#### Succession of WATSON.

No. 6694.

Court of Appeal of Louisiana. Second Circuit.

Dec. 2, 1943.

On Rehearing April 25, 1944.

*234G. P. Bullís, of Ferriday, for appellant.

Joseph M. Reeves, of Vidalia, for appel-lee.

HARDY, Judge.

By petition filed February 9, 1943, J. Lee Calhoun made application to the Seventh District Court in and for the Parish of Concordia to be appointed administrator of the Succession of Dave Watson, deceased. The petition alleged that the decedent left property, and owed debts, “petitioner being one of his creditors, and an administration of his estate is necessary”. The application was ordered to be advertised.

The record shows the filing of an inventory and appraisement on February 26, 1943, but the record is void of any order for the taking of an inventory and appointing appraisers.

On June 7, 1943, there was filed a petition in which the petitioner was represented as being “J. Lee Calhoun, Administrator of said Succession”. This petition represented that there were certain bonds of the United States Treasury belonging to Dave Watson which were in the hands of one S. L. Maxwell, and prayed that a rule issue upon the said Maxwell to show ■cause why he should not deliver the bonds ■described to Calhoun as administrator of the Succession of Dave Watson.

All of the above filings bear the number 1078 on the docket of the Court.

On July 6, 1943, a petition was filed and docketed as No. 1089 on the docket of the Court. The petitioners were Henry Tip Watson, and others, there being twelve individuals named, who represented that Dave Watson left neither ascendants nor descendants, and that petitioners, collateral relations of the decedent, were his sole and only heirs. Petitioners alleged that there was no necessity for an administration of the estate, and that they desired to accept the succession purely, simply and unconditionally, without benefit of inventory, and assume all debts and obligations of said succession.

The minutes of the Court show that the above petition was taken up for hearing by the Court on the day of filing, i.e. July 6, 1943, and that a motion for a continuance by the applicant for administration was denied. However, after evidence was adduced, the matter was continued until July 9, 1943, and the applicant for administration granted permission to present opposition on or before said date.

• On July 9, 1943; a pleading, purporting to be an “answer”, was filed on behalf of J. Lee Calhoun. This document denominated the petition of Henry Tip Watson et al., as an opposition to Calhoun’s application to be appointed administrator, asserted that said opposition showed no right or cause of action, and, in the alternative, set up certain debts due by the decedent, and after alleging certain other matters and answering the allegations of the Watson petition, prayed that the opposition of Henry Tip Watson et al. be denied, or, in the alternative, that the hearing of June 6th be stricken from the record and the opposition be fixed for trial. There was a further prayer that 'the' application of J. Lee Calhoun to be appointed administrator be granted, etc.

On July 9, 1943, a motion was filed in behalf of J. Lee Calhoun praying that the Honorable R. R. Reeves, Judge, rescuse himself on the ground that the said Judge was a brother of Joseph M. Reeves, Esq., attorney for Henry Tip Watson et al.

The minutes of the Court of July 9, 1943, denied applicant’s motion for trial of his exception and answer on the ground that Calhoun, not having been appointed administrator, had no standing in Court. Thereafter, the Court signed judgment recognizing Henry Tip Watson et al., as heirs of Dave Watson, deceased, sending them into possession of the estate of the *235decedent and rejecting the application of J. Lee Calhoun to be apointed administrator. Finally, the presiding Judge, the Honorable R. R. Reeves, recused himself from further action in the case and appointed John Dale, Jr., Esq., as judge ad hoc.

Judgment having been signed, application was made for orders of suspensive appeal by J. Lee Calhoun, which orders were granted, bond fixed and the appeal subsequently perfected.

The above is a detailed recital of the facts disclosed from the filings and the minutes of Court which make up the record in this case. In addition, there has been filed before this Court an exception of no cause or right of action on behalf of the heirs of Dave Watson, deceased, ap-pellees.

We first take up the motion of Calhoun seeking the recusation of the Judge of the district Court. It is well established under the jurisprudence of our State that the Supreme Court alone has jurisdiction of motions to recuse, in furtherance of the supervisory jurisdiction granted the Supreme Court under section 10 of Article 7 of the Constitution of 1921. It therefore follows that this Court has no jurisdiction under the motion in question.

In support of the exception filed by ap-pellees in this Court, the point is made that there is nothing in the record to prove the bona fide status of J. Lee Calhoun, applicant for administration, as a creditor of the succession.

