Mellen v. Buckner

delivered the opinion of the court.

These cases are supplementary to that of Johnson v. Waters, 111 U. S. 610 , decided by this court on appeal from the Circuit Court for the District of Louisiana in October term, 1883. In that case, William Gay, a judgment creditor of Oliver J. Morgan, deceased, to the amount of $33,250, besides interest, filed a bill on behalf of himself and all other creditors of the deceased who might come in and contribute to the expenses of the suit, to subject five certain plantations in Carroll parish, Louisiana, of which Oliver J. Morgan had died possessed, to the payment of his debts, and to set aside as fraudulent and void a pretended judicial sale of said plantations made to. certain of the defendants in January, 1869. The plantations were named Albion, Wilton, Melbourne, Westland and Morgana, and they lay together, the three former (the most valuable) fronting on the Mississippi Biver. Oliver J. Morgan had died in October, 1860. His wifé, Narcissa Deeson, had died in 184J, and a large portion of the property was community property in which she was entitled to a half interest, though some of it was acquired after her death. In 1857, in a proceeding for partition of said property in the District Court for the parish of Carroll, instituted by Oliver J. Morgan, a sale was

Shortly after this sale, in March, 1858, the said Oliver J". Morgan, by an act of sale and donation, transferred, or attempted to transfer, to his daughter Julia, three-fourths of all his property, comprising the four plantations, Albion, "Wilton,, Westland and Morgana. The transfer was made subject to Mr. Morgan’s own usufruct for life, and Julia and her husband accepted the transfer by joining in the act. The object and intent of the donor was expressed in the act. as follows, to wit:

“ Now, for the purpose of paying to the said Julia Morgan, wife of Oliver T. Morgan, residents of this parish, she appearing and making herself a party to this deed with the authorization of her said husband, the said sum of sixty:sóven thousand four hundred and ninety-five dollars and T% due as aforesaid, and at the same time so to divide the entire landed estate of.

Then, after reserving the usufruct, of all the lands during the donor’s own life, the act sets forth With particularity the basis upon which the division of the lands ivas made, and the valuation of the portion allotted to each heir, as follows: —

“ "Whole amount of community lands......... $362,201 80

Lands acquired since the dissolution of the community----•........................ 75,760 00

Whole amount of land..................... $437,961 80

Deduct amount due to heirs arising from sale of community lands on the 18th of January, ’58. to each $67.495.70................... 134,991 40

Balance divided by four.......... $302,970 40

Portion coming to Oliver H. Kellam........ $75,742 60 Amount due him as above................. 67,495 70

Entire interest of Oliver H. Kellam, in estimated value of lands.................... $143,238 30

Three-fourths interest for Julia Morgan..... $227,227 80

Amount due as above..................... 67,495 70

Entire interest of Julia Morgan.... $294,723 50

Yalue of land conveyed in this deed to Julia Morgan.........'...................... $304,254 22

Deduct entire interest..................... 294,723 50

Excess to be accounted as before - stipulated..................... ' $9,530 72 ”

This estimate of the then value of the lands has never been questioned by any of the parties.

On the 1st of May, I860,' Oliver J. Morgan made his will, and, after- bequeathing some personal legacies, as if apprehending that the act of donation to Julia might not be valid, he disposed of his property in substantially the same manner as he had done in said act. The following disposition was made by the will:

“Fourth, I give and bequeath unto my beloved, daughter, Julia Morgan, one-half of all the residue of my estate, it being

my intention thereby to give to her all that portion of my estate ‘that I have a right to dispose of over and above the portions going to my forced heirs; and in the event of my said daughter Julia dying before I do, then it is my will and I do hereby bequeath unto her children, Narcissa Keene, Alexander C. Keene, William B. Keene, Morgan Keene and Julia H. Morgan, or such of them as may be living at my déath, the said one-half of- my entire estate as above, it being my will that my said daughter shall have, inclusive of her forced heir-ship, three-fourths of my entire estate, but in the event that should she die before I do, then it is my will and the express intention of this testament that those of her children who may be living at my death shall have the said three-fourths of my estate.”

