18 La. 394 | La. | 1841
delivered the opinion of the court.
Nicolas Girod, one of the oldest and wealthiest inhabitants of the city of New Orleans, died on the first of September, 1840; his succession was supposed to he intestate, and accordingly two of his nearest relations and heirs were appointed the curators thereof. Some short time afterwards, an olographic testament was found, dated the 23d of December, 1837, to which were annexed a certain number of Pons, or written obligations in favor of the persons whom he had named in his will as his particular legatees for the several sums therein mentioned,' amounting altogether to $710,000; hut the testator had failed to appoint any testamentary executor.
On the 23d of January, 1841, JeanFramjois Girod presented a petition to the Court of Probates, in which he represented that he had been informed that the deceased’s will would soon be offered for probate ; that it would be necessary to appoint one or more dative testamentary executors to the same, and that being an applicant for the said appointment, he would, if appointed, furnish the security required by law; he also averred that with the exception of his brother, Pierre Nicolas Girod, whose rights were equal to his own, he was the nearest relative to the testator, and entitled to a greater portion of his estate than any other person. On the 25th of the same month, William Freret, mayor of the city of New Orleans, and Denis Prieur, two, of the legatees, made application to the Court of
We have very lately 'had occasion, on a rule for a mandamus, and supposing the power of appointment of dative testamentary executor to be discretionary under the art. 1671 of the La. Code, to express our opinion on the nature and extent of the discretionary power given by law to the inferior Judge, which he had even assumed and carried so far as to . . refuse an appeal to this court from the judgment now under consideration; and in accordance with the doctrine repeatedly recognized in our jurisprudence; we again held that it was within the province of the Supreme Court to inquire into the r r f manner in whieh the Judge a quo exercised the discretion; (a
The art. 1671 of the La. Code, relied upon by the appellees, and by virtue of which the inferior Judge appears to have made the appointment in question, is. in these words : “if the testator has omitted to name a testamentary executor, or if the one named refuses to accept, the Judge shall appoint one ex-officio.” This law gives clearly to the Judge the power of appointing a dative testamentary executor, whenever it becomes necessary to do so in the cases therein pointed out, but we cannot construe its meaning in a more extensive sense than as merely conferring upon him a faculty which he is to exercise according to law; and if so, how can it be pretended that it gives him the power of appointing any one at his pleasure, and of disregarding the rights of those who had laid before him their applications and who had shown themselves entitle to be prefered to others in obtaining the appointment. This would be more than the exercise of a mere legal discretion; it would be the action of an arbitrary power which the law has never had in contemplation, and which our courts ought not to sanction.
This construction of the law leads us to the inquiry whether among the applicants, any of them is entitled to a preference over the others; and whether the judge a quo, could, in exercising the legal discretion vested in him by law, appoint persons who are strangers in interest to the succession, whilst there were other applicants having an interest in it, as heirs or
It is important and proper to remark here that although the succession of Nicolas Girod is a testamentary one, yet his legal heirs being entitled to the benefit of inventory, his estate will ° t # ^ necessarily "be subject to be administered under sucb. benefit, according to the rules and in the manner provided for by law for the administration of such succéssions, La. Code, art. 971. Therefore, the administrator under the will, or otherwise called dative testamentary executor, will unite the powers and duties of both, under the control and superintendence of the Court of Probates. If it be true that the heirs of the deceased are entitled to the benefit of inventory, they cannot be deprived of the right of administering the succession according to the rules ® ° ° contained in the articles of the Code relative to this subject;
But it has been urged that if the heirs were to obtain the appointment, they would be interested in not executing the will, or at least in delaying the payment of the legacies : this argument would as well apply to the heir who claims the administration of a vacant estate or of a succession taken under the benefit of inventory, and yet, in those cáses the law gives them a positive right of preference; La. Code, arts. 1035, 1114; the heir would be as much interested in not paying the debts of such estates, as in not paying the legacies of a testamentary succession : but in all these administrations, the law has provided against the infidelity of the administrators, by requiring
We must not be understood, however, as meaning or inti-plating that the Mayor of the city of New Orleans, who, as trustee, is to receive the legacy contained in the testator’s will for the purposes therein mentioned, will, by virtue of the said legacy be entitled to any right of preference as a legatee or creditor of the estate ; this right properly belongs to the legatees for whose personal benefit the dispositions are made, and who are therefore directly interested in the good administration of the succession. We do not think that any municipal officer or any other person who is to receive a legacy in trust , . . , . . . for others, has any more right of preference m the ment of a dative testamentary executor than the agent of any creditor or any other stranger may have. -
A last question has occurred, whether it is necessary to give public notice of the applications made for the appointment of dative testamentary executor : the law is silent upon this subJ ... ject, but we are inclined to believe, according to the principles
It is therefore ordered, adjudged and decreed that the judgment of the Court of Probates be annulled, avoided and reversed; and that this case be remanded for further proceedings according to law, with instructions to the judge a quo to proceed to the appointment of one or more dative testamentary executors of the last will and testament of Nicolas Girod, deceased, under the legal principles and rules above laid down ; the ap-pellees paying the costs of this appeal.