The jurisdiction of courts of probate in Louisiana is confined
to cases which seek an account and settlement of effects presumed
to be held by the representative of a succession. It has not
jurisdiction over cases of alleged fraud or waste, or embezzlement
of the estate.
The district courts are courts of general civil
jurisdiction.
Hence, where a petition was filed in the court of probate
against an administrator, praying that he might account and also be
held liable for maladministration and spoliation, it was proper to
transfer the case for trial to the district court.
The judgment in the district court, being generally for the
defendant, must be supposed to cover the whole case, and not to
have rested upon only a branch of it,
viz., a release
which was pleaded by the defendant.
Therefore, where a bill was filed in the circuit court by the
same petitioners against the same defendant, it was correct for
that court to consider the question as
res judicata.
The Louisiana decisions upon the jurisdiction of the probate and
district courts examined.
In the year 1818, Mary Bynum, the widow of Benjamin Bynum
deceased, was living in the Parish of Concordia, State of
Louisiana, with four children, of whom Harriet, the wife of the
appellant, was one.
Page 48 U. S. 161
In August, 1818, Mrs. Bynum intermarried with John Perkins, the
present appellee.
In August, 1824, Mrs. Perkins died.
In March, 1827, Perkins filed two inventories and appraisements
in the parish court; one, of the estate of Benjamin Bynum,
deceased, amounting to $26,055, and the other of Mrs. Mary Perkins,
deceased, amounting to $6,575. About the same time, Perkins was
appointed administrator of the estate of Benjamin Bynum and
guardian of the infant children.
In May, 1827, he filed an account showing an administration of
the estate as far back as 1817. The account was filed by him as
curator ad bona and tutor to the minor heirs.
In 1834, after the marriage of Harriet with Fourniquet (the
present appellants), Perkins stated his account as guardian of
Harriet Bynum separately, bringing her in debt to him $550.81,
which sum Fourniquet paid by a check on the Planters' Bank. The
following receipt was also subsequently given to Perkins by
Fourniquet and wife:
"Received, Natchez, May 27, 1834, of John Perkins, in settlement
of an account, debts due, and demands, whatsoever, to the present
day, one hundred dollars in full, having on a previous occasion
received from him, as guardian of my wife, Mrs. Harriet Fourniquet,
late Miss Bynum, all the estate, portion, and share she inherited
by the death of her late father, Benjamin Bynum, late of Concordia,
Louisiana, deceased, or her mother, Mrs. Mary Perkins, of the
County of Adams and State of Mississippi, and brothers, Benjamin S.
Bynum, of the County of Claiborne, state last aforesaid, deceased,
and do, by these presents, jointly with my said wife, release, and
forever discharge the said Perkins, either as guardian or
otherwise, growing out of the estate aforesaid or in any other
manner or shape whatsoever, and forever exonerate him, by these
presents, his heirs, executors, and administrators therefrom."
"In witness whereof, we have hereunto set our hands and seals
the day and year first above written, to-wit, in the year of our
Lord one thousand eight hundred and thirty-four, in the presence of
Elijah Bell and John E. Maddox, whose names are hereunto subscribed
as witnesses thereto, the said John Perkins being also personally
present, and by these presents accepting."
"Signed, sealed, and delivered."
"E. P. FOURNIQUET [SEAL]"
"HARRIET J. FOURNIQUET [SEAL]"
"JOHN PERKINS [SEAL]"
"Witness present: "
"ELIJAH BELL"
"JOHN E. MADDUX "
Page 48 U. S. 162
"
State of Mississippi, Adams County: "
"Personally before me, Woodson Wren, a justice of the peace for
the County of Adams, appeared E. P. Fourniquet and Harriet J.
Fourniquet, his wife, and John Perkins, whose names are subscribed
to the foregoing instrument, and acknowledged that they signed,
sealed, and delivered the same, as their act and deed, on the day
and for the uses and purposes therein mentioned."
"Given under my hand and seal, 28 May, 1834."
