Baron's Widow & Heirs v. Hodge , 13 La. 58 ( 1839 )

Bullard, J.,

delivered the opinion of the court.

This is an appeal from the judgment of the Court of Probates overruling the opposition of the appellant to the homologation of a sale under the authority of that court, the purchasers having proceeded by monition under the statute of 1834.

Various grounds of opposition, and nullity in the proceedings were set up, but by an explicit waiver of record, most of them have been abandoned. The parties submit to this court only the questions, whether it was competent for the creditors to appoint a syndic to administer the estate of 1 L J Baron, and whether the appellant‘is barred by her own . .i appearance at the concurso.

So, where the •widow and tu-trix of the minor children provoked the meeting of creditors of the insolvent estate of her deceased husband, abandoned the administration, and appeared in the concurso and voted for syndics: jHeld, that she ■was thereby precluded from making any opposition to the proceedings previously had m the matter.

The succession was clearly insolvent, and it appears to us to come under the provisions of the 7th section of the “ act of 1826, entitled an act supplementary to an act entitled an act relative to the voluntary surrender of property, etc.,” which provides, that when a succession shall have been accepted under benefit of inventory, and neither the beneficiary heirs, their agent, tutor, or curators, will accept the administration, it maybe surrendered to the creditors, who are authorized to proceed and appoint a syndic. In the present case, the appellant, who was tutrix of the minor children, provoked the meeting of the creditors, and abandoned the administration. The same rules relative to the administration by syndics in ordinary cases of surrender, apply to successions thus abandoned.

The appellant not only surrendered the administration and provoked a meeting of the creditors, but she appeared at the concurso, and voted for syndic, and we are of opinion that she is thereby precluded from making any opposition to the proceedings previously had in the premises.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.