The judgment of the court was pronounced by
Slidell, J.The subject of controversy upon the present appeal is, the extent of the commissions to which the executors are entitled. There was a question raised by the appellants as to two due bills, alleged to be due by one of the executors. But this point has been abandoned since the submission of the cause.
We concur with the appellants that a deduction of $426 90 should be made, that being the amount of commissions allowed to the predecessors of the present dative executors. See the Succession of Mylne, 1 Rob. 400.
The principal contest is with regard to .the right of the executors to charge a commission upon the entire estate inventoried, it having been adjudged, since the inventory, that five- eighths of an important portion of it really belonged to the heirs of Claude Francois Girod.
When the present succession was opened, all the property inventoried apparently belonged to it. But some time after the dative testamentary executors had entered upon the discharge of their duties, proceedings in chancery were instituted in the United States Court by Pargoud and others, as heirs of Claude Girod, who died a long while ngo, for the purpose of recovering a portion of this apparent property of Nicolas Girod’s succession, on the ground that Nicolas acted fraudulently in the settlement of the succession of his brother Claude, of which he was executor, having bought portions of the estate by persons interposed &c. After a protracted litigation, a decree was rendered in favor of the complainants, and was affirmed by the Supreme Court of the United declaring the ownership of a certain interest in certain property to bt^n heirs of Claude. v
But it is not disputed that, during the pendency of this litigation, asjWell m previously, the executors of Nicolas Girod had the superintendence anii Laih of this property. They attended to its administration, provided tenants, collected the rents, paid the taxes, preserved it by necessary repairs, &c. All thi^ to the benefit of all parties interested. There would be no justice in peri the heirs of Claude to enrich themselves at the expense of these executors, have rendered their services in good faith, under the command of a court of competent jurisdiction,in the administration of property apparently belonging to their testator. And if this equitable view be correct, it is quite immaterial whether they are to be considered as strictly clothed with the seizin of the entire estate or not—whether we grant them the compensation as commissions, eo nomine, in the technical sense of the Code, or in the nature of a just remuneration for services which have enured to the benefit of Claude’s heirs. It is very certain that we should have found those hems taking veiy different ground, if the executors, upon the institution of the chancery proceedings, had abandoned the care of the property, neglected the collection of the rents and revenues, and suffere d it to fall into dilapidation. The commissions of two and a half per cent are nothing more than a fair quantum meruit under the evidence, even if not allowable as executor’s commissions strictly speaking. If the heirs of Claude are controlled by this reasoning, a fortiori, the legatees of Nicolas are.
It is next said that, the commissions are not allowable upon the unproductive lands.
In the case of the Succession of Mylne it was held that, the executors could not have commissions .upon the value of certain lands described in .the opinion of *388the court as “waste lands, not cultivated, and a part not susceptible of cultivation i” and the court there remarked : “We cannot regard that species of property as the productive properly of a succession, upon which the executor is entitled to charge a commission. The best evidence that it is unproductive is' that, in' the hands of the present executor, it has produced nothing.”
We certainly are not disposed to depart from the principles recognized in that opinion. But we think that they ought not to be taken without qualification, and extended beyond their fair and reasonable import. The reason of the rule is that, an executor should not receive a commission upon that which gives him little or no trouble to administer; and, in this sense, we do not agree with the counsel of the executors in the assertion that the mere trouble of paying taxes on property entitlesi'an executor to his commissions upon uncultivated land. In Mylne’s case no doubt the lands were taxed, and the executors probably had tire trouble of paying the taxes.
But there may be other circumstances which would, under a reasonable interpretation of the rule, and without any conflict with the spirit and fair intendment of Mylne’s case, entitle the executor to a commission upon uncultivated land. Suppose a suit is brought to evict the executor by an adverse claimant, and he defends the suit with success, and thus saves the estate the value of the land, this, we think, a fair ground for charging a commission, even on uncultivated land.
Again, take the case which (as asserted by counsel, and not denied by the opposite party,) occurred here with regard to a portion of the lands on the Lafourche. The proper public authority commands, or necessity requires, that a levée should be erected to protect the uncultivated lands from an inundation which would impair their value, while that value, on the other hand, would be enhanced in a greater ratio than the expenditure by the construction of a levée. This would impose trouble and responsibility upon the executor, which would justify a charge of commissions. The law on this subject should be construed with a due reference to its spirit and the intention of the law giver; and such reasonable construction will redound to the true interests of heirs and creditors.
We may remark that some of the lands which figure in the inventory as uncultivated, may, in point of fact, not come fairly under the designation of the Code. For example, the tract fronting the bayou Lafourche, opposite a sugar plantation of the deceased, may have been used for the supply of timber and fuel for (he plantation purposes; and, if so, could not be fairly classed as waste and unproductive land.
As we have not the full means of closing the present controversy, we think the ends of justice will be promoted by remanding the cause; and if the parties, who are no doubt fully acquainted with all the material facts, do not choose to make an amicable settlement, the views we have expressed will, at all events, facilitate the future judicial proceedings.
It is therefore decreed that, the judgment of the court below be reversed, and that this cause be l’emanded for further proceedings, the appellees paying the costs of the appeal.