15 La. 69 | La. | 1840
delivered the opinion of the court.
This is a suit against an executor, to account, and against the attorney for the absent heirs of the deceased, for a partition of the estate.
Dr. William Provan died in the parish of Iberville, leaving only one child. By his will, he disposes of one-half of his estate in favor of his son, and of the other half, in favor of his parents; after their death, their half is to go to the testator’s three sisters. The testament contains, also, several special legacies, and provides for the payment of debts, &c. The testator appoints John Henderson and the defendant, Richardson, as his testamentary executors, and as tutors to his son, imposing upon them certain duties and obligations, which he explains in his will, and particularly expresses the wish, and
One of the executors declined accepting the trust; the defendant, Richardson, on accepting the executorship, refused to act as tutor to the minor, and the plaintiff, who is one of his maternal relations, was regularly appointed tutor.
The defendant, Richardson, answers that he is willing to render his account, but avers, that the plaintiff has no right to receive the funds belonging to the minor, the will of the deceased having provided in what manner and by.whom said funds should be invested and-administered. He prays that his account be homologated, and that he be authorized to continue in possession of said funds, in his capacity of executor, according to the will.
The attorney for the absent heirs joins the plaintiff, so far as relates to the rendition of an account, and pleads that plaintiff has no right to claim the tutelage and personal possession of the minor; that under the will, he is to be sent to his grand-parents, and that until this is complied with, the tutor cannot take possession of any part of the estate of the minor. He prays that this clause of the will be ordered to be executed.
The Court of Probates gave judgment in favor of the plaintiff, and the defendants both appealed.
It appears to us perfectly clear, that the defendant, Richardson, cannot, as executor, keep in his possession and administer the estate of the minor; this is not one of the powers and privileges given by law to testamentary executors, and any clause in a testament which would extend their powers in their mere capacity of executors, to keeping the funds of a succession in their hands after they have become functi officio,
We are unable to perceive any right in the attorney for the absent heirs and legatees, to demand that the minor be expatriated; he has no such power under the laws of the state; the object of bis appointment is to take care of the interests of the absent heirs, and to oppose every thing which may turn to their personal prejudice and not to the prejudice of others. Louisiana Code, articles 1654, 1655. Were the minor’s grand-parents residing in the state, they would be entitled to the tutelle legitime, but being absentees, they cannot claim it by proxy, or through their attorney ; the law has never intended that the tutor of a minor, who is in the state, might reside in another country. Louisiana Code, 351.
It is, perhaps, proper to notice the clause of the will relative to the expatriation of the minor, but we are unable to see how it can be enforced ; the duties, powers and privi~
We do not think that this is such a case as damages for a frivolous appeal ought to be granted.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.