| La. | Jul 15, 1857
Robert Lassitee, alleging himself to be the surviving husband of Rm'melia Sloane, deceased, and tutor of their minor child, Len Moore Lassitee, applied for letters of administration upon her succession.
William O. Jones and Belamare Young, wife of Mugh, Young, children and. heirs of age of Farmelia Sloane, opposed the application, alleging a better right in themselves. Their opposition was sustained and Robert Lassitee has appealed.
In this court, the counsel for Robert Lassitee (who is now the provisional administrator under an appointment by the Clerk of the District Court) has suggested the death of the minor child, Len Moore Lassitee, and prayed that the case he continued to make the child’s heirs parties to the suit.
So far as the claim of Robert Lassitee to the administration is based upon the fact of his being tutor to his minor child, it is obvious that it has lapsed by the death of the child. Instead of being a cause for continuing the suit, and citing in the child’s heir, (that is the appellant himself,) the child’s death is rather a cause for dismissing the application of Robert Lassitee altogether. But as he claims to he a dative tutor to certain minor children of Parmelia Sloane, by her alleged marriage with one Wilson, we deem it proper to examine the claims of the opponents to a preference over him in the administration.
It is only when all the beneficiary heirs are minors, that their tutors or curators can claim the preference for the administration. O. O. 1037.
But “ in the choice of the administrator, the preference shall' he given to the beneficiary heirs over every other person, if he be of age and present in this StataJ O. O. 1035.
“ If there he two or more beneficiary heirs of age and present in this State, the Judge shall select one or two from among them, whom he shall consider thc most solid for the administration of the succession.” O. O. 1036.
The opponents are acknowledged to be heirs of the deceased, of age and present in the State.
But the appellant contends that they are not “ benefieicary heirs,” because they have not yet accepted the succession with benefit of an inventory; and. as the Statute of March 16, 1848, p. 84, makes the minor a beneficiary heir by operation of law, their representativo has as good a right to the administration as the opponents, if not a better right.
“ By term for deliberating, is understood, the time given to the benefieicmy heir to examine if it be for his interest to accept or reject the succession which has fallen to him.” C. C. 1026. Here we find a person who has neither accepted nor renounced a succession styled the “ beneficiary heirand these terms are undoubtedly used in the Article 1842, to embrace not only the heir who has accepted with benefit of inventory, but one who may do so.
We conclude that the opponents are beneficiary heirs within the meaning of Articles 1042.
But it is objected that Delaware Young, wife of Hugh Young, although a beneficiary heir of age, and present in the State, cannot take the office of administratrix by reason of her sex. The cases of Carraby v. Carraby, 7 New Series, 466, and Cusa v. Calvana, 4 Annual, 538, are cited to sustain this position. But it is now settled that although a woman is in general disabled from performing civil functions, (Civil Code, 25,) yet she may be appointed to administer a succeseion in which she is interested as heir. Succession of Block, 6 An. 810; Succession of Penney, 10 An. 290. See also Succession of Williamson, 3 An. 262; Ferrar’s Administratrix v. Lambeth, 11 L. 108.
We are unable to say that the evidence concerning the habits of W. O. Jones, is sufficient to show his incompetency to act in the capacity of administrator.
Judgment affirmed.