# Story v. Livingston Executrix of Livingston

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United States Supreme Court
38 U.S. 359
Story v. Livingston Executrix of Livingston
APPEAL from the District Court of the United States, for the eastern district of Louisiana.
On the second of March, 1837, the following decree of the Supreme Court of the United States, was produced in open Court, in the District Court of the United States, for the eastern district of Louisiana. The cause had been taken by Mrs. Livingston, executrix, by appeal to the Supreme Court, and the decree of the District Court reversed. 11 Peters, 351.
'This cause came on to be heard on the transcript of the record from the District Court of the United States, for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is ordered, adjudged, and decreed, that the decree of the said District Court dismissing the bill of the complainant, be, and the same is hereby, reversed and annulled; the court being of opinion that the transaction of the 25th July, 1822, between John A. Fort, Benjamin Story, and Edward Linvingston, was a loan to the said Edward Livingston secured by a pledge denominated an antechrisis in the law of Louisiana. And it is hereby further ordered, adjudged, and decreed, that the cause be sent back for further proceedings in the Court below, with directions that the cause be referred to a master to take an account between the parties. And it is hereby further ordered, adjudged, and decreed, that in taking said account, there be allowed to the defendant all advances which shall be shown to have been made by him, or paid on account of a loan made to Edward Livingston, on the 25th day of July, in the year 1822, with the interest, which the said Edward Livingston agreed to pay of eighteen per cent. per annum, to be calculated upon cash advances, from the time it was made until the 5th of August, 1823, and after that time at legal interest; and further, that in taking said account there be allowed to the defendant all reasonable expenditures made by the defendant, and John A. Fort, in building, repairing, and safe keeping of the property pledged by the said Edward Livingston, to secure the loan made to him on the 25th day of July, 1822; and that the complainant be credited in such account with all such sums as the defendant, or John A. Fort, or either of them, have received from the said property; and that in taking such account, the rents and profits be applied, first, to the payment of the sums necessarily incurred in building and repairing: secondly, to the payment of the interest on the sums which shall appear to have been advanced on the said loan, or in the improvement of the lot; and, thirdly, to the discharge of the principal of the said loan. And if, on taking said account, it shall appear that there is a balance due from the complainant, it is hereby further ordered, adjudged, and decree, that the defendant pay to the complainant such balance within six months from the time of entering the final decree in the cause, and shall surrender and reconvey the said property to the complainant, or such person or persons as shall be shown to be entitled to the same; and if upon the taking of said account, it shall be found that any balance is due from the estate of the said Edward Livingston, deceased, to the defendants, it is hereby further ordered, adjudged, and decreed, that on paying, or tendering to the defendant the said balance, he shall deliver up the possession, and reconvey to the person or persons who shall appear to be entitled to the same, the property so pledged to secure the aforesaid loan. And it is further ordered, adjudged, and decreed, that in case a balance shall be found due to the defendant, and shall not be paid within six months after a final decree of the District Court upon the master's report, then the property shall be sold, by order of the District Court, at such time and notice as the said Court shall direct; and that the proceeds be first applied to the payment of the balance due the defendant; and the residue thereof to be paid to the complainant.'
The mandate of the Supreme Court, conforming to this decree, was filed in the District Court by the counsel for Mrs. Livingston, and by an order of the District Court, the case was referred to a master in equity, Duncan N. Hennen, Esq., to examine into and report upon the account, according to the principles and rules established on the judgment of the Supreme Court.
Various proceedings took place in the District Court, after the order of reference to the master for an account.
The counsel for the defendant moved to strike from the docket, the complainant's suit; because,
1. Edward Livingston, the former complainant herein, departed this life on the ___ day of _____ and before the hearing of this cause in this Court at the spring term thereof, in 1836.
2. The said Livingston departed this life before the making or enrolment of the decree herein at the spring term of the year 1836; consequently the Court could not then entertain and jurisdiction of the cause.
3. This cause has never been regularly revived in the name of the present complainant-nor could it be so revived by the laws and usages of chancery, the complainant claiming as a devisee.
On the 18th of December, 1837, the District Court, after argument overruled this motion.
On the same day, the report of the master was filed. This report contained, at large, all the evidence produced before the master; with an account, by which a balance of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents, was found due by Benjamin Story, to Mrs. Livingston, executrix, on the first of November, 1837.
On the second of January, 1838, exceptions to the master's report were filed by Mr. Story.
1. Because chancery practice has been abolished by a rule of this Court, and such proceeding is unknown to the practice of the Court.
2. The master has erred in not allowing to the defendant the thousand dollars, with interest, paid to Morse, or some part thereof.
3d. The master's report does not show that it reports all the evidence taken before the master.
4. The master, in making his estimates and calculations, has not pursued the mandate of the Court.
5. It appears, from the master's report, that the stores were rented from November to November; and he erred in assuming the 1st April as the period of payment of annual rent.