"WOODSON WREN [SEAL]"
In 1837, the parties mutually confirmed the above instrument by
the following acknowledgment:
"
State of Louisiana, Parish of Concordia:"
"I, George W. Keeton, judge of the said parish, duly
commissioned and qualified, do hereby certify and attest unto all
whom it doth or may concern that Harriet J. Bynum, wife of Edward
P. Fourniquet, and Edward P. Fourniquet, and John Perkins,
personally appeared before me and acknowledged that they had signed
and sealed the foregoing instrument of writing as and for their
proper act and deed. To the due execution thereof, an act being
requested, the same under my seal of office to serve as occasion
may require."
"Done and passed at my office, in the Town of Vidalia, on the
thirteenth day of January, A.D. eighteen hundred and
thirty-seven."
"J. W. KEETON,
P. Judge"
In December, 1838, Fourniquet and wife, then residing in the
State of Mississippi, filed their petition in the Court of Probates
for the Parish of Concordia in the State of Louisiana, proffering
their claim against Perkins for a large amount of property alleged
by them to have come to his hands, and alleging that the receipt
obtained from them had been given through ignorance and error and
in direct contravention of a provision of the law, and was
therefore void. They charged upon Perkins, both as administrator
and
curator ad bona of the children of Mrs. Perkins,
spoliations to a large amount, and prayed that he might render a
full account of his transactions with respect to the successions of
Benjamin Bynum and Mrs. Perkins, and with respect to his
guardianship, and be compelled to make full compensation to the
petitioner. In February, 1839, Perkins filed his answer, first
interposing three exceptions to the prayer of the petition. The two
first of these exceptions it is not material here to notice; the
third was in effect a plea in bar, insisting on the receipt and
release above set forth. The
Page 48 U. S. 163
answer followed the allegations of the petition and controverted
them all, alleging that the respondent had discharged his duty with
fidelity.
A supplemental petition and answer were afterwards filed, which
it is not necessary to state particularly.
On 10 December, 1840, the case was transferred, by consent, to
the Ninth District Court in the Parish of Concordia.
On 24 December, 1840, the cause came on for trial in the
district court, when the jury found a verdict for the defendant,
and the court thereupon pronounced judgment in his favor.
In June, 1844, Fourniquet and wife filed a bill on the equity
side of the Circuit Court of the United States in and for the
District of Louisiana. It claimed in right of the wife part of her
inheritable portion of the estates of her father and mother, and
prayed for a full account of the use and profits thereof from
August, 1824, to May, 1827. It averred that Benjamin Bynum, the
father of Harriet, left a large unencumbered estate at his death;
that it was out of debt, and had a large amount of money on hand
and debts due to it at the time when Mrs. Bynum intermarried with
Perkins; that Perkins took possession of all the property,
maladministered and used it as his own; that he presented false and
fraudulent accounts to the court of probate. The bill admitted the
execution of the receipt and release, but charged them to have been
obtained by false representations; it stated that a suit had been
brought in the probate court by the complainants and that it had
been transferred by consent of all the parties to the district
court, but protested that the district court had no jurisdiction of
the subject matter thereof, and therefore its judgment could be no
bar to the complainants' present suit. The bill then prayed for an
account and general relief.
To this bill Perkins pleaded in bar the record, proceedings, and
judgment of the district court, averring that these embraced and
concluded the whole matter set forth and complained of in the bill.
The plea was supported by an answer, which denied all the
allegations of the bill.
On 10 April, 1845, the circuit court pronounced the following
decree:
"This cause came on to be heard at this term, and was argued by
counsel, and thereupon, upon consideration thereof, it was ordered,
adjudged, and decreed, as follows,
viz.: that the plea of
the said defendant, by him pleaded in bar to the bill of the said
complainants, be sustained and judged a good and sufficient bar to
the said plaintiff's action as set forth in his bill, and that the
said complainants' bill be dismissed, with costs."
An appeal from this decree brought the case up to this
Court.
Page 48 U. S. 167
MR. JUSTICE DANIEL delivered the opinion of the Court.
