Succession of Day

The judgment of the court was pronounced by

On the 11th of January, 1841, Oliver, as curator of the succession of Day, filed in the Probate court “ a statement of debts,” accompanied by a petition in which he prayed for its approval and homologation. On this statement Ferdinand Sims is set down as an- ordinary creditor for three notes, amounting collectively to $2,385 80. On the 22d of July, 1843, a judgment was rendered by the probate judge, which, after correcting the statement in *896several respects, Concludes ns follows : “All the balance of said debts, as set forth by the curator in his statement of debts, are hereby allowed as just debts against the estate, to be paid in due course of administration, and according to the classification therein, after the above corrections.” The claim represented by Sims, who is the executor of Mitchell, was not among- those adverted to in the previous part of the decree, and consequently falls, as is contended, within the operation of this concluding clause. On the 10th of June, 1839, previous to the filing of this statement, or to the rendition of the decree homologating it, Olivet', as curator, acknowledged in writing the claim represented by Sims to be' du'e, and to be secured by a mortgage and privilege, and stated that’ he' had no objections to paying it. On the 27th of September, 1843, Oliver, as curator, filed i'n the Probate court, what he calls “a supplemental statement of debts” due by the succession, on which he placed Sims-,- executor of Mitchell, as creditor for the same sum which had figured in the previous statement of January, 1841, and classed the debt as being due by a special mortgage, which mortgage is particularly described. This “supplemental statement” was opposed-by Fitzpatrick, upon the ground, among others, that the claim of Sims, executor, had be'eff presented in a previous statement of debts which had been finally adjudicated upon, and that it could not be the subject of the further action of the court. Other claims were also opposed by Fitzpatrick. After the filing of this opposition,- Oliver, as curator of Day, and Sims, as executor of Mitchell, presented a petition to the Probate court, in- which they aver that the claim of Sims, executor, placed on the supplemental statement is the same with that which figures'cm the first statement of debts; that it was never intended to class the claim as an ordinary debt; that it was thus placed through inadvertence; and that the judgment was rendered in error. They pray that the judgment be annulled, and that the' pfoper rank be assigned to the claim of Sims. The plea of res judicata was sustained by the court below, and Oliver and Sims have appealed.

We understand the position assumed by the appellee to be, that the statement made by tlie curator Was a tableau of distribution, or of classification of the creditors. It is neither. It is what upon its face it purports to be, a mere statement of the debts due by the deceased, which the curator proposed to pay, with the authorisation of the judge. Such a statement pre-supposes sufficient funds in the' hands of the curator to pay all the creditors of the deceased, who have presented themselves or made themselves known. C. C. 1168. Upon such a statement it is immaterial to a creditor what rank is assigned to him, as it contemplates the payment of his debt at all events. He is consequently not bound to make an opposition, and insist on being classed as a privileged or mortgage creditor. The only judgment which can be rendered upon such a statement and petition must have reference to the entire payment of all the debts, without regard to the preferences to which the creditors would be entitled, if the estate were insolvent. It seems to be conceded that the estate of Day is insolvent. If this be true, and the curator had funds in his hands, but to an amount insufficient to pay the creditors, it was his duty to present a tableau of distribution of such funds among the creditors, according to the order of their privileges and mortgages. It is only upon such a tableau that a judgment could have been rendered, which would have precluded the appellant, Sims, from subsequently asserting his true rank. C. C. 1169, 1170. No such tableau has been presented, and no such judgment rendered; and Sims has forfeited none *897of liis rights as a creditor by mortgage or privilege, when a tabican of distribution shall be filed.

The second “ statement,” upon which this controversy has arisen, is of the same character with the first. It is a statement of debts. The condition of the succession, as far as we are informed by the record, does not require such a statement ; the proceeding is irregular; and the litigation Which has arisen upon it can lead to no useful or practical' result. We consider it necessary therefore to remand the causo for tho purpose of enabling the curator to file a tableau of distribution, in which all tho creditors may contradictorily establish their respective claims and privileges. This view renders it unnecessary to consider several other claims which have been opposed by Fitzpatrick.

It is therefore' ordered that tho judgment appealed from be reversed. It is further ordered' that this cause bo remanded for further proceedings in accordance with the principles stated in this opinion; the appellee, Fitzpatrick, paying the costs of this appoal.