189 La. 417

#### Succession of FAUST.

No. 34603.

Supreme Court of Louisiana.

Feb. 7, 1938.

Rehearing Denied March 7, 1938.

Daly & Hamlin, of New Orleans, for appellants Mrs. L.- J. Franz and Mrs. G. F. Heausler.

Terriberry, Young, Rault & Carroll, of New Orleans, for appellees Mrs. S. J. Guiterrez, Mrs. Norman Bowe, and Mrs. H. J. Blaum. " •

L. R. Hoover and C. J.'McCabe, both of New Orleans, for appellees Mrs. J. W. Dauer, and Harry E., Robert, and William Tisdale.

LAND, Justice.

On July 25, 1934, Mrs. Magdelena Faust, widow of Peter Maus, died at her domicile in the city of New Orleans. Decedent left a last will and testament, nuncupative in form by public act, in which she made certain particular bequests, after which she bequeathed the remainder of the disposable portion of her estate to Mrs. L. J. Franz and Mrs. G. F. Heausler, two of her daughters and forced heirs. The balance of her estate, or the remaining two-thirds, the testatrix divided between her children, Mrs. *584L. J. Franz, Mrs. G. F. Heausler, Mrs. J. W. Dauer, Mrs. Sidney J. Gutierrez, Mrs. Norman Bowe, Mrs. August J. Blaum, and between Harry, Robert and William Tis-dale, the lawful children of a deceased daughter, Mrs. Mary Maus Tisdale.

The testatrix also named her two daughters, Mrs. L. J. Franz and Mrs. G. F. Heausler, her cotestamentary executrices, with seizin and without bond, for which services it was specifically stipulated in the will that they are to receive $500 each, extra and in addition to what they receive as legatees of the disposable portion of her estate.

Letters testamentary were issued to Mrs. L. J. Franz and Mrs. G. F. Heausler on July 27, 1934, and they proceeded to administer the estate. An inventory was ordéred and taken. A provisional account was filed on which appears the fee of Mrs. L. J. Franz and Mrs. G. F. Heausler, executrices, for $500 each. xA.n opposition to this account was filed by Mrs. Sidney J. Gutierrez, Mrs-Norman Bowe, and Mrs: August J. Blaum. The provisional account was amended by reducing the fees of the appraisers to $50, and by striking therefrom two small items of $1 and $7.50, and, as amended, was approved and homologated. The funds were distributed in accordance with the judgment of homologation, and the cotestamentary executrices were paid $500 each, as directed in the last will and testament of decedent. The provisional account was never opposed by Mrs. John W. Dauer, Henry Tisdale, Robert Tisdale, and William Tisdale.

On March 27, 1935, the totestamentary executrices filed their final account, which contains a full and complete accounting of their administration of the estate, including items listed on the provisional account which was finally homologated on January 3, 1935.

The final account, at page 51 of the record, shows the net amount of decedent’s estate to be $46,117.63

The disposable portion, after deducting special legacies, to be.. 13,197.54

The disposable portion, according to the will, is divided between Mrs. L. J. Franz. 6,598.77

and Mrs. G. F. Heausler. 6,598.77

in the proportion of one-half to each. $13,197.54

The legitime is shown to be.... $30,745.09 and is divided as follows :

Harry, William and Robert Tis-dale, children of Mrs. Mary Maus Tisdale, deceased, jointly, 1/3 interest to each, l/7th of leg-itime . $ 4,392.15

Mrs. J. W. Dauer, l/7th of legi-time . 4,392.15

Mrs. August J. Blaum, l/7th of legitime . 4,392.15

Mrs. Sidney J. Gutierrez, l/7th of legitime. 4,392.15

Mrs. Norman Bowe, l/7th of legitime . 4,392.15

Mrs. L. J. Franz, l/7th of legi-time . 4,392.15

Mrs. G. F. Heausler, l/7th of legitime . 4,392.15

$30,745.00

Mrs. J. W. Dauer, Harry E. Tisdale, Robert Tisdale, and William Tisdale, the sons of Mrs. Mary Maus Tisdale, a predeceased daughter of Mrs. Magdelena Faust Maus, filed an opposition to the final account, and to each and every item thereon, which contains the items of $500 each paid to the cotestamentary executrices, Mrs. L. J. Franz and Mrs. G. F. Heausler. Opposition to.the final account was also filed by Mrs. .Sidney J. Gutierrez, Mrs. Norman Bowe, and Mrs. August Blaum, children and heirs of the decedent, on the ground that the account did not include in the assets of the estate an additional six $1,000.00 par value city of New Orleans 4 per cent, constitutional bonds, and that defendants should return same to the mass of the succession, or account for same or their proceeds.