The testator appointed Oliver T. Morgan, his nephew and son-in-law, executor of his will, who proved the same in due course, and in November, 1860, had an inventory of the estate taken, which showed:

Real-estate.................................. .$947,153 80

Slaves.................-....................... 196,961 0Ó

Other personal property....................... 38,200 00

Total................................$1,182,314 80

The representatives and heirs of Oliver J. Morgan went into, or continued in, possession of his property in accordance with his will and the intent he had expressed as to the undisposed portion. The slaves were divided between them. Julia Morgan, his daughter, died before he did, in May, 1860, leaving the children named *in his will, who were then minors. Her husband, Oliver T. Morgan, executor of the will, and also executor of his wife’s will, took possession of the four plantations given to her, and then belonging to her children. He man: aged the property in their interest, being natural tutor of his own daughter, Julia H. Morgan, who was only two years old at her mother’s death. Narcissa Keene, the eldest of Julia Morgan’s children, and the only one of the Keene children

It thus appears that at no time, after the death of Oliver J. Morgan, except as they may -have,. been interrupted by the presence and depredations of troops during the war, did his.

As to the interest of the other heir, Oliver H. Kellam, Jr., that was managed by his mother, Melinda Kellam, as his natural tutrix, and her second husband, John A. Buckner, whom she married in April, 1859. They continued in possession of the Melbourne plantation, one of the most valuable in the lot, representing the heir, just as Oliver J. Morgan had intended they should do. There is no doubt that (with the

That Julia Morgan and her heirs were concluded by the dispositions made by her father seems clear'; for she and her husband joined in the act of donation and sale, and the will did not change the destination of the estate.' It is contended, however,- that Oliver II. Kellam, Jr., being then an infant, and not represented in the judicial proceedings taken, or in the acts executed by Oliver J. Morgan, was not bound thereby. Even if that were so, we do not see that the position of things would be substantially changed. The fact was that Mr. Morgan’s arrangements had long been in contemplation and had been partially carried out before his death. He had put the Kellams in possession of the Melbourne plantation several years before, and intended that plantation as going to make up their share of the whole estate; and his daughter Julia and her family lived with himself, and her husband had special charge and possession of Westland, (if not of Morgana,) and came into possession of all except Melbourne on Mr. Morgan’s death. After that, both parties continued in possession in accordance with the disposition made by him. 'Each heir had the portion intended for him or her, and if the debt which he formally incurred to them for his wife’s community property

The bill in the case of Johnson v. Waters was specially directed to set aside as fraudulent and void a pretended sale of all the lands of Oliver J. Morgan, made in January, 1869. John A. Buckner, one of the plaintiffs in the present case, had applied to the parish court of Carroll parish for a sale of all of said lands to pay the debts of the estate, and particularly the pretended debt of $67,495.70, due to his daughter Mollie Buck'ner as heir of Oliver H. Kellam, Jr., alleging that it was a •judgment debt, and had a preference over other claims; and Oliver T. Morgan, as executor, intervened in the petition In aid thereof. An order of sale was accordingly made, a sale followed, and John A. Buckner became the purchaser of the Melbourne, Wilton and Albion plantations, at three dollai’s per acre; and the other two plantations were sold for the same price, one to J. W. Montgomery, one of the lawyers in the case, and the other to F. M. Goodrich, another of the lawyers, therein. The facts with regard to this transaction are fully stated in the opinion in' Johnson v. Waters, 111 U. S. 655 , 669. Suffice it to say, that we were satisfied from the evidence that the sale and all the proceedings that resulted in the sale were

Our conclusion and decree then were:

1st, That the debt of Gay, the complainant, as represented by his administrator, Waters, (now by Mellen, administrator de bonis non,) be established and confirmed.

2d. That the sales complained of, made in January, 1869, be declared null and void, as against the estate of Gay and the other creditors of Oliver J. Morgan, deceased; and that it be referred to a master to take and state an account of the assets belonging to said Morgan’s estate in the hands of the dative testamentary executor, Matthew F. Johnson, one of the defendants ; and to give notice to creditors to come in and prove their debts.

