Fisk v. Fisk, 2 La. Ann. 71

2 La. Ann. 71 | La. | 1847

The judgment of the court was pronounced by

Rost, J.

The plaintiff, who resides in the territory of Wisconsin, acting as tutor of three of his minor children, and by virtue of the paternal power in relation to two others, whose mother is living, seeks to recovor the sum of $100,000 dollars, alleged .to be due his children, by the succession which the defendants represent.

The defendants having excepted to his capacity to sue as tutor, he adduced, in support of it, the following appointment of the Court of Probates of this parish:

“ I understand that by the laws of the territory of Wisconsin, the father cannot obtain the administration.of the estate of his minor children. These laws of the domicil aro personal statutes, and follow the petitioner wherever he goes. Yet I will grant tlie application, reserving to myself the decision of the question which may hereafter be raised in relation to said appointment, whenever the subject is brought before the court: therefore, let the prayer of the within petitioner be provisionally granted.”

The judge of the court below disregarded the order, and was of opinion that the plaintiff must qualify as tutor or guardian at the place of his domicil. He maintained the exception, and the plaintiff appealed.

Provisional tutors, for the purpose intended in this case, are unknown to our laws; their powers and duties are nowhere defined, and the court did not err in disregarding such an appointment. Tutorship is an institution of public order, which has no existence unless it is established in strict conformity to law. If the governor were to .send to the Senate provisional nominations of judges, reserving the right to revoke them at pleasure, they would not be constitutional nominations. If, in adjudicating upon an action of debt, a courtwere to say: ‘U understand that in the territory of Wisconsin, where the debt accrued, the plaintiff has no right of action; the law of the contract ought to follow him wherever he goes: yet I will give him a judgment, reserving the decision of the question which may hereafter be raised as to its validity; let the prayer of the petitioner bo provisionally granted ” — such an order would have none of the requisites of a judgment, and would be an absolute nullity.

A receiver may in certain cases be appointed provisionally to take charge of property; but a legal function, the duration of which is fixed by law, never can be provisional.

It is said that no appointment is necessary, where the father applies for the the tutorship : but art. 949 of the Code of Practice expressly provides that, the judge shall confer the tutorship on the father. He must, therofore, be appointed like any other tutor. Berluchanx’s case, 7 La. 539.

The question whether the plaintiff is entitled to an appointment of tutor in our courts, for the purpose of receiving and carrying out of the State the sum he claims, remains to be examined.

It is provided by art. 946 of the Code of Practice, that if the father and mother of the minor reside out of the State, and are not represented in it, and the minor be also absent, he may be provided with a tutor by the judge of probates of the place where his principal property is situated, or where he has intérests to assert or defend. This is an exception to the general rule prescribed by art. 944 of the Civil Code, that tutors shall be appointed by the judge of the minor’s domicil, and its object cannot be misunderstood. Generally speaking, the first object of the tutorship is the care of the person of the minor; the second, the preservation of his property. When the minor is absent, the tutor appointed here exercises no control over his person. He is exclusively tutor ad bona; but so far as relates to the administration of the minor’s property, he is a domestic tutor; he holds under the laws of the State a civil office, which is to endure as long as the minority lasts, or until he is otherwise legally superseded. See Proudhon, Droit des Personnes, vol. 2. His appointment binds him to account to the domestic judge at the expiration of the tutorship. C- C. art. 350. Until the rendition of his account and the delivery of the vouchers in support of it, every agreement between him and the minor arrived at the age of majority, is null and void. C. C. 355.

It would be a mockery of justice as well as a flagrant violation of our laws, to appoint ft tutor under their stringent provisions, for the purpose of enabling him to remove the property of his wards beyond their jurisdiction. The appointment of an under tutor to watch over his administration, and the stern rules which prescribe his duties and secure his accountability, would, under such an hypothesis, be vain things. The law does nothing in vain. It does not confer the power to defeat its commands. No domestic tutor can, by virtue of his appointment, remove the property of his wards out of the State. To obviate in part that difficulty, the jxct of 1843 has recognized as valid and binding upon the courts of Louisiana, the appointment of tutors or guardians made at the place of the minor’s domicil, within the limits of the United States; and there is no doubt that, under the second section of that act, all such foreign tutors or guardians may, at any time, on making a proper showing, compel a tutor ad bona appointed here to account to them, and that they would be authorized to remove the property of .the minors out of the State, upon proof that they had authority to do so by the laws of their domicil.

In Wisconsin the rule is that moveables follow the person, and are subject to the laws of the domicil. The sum claimed in this case, is viewed there as if it were within the limits of the Territory, and under the jurisdiction of its laws. It is admitted in the record that, under those laws, guardians cannot receive sums of money due their wards til! they have given security to account for those sums. An appointment of guai'dian there, would consequently give no power to receive and cany away the sum claimed in this case, till it was shown that the security furnished was correlative to, and given in view of, that sum.

We will not assist the plaintiff in violating the laws which protect his .children, and surrender to him $100,000, without security, against their express inhibition.

In the case of Berluchaux, 7 La., 543, it does not appear that the property of the minor was to be removed out of the State, and we must presume that it was not. As observed by the court, in the case of Delacroix v. Boisblanci 4 Mart. p. 716, fathers have the right to expatriate themselves, and to take their children wherever they go; but when they do, the law presumes in them the intention to return, and, if their children have the property here, under the custody of our laws in consequence of the death of their mother, that property cannot be removed from the State till the father has been qualified as tutor or guardian at the place of his new domicil, and given there, with reference to that property, such securities as the law may require.

The plaintiff’s conusel allege that )t is not in his power to give security. The opposite counsel aver, on the other hand, that he has received a legacy of $70,000, and that he must be able to comply with the laws of Wisconsin, if he is trustworthy. However this may be, we must enforce our laws, as we understand them; his incapacity to receive the sum .claimed, may inure to the benefit of his children and can cause them no injury.

He can under the laws of Wisconsin as a prochain ami, and under those of Louisiana as a father, take all necessary steps for the preservation of such funds belonging to his children, as he is not authorized to receive. The claim may be liquidated, and the amount allowed be brought into court, on his application, and, if necessary, either lent upon mortgage, or invested in real estate for the benefit of the minors, under the equity powers of the court, and the reason and object of art. 348 of the Civil Code.

An analogous proceeding is usually resorted to for the benefit of usufructuaaries, who are unable to give the security required of them by law. C. C. art. 556.

The plaintiff may proceed in the present suit as the father and the friend of the minors, to liquidate their claim, and cause the amount of it to be brought into court; and, if he cannot ultimately give security, he may provoke the investment of it in real estate or the loan of it on mortgage, to be made by order offcourt, rendered on .the advice of a family meeting, held in presence of the under tutor.

It is therefore ordered that the judgment be reversed, and the case remanded to be proceeded in according to law, with leave to both parties to amend; the defendant and appellees paying the .costs of this appeal.