Hebert v. Hebert

Howell, J.

Tlie question presented in this case is, whether or not the sureties on an administrator’s bond are liable for the failure of the administrator to take good and solvent indorsers on notes given for the price of succession property, sold for the purpose of partition among the heirs, who obtained an order of court, directing that said notes be indorsed to the satisfaction of the administrator. In other *309words, is the judging and accepting of indorsers on notes, taken for the price of succession property, sold for the purpose of maldng a partition among the heirs, an act of administration contemplated by the law which requires an administrator to give a bond, with security, for the fidelity of his administration ?

After a careful consideration of the laws and jurisprudence relative to the duties and responsibilities of administrators and their sureties, rve conclude that the question, as presented in this record, must be answered in the negative.

Mrs. Clarisse Bush died in May, 1859, leaving nine heirs of age, and! the minor children of a tenth heir, then deceased. A family meeting,, on behalf of these minors, advised a sale of the whole estate, on a credit, the purchasers to assume the mortgage debts, and for the balance, lurnish their notes, payable at fixed periods, secured by mortgage on the property sold, “indorsed to the satisfaction of the administrator, and in such coupons or divisions as will facilitate a -partition and settlement among the heirs.” All the other heirs, including the administrator, joined in the petition for the homologation of the deliberation of this family meeting, and an order of sale to the sheriff, in accordance therewith.

At the sale, so ordered, lour of the heirs, the administrator being one, purchased the bulk of the property for $129,100, assumed the mortgage in favor of the Citizens’ Bank, and for the balance — $121,324— furnished their forty notes, for $3033 10 each, to the order of and indorsed by Louis Hebert, one of the purchasers, and Dr'. P. M. Lambremont, who, though in good credit, owned no property, which indorsers, the sheriff’s deed says, were accepted by the administrator.

After the maturity of the first series of ten notes, the administrator filed accounts, in April, i860, showing the condition of the estate and debts paid, and proposing to pay to the heirs, who were not purchasers, their respective shares in said notes. Two accepted, but the four, who are the plaintiffs herein, refused to do so — opposedthe homologation of the accounts, on the ground, among others, that the notes offered were not such as were contemplated by the heirs and order of court, not being properly indorsed, and subsequently obtained an order of the court, directing the administrator to substitute a new tableau of distribution for the one first filed, and that the notes to be given to the opponents be indorsed to their satisfaction before delivery made, and receipt required.

Other proceedings were taken by them against the administrator, which resulted in a judgment, in 1866, against him, for their shares of the estate, less some credits; and, not being able to execute it, they instituted this suit, and obtained judgment against his sureties.

The creditors of the succession took no part in any of the said proceedings, and have not complained.

*310In our opinion a resort to judicial proceedings was had simply because some minors were interested, and solely for the purpose of a partition among- the heirs, who thereby put an end to the regular administration of the estate under the provisions of the law, and took entire control of it themselves, the payment of the debts being only am incident in the proceeding's, to all of which the creditors made no -objection.

By thus taking charge of the estate, fixing terms and conditions of ■sale, different from those prescribed by law for the settlement ot successions, and directing the administrator to accept notes indorsed to his satisfaction, and in sums convenient for effecting a partition, they constituted him their agent-, to superintend the various steps necessary to complete the partition, and which it was no part of his duty, under the law, to do as administrator. The heirs must be viewed as joint owners of the property, uniting in proceedings to effect a partition, and the first judgment rendered was little more than an agreement between themselves to sell the property at public auction, for the purpose of paying the debts and coming to a partition.

This was the view taken in the case of Bray v. Bray, 16 La. 352, where the two universal legatees were appointed dative testamentary-executors, and joined in an application for a sale of the property, on a credit of one, two and three yrnars, the purchasers to give their notes, with approved indorsers, for the double jrarpose of providing for the payment of the debts, and to cause a partition among themselves.

The plaintiffs herein had an opportunity to accept the notes given for the property sold and secured by a mortgage thereon, and upon their non-payment at maturity, to cause the property subject to the mortgage sold to pay them. They left the notes in the hands of the party directed by themselves to receive them, and in his hands they seem to have become unavailing. This they might, to some extent, have averted.

The obligation of the administrator is to administer faithfully, and according- to law, the effects of the succession intrusted to his care, and account for the same. The surety guarantees the faithful performance of these duties; and for informalities and irregularities in a salé, or the sale to an incompetent jrarchaser, or for worthless security, when tile sale is caused by the administrator, the surety would be liable to those immediately interested in its faithful administration, to wit: creditors and heirs. 10 An. 668; 6 La. 303. But a sale for partition is not an act of administration, and wo know of no law, which authorizes an administrator as such, to provoke such a sale.

The surety signs the bond with reference to the law regulating .the duties of the administrator, and securing his own recourse against the latter. Ho knows that the law requires the administrator to sell property' for cash or on twelve months’ credit, and that if the admin*311istrator should fail iu any duty in making a sale, he will have opportunity at the end of the twelve months at farthest, to ascertain the fact and take steps to protect himself. Where the term of credit is extended by the heirs, without his consent, bpyond that fixed by the law, his condition is changed and made more onerous, and he would be released, even if the proceeding be one in which he could, under any circumstances, be held liable under the law.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both courts.