6 La. 653 | La. | 1834
delivered the opinion of the court.
The plaintiff states that one Hacher made his last will and testament, and after bequeathing several legacies, the residue of his estate he gave to his three nephews with the benefit of accretion to the survivors or survivor ofítbem; and that the legacies were paid by the testamentary executor, who liquidated the estate and who was discharged by the Court of Probates. That one of the instituted heirs and'residuary legatees, transferred, for a valuable co|ttjderation, all his right and interest in the succession to th&piaintiff, (the other two heirs their existence being unknowi^ or being dead,) who was by the Court of Probates of the parish of St. Bernard where the succession was opened, put into possession of the estate; that one of the defendants, (widow Reggio) is in community with the minor children and heirs of Reggio are indebted to the estate transferred to him and refuse payment. Wherefore he prays judgment, &c.
His claim has been resisted on the ground that the attorney of the absent heir, did not and could not represent the succession; and that some representative ought to have been appointed contradictorily with whom the piaintiff might have asserted his claim; and as this was not done the decrees of the Court of Probates in favor of the plaintiff could not afford sufficient protection to the defendants against the claim of his transferor’s co-heirs if they ever appeared.
There was judgment for the plaintiff, and the defendants appealed.
We have not been favored with any arguments on the side of the appellants. The counsel of the appellee has filed the following points.
The Louisiana Code, art. 78, has a positive provision under 7 7 ~ which the plaintiff as transferee of the heir present, and as subrogated to the right of those absent, whose existence is not known, is entitled to receive the whole succession,
The correctness of the judgment of the Court of Probates cannot be questioned in the District Court. Code of Trac- . _A_ tlCG DUO.
The attorney of the absent heirs was the proper person to represent and defend them in a suit in which they were A interested.
He ¿id not become functus officio by the discharge of the testamentary executor. La. Code, 1210, 1654 and 1655. J
^ ^as aPPeared to us the judge of probates did not err in rendering judgment for the plaintiff.
It is therefore ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed with costs.
