Abes vs Levy. Their prayer conforms to the petition. H. Abes was duly cited, and, amongst other things in his answer, he said that he was willing and ready to pay over to the plaintiffs five-sixths of the separate estate, after debts and charges against the deceased; and that he is willing and ready to furnish security as usufructuary during his natural life for five-sixths of one-half of the community in which the deceased was interested" after deducting debts and charges due by said community." He further avers "that the separate estate and community should be adjusted and fixed according to law." That he has purchased all the rights, title and interest of one of the heirs in and to the separate estate and community property left by his said wife and only five-sixths thereof remains due to the other heirs." * * Wherefore he prays that the separate and community property "be adjusted and fixed, and after ascertaining the respective rights and interests of the parties, and after deducting the debts and charges due by the separate estate and community, that respondent be authorized to pay over to plaintiffs five-sixths (5-6) of the separate estate of the said deceased, Julia Sonenberg, in full discharge and extinguishment of all their rights, titles and interest as heirs in and to the succession of said deceased, and that respondent be also authorized to give bond, with good and solvent security, to the satisfaction of the court, as usufructuary of five-sixths of the community property belonging to the community which existed between said deceased and respondent, after deducting debts and charges, said security to be for the estimated value of the property subject to the respondent's usufruct. Upon the issues thus joined there was a judgment in favor of the heirs "for five-sixths of the separate estate of Julia Sonenberg in the aggregate sum of five thousand two hundred and thirteen dollars and thirty cents, same being in full settlement of all claims, dues and demands of said plaintiffs against defendant in the separate estate of Julia Sonenberg," etc. And it is further decreed that the community of acquits and gains which existed between the said Sonenberg, deceased, and H. Abes, her husband, be settled and fixed at the sum of two thousand five hundred and eighty-seven dollars, due to the said plaintiffs, subject to the usufruct of Hymes Abes, her surviving husband, during his natural life." Succession of McNamara. And it is further decreed "that the said Hymes Abes do furnish good and sufficient surety according to law, as usufructuary of said community property in the said sum of two thousand five hundred and eighty-seven dollars," etc. The foregoing is a full and complete analysis of the records of the succession of Julia Sonenberg, deceased, and we are of opinion that it fails to support the contention of the plaintiff. They only evidence the recognition and placing the heirs in possession; the recognition of the surviving husband's right of usufruct and placing him in possession as such; and the ascertainment of the net interest of the heirs in the separate estate of the deceased, as well as that in the community property. Of the former he made payment to the heirs, and for the amount of the latter he gave bond. Beyond this no steps have been taken looking to the partition of the community property, real or personal. It remains in statu quo and in a state of indivision, notwithstanding there was a judgment ascertaining and fixing the respective rights of the parties. This decree, in respect to the community, merely determined the amount of the bond the husband was required to give as usufructuary of the five-sixths interest of the heirs. This bond was based upou the value of the personal as well as real estate of the community to which they will be entitled at the termination of the usufruct. To eliminate the interest of the heirs two things were necessary: first, the abandonment by Abes of his usufruct; second, a sale of the interests of the heirs. In its present situation plaintiff is without a complete title to more than one-half, and one-sixth of the other half of the property in controversy, and could not convey a complete title to the defendant. The District Judge decided the case correctly. Judgment affirmed. No. 11,926. SUCCESSION OF MRS. ANNA MCNAMARA. Where experts are sworn as to the value of services and differ materially in their estimates it is safe to accept the lowest estimate. Where services are rendered of a valuable nature in the expectation of being remunerated in the will of the person to whom they are rendered and an implied promise to that effect has been held out to the party performing the same, an d he is not mentioned in the will, he will be entitled to reasonable compensation out of the estate of the deceased. 