Of course, it is obvious that Calhoun’s only claim to the right of appointment must rest upon his standing as a creditor. If he is not a creditor of the succession, or, if the record does not show him to be a creditor, it becomes apparent that he has no standing in Court and neither cause nor right of action.

Careful examination of the pleadings as bearing upon the applicant’s (Calhoun) status as a creditor vel non, discloses the following representations:

In the application of February 9, 1943, Article 2 of the petition reads as follows: "Said Dave Watson left property situated in said Concordia Parish, and owes debts, petitioner being one of his creditors, and an administration of his estate is necessary.”

The above is the sole and only reference to any allegation of indebtedness to the applicant. No supporting exhibits were attached to the petition; no details of any kind or character were given with reference to the alleged indebtedness, and the petition itself was sworn to by the applicant’s attorney, and not by the applicant Calhoun.

In the so-called answer of J. Lee Calhoun, filed July 9, 1943, the only allegations with reference to debts of the succession are found in Article 6, which reads as follows :

“Denies the allegations of Article III of said opposition, and avers that said Dave Watson left many debts, including the following:

> Dr. Pankey, expenses of last illness, paid by Sarah Watson.. $ 18.00

> Pasternacks, building materials.. 39.48

> State of Louisiana, Welfare Department . 358.00

> Dan Fields, labor. 75.00

> Aamnda Wells. 29.30

> and other debts.

Applicant does not admit the correctness of all of said accounts, but avers that they should be considered and decided by the Court in orderly administration.”

It is to be observed that even in the listings of the debts, as shown above, there is no mention of any debt due and owing to J. Lee Calhoun. At most, the only direct allegation that has been made in behalf of the applicant for administration is merely a conclusion, unsubstantiated by any details of amounts or nature of the claim.

While it is not required, so far as we can find, that a creditor claiming administration make complete and absolute proof of the debt, it is required that at least a prima facie case of indebtedness be established.

From an examination of the unauthorized inventory in .the record, and from other facts reflected by the pleadings, we conclude that the value of the succession involved in this case is something less than $500. The one piece of real property which was an asset of the succession was appraised at $400. The only government bond falling to the succession bears a maturity value of $25. The several other bonds enumerated in the pleadings were *236payable to designated beneficiaries, and, therefore, would not fall into the succession.

To burden a small succession with costs of administration where the need for administration is not clearly shown, in our opinion, woud be unwarranted.

In Succession of Sutton, 20 La.Ann. 150, the administration was claimed by one who alleged himself to be a creditor, and filed an itemized statement of account, but the Court held that without better proof than that which appeared in the record, the applicant could not be regarded as an established creditor entitled to the right of administration.

In Succession of Sarrazin, 34 La.Ann. 1168, the Court said: “We hold that, whilst it is not essential that a party claiming administration, by right of being a creditor, should make full proof of his claim, that is, as complete proof of it as if he were suing the succession for the debt, still, a court, before encumbering a succession with an administration, with its attendant costs and delays, should, at least, require a prima facie case of indebtedness to be made out.”

Under the facts which appear in the record, there is insufficient ground for holding that the applicant, Calhoun, is a bona fide creditor of the succession, and, as such, entitled to administration.

The succession, having been accepted without benefit of inventory, and the heirs having been placed in possession by proper judgment of the Court, any bona fide .creditor has proper recourse against the heirs for recovery of his debt.

There are a number of other issues tendered for our consideration of this case, but since we believe that the exception is finally determinative of the issue, we do not feel it necessary to burden this opinion -with reference to the other points involved.

For the reasons stated, the exception of no cause or right of action filed herein on behalf of the appellees is sustained, and, accordingly, the appeal is dismissed at appellant’s cost.

On Rehearing

DREW, J. '

This case is before us on rehearing, which was granted upon a statement by counsel for appellant that he had no knowledge of exceptions of no cause and no right of action ever having been filed in this case in this Court. Since our opinion and judgment sustained the exceptions, we felt it necessary. to give appellant his day in Court on the exceptions and so informed him from the Bench when he appeared to argue the case. After we had informed appellant’s counsel of this fact, he failed to present any argument on the exceptions and persisted in his charge that the Court had denied justice to his client by not discussing and passing on .other phases of the case of which he complained, to-wit, that he had not been allowed to produce evidence in the lower Court and charges of unfairness on the part of the trial Court in the manner the case was .conducted below. Evidently counsel has overlooked the fact made plain in our former opinion that the case was determined here entirely on the exceptions of no cause and no right of action, based upon the pleadings of appellant. When we found that appellant’s pleadings failed to disclose a cause of action, it was not only unnecessary but would-have been entirely out of order to discuss any other phases of the case.

