Application for Rehearing.
The Counsel for opponent submit their application upon the three following propositions, viz.:
“ 1. The court erred in holding that the executor could not by any act of his own, 'divest himself of his franchise and duty as executor; at least as between himself and the heirs entitled to the estate.
• “2. This Honorable Court especially erred in utterly passing by as •of no effect the private and personal agreement of the parties acting in their own rights and interests; whereby they jointly agreed to and did take possession of the estate of the deceased in their respective individual capacities, as owners and heirs, and thereby as to each other, at least, put an end to the administration of the executor as such.
“ 3. The pretended executrix is a legatee under the pretended will, .and is therefore not entitled to any commission as executrix. R. C. C. 1686; 13 An. 103.”
I.
Supposing the first one to have been so well settled as to be considered to be elementary, we cited in our opinion but one case in its support — Succession of Frazier, 33 An. 593 — but as its authoritativeness seems to be questioned, we have concluded to support it 'with the following references in addition.
In Succession of Townsend vs. Sykes, 38 An. 859, this court used this emphatic language, viz.:
“It is elementary in our law and jurisprudence that the duly qualified executor under a will becomes an officer of the court, for the administration of the property of the succession, and that he can perform no legal or binding act touching such property, without the sanction of the court having jurisdiction over the estate; and that an executor who has accepted the trust, and qualified as such, and who is at the same time universal legatee, can not, at will, and without the sanction and authorization of the court, shift his position, abandon his trust accepted at the hands of the court, and assume the character and exercise the rights of owner, as universal legatee. *86O. O. 3480; Bird vs. Suceession of Jones, 5 An. 643; Succession of Frazier, 35 An. 382; Succession of Townsend, 37 An. 505.”
The authorities certainly make the proposition clear.
II.
It is the sense of all the authorities that heirs of age and present should be joined by an executor in the judicial disposition of the property of a solvent estate, and the concurrence of the heirs and executrix in this instance amounts to that. Giddens vs. Mobley, 37 An. 417; Bird’s Executors vs. Generes, 34 An. 321; Executor of Hart vs. Boni, 6 La. 97; Cronan vs. Executors, 9 An. 302; Succession of Weigel, 18 An. 49; 6 An. 494; 14 An. 610; 12 An. 684, 759; Garland’s C. P. 123, and authorities cited.
III.
Whether the surviving widow of the deceased will, or will not, be recognized and adjudged as a legatee under the will, must remain an open question until the appeal, which involves the nullity of the same, has been disposed of; that question being yet undecided, we can not, in advance, say what effect same will have upon her right to demand and receive commissions. If it turns out, as counsel suppose it will, any amount of commissions she has been unduly awarded upon their supposition, can be readily deducted from the amount found due her as legacy. This right is reserved.
Rehearing refused.