Succession of Winn

3 Rob. 303 | La. | 1842

Simon, J.

Among the various grounds upon which the opposition of the appellants is founded, there is one to which our attention has been particularly called, and which, in our opinion, ought to prevail. It is the objection made to the proceedings had before the Court of Probates of the parish of Rapides, on the ground that the court was without jurisdiction, and could not legally appoint a tutor to minors, whose domicil, it is contended, is in the parish of Carroll. The conclusion we have come to on this point, will therefore preclude the necessity of our inquiring now into the various legal points arising from the pleadings and evidence, and which have been ably and strenuously argued and relied on by the counsel on both sides.

It is meet for us, however, to say, that, in considering the question of jurisdiction, on which this, case, as it stands, is to be decided, we have abstained from examining into the validity and legality of the proceedings had in the parish of Can-oil; and that we have given effect to the opposition made by the appellants, not because it was shown to us that they had been duly appointed tutrix and co-tutor, but for the reáson that, under our laws, (Civ. Code, arts. 290, 292,) it is made the duty of the minors’ relations to apply to the judge, to cause a tutor to be appointed to the minors who are unprovided with one. We think that such relations are also authorized, and perhaps 'even bound by law to oppose the appointment of such tutor, if illegally made. The appointment of the opponents by the judge of the parish of Carroll, is a judgment unappealed from, and against which no action of nullity appears to have been brought. As such, it must stand and have its effect, until reversed by an appeal, or annulled and set aside by an action of nullity; and it being our opinion that we cannot inquire into it collaterally in this suit, we have thought proper to leave the questions arising therefrom, entirely open, for future adjustment, in case the same should ever be brought before us in a legal way.

By the 48th article of the Civil Code, it is enacted that a married woman has no other domicil than that of her husband ; and that the domicil of minors is that of their father, mother, or tutor; therefore, when the opponent, the widow of R. Winn, deceased, became the wife of Richardson, she acquired immediately, by the fact of the marriage, the domicil of her second husband, which was in the parish of Carroll; and her minor children, whose domicil is that of their mother, acquired also their domicil in the same parish. The fact which, perhaps, deprived her of the natural tutorship, had the immediate effect of transferring the domicil of the mother and children from the parish of Rapides to that of Carroll. Now, the law is positive that in all cases concerning minors, the judge referred to in our legislation, is the judge of'the parish- within whose jurisdiction the minors reside. Bullard & Curry’s Digest, p. 580, No. 8. Civ. Code, art. 289. The Code of Practice, art. 944, says, that “ the appointment of a tutor or curator to a minor belongs to the Judge of Probates of the place of domicil or usual residence of the father and mother of such minor, if they, or either of them, be living.” This point is, in our opinion, so clear, that it does not require any further comment, particularly as it seems to have been settled in our jurisprudence by several decisions of this court. See 14 La. 484, and the cases of The State v. The Judge of the Court of Probates of New Orleans, 2 Robinson, 160, 418.

We conclude, therefore, that the appointment of the appellee as tutor to the opponent’s minor children having been made by the judge of a parish in which the minors had for some time ceased to reside, was illegal and void for want of jurisdiction, and that it ought to be set aside.

It is therefore ordered, that the judgment appealed from be annulled ; that the appellant’s opposition be maintained on the ground of want of jurisdiction ; and "that the appointment of the appellee as tutor to the minor children of R. Winn, deceased, be set aside. The appellee paying the costs in both courts.