#### FIRST NAT. BANK IN GIBSLAND et al. v. RHODES’ HEIRS.*

No. 4164.

Court of Appeal of Louisiana. Second Circuit.

Jan. 14, 1932.

J. Rush Wimberly, of Arcadia, for appellants.

Goff & Goff, of Arcadia, for appellees.

*

Rehearing denied February 16, 1932.

McGREGOR, J.

F. B. Rhodes died in the parish of Bien-ville, this state, on or about August 18, 1930, leaving Mrs. S. A. Rhodes as his widow and surviving spouse, and Mrs. Rosa Lee Canfield, Mrs. Martha Shaffer, Mrs/ Nellie Willis, Mrs. Gussie Johnson, G. H. Rhodes, and A. M. Rhodes as his sole and only heirs at law, being the issue of his marriage with his wife, the said Mrs. S. A. Rhodes. During his lifetime there was accumulated certain real and personal property by the community existing between him and his said wife. On October 1, 1930, Mrs. Rhodes filed an ex parte application to have herself recognized as the owner of an undivided one-half interest in the property belonging to the community at the time of the death of her husband, and to have the above-named children recognized as the sole and only heirs of her deceased husband, and, as such, the owners of the other undivided one-half interest in said property, and to have herself decreed to be entitled te the possession of her undivided oné-half interest as owner and to be entitled to the possession of the heirs’ undivided one-hall’ interest as usufructuary. The usual order was signed *701by tbe judge of tbe district court, and, pursuant to that order, an inventory of tbe property belonging to tbe said community was made by a notary public on October 2, 1930. On October 4, 1930, tbe judge of tbe district court signed an ex parte judgment recognizing tbe widow and beirs as owners of tbe property of tbe community in accordance with tbe prayer of tbe widow in her application, and sending tbe widow in possession of one-balf of tbe property as owner and of tbe other one-half as usufructuary. None of tbe beirs was party to these proceedings. On October 9,1930, tbe First National Bank in Gibs-land, one of tbe plaintiffs in tbe present suit and a creditor of tbe said F. B. Rhodes at tbe time of bis death, filed an application for a rule to issue directed to tbe beirs and children of tbe said deceased ordering them to appear before tbe court at a time and place to be fixed, for tbe purpose of declaring whether they would accept or renounce tbe succession •of their deceased father. Tbe court signed the order as prayed for, and October 20,1930, was fixed as tbe date for tbe bearing on tbe rule. On October 18, 1930, tbe beirs filed an exception of prematurity, which was overruled. On tbe same day, Mrs. S. A. Rhodes executed a blanket mortgage payable to her own order for $5,000, covering her interest in tbe real estate formerly belonging to tbe community existing between herself and her deceased husband, and all tbe heirs except G. H. Rhodes executed similar mortgages for $1,000 each on their respective interests in the said property. In these mortgages, tbe heirs declared that they bad accepted tbe succession of their father. No such mortgage was executed nor declaration made at tbe time by G. H. Rhodes. Later, however, on February 27, 1931, all of tbe beirs appeared through their attorney and answered tbe plaintiff’s petition and specially declared that they bad accepted their father’s succession, and averred that plaintiff’s remedy, if any, was by other processes.

On November 5,1930, tbe present suit, with tbe First National Bank in Gibsland and tbe Gibsland Investment Corporation as plaintiffs, was filed. In tbe petition, it is alleged that tbe two plaintiffs constitute a majority in amount of tbe creditors of tbe succession of tbe deceased F. B. Rhodes, and that they bad filed for record tbe evidence of their respective claims, and that they bad been recorded in tbe mortgage records of ¿ienville Parish. Tbe prayer of tbe petition is: That they be recognized as creditors of tbe succession of Rhodes for tbe amounts set,forth in their respective claims; that tbe heirs named as defendants be required to give security within such time as may be fixed by tbe court for tbe payment of their claims; and that in default of tbe furnishing of tbe said surety, an administrator be appointed to administer tbe succession. They pray further for judgment decreeing a separation of patrimony, separating tbe property' of tbe succession from that of tbe defendants, and ordering tbe plaintiffs’ claims to be paid from tbe effects of tbe succession by preference and priority over tbe creditors of tbe beirs.

