The judgment of the court was pronounced by
Kute, J.On a rule taken by T.B. Dudley, as judgment creditor of Glover's succession, the executor of the deceased was ordered by the Probate Court to file a final account of his administration, aud to state particularly all the steps taken for the collection of certain bills, which figured on the inventory and which were past due.
In obedience to this order, the executor filed an account, showing the application of the funds which had been received up to that dato. It was accompanied by a statement that a judgment had been obtained against James Dunlap, the acceptor of the bills, a part of which had been collected ; that an execution had been issued for the residue of the judgment, in virtue of which property had been seized, but had not been sold at the date of the last information from the sheriff, in^ whose hands it was. Dudley opposed the account on the ground that it was incomplete, inasmuch as the steps taken by the executor to coerce payment of the judgment were not stated, and diligence in the collection was not shown. lie charged the executor with negligence in the pursuit of the debt, in giving unreasonable and unwarrantable delays, whereby the claim had probably been lost; and concluded with a prayer, that the executor be condemned to pay the amount of the opponent’s claim, out of his individual effects.
The judge considered thatthe.executor had been guilty of culpable negligence, and ordered him to amend the account, by placing to the credit of the succession the uncollected residue of the judgment against Dunlap, and to distribute it among the creditors, as directed in a provisional tableau previously approved. From this judgment the executor has appealed.
The appellant contends that this is an action to render an ezecutor personally responsible for laches or mal-administratioa, of which the Probate Court has no jurisdiction ; that all the creditors on the homologated tableau should have been made parties to the proceeding against the executor; and finally, that he has heen guilty of no laches.
The Probate Court, as it lately existed, had the exclusive power to compel executors and other administrators to account and pay over what they might be found to owe; and, on their failure to account, or to make payment of the sum found due upon a rendition of accounts, executions issued from that court against the property of the administrates. C. P 997, 993, 1053, 1057.
The appellant treats the proeeeding of the opposing creditor, as an action to render him personally liable for damages for his mal-administration, and contends that courts of ordinary jurisdiction can alone entertain the action. The proceeding, however, is not to be confounded with an action against an administrator on his bond, or for a tort, when the claim against him would be personal. If such were its character, the position assumed by the appellant would be correct. 10 La. Rep. 28. 12 La. Rep. 332. It is strictly an opposition to an account presented by an executor, in which the latter is required to charge himself with the whole of the effects which have come into his hands.
An administrator to whom funds or other effects of a succession are entrusted, cannot alter-his relation to the estate he administers, when called on to account, and claim to stand as an ordinary debtor, for sums which he has either failed to collect, or which have been lost by his negligence. He will still be regarded as tho depositary of all the effects and funds figuring on the inventory, for which he must render an account to the court by which he was appointed.
*9The right of the creditors to resist tho homologation of a tableau until the entire effects of tho succession have been accsuntod for, and of the Probate Court to charge tho administrator with all sums .which he has failed to collect, unless ho show a sufficient excuse for his failure, has been repeatedly recognized. This jurisdiction of the Probate Court, wo consider to be well settled.
In the case of Watts v. McMicken, the action was instituted in the District Court, to render the defendant liable for mal-administration, in causing an execution to issue improvidently, inconsequence of which a loss was sustained. The question of jurisdiction was expressly raised, and it was determined that the District Court was without jurisdiction of the demand. In that case the court say that, “the proper time to get redress will be when he, the curator, presents his account. Particular acts of the representatives of estates, cannot be singled out by individual creditors, and be made the basis of a suit. There can be only one to render an account, and when that is presented, all the acts of the curator, whether of non-feasance or of malfeasance, by which tho creditors are injured, can be opposed to him. This doctrine has been long established in this court.” 2 La. 184. 1 Mart. N. S. 126.
In the case of Flint v. Wells, where the suit was to recover from an administrator the value of property lost by his negligence, and to compel him to account, tho quostion of jurisdiction was again expressly made, and it was held that the Probato Court could alone entertain the action. 4 La. 537.
In numerous casos originating in the Probate Court, both before and sinco the decision of those already cited, this jurisdiction of that court has been tacitly recognized, without the point being expressly raised; and administrators have been charged, in their accounts, with sums lost in consoqueneo of their negligence. 3 Mart. N. S. 718, 719. 9 La. 49. 10 La. 28. 9 Rob. 407.
As regards the question of diligence, it appears from tho evidence that the effects of tho succession of the deceased consisted, with an unimportant exception, of several bills of exchango; upon those a judgment was obtained against James Dwnlap, the acceptor, and a stay of execution granted for about six months. This judgment was not recorded for many months after its rendition. At tho expiration of tho delay granted, no execution was taken out, nor did one issue until steps were taken by a creditor of tho succession to render the executor liable for laches, about fourteen months after tho judgment was obtained.
It was the duty of the executor, in the exercise of the diligence which a prudent administrator would use in his own affairs, to have caused the judgment to be recorded immediately upon its rendition, and to have issued an execution upon the expiration of the delay accorded to the debtor. If the known insolvency of the debtor, or other reasons existed which rendered these steps unnecessary, it was incumbent on tho executor to show affirmatively the circumstances of excuse, and that the creditors had suffered no injury in consequence of his ucglcct. 11 Mart. 193. 6 Mart. N. S. 195. 9 Robinson, 407. 12 Robinson, 220.
Tho only excuse offered is, the belief of the executor that the debt could only be collected by indulgence. No sufficient grounds for this belief are shown. It has not been made to appear that the debtor’s property was so covered by previous incumbrances as to render the registry of the judgment useless, nor that, at tho expiration of the delay, he was not possessed of property out of which tho judgmont could have been made, in whole or in part. "We are of opinion that tho executor has failed to show tho exorcise of due diiigonco in securing and collecting tho judgment,
*10It is urged that all the creditors appearing on the homologated tableau,-should have been made parties to the proceeding against the executor. This, in our opinion, was not necessary. Any one creditor who is dissatisfied with an account rendered by an administrator, may oppose its homologation. His rights aro not to be controlled or concluded by other creditors, who may be unwilling to unite in the proceeding, and-hold the executor to- a more strict accountability.
Judgment affirmed.