M'Rae's Administratrix v. M'Rae

11 La. 571 | La. | 1838

Martin, /.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment which dismisses her petition. She sued as administratrix of her husband’s estate, on which she obtained letters of administration in the Probate Court of the slate of Arkansas.

The defendant, by an exception, denies her right to sue in this state ; she thereupon obtained leave, and filed an amended or supplemental petition, in which she claimed one-half of the property of the estate in the hands of the defendant, in her own right, as part of the community which had existed, between her husband and herself. The defendant opposed the filing of this petition, and his opposition1 was sustained; the court being of opinion that the petition was offered too late; i. e., after the defendant had filed his exception, and the cause had been set down for trial.

An administrator appointed; in' another state, cannot sue or administer on the-estate of the deceased* in this* state, without heingfirst authorized, to do so> by oneofourCourts-* ofProbates. Where a- party sues as adminis-tratrix, and amends her petition so as to claim in her own right, tile amendment will be rejected, as. changing the nature of the- action*

The first exception of the defendant was sustained, and the petition dismissed. It is clear, the District Court did not err; the plaintiff could not administer the estate of her husband in this state, without being authorized so to do by one of our Courts of Probates.

The amended petition, admitting that it was offered in due-time, ought to have been rejected, because it totally changed the nature of the action, altering the substance of the demand, by making it different from the one originally brought. Code of Practice, 419.

The original petition was the demand of the administratrix of M£Rae, of the estate of the deceased, for the benefit of his creditors and heirs. The amendment converted it into a demand by MTtae’s widow, for the one-half of his succession, to which she was entitled, as her share in the community. Indeed, the amendment was introductory of a new action, for it substituted a new plaintiff to the former one.

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