Although the decree of the circuit court is accompanied by no
opinion or argument setting out
in extenso the grounds on
which the bill of the appellants (the plaintiffs below) was
dismissed, yet the foundation of this decree is plainly disclosed
by reference to the plea of the defendant below, referred to and
sustained by the circuit court in its fullest extent. This plea
assumes the position that the matters drawn into controversy by the
bill had been previously litigated between these parties and by a
court of competent jurisdiction adjudged and settled against the
complainants. The insertion of this plea here is deemed proper, as
the character of the proceedings which enter into its averments,
and constitute the bar set up thereby, will furnish the readiest
key to the exceptions urged against the decree of the circuit
court. The plea is in the following words:
"
In the Circuit Court of the United States for the Fifth
Circuit"
"
and Eastern District of Louisiana"
"
E. P. FOURNIQUET AND WIFE v. JOHN PERKINS"
"The plea and answer of the defendant, John Perkins, to the bill
of complaint and discovery of the said complainants."
"This respondent, saving and reserving all benefit &c.,
shows that on or about 15 December, 1838, the said complainants did
institute a suit in the Court of Probates in and for the Parish of
Concordia in the State of Louisiana against this respondent for the
same cause of action as is set forth in the said complainants'
bill. That the said suit was duly and regularly transferred for
trial and judgment upon all matters in issue therein to the
District Court of the Ninth Judicial District of the State of
Louisiana, held in and for the said Parish of Concordia, when and
where such proceedings and pleadings were had and such issue joined
as embraced the whole matters set forth and complained of in and by
the said complainants' bill in this behalf filed and exhibited, and
that in the further due and lawful proceedings in said suit and
upon final hearing thereof, judgment was rendered in favor of this
defendant upon all the matters in issue therein, all which will
appear by a transcript of the record of the proceedings
Page 48 U. S. 168
in the said suit, duly authenticated, which is hereto annexed
and exhibited and made part hereof, which said judgment is final
and conclusive between the said parties as to all the matters of
the said complainants' bill, and this respondent pleads and sets up
the same as a full and complete bar to the said bill, and prays
that he may have the benefit thereof as such."
If this plea be correct in form and true in substance, there can
be no doubt that, the subject now in controversy having become
res adjudicata, the decision of the circuit court
dismissing the bill of the complainants is vindicated from just
exception. But exception is urged to that decision upon alleged
legal grounds, said to be disclosed on the face of the plea and of
the record adduced in its support, and that these being inadequate
to sustain the decision, the latter cannot be supported. This is
the material point in this cause, requiring therefore particular
examination.
It is insisted for the appellants that the proceedings
instituted by them in the Probate Court of Concordia against
Perkins for an account of his administration of the successions of
Benjamin Bynum and of Mrs. Perkins (formerly Bynum) and for an
account of his guardianship of the wife of Fourniquet, as well as
to render him liable for lands, slaves, crops, and moneys belonging
to those successions and to the children of Bynum, were the proper
proceedings for attaining the object sought thereby, and that no
other tribunal in the State of Louisiana than the probate court
could legally take cognizance of those proceedings, and that the
transfer, therefore, of the case in question from the probate court
to the district court of the state, though by the consent expressly
given of all the parties, could not confer jurisdiction on the
latter, whose decision, consequently, would be void and could not
be pleaded in bar of this suit. Again it is said that, conceding
the power of the district court to take cognizance of a case like
the present, still the proceedings before this latter court and its
decision did not embrace the rights and interests of the parties as
set forth in the petition to the probate court, but were limited to
the single question of the validity of the release executed by the
complainants to the defendant on 27 May, 1834. With regard to this
second ground of exception it may be remarked that there is some
want of precision in the record of the district court as to the
subjects embraced within the issue which seems to have been
submitted to the jury by the court; but there is no more reason for
supposing that issue to have been limited to the mere fact of the
validity of the release mentioned than there is for extending it to
the whole matter in controversy. The petition brought up before
Page 48 U. S. 169
the court was the same presented to the court of probate --
covered the whole gravamen of the complainants' case. All their
alleged rights and wrongs were embraced within its statements and
prayers. This is not understood to have been a suit in equity nor
to have been one not cognizable by a jury. The fair presumption is
that the jury had the entire case before it. No exception to its
cognizance of the whole case seems to have been interposed or
thought of, and it rendered a general verdict for the defendant, to
which verdict no exception was taken. On other grounds it seems
inadmissible to suppose that the case submitted to the jury was
limited to some specific fact or inquiry or that the judgment of
the court was necessarily founded upon any such fact alone. By the
consent order transferring the cause from the probate to the
district court, we find a very comprehensive arrangement as to the
procurement and the forms of the testimony to be used, and in the
entry of the judgment upon the record of the district court we find
the language
"By reason of the law and the evidence, and the verdict being in
favor of the defendant, it is therefore ordered, adjudged, and
decreed that judgment be rendered in favor of the defendant."