3d. That if other assets were not sufficient. to pay such

4th. That the master might apply for instructions, especially as to whether the succession of Julia Morgan was entitled to any portion of the proceeds arising from the sale of the lands, by virtue of said act of donation and sale made to her by Oliver J. Morgan in 1858. so far as said act was a sale and not a donation.

The cause was remanded to the Circuit Court, a reference was ordered according to the decree, and the matter was opened before the master. On this reference the heirs of Julia Morgan and Buckner as representative of the Kellam interest presented each their claim for $67,495.70, and interest, as a debt against the estate of Oliver J. Morgan, deceased, as if the reference included them and was intended for their benefit, as creditors of his estate. But said claim was presented with reservation of rights to be set forth in the bills now before us, which they proposed to file.

Thereupon they filed the bills in the two cases now here on appeal.

One of the-bills is filed by John A. Buckner for himself and as tutor of his minor child, Etheline Buckner, in the nature of a cross-bill against Stephenson Waters, (for whom Délos C Mellen has been substituted,) administrator, etc., of William Gay, deceased; and is in fact, as it is styled, a bill in the nature of a cross-bill to the said suit of Gay referred to as Johnson v. Waters. By a strange fatality in the course of events, Buckner and his daughter, the present representatives of Ann Kellam, (née Morgan,) and of her grandson, Oliver H. Kellam, Jr., have not a particle of Morgan or Kellam blood. Oliver H. Kellam, Jr., the last of that line, died, young, leaving as his heirs his moth'er, Melinda Kellam, and h}s half brother and sister, children of his mother by John_ A. Buckner. The mother and brother dying, the sister Louise (or Mollie) and her father Buckner became the heirs. Louise dying, left her father, Buckner, and her half sister by a second wifé of Buck

The other bill is filed by Narcissa Keene, wife of Matthew F. Johnson, and Julia H. Morgan, wife of George G. Johnson, their husbands joining for the sake of conformity. It is filed as an original bill in the nature of a supplemental bill arid cross-bill, against Stephenson "Waters, (for whom Delos O. Mellen has been substituted,) administrator, etc., of William Gay, ^deceased. Narcissa K. Johnson is the only survivor of the Keene children of Julia Morgan, and Julia H. Johnson is the •daughter of Julia Morgan by her second husband, Oliver T. Morgan.

The frame of the two bills is substantially the same. They first assert that the complainants, in their character of heirs and representatives of Ann Kellam and Julia Morgan respectively, were not parties to the suit of Johnson v. Waters, arid are not bound by the decree therein. This averment is in a.measure true. That suit was brought against Oliver T. Morgan, the executor of Oliver J. Morgan, (who made the fraudulent sale complained of,) and John A. Buckner, J. West Montgomery, and Ferdinand M. Goodrich, the purchasers at that sale. Whilst this is so, it is also true that the real controversy in the whole case was stoutly litigated. Buckner, one of the present complainants, was the principal and most interested defendant ; and Oliver T. Morgan was the executor both of Oliver J. Morgan and his own wife, Julia Morgan. The bills then go on to. give the history of .the estate of Oliver J. Morgan, and Nancy Deeson’s community interest, the sale of that interest to Morgan, the act of donation and srle to Julia Morgan, etc., referring to the printed record in Johnson v. Waters for the copy of the act. Buckner, in .his bill, claims that the Melbourne plantation, when given to the Kellams, was uncleared and unimproved, and the ancestor of Oliver H. Kellam, Jr., cleared and improved it, and the Kellams always' treated it as their own property, with the assent of Oliver J. Morgan. He refers to the proceedings in the parish court in 1868-9, and the sale in January, 1869, as prosecuted in good faith, and free from any fraudulent intent; but he admits that this court set aside the

He alleges that such are the complications of the rights of the heirs in consequence of the action.of Oliver J. Morgan, and his representatives, and the creditors, that the aid of the court is necessary to adjust the rights of all the parties, and hence he files his bill for its direction in the premises and for the protection of his rights and those of his child, Etheline.

The bill of Narcissa K. Johnson, and Julia H. Johnson is similar to that of Buckner,.and prays similar relief.

