| La. | Mar 15, 1835
delivered the opinion of the court.
This case commenced by attachment issued against the property of certain minors, residing in the kingdom of France, together with their mother,, regularly confirmed in her office of natural tutrix, by competent authority of that kingdom, where these defendants are all domiciled and reside. The property seized by means of the attachment was regularly sold under a fieri facias, which issued on a judgment rendered in the suit, and produced a sum much more considerable than was necessary to satisfy the judgment and costs, which was received by the sheriff who sold, &c., and is still in his hands. From the proceedings and judgment thus rendered and executed, no appeal was taken, consequently their correctness and legality are not now subjects of inquiry.
In this situation of the cause, a certain F. M. Rouzaul, acting under a power of attorney from the tutrix of the minors, moved the court for an order on the sheriff to pay over to him, as attorney in fact, the balance of the money, the proceeds of the sale of the property of the minors, which had been sold, as above stated. His motion was finally overruled, and the court below ordered the money to be deposited in the Bank of the Consolidated Association, until further order, &c. From the judgment thus rendered, the applicant for the order to pay to him, appealed.
The evidence of the case shows that the person from whom the appellant derives his authority, was regularly recognised as tutrix of her children, by competent authority, in the place of their domicil; and the power and authority granted to him from her, to represent her' in matters relating to the property of her minor children in this state, is not disputed.
The case presents two questions for solution: first, whether the tutrix, deriving her authority to act as such, in a foreign country, and from the laws and judicial acts of the government of that country, would be authorised to possess herself of the property of her wards in this state, without authority granted to that effect, by one of its courts of probates? Second,
In coming to a decision on the first of these questions, a distinction or difference necessarily existing between the office of a testamentary executor or administrator of an inheritance or succession, and that of a tutor or guardian, must be kept in view. It has been settled by decisions of this court, in relation to the rights and duties appertaining to the former, that they cannot be exercised in this state, under the probate of a will in a foreign state, and authority there granted to carry it into execution, without causing the will to be here recorded, and obtaining authority from a competent tribunal to execute it: and an administrator by appointment in Another state, is wholly without authority in'this, to administer the property of a succession here situated, unless he be authorised to act by a court of probates in this state. These decisions were made in conformity with principles established by the courts of the United States, and the courts of the several states of .the Union, in similar cases.
Whether our decisions in relation to testamentary executors, might not have been questioned according to. general principles of the civil law, need not now be inquired into. This matter must be considered as settled.
A question touching the power of a tutor or guardian of minors, deriving his authority from the laws and tribunals of a foreign state, in relation to property belonging to the inheritance of his wards in this, has never before the appearance of. the present case; directly and positively required a solution by this court.
Our jurisprudence, as it affects rights to property and the ordinary relations of persons in a state of-civilized society, is. mainly based on principles derived from the civil law, or the rules of states and countries, having that system as the basis of the municipal legislation.
We have not found it convenient, nor have we deemed it necessary, to consult extensively the treatises of authors and commentators on the civil law, relative to the subject
The result of this examination has brought us to the . . . .. .... conclusion, that m countries governed by laws similar to our own> authority of a tutor regularly appointed in one state, t0 sue for and recover, or take possession of property . ... . \ Í situated in another, belonging to the inheritance of his ward, would be recognised in the latter, without confirmation by its tribunals,
It does not occur to us that any positive provision, contrary to this doctrine, exists in the laws of this state, and s0 ^onS as f°reif3ners are permitted to inherit property in this country, we are unable to perceive any good reason why impediments should be thrown in their way in a pursuit to recover and take possession of it, unless in a case where it was shown that the interests of our own citizens would probably suffer by its abstraction.
In conclusion on this point, it may not be useless to suggest the distinction between the situation of testamentary executors and administrators, and that of tutors, in relation to successions. The office of the former is merely administrative, and of very short duration, and confined solely to the property of the estate; whilst the latter have the guardianship and protection of minor heirs committed to their charge, and are bound to provide for their maintenance and education, and f°r a considerable length of time; all to be effected by means of the funds of their wards. They would be unable to perform the duties required of them, if the possession of the successions, which they have a right to administer, was withheld from them.
. _ t . ,7 ,. T . As to the second question propounded, we think it must he answered in the affirmative. No valid reason suggests itself t0 our minds, why a tutor should not be permitted to manage J A 0 the estate of his wards, by means of the agency of an attorney pactj ag wep ag any 0ther person. In practice, we believe, this often occurs.