2 La. Ann. 339 | La. | 1847
'The judgment of the .court was pronounced by
The plaintiff instituted this action as the tutrix of the minor children of W. H. Womack, deceased, to recover from the administratrix of Abner Womack, the value ofimprovements made by the father of the minors on a tract of land, which he had been permitted by Abner Womack, his father, to occupy for a number of years. The authority of the plaintiff to maintain the action as tutrix was objected to, whereupon she caused herself to be appointed administratrix of the succession of W. II. Womack, and amended her petition, claiming in that capacity. To the opinion of the court permitting her to make this amendment, the defendants excepted. A judgment was rendered in favor of the plaintiff, from which the defendants appealed.
The judge did not, in our opinion, err, in permitting the plaintiff to amend her pleadings, and prosecute her claim as administratrix. The succession of the deceased was acquired by his 'heirs from the moment of his death, and with it the right to institute all the actions which the deceased could have instituted. These rights of action are not suspended during the delays allowed bylaw to the heir, to decide whether he will acceptor renounce the succession. Civil Code, arts. 934, 939. Erwin et al. v. Orillion, 6 La. 213. O’Donald v. Lobdell, 2 La. 303. 4 Touilier, nos. 82, 83, 84.
A part of the succession which devolved upon the plaintiff’s wards consisted of the improvements in question, and it became her duty, as tutrix, to institute a suit for the recovery of their value, without awaiting the appointment of an .administrator. After the plaintiff had been appointed administratrix of the be- . neficiary succession, it was equally her duty to claim the value of the improvements for the benefit of the entire succession, which she then administered for the creditors as well as the heirs, and for this purpose it was not necessary to institute a separate action. She could well intervene in the suit then pending; and this intervention, in a capacity which authorized her to claim the entire debt, for the benefit of tlie minors as well as the creditors, did not alter the nature of the demand. If there was any foundation for the objection originally urged to the right of the tutrix to claim more than the portion coming to her wards, it ceased when she became administratrix, and in that capacity was made a plaintiff in the action.
During the pendency of the action, a partition of Abner Womack’s succession was made between his widow and heirs. The administrator was thereupon dismissed from the suit, and the widow and heirs substituted as parties defendant. The latter filed a plea to the jurisdiction of the Probate Court, which was overruled, and we think correctly. When the suit was instituted, the succession was under the charge of an administrator, the demand was for a sum of money, and the Probate Court had clearly jurisdiction of the ■cause, of which it was not divested by the subsequent discharge of the administrator, and partition among the widow and heirs.
Upon the merits, it is shown that Abner Womack put his son W. H. Womack in possesaion of a tract of land, on which the latter resided for a number of years, and made useful improvements. It was understood that the son ¡should pay no rent. The plaintiff is entitled to the value of those improvements, and the estimate placed on them by the judge below is fully supported by the evidence. Ware and wife v. Welsh’s Heirs, 10 Mart. 430. The widow and heirs of Abner Womack having been made parties defendant, ¡after the partition, judgment was properly rendered .against them, for their ¡respective portions of the debt. .Judgment affirmed.
