(108 So. 322)

No. 27588.

#### Succession of BOEHM.

(March 29, 1926.

Rehearing Denied May 3, 1926.)

*(Syllabus by Editorial StaffJ*

1. Executors and administrators @=>130(1), 459 —Succession; heirs entitled to be placed in possession of estate and administratrix to file account and tableau of distribution of fund deposited to cover debts and charges (Civ. Code, arts.-988, 1012, 1180, 1194, 1671).

Where administratrix, also being an heir, individually purchased property belonging to estate from other heirs and deposited sufficient cash, belonging to estate, in registry of court to pay debts and charges of the succession, heirs were entitled to be placed in possession of estate, in view of Civ. Code, arts. 988, 1012, 1671, and administratrix to file account and tableau of distribution of amount deposited, in view of sections 1180, 1194.

2. Executors and administrators @=>495(7)— Succession; administratrix held entitled to statutory commission, notwithstanding receipt of salary for conducting business which was part of the succession (Civ. Code, arts. 1069, 1200).

Administratrix *held*entitled, on settlement of account, to commission fixed by Civ. Code, arts. 1069, 1200, notwithstanding she had conducted, by order of court, printing business which was part of the succession, for which services she had received salary as clerk and manager.

3. Executors and administrators @=>216(1)— Succession; fees of accountants for auditing accounts proper charges against the succession, where services were necessary to establish estate’s condition.

Fees of expert accountants, employed to audit accounts of estate, are proper charges *163against the succession, where services were necessary to establish condition of estate.

4. Executors and administrators <&wkey;>2!6(l)— *Succession; that*heirs required employment of accountants to audit estate’s accounts concludes them on necessity for services and prevents them from successfully opposing allowance of their fees.

That heirs required employment of accountants to audit accounts o£ estate is conclusive upon them that services were necessary, and prevents them from successfully opposing allowance of their charges upon settlement of administratrix’s account.

5. Executors and administrators <@=>2 f 6(2) — Succession; fee of $1,000 for attorney for the succession held reasonable, where estate amounted to nearly $40,000, and its affairs almost monopolized his time for a year (Civ. Code, art. 448).

Fee of $1,000 for attorney for the succession *held*reasonable, where estate, in view of Oiv. Code, art. 448, amounted to nearly $40,000, and administratrix and her coheirs, for more than a year, almost monopolized his time.

’Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.

Final accounting of administratrix in the succession of Mrs. Lisette Boehm, widow of W. E. Seebold, opposed by heirs. From a judgment allowing certain charges against the succession included therein, the heirs appeal.

Affirmed.

Arthur Landry, of New Orleans, for appellants Molinari and Seebold.

Edward M. Robbert, of New Orleans, for administratrix.

Walter L. Gleason, of New Orleans, for E. M. Robbert.

ST. PAUL, J.

W. E. Seebold was engaged in the stationery and printing business. When he died, some years ago, he left a widow in community and several children, one of whom is the administratrix and accountant herein and the others the opponents.

The widow, in her own right and as usufructuary, took possession of the whole estate and held it intact and going, as if her husband were still living, making no change whatever and *slightly(?)*increasing the amount thereof.

The present administratrix and accountant (a daughter) had been an employee in the store and printshop since before her father died and up to the time of her mother’s death. Her salary was $15 per week, and for some time before her mother’s death she had been practically in charge of the whole estate and business.

At her mother’s death, she applied for and was granted the administration of her mother’s estate, with authority to continue the business (a profitable one) for the time being ; all without opposition or complaint whatsoever from the other heirs.

The inventory taken shows that the estate of her mother, being *all the property in her possession*as owner and usufructuary, amounted to over $39,000 (to wit, cash $12,-000; stocks and bonds, $14,000; merchandise, $8,000; open accounts, $5,000), *exclusive of*a piece of real estate standing in the name of one of 'the heirs, valued at $16,000 and *said to belong*to the estate, which however is *neither proved nor denied,*and is therefore mentioned only for what it may be worth; for, *if that were a controlling issue herein,*the case would he remanded to ascertain the fact. O. P. 906. But it is *not*a controlling issue as it suffices for the purpose of this case (in the matter of attorney’s fees) that the property which actually came into the possession and control of the administratrix amounted to nearly $40,000.

Forty thousand dollars is not a very great fortune; but it is enough to prove the truth of the (East) Indian proverb, quoted by Mr. Mazureau in State v. Martin, 2 La.' Ann. 667, 690, that “He who amasses a great fortune sows the seeds of great lawsuits, which will sprout after his death.”

Accordingly, soon after the death of the mother the heirs began to disagree over the division of the estate. They *did agree,*how*165ever, to sever their interests, and that the administratrix should purchase individually, and the other heirs should sell, at an agreed price, the going business and the stock in trade thereof (but *not*the. open accounts), the administratrix to account to the heirs for their portions of the price at the time of partitioning the estate. The sale was duly consummated. And it was also agreed that the estate should be partitioned *amicably;*but this was *not*done. Hence the litigation.

I,

[1] In view of the large sum in *cash*in the possession of the administratrix, sufficient to pay all the debts and probate charges of the succession several times over, the other heirs demanded that the administratrix should deposit in the registry of the court a sum sufficient to meet those debts and charges, to the end that the heirs might obtain possession of the estate (C. C. 1012), and, after some hesitation, the administratrix finally made the deposit.

But for some unexplained, and inexplicable, reason the administratrix opposed the *formal*putting of the heirs in possession of the estate, although all the heirs had irrevocably and unconditionally *accepted*the succession by selling and buying property belonging thereto. C. C. 988. And, with the same spirit of contrariness, the other heirs then objected to the administratrix *filing an account*and a tableau of distribution of the amount deposited at their insistence. . In the alternative, they opposed the various items thereof.

II.

The opposition of the administratrix to the putting in possession of the heirs was *purely frivolous.*C. C. 1671.

The objection of thfe heirs to the *filing of an account*and a tableau of distribution of the amount deposited at their insistence, *was equally frivolous.*C. O. 1194, 1180.

III.

Only *three*items of the account and tableau of distribution are *now*opposed. .

[2] (1) The heirs opposed the commission allowed the administratrix, being 2% per cent, on the amount of the inventory, to wit, one-half the appraised value of the community property. This amount is *fixed by law*(C. 0. 1069, 1200); and the fact that the administratrix received for services rendered as clerk and manager of the business conducted by order of court (and with the full consent of the heirs) the same small stipend of $15 per week which she had been receiving all along, has no more to do with the case than “the flowers that bloom in the spring.”

[3, 4] (2) The fees of the expert accountants who were employed to go over the accounts of the estate, including the accounts of the business establishment, would be a proper charge against the estate *m any event,*if their services were necessary to establish the condition of the estate; and the fact that the opponents themselves required (as shown by the evidence) that they be employed for that purpose, is *conclusive upon them*that the services were necessary.

[5] (S) The fee proposed for the attorney for the succession is *not*excessive. The *estate*(O. C. 448), as to which his guidance was invoked, amounted to nearly $40,000 ($56,-000?). The evidence shows that the administratrix and her coheirs for more than a year virtually “parked” themselves in his office and almost monopolized his time with the affairs of the *estate.*The fee ($1,000) is *very*reasonable.

Decree.

The judgment appealed from is therefore affirmed.