Opinion
No. 32660.
January 29, 1934.
Appeal from Civil District Court, Parish of Orleans; William H. Byrnes, Jr., Judge.
Proceeding in the matter of the succession of Philip A. Wengert. From a judgment ordering Emile Wengert, executor, to make to Mrs. Mary Dirr, widow of decedent, certain monthly payments on account of legacies, the executor appeals. On motion to dismiss the appeal.
Motion overruled.
K.V. Richard, of New Orleans, for appellant.
Theo Cotonio, Jr., and Theodore Cotonio, Sr., both of New Orleans, for appellee.
The testamentary executor of this estate has appealed from a judgment ordering him to pay to the widow of the testator $120, in three monthly payments of $40 each, on account of the legacies coming to her. The widow has moved to dismiss the appeal on the ground that the amount in dispute is less than $2,000. The value of the estate, however, or the fund to be distributed by the executor, is $9,051.83.
According to section 10 of article 7 of the Constitution, this court has appellate jurisdiction in suits where a fund to be distributed, regardless of the amount therein claimed, exceeds $2,000, as well as in suits where the amount in dispute exceeds $2,000. And, in a succession or other concurso proceeding, the test of appellate jurisdiction is not the amount ordered paid out or distributed provisionally, but the whole amount of the fund to be distributed. Succession of Johnson, 141 La. 842, 75 So. 743.
The decisions relied upon by counsel for the appellee are not appropriate, viz.: Kahn v. Kahn, 154 La. 729, 98 So. 167; Succession of Koppel, 171 La. 119, 129 So. 727, and Murff v. Ratcliff, 171 La. 419, 131 So. 194. In Kahn v. Kahn the fund to be distributed was only $173.29, and the only effect which the opposition or contest could have had would have been to increase the fund to $549.85. In the Succession of Koppel, the contest was over a fund of $156.50. There was no other fund remaining for distribution. Murff v. Ratcliff was a hypothecary action, based upon a judgment for only $231.50, and the ruling was that this court did not have jurisdiction by virtue of the fact that the contest depended upon the question whether a former owner of the property had a homestead exemption.
The motion to dismiss the appeal is overruled.