Tbe defendants filed an exception of mis-joinder of plaintiffs and defendants, which was overruled. An exception of no cause or right of action was then filed, setting forth that all tbe defendants bad accepted tbe succession. This exception was referred to tbe merits, an answer was filed, tbe ease was tried on May 19, and on May 29, 1931, judgment was rendered in favor of the plaintiffs recognizing them as creditors of tbe succession of F. B. Rhodes, requiring tbe defendants to give security for the payment of plaintiffs’ claims on or before June 15, 1931, and, in default of giving tbe said security, it was ordered that an administrator be appointed; •there was further judgment ordering a separation of patrimony as prayed for. From this judgment, tbe defendants have appealed.

Opinion.

Tbe law governing this case, giving the. plaintiffs tbe right to require security for tbe payment of their claims against this succession or tbe appointment of an administrator in default of tbe giving of tbe required security, is found in article 1011 of tbe Revised Civil Code of Louisiana, which reads as follows:

“Tbe heir, who has accepted tbe succession simply, may even be compelled to make an inventory of tbe succession, and to give security in tbe same manner as in tbe case of tbe benefit of an inventory, if a majority in amount of tbe creditors of the succession, either present or represented in the parish where tbe succession is opened, require it; in default of such security, there shall be appointed an administrator to administer tbe succession, according to tbe provisions of tbe section relative to tbe benefit of inventory.”

At tbe trial, it was proved that tbe ■beirs bad accepted the succession, and that tbe plaintiffs represented a majority in amount of the,claims against tbe succession. Tbe judgment requiring tbe giving of security and ordering an administrator of tbe succession in default of tbe giving of said security is therefore correct. Tbe law giving to tbe creditors the right to demand a separation of patrimony is found in article 1444 of tbe Revised Civil Code:

“Tbe creditors of tbe succession may demand, in every case and against every creditor of tbe heir, a separation of the property of tbe succession from that of the,heir. This is what is called tbe separation of patrimony.”

In order to exercise this right, it is necessary that within three months from tbe *702express or tacit acceptance of the succession by the heirs a suit must be instituted, and the petition in the suit must contain a sworn declaration of the creditor or creditors that they believe the heirs are embarrassed with debts, and that they have reason to believe that personal debts will absorb the effects of the succession to their prejudice. Oiv. Code, arts. 1456 and 1457. All these conditions and requirements were fulfilled and complied with by the plaintiffs, and therefore that portion of the judgment ordering a separation of patrimony is also correct.

There is no merit in the exception of misjoinder filed by the defendants, and it was properly overruled. Articles 1011, 1452, 1456, and 1457 of the Civil Code specially contemplate that a suit of this nature shall be brought jointly by a majority in amount of all the creditors, and that it may be brought against some or all of the heirs.

 One of the plaintiffs in the case is the First National Bank in Gibsland and the notes that evidence the debts claimed by it are made payable to the First National Bank, Gibsland, La: Defendants urge that this variance is fatal, and that this plaintiff has no standing in court to bring suit on the notes made payable as they are. It is clear that the words “in Gibsland” in the name of the plaintiff were placed there to designate location. The words “Gibsland, La.” designate the location as effectively as do the words “in Gibs-land.” It is observed from the notes filed in evidence that the plaintiff has its name printed on the face of the notes and in its rubber stamp indorsements as First National Bank, Gibsland, La. This is sufficient, and there is no merit in defendants’ contention in this regard. The note on which the claim of the Gibsland Investment Corporation is based is made payable to, and indorsed by, the First National Bank, Gibsland, La. Defendants raise the same objection to that claim that they raised against the bank’s claim. Certainly if the note is transferred to the Gibsland Investment Corporation by indorsement in the exact words of the payee, there can be no possible question raised as to the validity of the indorsement or the right of the in-dorsee or holder to bring suit on it.

The appellees have answered and ask that the judgment appealed from be amended by fixing a new date for the giving of security by the defendants, for the reason that the one fixed by the lower court has long since passed. It needs no argument to hold that the judgment should be amended in this respect.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, amended so as to order the defendants to give security for payment of plaintiffs’ claims within ten days from the time when this judgment shall become final; and, as thus amended, the judgment is affirmed, with all costs of both courts.