In re Dimmick's Estate

Citations

• 111 La. 655
• 35 So. 801
• 1903 La. LEXIS 563

Syllabus

<p>CAUSE OF ACTION — SPLITTING — ADMINISTRATOR-PROOF OF CLAIM—BREACH OF DUTY—PENALTIES.</p> <p>1.Article 156 of the Code of Practice, by which a litigant who demands less than is due him is held to have abandoned the overplus, does not compel a litigant to include in his suit all the moneyed demands he has against his debtor, under penalty of being held to have abandoned those not included. It only forbids the dividing of one debt for separate suits.</p> <p>2. An administrator or executor is held to strict proof of his claims against the succession he administers.</p> <p>3. For the enforcement of Act 13 of -1837, now sections 9 and 1465 of the Revised Statutes, and article 1150, Civ. Code, denouncing penalties against administrators and executors for failing to file an account every 12 months, or to deposit the money of the succession in one of the chartered banks of the state, or for withdrawing the funds of the succession from bank without an order of court, it is not required that the succession shall have suffered loss. The statute must be enforced strictly, though cases may arise manifestly not coming within its intendment, and to which, therefore, it would not apply.</p> <p>4. But where an executor has been derelict in all these respects (that is, has failed to file an account, and has deposited only part of the funds, and has withdrawn without order of court the funds deposited), there cannot be imposed upon him a separate penalty for each dereliction, or, in other words, he cannot be condemned to pay 10 per cent, plus 20 per cent., plus 20 per cent, per annum interest, but, the penalty being in the nature of running interest, only one interest can run, and therefore only one of the penalties can be imposed.</p> <p>5. The statute having been enacted in the interest of creditors and heirs, these may waive its benefits; and therefore the 20 per cent, penalty does not accrue on that part of the funds of the succession belonging to the executor, or controlled by