In our former opinion we set out in detail the facts of this case and it is unnecessary to again do so. The application of appellant to be appointed administrator and his opposition to the putting of ■the legal heirs into possession of the estate of decedent fails to disclose that the applicant is a creditor of the Succession or that he is acting in the interest of any creditor or creditors. He does not allege there are no' known heirs but, on the contrary, infers there are heirs residing outside the State.

Apparently appellant was attempting to proceed under Articles 1113 and 1114 of the Revised Civil Code dealing with successions where heirs are absent from and not represented in the State, which Articles provide for a curator and not an administrator to be appointed. These Articles deal with such successions, as well as vacant successions, which are defined by Article 1095 of the Revised Civil Code as a succession when no one claims it, or when all the heirs are unknown, or when all the known heirs to it have renounced it.- Plaintiff only alleged .there were no heirs living in Louisiana, which is not sufficient to allege a vacant succession. However, since the law applicable *237to vacant successions is the same as successions when no heirs are living in the State, that fact is immaterial.

Although appellant filed an application asking to be appointed administrator (curator) and secured an order to have the application advertised, according to law, he failed to take any other steps to qualify as curator. Five months passed and the legal heirs of the decedent came into court, under authority of Articles 1192 and 1193 of the Revised Civil Code, and prayed that they he sent into possession of the estate purely and simply. These two Articles provide as follows:

“1192. *Curators*— Duties—When *cease.*—The duties of the curator cease when the heirs, or other persons having a right to the succession administered by them, present themselves or send their powers of attorney to claim the succession, and comply with the requirements of article 1012.”

“1193. *Heirs*— Putting *in*possession.— When the heirs, or other persons having a right to a succession, present themselves, or send their powers of attorney to claim it, they are bound to cause themselves to be recognized as such, and shall be put into possession by the judge of the place where the succession is opened, after having cited the curator who has been appointed for the succession.”

Article 1012, Revised Civil Code, provides : *“Sectirity*— Property *in suit or claims pending.*— In obtaining possession of the effects of a succession, the heirs shall not be permitted, under any pretense whatsoever, to have an actual delivery of any property of such succession which may,_ be in suit or to receive any money of such succession when there shall be claims thereon pending in court, unless they previously give bond with good and sufficient security, if the plaintiffs in such suits require it; which security shall be one-fourth over and above the amount of the claims for money thus claimed, or of the appraised value of the property in suit, which estimation shall be made by two appraisers appointed by the judge.”

Since appellant had not been appointed curator, it was not necessary that any citation be served on him by the heirs. The creditors of the succession, if there were any, could have protected their rights by opposing the heirs taking possession of the property of the estate without first giving bond, as required by Articles 1011 and 1012, Revised Civil Code. In appellant’s opposition to the placing of the legal heirs in possession of the estate, he did not allege he was a creditor or that he was representing any creditors of the estate. He did not seek to have the heirs give security or bond, but insisted upon being appointed administrator (curator), contrary to the law as laid down by the Revised Civil Code above cited. Unless opposition had been made in accordance with the above provisions of the Revised Civil Code, the opposition would not set forth a cause of action and since appellant did not file such an opposition, he is without right to contest the putting into possession of the legal heirs of decedent.

There is nothing in the record, nor is there any suggestion in argument or briefs, that any creditor has filed a claim against the succession or instituted suit against it, or has done anything else which could prevent the heirs of decedent from being put into possession of his estate without giving bond, and certainly no creditor of the succession has appeared in this case at any time.

In our former opinion we did not go into a detailed discussion of the law applicable to our finding, but based our opinion upon the fact that appellant had not alleged himself a creditor of the succession and, while we possibly did not make our finding as clear as we should, a mere reading of the Articles of the Code cited herein shows the correctness of our former opinion. The only thing to justify the appointment of an administrator (curator) to decedent’s succession was for a majority of the creditors living in Concordia Parish to ha.ve demanded of the heirs that they give security, as provided by the Articles of the Code cited supra and their failure to do so. For appellant to have exercised this right he must have been a creditor, which he is not shown to be.

We therefore conclude that the former opinion of this Court sustaining the exceptions of no cause and no right of action is correct and is now reinstated and made the judgment of this Court.