17 La. 104 | La. | 1841
delivered the opinion of the court.
The late Hanis Jacobs left two minor children and a daughter of full age, married to one B. Hart; his widow, Angelique Yerneuille, qualified as natural tutrix of the two minors, and began to administer on the estate. She caused inventories to be made, and with the advice and consent of a family meeting, obtained an order for the sale of the property left by the deceased. This order was granted on a suggestiqn that the estate was burdened [1071
Three oppositions were successively filed by Tricou, as president of the company of architects, by Staes, and by B. Hart. After objecting to divers expenses and charges, two of the opposing creditors, Tricou and Stalls, contended that the whole account should be rejected as informal and leading to no result whatever, because there was nothing to be distributed, no sales having been passed and no notes or money received. They denied, jporeover, that the tutrix had any right to administer on the estate, which had been accepted with benefit of inventory, because she had received no appointment from the court to that effect, and had given no security whatever. They prayed to be themselves appointed administrators upon their complying with the requisites of the law. The judge below decreed that the tutrix should be allowed ten days to give security agreeably to art. 1041, of the La. Code, and in default of her furnishing such security, that the said Tricou and Staes should be appointed administrators of the estate. The tutrix appealed.
As to the several items objected to in the provisional account filed by the tutrix, the testimony, we think, justifies the decision made on them by the [108] judge below; we shall therefore pass on to the consideration of the principal question in this case; it is whether this tutrix has the right which she claims of administering without being bound to give security; as all other administrators. In support of this pretension, her counsel has referred us to the opinion expressed in Erwin v. Orillon, 6 La. Bep. 213. In that case the only point at issue was whether in suits brought by the heirs of age, and the tutors of the minor heirs, an exception can be taken to their capacity to sue, on the ground that the estate having been accepted with benefit of inventory, an administrator should have been appointed. We have more than once had occasion to remark that the reasoning of courts of justice in pronouncing on the controversies which come before them, should always be considered and understood in reference to the point submitted for their decision, and should not be extended to cases presenting questions quite different. In the opinion alluded to, no positive or absolute right to administer the whole estate was recognized in the tutor of the minor heirs, as the appellant’s counsel seems to imagine ; it was said (no doubt in relation to estates perfectly solvent) that where heirs of age are united with co-heirs, who are minors, and consequently under the protection of a tutoi-, the most reasonable and beneficial course was to leave a succession thus situated to the administration of the tutor until partition; where such a course is adopted, third persons,
But it is further contended, that if the tutrix is bound to give security, it can be exacted only for the amount of the claims of those creditors who require it, and we are referred to the Act of the 25th March, 1828, p. 156, sect. 15. On examination, we are of opinion, that this law has no bearing on the subject before us. It relates to the security which might be required of the heirs themselves when they demand and obtain possession of the effects of a succession, after it has been administered upon, and when there are pending claims against such succession; but in cases like the present the amount of the security to be given is fixed by article 1041 in terms too explicit to be disregarded. As to the trouble, expense and difficulties which the appellant’s counsel apprehends would be the result of the appointment of another administrator, in ease the tutrix cannot give the security required of her, we are not aware that such considerations should prevent us from declaring in any case what the law is on a submitted question; such consequences, [110] if they were necessarily to follow, would at all events be attributable to the unadvised course that has been pursued. But such fears need not, we think, be entertained; all that has hitherto been done, was so done by order and under the sanction of the court. A new administrator would take the succession in its actual state and proceed to its settlement. Such we believe to be the law of this and every civilized country; the contrary doctrine would be destructive of the good order of society and of the faith due to judicial
As to that portion of the judgment appointing Tricon & Staes as administrators, we find nothing in the record to justify such appointment. Trioou does not appear to be a creditor of the estate; he made opposition in the name and.on behalf of the Company of Architects, to whom the deceased was indebted, and Staés has offered no evidence whatever of any claim on the estate.
It is therefore ordered that the judgment of the court of probates be affirmed, except so far as relates to the appointment of Tricou & Staes; which is hereby annulled; and it is further ordered that this case be remanded for further proceedings; the appellees to pay the costs of this appeal.