The defendant Waters, administrator of Gay, filed answers to these bills, in which he takes the ground that the plantations in question became the sole property of Oliver J. Morgan by virtue of his purchase of the same in 1858, at the sale of the community property; but that the debt incurred for such purchase has been fully paid to the heirs by their reception and enjoyment of the revenues and profits of the lands; that they went into possession of said lands as heirs of Oliver J. Morgan without benefit of inventory, and thus became personally liable for all his debts; and that .if the debts due to them have not been fully,paid, they have at least become subordinate and

On the 5th of March, 1885, the solicitors of the respective parties entered into a written agreement that the two causes should be consolidated and tried together, and considered as if the complainants in .each had been made defendants in the other, and that Matthew F. Johnson, in his capacity of dative testamentary executor of Oliver J. Morgan, should appear and become a party; and that the bill in each case should be treated as an answer in the other case. Johnson appeared accordingly as dative testamentary executor, and filed a paper admitting the facts set' forth in the bills of complaint.

In July, 1885, the following stipulation, agreed to by the solicitors of the parties, was entered into in the consolidated case:

“ The parties, by their solicitors, for the purpose of avoiding delay and expense, and of bringing these causes to a speedy trial, stipulate as follows:

“ 1st. The answers filed in these causes, before consolidation, shall be taken and considered as the answers to the consolidated causes, and apply to new parties introduced since they were filed as well as to those then parties.

“ 2d. The causes shall be considered at issue as if replications had been filed, and no further replications than the provisions of this agreement shall be necessary.

“ 3d. A copy of the record in cause 6612, referred to in the pleadings in these causes, and numbered 297 on the docket of the Supreme Court of the United States, as the same was printed for use in the Supreme Court of the United States, shall be filed in evidence.” [This is the record in Johnson v. Waters.] “ All documents copied therein shall be taken and considered' as if they were separately authenticated by the proper officer and without other evidence of their authenticity than the fact that they are found in said printed record.

“ It is not- intended by this ágreement bo waive any legal objection to the introduction in evidence of any document or depositions printed in-said record which might or could be

made to the original depositions if produced and offered, objections as to form being waived.

“ 4th. The judgment arid decree of the Supreme Court of the United States in said cause 6612, (297 of that court,) as the same is printed in Vol. Ill of the printed reports, may be used in evidence without further proof or the production of a certi■fied copy thereof; but this agreement, in this respect, is intended to waive form only and not any objection to the admissibility in evidence of said decree on other grounds, nor to its effect when introduced in evidence.”

The parties thereupon took further evidence. A certificate of the clerk of the District Court for the parish of Carroll, custodian of its probate and succession records, showed that Oliver T. Morgan, executor of the succession of Oliver J. Morgan, never filed or rendered any account of his administration of said succession, except one purporting to be a final account, filed 8th February, 1870; and as executor of Julia Morgan, never filed or rendered any account whatever; and that. Matthew F. Johnson, dative testamentary executor of the succession of Oliver J. Morgan, never filed or rendered any account, or any bond. The final account of Oliver T. Morgan, referred to by the clerk, was a mere perfunctory one, exhibiting an exact balance of receipts and disbursements; the receipts consisting of the bids for the property at the fraudulent sale of January, 1869, and the disbursements, consisting of credits on the pretended claims of the bidders, Buckner and the lawyers and certain creditors whom they professed to represent. .The truth is, as before intimated, that there never was any bona fide administration of the estate;. but each of the two sets of heirs, or their tutors for them, took and kept possession of the respective portions of the real property intended for them by Oliver J. Morgan, and divided between themselves and took possession of the slaves and other property of the estate. The complainants, Narcissa K. Johnson and Julia H. Johnson, testifying as witnesses in the case, allege that they never received anything from the estate. But this is hardly consistent with the fact that Oliver T. Morgan, the father of one of them, and step-fáther of the other, lived with them on the

The same thing is true with regard to the occupation of Melbourne by the Kellam branch of the family, namely, by Oliver H. Kellam, Jr., with his mother and natural tutrix, and by John A. Buckner and his children. The only pretension of their being unpaid creditors of the succession was made as a part of that fraudulent scheme which resulted in the sale of January, 1869, which we have already decreed to be void, and with regard to which we still hold the same opinion.