48 451 49 778 49 1422 49 1426 48 45 50 302 48 45 105 803 Succession of McNamara. A PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J. John J. O'Connor and Frank McGloin for Executor, Appellant. Fred. Adolph for Knecht. Dart & Kernan for Appellees. Argued and submitted December 17, 1895. The opinion of the court was delivered by MCENERY, J. The opponent, Dr. Mainegra, claims one thousand dollars for professional services to the deceased. The deceased was assaulted in an attempt to rob her. She received lacerated wounds on the hands, wrists, on the back and nose. For these injuries the services rendered were applying salves, antiseptics and bandages. No bones were broken and no surgical operation was performed. From the injuries received there was a suppression of urine and the bladder was emptied several times by proper appliances. Twelve visits were made to the deceased. All these services were within the duties of an ordinary, or what is called a family physician, to distinguish him from the specialist. Expert testimony was received as to the value of these services. As usual in such cases, there is a wide range in speculation. We will accept the estimate of Dr. Brickell, the lowest made, in connection with the disease with which it is said the deceased was afflicted, which made the dressing of her wounds not only disagreeable but dangerous. This estimate is ten dollars a visit. This ruling is in accordance with the doctrine announced in Hart vs. Dreyfous, 42 An. 631; Succession of Duclos, 11 An. 406; Collins vs. Graves, 13 An. 96. The opponent, Knecht, claims one thousand two hundred and twenty dollars, seven hundred and twenty dollars for services rendered to the husband of the deceased for six years and more, at the Succession of McNamara. rate of ten dollars per month, and for services and attention to the deceased five hundred dollars. The opponent was in the employment of a firm at a stated salary of eighty-three dollars and thirtythree cents per month. Three nights in the week he was at leisure at 6 P. M., and the remaining nights at 9 o'clock. These leisure hours were devoted to the service of the deceased husband. In the language of the opponent these services consisted in keeping a correct account of moneys collected, making deposits in bank, and corresponding with his principals, and collecting money for rent. The engagement was for ten dollars per month. After a service of two months he asked for a settlement, but was induced not to press the same because of certain inducements or implied promises, made to him by the husband. These "expectations" had reference to the future disposition of the husband's property, in which the opponent expected to be remembered. He made no further demand on fhe husband, and made no demand against the wife after his death. He was disappointed in getting anything from the husband, and he failed to be remembered in the will of the deceased wife, to whom he continued his services. Having been thus disappointed in being remunerated for his services, he filed his opposition to the account of the executor, and claimed ten dollars per month as originally agreed upon between him and the husband. His services were those of clerk, and are prescribed by three years. This prescription is pleaded. The opposition was filed 16th March, 1894. His claim for services to March 16, 1891, were prescribed. He is entitled to recover for clerk's hire from this date to the death of the husband, one year and eight months, two hundred dollars. Colley vs. Latourette, 7 An. 222; Alexander vs. Alexander, 12 An. 588. His services to the widow McNamara were of the same character as those given to the husband, with the addition of personal services to the deceased, such as changing her clothes, washing her face and feet. There was no agreement or contract with the deceased, the opponent, we presume, fully expecting a remembrance in her will. He is, however, entitled to recover for the value of his services. Dauenhauer and Husband vs. Succession of Brown, 47 An. 341. We think three hundred dollars will be ample compensation for all the services he rendered the deceased for the nine months he devoted to her. Landry et als. vs. Administratrix of the Succession of Landry, Jr. It is therefore ordered, adjudged and decreed, that the judgment appealed from by the opponent, Dr. Mainegra, be amended so as to place him on the account as a creditor for the sum of one hundred and twenty dollars, and the judgment in favor of the opponent, Knecht, be affirmed, and in all other respects the judgment be affirmed, Dr. Mainegra to pay costs of the appeal of his application -the succession to pay all other costs. No. 11,968. MRS. AGLAE LANDRY ET ALS. Vs. MRS. MARIE BERTRAND, ADMINISTRATRIX OF THE SUCCESSION OF MAXIMILLIEN LANDRY, JR. The failure of a judge to render a judgment in a case within thirty days after it has been submitted to him, as required by Act No. 72 of 1884, does not carry with it as a penalty the nullity of a judgment subsequently rendered by him, if it be otherwise legal. An action of nullity against a judgment does not lie upon a general allegation that it was rendered contrary to law and evidence. Where an appeal is the proper remedy for the correction of a judgment, an action of nullity can not be substituted therefor. A PPEAL from the Seventeenth Judicial District Court for the Parish of Lafayette. Allen, J. L. L. Bourges for Plaintiff, Appellant. Conrad De Baillon for Defendant, Appellee. Submitted on briefs December 19, 1895. The defendant, as administratrix of the succession of Maximillien Landry, Jr., filed a final account of her administration; plaintiffs opposed the same; by judgment of court in August, 1893, the opposition was rejected, the account approved and homologated, the administratrix discharged and her bond canceled. The present suit in the District Court is to annul this judgment. The grounds relied upon by plaintiff are that, through the delay of the District Court in deciding the case, it had become advised of the decision in Lan |