6. A reasonable allowance should have been made to Story for the costs and risk of collecting the rents.
7. The master erred in all his charges against the defendant, and failed to allow the defendant his proper credits.
These exceptions were overruled by the District Court, and the Court decreed that Benjamin Story do pay to the complainant the sum of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents; and that the master's report be, in all other respects confirmed: and that the defendant conform to the decree of the Supreme Court in this case.
A petition for a rehearing was afterwards presented to the District Court, by the counsel for the defendant, which, after argument, was overruled; and the District Court made the following decree:
'The petition for a rehearing having been overruled, it is ordered, adjudged and decreed, that the defendant, Benjamin Story, do further surrender and reconvey the property described in the bill of complaint as 'all that parcel of ground situated on the batture of the suburb St. Mary, between Common and Gravier streets, measuring eighty-two feet fronting Common street; one hundred and twenty-six feet, or thereabouts, fronting Tchaptoulas street, one hundred and forty-six feet, or thereabouts, fronting New Levee street, and bounded on the other side by the lot of ground belonging to Messrs. Livermore, Morse, Miller and Pierce, containing one hundred and twenty feet, or thereabouts; together with the buildings, improvements, and all other appurtenances to the same in any wise belonging or appertaining,' to Louise Livingston, widow and executrix and devisee of Ed. Livingston, deceased, and to Cora Barton, daughter, and forced heir of said Ed. Livingston; in conformity to the decree of the Supreme Court of the United States, and to the decree heretofore made in pursuance thereof by this Court.'
The case having been transferred to the Circuit Court of the United States for the ninth Circuit, and eastern district of Louisiana; the defendant prosecuted this appeal.
The case was argued by Mr. Crittenden and Mr. Jones, for the appellant; and by Mr. Ogden, and Mr. Butler, with whom was Mr. Key, for the appellee.
The counsel for the appellant stated that the great object of the appellant was to bring before the Court of Louisiana, the fact of the decease of Mr. Livingston, before the decree of the Court was rendered. They had offered proof of this, and it was rejected. A supplementary bill was filed for the purpose of introducing this fact, and this was refused a hearing in the District Court, then having the cause before it. A mandamus was then asked of this Court, for the purpose of having the matter presented in the supplementary bill heard, which was refused. 12 Peters, 339.
It was contended that the death of Mr. Livingston, before the decree from which the appeal was originally taken, had made all the proceedings on that appeal irregular and void; and the case ought now to be open to a re-examination on all of its merits.
The right of the executrix, after the decease of the testator, was to revive the suit. This should have been done, but she could not prosecute an appeal, as she had done, (11 Peters, 351,) without having previously revived the suit.
The question is, whether the mandate of this Court, in the appeal decided in 1837, (11 Peters, 351,) could be executed without their being proper and legal parties to the case. It is admitted that the principles of the case have been settled in this Court; but it is claimed that Mrs. Livingston was not a proper party to ask for an account, in the Circuit Court.
Upon the death of Mr. Livingston, there was an entire suspension of the contest; and the executrix had no right to proceed in the mode she had proceeded. She, as executrix, could not have a right to an account of the rents of the estate in controversy, after the decease of the testator. The decree could not have intended this. The report should have stated the amount to which Mr. Livingston was entitled; and the amount which belonged to the devisees under the will. The devisees were, Mrs. Livingston, and Mrs. Cora Barton.
The Court have decreed that the property shall be conveyed to the persons entitled to it, under the will of Mr. Livingston. The only mode by which this could have been done was by a bill of revivor, showing who the heirs, or persons entitled were.
Advantage of the defect of proper parties, can be taken at any time, when discovered. This is clearly a case in which, from want of parties, the Court are to decree to the personal representative, the property of the devisees under the will.
Mr. Ogden and Mr. Butler, for the appellee.
1. The merits of this cause having been fully disposed of by the decree of this Court, rendered in February, 1837, and the mandate issued thereon requiring only the execution of that decree, the Court below was bound to carry the decree into effect; and therefore decided correctly in overruling the motion to strike the cause from the docket, and in refusing to hear testimony as to the period of the death of Edward Livingston. The right and capacity of Mrs. Livingston, as executrix, to proceed in the cause, and her title to recover the moneys found due from the defendant, are also settled by the mandate.
2. Independently of the effect of the mandate, the defendant, by proceeding in the reference, and by not objecting to the sufficiency of the revivor of the cause, until after the reference was closed; was estopped from making any such objection.
3. The exceptions to the master's report, embraced in the decree of the 16th of January, 1838, were correctly overruled.
4. The petition for a rehearing was properly denied; and the decree thereon is not the subject of an appeal.
5. There is no error in the decrees appealed from.
Mr. Justice WAYNE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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