23 La. Ann. 24 | La. | 1871
The widow of the deceased, after having been confirmed as natural tutrix to the minors, applied for letters of administration. This application was opposed by R. N. Sims, who asserted a better right to the appointment; whereupon the public administrator applied for, and obtained, the appointment under the second section of article No. 87, of 1870, which provides: “ That, in all contestations for
' Soon after this he presented a petition for, and obtained, an order to sell all the property of the succession for the purpose, as he alleged, of paying the debts. Prom these two ex parte orders the widow and tutrix appealed.
The appointment of the public administrator seems to be clearly authorized by the above section, as the condition for the same then existed — a contestation for the administration of the estate. The second order was improvidently granted. The fact that the law directs the appointment to be made until a final decree determines the rights of the respective claimants, necessarily implies that it is provisional only, and the public administrator so appointed has only the powers of a provisional administrator, and not those necessary to settle up the succession. If he were authorized to sell the property and pay the debts, the contestation for a permanent appointment might be vain and fruitless. “Lex neminem cogit act vana sen inutilia.”
It is therefore ordered that the decree appointing II. L. Swords, the public administrator, to administer this succession pending the contestation for the appointment of a permanent administrator, be affirmed. And it is further ordered that the order of fourteenth November, 1870, decreeing a sale of all the property of this succession for cash, be set aside and annulled; the costs of said order and of this appeal to be paid by II. L. Swords, appellee