Thus it appears that the mind of the court was directed to the
entire case before it, and not merely to an isolated question; that
its judgment has embraced the whole cause as presented upon the
petition, the exceptions, and the answer of the defendant, and
although the proceedings which led to the decision may seem to be
irregular and anomalous, that decision must stand as a judgment,
binding between the parties thereto, unless shown to be void for
want of jurisdiction in the tribunal which pronounced it or that it
has been reversed and annulled by some competent supervisory
authority. This brings us back to the inquiry into the competency
of the district court of the state to take cognizance of the
subject on which its decision was made.
By Art. 126 of the Code of Practice, it is declared that the
jurisdiction of the district courts extends over all civil causes
where the amount in dispute exceeds fifty dollars. The natural
import of this provision is to render the district courts of
Louisiana courts of general jurisdiction in all civil causes not
embraced within the above exception. But their powers have not been
left to be now deduced for the first time from the language of the
article above cited. They appear to have been defined and
established by the supreme judicial authority of the state, and
plainly distinguished from the functions of the probate courts with
reference to subjects like those involved in the present case. The
jurisdiction of the courts of probate appears to be confined to
cases which seek a settlement
Page 48 U. S. 170
and an accounting for effects presumed to be in the possession
of the representative of a succession, holding those effects in his
representative character. Where the purpose is to charge the
executor or curator personally for fraud, maladministration, waste,
or embezzlement of the succession, the court of probate has not
jurisdiction, but in such cases jurisdiction is vested in district
courts.
The law appears to have been so ruled in many cases by the
Supreme Court of Louisiana. A few of these will be adverted to.
Thus, in the case of
McDonough v. Spraggins, 1 La. 63, on
an appeal from the court of probates, the point is thus succinctly
stated by Mathews, Justice, in delivering the opinion of the
court:
"This suit was commenced against the defendant in his capacity
of curator to obtain a judgment rendering the succession which he
represents liable to pay and satisfy the plaintiffs' demand and
also to obtain a decree against him personally on the event of the
property's being insufficient to pay all just claims against it, as
having illegally administered the succession of the intestate."
The court of probates decided against the application, and the
supreme court, in passing upon that decision, lay down the law in
these words:
"As an administrator
de son tort or as an intermeddler
he may be answerable to creditors for waste, but those pursuits
against him must take place in a court of ordinary
jurisdiction."
The next case on this point is that of
Bouquette's Guardian
v. Donnet, 2 La. 193. There, Porter, Justice, pronouncing the
decision, says
"It appears to us this is a demand against the executor in his
personal capacity for the value of the property sold by him
contrary to law. In other words, for a tort done by him. We think
the probate court had no jurisdiction of the case, and that the
petition must be dismissed, with costs in both courts."
In 6 La. 449 is the case of
Hurst v. Hyde, Executor, in
which it is ruled that
"the court of probates has no jurisdiction in an action for
damages occasioned by an act of the executor not legally done in
relation to the administration of the succession."