• The testimony of John A. Buckner himself, taken in the original cause, substantially corroborates this view of the case. In addition to what has already been quoted from his examination, he then said:

“ Witness says that he has never had corporeal possession of Wilton or Albion plantations. Since the war Matt. F. Johnson has had the actual control and management of Wilton and Albion plantations, as he, witness, supposed, in interest of his wife, one of the heirs, and the other heirs of Julia Morgan. Matt. F. Johnson and the heirs of Julia Morgan hare never set up any .adverse claim to witness in regard to Melbourne plantation.

“They have confined their pretensions to Wilton and Albion, and have had the control of said plantations ever since the. war, though Oliver T. Morgan, as executor, has exercised some authority over the property. . . .

“Matt. F.. Johnson, in behalf, as witness supposes, of the heirs of Julia Morgan, has exercised full control over the property and leased and controlled the property and exercised the

rights of ownership over the same ever since the war, except-that Oliver T.t Morgan, executor, exercised authority several years after the war. . . .

“Witness says that the heirs of Julia Morgan have always; claimed a greater share of the property than they considered; him entitled to, as representing one of the heirships. There-were two heirships to Judge Morgan’s estate.' One witness: represents, and the other the heirs of Julia Morgan represent.

“ The following quest'on is propounded by counsel for complainant : —■ In the distribution of the property among the heirs of Oliver J. Morgan, wherein the heirs of Julia Morgan took Wilton and Albion and restricted witness, representing another heirship, to Melbourne, why did the heirs require such an unequal division ? Was it or not on account of the extraordinary pretensions they set up as heirs of Julia Morgan, or why was it ?

“ Witness says it was because they claimed three-fourths- of the estate. He does not know upon what their claim is based. Witness refers counsel to the records; says that there has been no final division between the heirs. The heirs of Julia Morgam, have held possession of the land they had before the war, and witness has held possession of the land he had before the war. Witness does not hold the property in common; there is only a temporary division.

“ Witness has held possession of Melbourne ever since the war, and the heirs of Julia Morgan have held possession of Wilton and Albion, except that the heirs recognized Oliver T. Morgan as executor, but he did not require of them any account of the rents and revenues.

“ Witness says that his understanding was at the time of the sale, in January, 1869, when he bought in the property for the heirs, that they were to receive their proportion of the land purchased in witness’ name, and he was to retain his proportion.

“ They were (the heirs of Julia Morgan) to take three-fourths of the land and witness one-fourth, and this understanding was had as to the exact amount in the division after the sale. There was no conversation or agreement with the heirs, or any other parties, as to how the division should be made.”

“I married Mrs. Melinda Kellam, April 7th, 1859. Her son, Oliver H. Kellam, died in September, 1863. He was seven years old at the time of his death. My wife, Mrs. Melinda Kellam, died in September, • 1863. My son John died one week afterwards. He was three years old at the time of his death. My daughter Louisa (called Mollie) died in March, 1883, and was 21 years and 6 months old at the time of her death. . . .

“Melbourne plantation was first set apart and given by Oliver J. Morgan to the ancestor of his great grandson, Oliver H. Kellam, (the son of my first wife,) in 1853. . . .

“The Kellams cultivated it as their own; had their own merchant, raised their own money with which to improve and plant the place, and were never called • to account, for rents or revenues, and never did so account for them, either to Judge Morgan or to any one else.

“ It was in the possession of my wife, Mrs. Melinda Kellam, as natural tutrix, and myself, as cotutor- to the minor, Oliver H. Kellam, at the time, of the death of Oliver J. Morgan. The said plantation remained in the continuous possession of the Kellams or their representatives from the time it was originally given or set apart to them by Oliver J. Morgan until dispossessed by the receiver appointed by the court in suit 'No. 6612.”

This was on his cross-examination. On his direct examination he had said:

“.Oliver J. Morgan died in the spring of 1860. Upon his death the Melbourne plantation was claimed by and was in the possession.of (as it had been for many ye'ars before) the Kellam heir. The other places were claimed by the heirs of Julia Morgan, but the executor took possession or control, and exercised authority over all but Melbourne. There was. a . change in 1869 ; after' the succession sale took place Morgana was controlled by F. M. Goodrich, until he transferred it to

Samuel Boyd, of New Orleans, who had possession, until 1st January, 1885.

