The opinion
On Application for a Rehearing.
The executor, through counsel, in his first brief states:
“The judgment also-condemns the executor to account to the succession for a sum of $920.12 with interest from the date of payment. This item has neither pleading nor proof to support it, and how the judge charges the executor with it we fail to understand.”
In the brief for rehearing, counsel states:
“Upon the call of the legatees, on the order of the court the executor filed his bank books, which are before this court in the original, and show a balance in the Whitney National Bank of §919.88, and in the Canal Bank of $85.89. This money, after the appointment of the public administrator as dative testamentary executor, was delivered to him.”
“ Therefore, that portion of the judgment, which as amended by your Honors, condemns the executor to pay $870.12, if allowed to stand would impose upon him a double liability. It should be but the sum of $90. The two items of $25 and $65, which the court has held he improperly paid himself.”
The payment of this amount (which is the balance found due by us after deducting $50, allowed the executor, which had been rejected by the District Court), if paid, has been paid since the trial, and must in that event be carried to the credit of the judgment.
There is no double charge, and but one payment can be exacted.
There is no evidence before the court to show that payment has been made since the judgment, and no payment could have been made prior.
But if payment has been made as contended by counsel, the receipt will protect the executor from a second payment.
Another question of fact, alleged .as a ground for a new trial, is equally as unfounded.
The executor’s counsel claimed that he was overcharged in matter of the bond due by the City of New Orleans, delivered to one of the legatees, and directed to be returned or its value to be paid to-the succession.
Although the principal is $1000, it was appraised when the inven *464 tory of the succession assets was taken at $1090 (owing to interest). In the judgment appealed from it is carried for $1109. In his own account the executor charges the legatee with $1109, value of the bond fixed by himself.
This account has been homologated since the 21st day of August, 1889.
The accountant, at the time, fixed this value. This court has adopted his estimate of its value as charged in his account, viz: $1109.
Rehearing refused.