In addition to this, all of the above-named opponents joined in a suit requiring the defendants, Mrs. L. J. Franz and Mrs. G. F. Heausler, individually and as testamentary executrices, to collate the amount of $6,000 par value city of New Orleans 4 per cent constitutional bonds and to return the same to the mass of the succession, or, in their respective capacities, to account for the bonds, or the proceeds óf same. In one and the same judgment the trial judge rendered a judgment dismissing the opposition filed to the fee of the defendants as executrices, and also a judgment ordering a collation by defendants of the city of New Orleans constitutional bonds, by returning same to the mass of the succession.

The cotestamentary executrices appealed from the judgment rendered against them requiring the collation, and all of the op*585ponents have answered this appeal, and pray that the judgment be amended by ordering the defendants and appellants to return $1,000, received by them as an executor’s fee, to the mass of the succession to be distributed proportionately amongst the heirs. The judgment homologating the provisional account was a consent judgment, agreed to by the attorneys representing the opponents, Mrs. Sidney John Gutierrez, Mrs. Norman Bowe, and Mrs. August J. Blaum. The fee of the executrices was paid before final account was filed and appears as items under “Cash Payments.” The provisional account was never opposed by Mrs. J. W. Dauer, and Harry, Robert, and William Tisdale.

In our opinion, the reasons assigned by the trial judge for dismissing the opposition to the fee of the executrices, filed by Mrs. John W. Dauer, Harry Tisdale, Robert Tisdale, and William Tisdale, are sound and based upon the jurisprudence of this state.

In the opinion of the lower court, it is said:

> “In view of the decision rendered by the Court of Appeal for the Parish of Orleans in the Succession of Marcour, 173 So. [587] 579, wherein they ■ followed the jurisprudence as laid down by our Supreme Court in the Liquidation of the Canal Bank & Trust Company and held that where an account is filed by the executor or administrator, whether provisional or final and duly homologated according to law after due publication, it is final and conclusive to all the world, the heirs as well as the creditors, in respect to the amounts and validity of the claims appearing thereon, in the absence of fraud, malfeasance or waste, this Court has no other course left open for it to pursue but to dismiss the opposition as to said fee.” Succession of Marcour, La.App., 173 So. 587; In re Liquidation of Canal, Bank & Trust Co., 185 La. 34, 168 So. 485.

The bonds which plaintiffs seek to have collated in their suit are claimed by defendants, Mrs. L. J. Franz and Mrs. G. F. Heausler, as a remunerative donation for their services in attending upon, nursing, and caring for their aged mother during the last two years of her illness. The evidence in the record fully establishes that the bonds were given by decedent to her two daughters for these services. Mrs. Margaret O’Connor, a practical nurse, with 15 years experience in the city of New Orleans, and who was within four months of graduating as a graduate nurse, testified, when asked the average or usual charge for a practical nurse for 24 hours’ duty, stated $6, and $1.50 for meals, if the nurse has to furnish them herself. The usual services of a practical nurse for two years at $6 per day would amount to the sum of $4,380, which, in. our opinion, is a fair estimate for services by both daughters in this case, or $2,-190 each.

As declared in article 1513 of the Civil Code:

“Remunerative donations can never be reduced below the estimated value of the services rendered.” The remunerative donation of $6,000, or $3,000 each in bonds, must therefore be reduced to the sum of $4,380, or $2,190 each, leaving a balance to be collated to the other heirs by defendants of $1,620, or $810 each. ,

As'the provisional account was not opposed by Mrs. J. W. Dauer, Harry Tis-dale, Robert Tisdale, and William Tisdale, although advertised according to law, they became bound by the judgment homologat-ing the account, and, therefore, could not thereafter oppose the final account as to the payment of the fee of $500 each to the executrices, which appeared upon this account, as having been paid. In re Liquidation of Canal Bank & Trust Co., 185 La. 34, 38, 168 So. 485.

Nor could the opponents, Mrs. Sidney J. Gutierrez, Mrs. Norman Bowe, and Mrs: August J. Blaum, oppose the final account, upon which the fee of $500 each to the executrices appeared as paid, since the judgment homologating the provisional account was a consent judgment, and had been executed by the payment of the fee of $500 each to the executrices, before the final account had been filed.

It is therefore ordered that the judgment dismissing the oppositions to the final account, of the executrices filed in this case be, and is hereby, affirmed.

It is further ordered that the judgment in favor of Mrs. Sidney J. Gutierrez, Mrs. Norman Bowe, Mrs. August J. Blaum, Mrs. John W. Dauer, Harry Tisdale, Robert Tis-dale, and William Tisdale against defendants, Mrs. Leonard J. Franz and Mrs. Gus-tave F. Heausler, ordering the collation by defendants of city of New Orleans constitutional bonds, amounting to the sum of $6,000, be and is hereby amended so as to reduce the amount of said judgment to the sum of $1,620, or $810 each, to be re*586turned by each of the defendants to the mass of the succession, and that said judgment, as amended, be affirmed.

It is further ordered that defendants, Mrs. Leonard J. Franz and Mrs. Gustave F. Heausler, pay all coáts of suit for collation, and that appellees pay costs of appeal.

O’NIELL, C. J., absent.