Michel's Heirs v. Michel's Curator, 11 La. 149

Michel's Heirs v. Michel's Curator

11 La. 149 | La. | 1837

Bullard, J.,

delivered the opinion of the court.

The heirs at law of Jean Michel, whose succession had been administered as vacant by a curator, prosecute the present appeal from a judgment of the Court of Probates, homologating the sale and the proceedings which led to it, of a tract of land and some slaves, upon a monition procured by the purchaser.

The alleged nullities in the proceedings had in the administration of the estate, and sale of the property, are four:

1st. That the inventory and appraisement of the property under which the sale was made, is not a legal inventory; does not contain the mention that it was done in presence of any attorney at law duly appointed to represent the' absent heirs, nor does it state the place of residence of the witnesses and appraisers, nor does it show that the witnesses were males of age.

The want of mention, in the inventory, of the residence, ages, and sex of the appraisers and witnesses to it, and that it was made in the presence of the attorney for the absent heirs, are not causes of nullity which will invalidate it, when it is signed by the attorney of absent heirs and the appraisers and witnesses. Where the record shows the appointment of an attorney of absent heirs, under the signature of thejudge ofpro-bates, and seal of his court, and the certificate states he- was duly appointed, it will be pre* sumed he was regularly appointed, until the contrary be shown.

2d. That there never was an attorney legally appointed to represent the absent heirs. The appointment ought to be. made by an order of court, duly entered in open court, and no such order appears to have been entered.

3d. That the application of the curator for the sale of the property was premature and illegal; he was appointed oa the 6th October, and was bound to wait thirty days before he could demand the sale of the real estate, and that the decree ordering the sale and the petition, are both dated the same, 6th October.

4th. That the petition of the curator was never notified to the counsel for absent heirs, and that there is no legal evidence of the existence of such counsel, and the sale was ordered entirely ex parte.

I. The record shows that an attorney was appointed on the 27th August, to represent the absent heirs, and that he took and subscribed an oath of office. He appears to have been present at the inventory, and signed it as attorney of the heirs. The want of mention, in the inventory, of the residence, ages and sex of the appraisers and witnesses, does not, in our opinion, render the inventory null. The code which prescribes the forms of public inventories, has not declared such a nullity, and the courts cannot supply it.

II. The record exhibits the appointment of an attorney of absent heirs, under the signature of the judge of probates, and the seal of his court. But it is said not to appear, that he was appointed by order of court, in open court, and the appointment entered on the minutes. The certificate of the judge states that G-. B. Crozier had been duly appointed, and we are to presume he was appointed regularly, until the contrary be shown. The minutes of the court are not in the record, but the certificate of the appointment appears among the original proceedings, in relation to the estate.

III. The order appointing the curator was made on the 30th August, 1834, and he gave bond and took the oath required by law on the 6th October, following. It is contended by the appellants that the sale is null, because the curator presented his petition for the sale on the same day, *156instead of waiting thirty days, as required by article 1155 of the ,code. It is clear, the curator could do nothing before he had given bond, and taken the oath required. But he was appointed more than thirty days before the order for the sale was given, although not qualified to act until the very day his petition was presented. The only reason assigned by the code for this delay, is, that the curator may inform himself concerning the debts of the estate and the necessity of selling. It is not pretended that the curator was mistaken as to the amount of the debts and the necessity of a sale. We are of opinion, that, as relates to the purchaser of the property, this does not render the sale null.

Where the curator did not give bond and take the oath required by law, until move than thirty da}rs after his appointment, and at the fíame time presented his petition and obtained an order for the sale of the property of the estate, the sale will be valid as relates to the purchasers. The attorney for absent heirs is not bound to make a formal opposition to the application of the curator for a sale of the property of the estate; it is sufficient if the petition is notified to the attorney.and he writes on it that he approved the sale, having no objection toil. The sale of minor’s property, or that of a succession, where the heirs are absent, must pursue the forms of law prescribed for its alienation, or it vyi be annulled. A sale by the register of wills is null, without the order of the judge of probates.

IV. It is lastly contended, that the petition of the curator was never notified to the attorney of absent heirs, and that the sale v as ordered entirely ex parte. It appears that the attorney wrote upon the petition that he approved the sale, having no objection. But it is urged that the law requires a regular contestatio litis between the attorney of absent heirs and the curator, and a formal decree of the Court of Probates. The code requires, that the petition should be notified to the attorney, and this was done, inasmuch as he took cognizance of it, and made no opposition. The attorney certainly is not bound to make a formal opposition when the necessity for a sale is manifest. It would be doing a vain thing, and perhaps prejudicial to the estate.

The counsel relies on the case of Elliott vs. Labarre. In that case no judicial decree was shown, but the property in controversy was sold by the register of wills, without legal authority In the present case we have a formal decree of the Court of Probates, recognizing the necessity of the sale for the payment of debts, and preceded by an opportunity on the part of the attorney for absent heirs, to show that in fact no such necessity existed. The purchaser is not bound, in our opinion, to look beyond this.

It is contended, that in relation to the appointment of the attorney of absent heirs, and his -assent to the sale, we ought to take the affidavit of the attorney as true, to wit: that in a copy of the proceedings in the Probate Court annexed to the *157petition and opposition in this case, no entry is found of any decree of court appointing an attorney, but only a certificate of Crozier’s appointment and his official oath; and that in said copy the words, “ I approve the within sale, having no objection,” and signed by the attorney of absent heirs, are not to be found. But it appears by the judge’s return to a certiorari, that although those words may have been omitted in the copy, they exist on the original papers in his office, as copied in the transcript, and that the original papers were used as evidence on the trial.

The objection that property of a succession was sold for less than its appraised value, will not he received, when this nullity of the sale is not alleged in the pleadings.

If we had to choose between the hypothesis that these words were omitted in the copy, or that they have since the date of the copy been added to the records, interpolated long after the death of the attorney himself, we could not hesitate to adopt the former. Nothing, indeed, gives the least color to the supposition that the record has been altered.

It is lastly urged in argument, that the property was sold for less than its appraised value. We are of opinion we cannot travel out of the opposition, and no such nullity is alleged in the pleadings.

It is, therefore, ordered, adjudged and decreed, that the _ judgment of the Court of Probates be affirmed, with costs.