Succession of Commagère

On the Merits. The executor of this sucession filed his final account in August 188+ which was opposed by Mrs. Cheval one of the heirs, and the account was then homologated so far as not opposed. About five months after-wards two other heirs filed oppositions, and these were stricken out on the motion of the executor, and these opponents reserved a bill and appealed. The judge was right. After judgment of homologation has been entered neither heirs nor-creditors can be heard in opposing the account. The delay fixed by law must have passed before an homologation, can be .made, and. if parties affected by the account permit it to pass .without preferring their complaint, they must suffer for their own laches. A different rule would indefinitely protract the trial and homologation of a succession-account. Suc. Macarty, 3 Ann. 384. Mrs. Cheval made a supplemental opposition about the time these *833 other heirs filed their original oppositions, and the same objection is made to her supplemental opposition that was made to their originals, but it is not good. She had filed an opposition in time contesting all the items of the account generally and she can afterwards supplement it by specifying more in detail the several grounds of her complaint. The judgment of homologation expressly excepted her opposition from its operation, and there is no reason why she should not afterwards amplify her objections to the account that had already been made. Suc. Cabrol, 26 Ann. 609. On the trial the executor offered all his proof and when Mrs. Clieval began to offer or was about to offer hers, the executor objected to- the reception of it because she and he had had a settlement full and final and he had paid her one hundred and ninety dollars in discharge of whatever she was entitled to. His objection was that she could not be heard until she had tendered or paid him this sum thus received, and the judge sustained the objection and Mrs. Cheval appealed. This ruling is error. The executor seeks to apply a principle here that belongs to a wholly different state of things, and cites Pugh v. Cantey, 33 Ann. 786, where the court say, “ the party demanding the rescisión of a contract must return or offer to return the consideration received by him. * . * This is a condition precedent to being heard.” There is no contract here to rescind. The allegation of the opponent is that her signature to the receipt -was given under protest and through compulsion and in complete ignorance of her rights. Whether true or false, the allegation of error entitles her to be heard in attacking the settlement. Another allegation is. that the real estate of the succession was bought by an interposed person ostensibly but really by the executor, and one of the objects of the opposition is to have that sale annulled and the property brought back into the succession. We have more than once held that a tender was not necessary to enable an heir to begin such au attack. Stanbrough vs. McClellan, 36 Ann. 234, and cases there cited. It is therefore ordered and decreed that the judgment of the lowbr court dismissing Mrs- Cheval’s opposition is avoided and reversed, and the cause is remanded for further proceedings therein, and in all other respects it is affirmed, the costs of Mrs. Cheval’s appeal to be paid by the executor.