“Westland after 1869 went under the control of some of the creditors of O. J. Morgan, and remained so until 1st Jan., 1885, and Col. Matt. Johnson controlled Wilton and Albion until about 1879, when Mr. Geo. Johnson took control of the lower part of Wilton and Albion.

“How much was controlled by the latter I do not know, and these two places remained under their control until 1st Jan., 1885.

“ As to Melbourne, it has never passed out of the representative of the JJellam interest.”

The pretence that the Melbourne plantation was intended as a pure gift by Oliver J. Morgan to the Kellam family cannot be seriously maintained in view of the express declarations and provisions to the contrary made by Mr. Morgan in his lifetime; and is contradicted by the conduct of Buckner himself, in procuring Melbourne to be sold as part of the property of Oliver J. Morgan, at the sale of January, 1869, and becoming the purchaser himself, and filing a petition for homologation in which he expressly declares that it belonged to the estate of Oliver J. Morgan, deceased.

In addition to the evidence taken in the former case, further evidence has been taken in the present cases, as to the rental value of the property from the time of Oliver J. Morgan’s death, and the value of the fruits and revenues which have been derived from it; and in this connection the complainants have adduced evidence to show that they have been at large expenses for repairs and for restoration of the- lands after floods. We have • carefully examined the evidence on these points, both that which- has been adduced in the present suits and that which was taken in the case of Johnson v. Waters, and, without attempting to give an abstract of-it, we shall only state our conclusion, which is substantially the same as that at which we arrived in that case, namely, that any debt which.may have been due from Oliver J. Morgan to his heirs was more than satisfied by their receiving that portion of the property which was intended by him as a satisfaction, and by the

We think, however, that it would.be proper, not as a matter of strict right, but on equitable grounds, that they should have some allowance or consideration, beyond the use of the property, for improvements which they have placed upon it, and for restoration of its condition after floods and other devastations. But,, in view of the conflicting evidence as to the annual value of the lands, since Oliver J. Morgan’s death, and the great lapse of time that has occurred, it would be difficult, if not impossible, to arrive at any precise and accurate adjustment of the equities arising out of all the complications of the case; and the creditors might well say that their claims should have been satisfied when the estate was abundantly able to pay them, and before the restorations were necessary. The best that can be done, with a view to the interest of all the parties, and the termination of a vexatious litigation, is to make such award and decree as, on the whole, seems most equitable and just. With this view, we see no better disposition to be made than to increase somewhat the percentage of interest in the lands to be reserved to the- complainants, and to order a division of the lands to be made, if they shall so desire. This will enable each party to obtain and secure his, or their, own rights without sacrificing those of the others. To allow the complainants to go before the master in the Gay suit, and prove their antiquated claims, principal and interest, would enable them to sweep away nearly all the property, and leave the creditors nothing. This certainly would be most inequitable. Whilst to allow the creditors to sell the whole property in order to raise the amount of their debts would be equally inequitable, for it would leave nothing for the heirs, who have a meritorious claim arising from the interest of their ancestor, Narcissa Deeson. We think it is admissible *and,

We have thus far expressed our views of the equities and legal aspects of the case without referring to particular laws or decisions. But, it is proper to add, that, besides other portions of the Civil Code of Louisiana, the following articles have been constantly borne in mind:

Art. 254. “ If a mother who is tutrix to her children, wishes to marry again, she must, previous to the celebration of the marriage, apply to the judge in order to have a meeting of the family called for the purpose of deciding whether she shall remain tutrix.” . . .

Art. 255. “ "When the family meeting shall retain the mother in the tutorship, her second husband becomes of necessity the cotutor, who, for the administration of the property, subsequently to his marriage, becomes bound in solido with his wife.”

Art. 352. “ It shall not' be necessary for minor heirs to make any formal acceptance of a succession that may fall to them, but such acceptance shall be.considered as made for them with benefit of inventory by operation of' Jaw, and shall in all respects have the force and effect of formal acceptance.”

Art. 1032. “ The benefit of inventory is the privilege which the heir obtains of being liable for the charges and debts of the succession only to the value of the effects of the succession, by causing an inventory of those effects to be made within the time and in the manner hereinafter prescribed.”

