The judgment of the court was pronounced by
On the 13th of June, 1849, judgment was -signed homologating, after amendment, the account and tableau of distribution filed by Hypolite Gilly, the testamentary executor of the deceased.
A claim of the State for the tax of ten per cent on the amount due to foreign heirs and legatees, imposed by the 4th section of an act approved the 26th of March, 1842, was fixed by the judgment at thirteen hundred dollars, was allowed, and indeed declared, to be a privileged debt upon the estate on the motion of the attorney of the executor of the will.
On the 26th of October, 1849, an attorney of the State Treasurer took a rule on the executor to show cause why a writ of fieri facias should not issue against him personally for the amount of the claim of the State of Louisiana, which he alleged the executor refused to pay. The rule was made absolute, on proving that the claim had been demanded from the executor without success. And from the judgment to that effect, signed on 25th of November, 1849, the present appeal has been taken.
The judgment homologating the tableau of distribution and account of the executor was rendered on the motion of the executor’s counsel. It was not necessary therefore that he should have been notified of it.
The act of 1842 bound the executor to retain in his hands and pay over into the treasury himself the amount of the tax imposed by the act. See also the case of the Succession of George, 4th Ann. 224. He had in his hands, as appeared by his account, $6028 14. All the debts and charges against the estate, including that of the State, amounted to less than that sum. The executor erred in paying legacies to the amount of $2750 before paying the tax due to the State; and as to the State, the-money is to be considered in his hands. The articles 993 and 1057 of the Code of Practice authorised an execution against him personally for his failure, after legal demand made, to pay the claim of the State established by the judgment homologating his tableau and account.
The execution was properly ordered by the district court, and its judgment is affirmed, with costs in both courts.