Hibernia Bank & Trust Co. v. Whitney

Citations

• 122 La. 890
• 48 So. 314
• 1909 La. LEXIS 621

Syllabus

<p>1. Petitoby Action.</p> <p>The succession was accepted by plaintiff under the benefit of inventory. The de cujus died testate. His heir and universal legatee under the will seeks to recover the property as an heir at law, ignoring the will, and thereby avoiding all accounting to an adjudieatee of property of the succession, who was an innocent third person.</p> <p>2. Executoes and Administkatoes (§ 380*)— Sale of Succession Property — Setting Aside — Tendee of Peice.</p> <p>If the heir he entitled to the property, she cannot recover it without first tendering the amount.</p> <p>LEd. Note. — For other cases, see Executors .and Administrators, Cent. Dig. § 1550%; Dec. Dig. § 380.*]</p> <p>3. Necessity of Tendee.</p> <p>The property having been sold to pay debts, a return of the price is an essential before recovery of the property sold (if the sale be null). Sharkey v. Bankston, 30 La. Ann. 891.</p> <p>4. Executoes and Administrators (§ 383*)— Sale of Succession Peopeety — Collateral Attack.</p> <p>The questions involved will have to be raised in a direct action, and will not be (under repeated decisions) considered in collateral proceedings, in which all that was done in the settlement of the succession is treated as the ■merest nullity, as if nonexisting.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1554; Dec. Dig. § 383.*]</p> <p>(Syllabus by the Court.)</p>