Same Case — Oír a Re-heakjng.
Merrick, C. J.'A'petition for a re-hearing-has been filed in this case.
The counsel for the appellees inform us that they rely upon Article 993 of the Code of Practice, as authority for the judgment rendered by the District Court in this case.
The regular mode by which an ordinary creditor is to obtain payment of his judgment against an estate, is concurrently with the other creditors of the succession. C. P. 987,1054; C. C. 1168. This implies that an account and tableau of distribution should be filed, wherein each creditor may be classed, in order that he may receive his portion of the funds in the hands of the administrator. This mode of proceeding is just and equitable. It prevents one creditor from obtaining an undue advantage over the others, in the assets in the hands of the administrator, and ultimately, from enforcing a demand upon the innocent surety of the same.
When a creditor declines to pursue the ordinary remedy, and chooses to pursue the administrator personally, he resorts to the penal provisions of the statute and Code of Practice, and must bring himself within their provisions, before he can demand the penalty.
“ The classification and order of the payments,” spoken of by Article 993 of the Code of Practice, to which our attention is called, is that mentioned in a preceding Article in the same chapter of the Code, viz, Art. 988. It contemplates the case whore the administrator has funds, and is ordered to pay the same to the creditors according to their rights, and not a case where funds are not in the hands of the administrator at the time of such classification, Succession of Hart, 8 Rob. 121; Hickman v. Flenniken, 12 An. 268; C. C. 1168, 1170.
In the classification of debts in this case, the administratrix did not profess to have any funds in hand, and hence, she was not ordered to pay any sum to any one of the creditors, and the classification and order of payments spoken of by Art. No. 993 did not take place. No execution could, therefore, issue thereon in favor of the creditors, within ten days after its homologation, because no sum was awarded any one of them. The second step required by this Article was also abortive. It was wanting- in a tableau of distribution, from which to date *782the ten days, and it does not appear that a majority of creditors in amount have required a due proportion of tice sums subsequently collected.
There is no reason to disturb the judgment pronounced by us in this case.
It is, therefore ordered, that the prayer for a re-hearing in this case be refused.