10 La. 454 | La. | 1836
delivered the opinion of the court.
This is an action by the plaintiff, as natural tutrix of her minor daughter, against the co-heirs and the administrator of the ancestor’s estate. The estate is alleged to have been administered, reduced into cash, and forms a gross sum in
The defendants denied that the wife had been legally maintained in her tutorship on her second marriage. This plea was sustained, and judgment rendered in favor of the defendants. The plaintiff obtained a new trial.
The defendants then, with leave of the court, filed a plea alleging, that the plaintiff could not maintain an action of partition, without its having been recommended by the advice of a family meeting, and the special authorization of the judge.
This plea was sustained, and judgment rendered in favor of the defendants, as in case of a non-suit; from which the plaintiff appealed.
We will proceed to examine the last plea first, which relates to the right of the plaintiff to maintain the action of partition.
It is true the petition concludes with a prayer for the partition of the estate of the common ancestor, and if the succession consisted of any other things than money, the , ,,, it»** . ^ . plea would be good. Jout it is averred that it consists of a sura moneY iQ the hands of the administrator. Co-heirs have an undivided interest m each and every part of the , , . ... property of the ancestor, lhe object of a partition is to destroy that indivisión, by vesting in each the exclusive property of that part of the estate which falls to his share, aQd of extinguishing his right to the rest. If a sum . of money’ the j“nt ProPerty of two persons, be in the hands of a third, there is no necessity for a partition ; each may de-mand the payment of half of it. A sum of money is an ideal or *nc°rp°real thing, which is not susceptible of actual partition, but it is of division. The court therefore erred in sustaining the plea and giving judgment, as in case of non-suit.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and this plea overruled.
Proceeding to give such a judgment, as in our opinion ought to have been given in the court below, our attention is called to the first plea of the defendants. It appears that the plaintiff, before her second marriage, provoked a family meeting, and was maintained by it in the tutorship of her minor daughter, but this court has been unable to find the evidence of the homologation of the proceedings of this family meeting on the record.
The Louisiana Code provides that the tutrix shall be deprived of her tutorship ipso facto, if she marries without having provoked a family meeting to retain her in the tutorship. This is an affirmative pregnant with a negative, that her marriage, after she has provoked a family meeting, does not deprive her of the tutorship. If the family meeting maintains her in the tutorship, and the judge homologates the proceedings, it is clear that her right to the tutorship will not be impaired by the marriage. If the meeting declines to retain her in office, it is equally clear that this circumstance will authorize her destitution. But perhaps this destitution must be pronounced contradictorily, because the law has not said that it shall take place ipso facto, as in case of her neglect to call a family meeting.
It is, therefore, ordered, adjudged and decreed, that the first plea of the defendants be overruled, and the case be remanded for further proceedings according to law; the costs of the appeal to be paid by the defendants.
