prove a valid donation. The executor does not pretend to have paid that sum to Mrs. Leavenworth, and we think the allowance was properly refused.
if one 0f sevc-^eWes* a legacy, takes Ms possibility and of the commissions by °tho legacy, {!?es eeutor. interest will "vhCn ^V'^s'not claimed in the pleadings,the testament Ol 3d. Three executors were named in Elkins, one of whom being a legatee, was entitled to no commissions. The acting executor claims full commissions, and complains that he was allowed by the Court of Probates only two thirds. The code provides that the commission shall be shared among the executors, if there be several, and if their functions are not divided by the testator, and that they shall be entitled to a commission on what has fallen to the administration of each respectively, when they have been so divided. Louisiana Code, article 1678.
The right of the appellant to two thirds of full commission is not contested, and it does not appear that the functions of the executors were divided by the testator. The executor who was at the same time a legatee, appears to have acted as such on one occasion, and we must presume that he did not, therefore, decline the trust, but was willing to share in the responsibility, his share of the commissions being compensated by his legacy. If so, it follows as a necessary consequence that the appellant is not entitled to the share of the commissions to which he would have, been entitled if he had not been a legatee. , In our opinion, the court did not err in restricting the claim of the executor to two thirds.
The appellee complains that no interest was allowed by the court below. To this it appears to ns a sufficient answer that it was not demanded in the court of the first instance _ and we can only inquire whether the judgment was correct according to the pleadings and the evidence. If the first judge had allowed interest, the judgment would, perhaps, have been erroneous, because ultra petition.
Lastly, the appellee insists upon damages for a frivolous appeal. It was certainly in the power of the executor to *228have obtained the opinion of the appellate court upon the questions presented by this record without withholding from the heirs a large amount, to which they were incontestably entitled. However, he may have been encouraged to hope for relief from that part of the judgment which denied him his commissions either as agent or executor, by taking a suspensive appeal as to the whole amount of the judgment, and retaining in his hands what he admitted was due, he has shown to our satisfaction that his principal' object was delay, For more than a year from the homologation of the account, the defendant has had the use of the money without interest, and we think this a case in which damages ought to be allowed.
Where an executor takes a suspensive appeal from an entire judgment, and it is shown that he retains in his hands a sum evidently due, independent of the sums claimed in the appeal, he will be condemned to pay five per cent, .damages, on the entire judgment.It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, be affirmed, with costs, and five per cent, damages on the amount of the judgment.