The last authority which will be cited to this point is one of
later date. It is the decision of the Supreme Court of Louisiana in
the case of
Hemken v. Ludwig, Curatrix, a decision made in
1845 and reported in 12 Robinson 188, upon an appeal from the Court
of Probates of Ouachita. This was a petition brought to subject the
curatrix for what, in the legal language of Louisiana, is called a
maladministration of the succession, corresponding with the term
"waste" at the common law. At page 191 of the volume, Judge Simon
in delivering the opinion of the court, thus states the law:
"It is clear the court of probates was without jurisdiction to
decide on the
Page 48 U. S. 171
matters set out in the plaintiff's petition in relation to the
defendant's personal liability. It is true she is sued as curatrix,
but one of the principal grounds alleged against her from which she
is said to have incurred personal responsibility is that she has
concealed property belonging to the estate and has converted it to
her own use, whereby she has lost the benefit of her renunciation,
and has become liable, personally, to pay the debts of her husband.
The main object of the suit is to obtain judgment against her
individually, and such was virtually the judgment appealed from. It
is not pretended that the property which she failed to include in
the inventory is in her possession as curatrix, but that she claims
the same as her own, and refuses to give it up. It is well settled
that courts of probate have no jurisdiction of a claim against an
administrator personally for maladministration."
That the petition of Fourniquet and wife presented to the
probate court, and subsequently transferred to the district court,
contained charges of maladministration cannot be denied. Indeed,
with respect to the successions of Mary Bynum, the mother, and
Benjamin Bynum, the father, of the petitioner, Harriet, and with
respect to the release charged to have been fraudulently abstracted
from both the petitioners, it alleged, not merely acts of
maladministration, but instances of dishonesty and spoliation
extraordinary in character and extent, and claimed of the
defendant, in consequence thereof, a heavy personal liability for
lands, slaves, and money, unjustly appropriated to her own
purposes. From Art. 126 of the Code of Practice, we have seen that
the jurisdiction of the district courts of Louisiana extends over
all civil cases where the amount in dispute is over fifty dollars;
in other words, that these courts are courts of general civil
jurisdiction. By the authorities cited from the Supreme Court of
Louisiana, it is equally apparent that the probate courts are not
courts of general, but of special limited jurisdiction, and that
from their cognizance are excluded cases of fraud, torts, waste, or
maladministration generally, committed by executors and
administrators; and that these cases belong peculiarly to the
cognizance of the district courts. Such being the conclusions
warranted by a review of the law, and the facts of this case being
of a character to fall directly and regularly within its operation,
it may well be asked what just exception can be taken to the
jurisdiction of the district court in this case? It was not a
jurisdiction depending at all upon consent, which, it is said,
cannot invest a court with power not belonging to it by its
Constitution. It was a transfer of a litigation, by consent, from a
tribunal confessedly without authority to decide it, to a tribunal
in every respect competent to
Page 48 U. S. 172
take cognizance of the subject matter -- whose peculiar province
and duty it was to take cognizance of it. The exception, at the
utmost, resolves itself into matter of form, which the parties were
competent to waive, and which they did waive; for it is expressly
stated upon the record, that the removal of the cause from the
court of probate into the district court was by the consent of all
concerned. It cannot be pretended that the forms of pleading may
not be dispensed with by suitors, as it is certain that the benefit
of matters both of substance and form may be lost by mere neglect
or omission, where no intention of the renunciation of either is
apparent or ever existed. We must conclude that the district court
had rightfully jurisdiction of the cause removed into it from the
probate court; that its judgment is and must be binding upon the
parties to it, until it shall be annulled or reversed by a
competent authority. The parties to that judgment, the subject
matter thereof, and embraced within the proceedings on which it was
founded, being identical with those comprised in the bill in the
Circuit Court of the United States for the Ninth circuit, now under
review, the judgment was well pleaded in bar of the claims set up
by the bill, and the decree of the circuit court sustaining this
plea we hold to be correct, and the same is therefore hereby
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Louisiana, and was argued by counsel. On consideration whereof, it
is now here ordered and decreed by this Court, that the decree of
the said circuit court in this cause be and the same is hereby
affirmed with costs.
