Hearsey v. Bates

The opinion of the Court was delivered by MANNING, J. After Mrs. Hearsey had appealed from the judgment appointing Garig dative executor of Mrs. Gusman’s will, Garig applied *301 for leave to sell certain property for tlie payment of debts, and obtained it. Tlie property tlms designated for sale is tlie movables and three improved lots, tlie appraised value of which is near two thousand dollars. There were no debts of the deceased. The claims against the succession were for funeral expenses, and of others not large amount, and not pressing. None of the holders of the claims appear to have presented them to the acting- executor, and to have had them approved or recognized. The application to .sell proi>¡erty under these circumstances was premature, and exhibits an absence of prudent administration which properly provoked the interposition of Mrs. Hearsey and her husband, the parents of the residuary legatees. They enjoined the sale and avow their readiness to advance such sum as may be needful to pay these debts and charges. The lower judge dissolved their injunction, but we shall maintain it. The holders of claims against-the succession hád not taken the preliminary stcjis to the collection of them, and although they say they wanted payment, they had not put themselves in a position to enforce it. Code Prae. arts. 984-6. The legatees were not demanding payment. With no urgent claims requiring or necessitating an immediate sale of property, the executor might and should have deferred his application for the sale until the necessity for it arose, and this the more as his tenure of office might he cut short by the success of that opposition to Ms appointment, which was already prepared for the revision of this Court. Tt is therefore ordered and decreed that the judgment of .the lower court is reversed, and the injunction of the plaintiffs is maintained and perpetuated, and that they have judgment against the defendant George G-arig for their costs in both courts.