Miller v. Gallia

On Application for Behearing. PEB CUBIAM. Our attention has been called to the fact that the transcript in the Succession of George E. Gail, or Gallia, No. 19,032 of this court, pages 234 and 235, shows that it was proven that Miller, late executor, collected and deposited in bank the total amount of $7,383. We have verified the reference, and consequently will allow commissions on said amount. We do not think that the other grounds for a rehearing have any merit. .According to the text of the law the executor should have been dismissed from office and condemned to pay 20 per cent, interest per annum on the amount not deposited in bank, or withdrawn without authority. Civil Code, art. 1150. Most of the assets of the succession were taken by order of court out of the hands of the executor, and turned over to the sheriff, as judicial sequestrator. The case is one of a partial administration, and the executor’s commission should be restricted to the portion actually administered by him. Civil Code, arts. 1194,1200 — 2, 1683 — 7. It is therefore ordered that our former decree herein be amended by substituting $184.57 for $132.50, and that with this amendment, plaintiff’s application for a rehearing is refused. PBOVOSTY, J., being absent on account of illness, took no part.