The heir with benefit of inventory is bound only to the amount the estate was worth at his ancestor’s death. Of course he is bound to that extent. Changeur v. Gravier, 4 Martin N. S. 68.

Art. 1054:. “The effect of the benefit of inventory is that it gives the heir the advantage:

“1. Of being discharged from the debts of the succession by abandoning all the assets of the succession to the creditors and legatees.

“ 2. Of not confounding his own effects with those of the succession, and of preserving against it the right of cladding the debts due from it.”

In the present case the heirs did not abandon the assets of the succession to the creditors, and the debts due to them from' the estate were satisfied in the manner hereinbefore stated. The portion of the property received in satisfaction we propose shall be set off to them in severalty, if they shall desire it, so that it may not be confounded with the residue.

• Art. 1058. “-But if the heir declares that he is not willing to accept the succession otherwise than with the benefit of an inventory, the person appointed administrator of the estate, whether it was the heir himself or any other individual, shall proceed to the sale of the property of the succession and to

As the debts due to the heirs in the present case were satisfied and paid by the property received for that purpose, this article has no special bearing upon the result.

The question arising from the incapacity of minor heirs has already been adverted to..

Upon the final hearing of the cases as consolidated, the court below, on the 15th of June, 1886, made the following decree, to wit:

“ These consolidated causes came on to' be heard at this term on final hearing and were argued by cpunsel, and thereupon, upon consideration thereof, it is’ ordqred, adjudged and decreed by the court, that the bills of complaint of the complainants, John A. Buckner and others and Narcissa-Keene, wife of Matt. F. Johnson, and others, be dismissed, reserving the right to said complainants, except said Buckner in his own right, to go before the master appointed in the case of Waters, Adm'r v. Johnson et al., No. 6612 of the docket of this court, and prove up as ordinary claims against the estate of Oliver J. Morgan such sums as may be due them on account of the original indebtedness of Oliver J. Morgan to the heirs of Narcissa Dee-son, which indebtedness is hereby recognized as originally $134,991.40, provided said complainants shall account for said property, rents and revenues of the said estate of Oliver J. Morgan as came to their hands as heirs or grantees of said Oliver J. Morgan, and it is ordered that said complainants do pay all the costs of the suit, said costs to be equally divided between the complainants in the two causes respectively.”

On a full consideration of the case, we think that this decree should be reversed, and that a new and different decree should be made. Instead of dismissing the bills of the complainants, we think that those bills, being in the nature of cross-bills in

Each party should pay their own costs on this appeal, except the costs of printing the record, which should be equally divided between the two parties, appellants and appellees. The costs in the court below up to this time should be paid by the complainants, as directed in the decree of the Circuit Court.

The cause is remanded to the court below with directions to proceed in conformity with this opinion.

Decree.

It is now here ordered cmd decreed that the said decree of the Circuit Court be reversed, and that a new and different decree be made in this consolidated case, and by way of supplement to the decree in the principal case of William Cay’s administrator against Matthew F. Johnson, dative testamentary executor of Oliver J. Morgan, and others, that is to say, it is ordered and decreed that the bills filed.' by the complainants in the causes herein consolidated be retained, - and-the cases consolidated with the said principal case of Gay’s administrator against Morgan?s dative testamentary executor and others ; but that -all relief prayed in and by said bills filed ■in the present cases be denied except as herein declared, namely: it is decreed that instead of reserving to the said complainants the right to go before the master in said suit .of Gay’s administrator, and to prove, their claims against the estate of said Oliver J. Morgan, deceased, for any supposed indebtedness to them as - heirs of Narcissa Deeson, the said claims are hereby declared to be satisfied and paid; and that in place of said supposed claims-the said heirs áre entitled to have and retain a certain portion of said Oliver J. Morgan?s estate free from the claims of his creditors, as follows, to wit: two-fifths of the four plantations, Albion, Wilton, Westland and Morga/na, are directed and decreed 'to be ‘’reserved for the

Me. Justice Brewer and Mr. Justice Brown were not members of the court when this case was argued, and took no part in thé decision.