State v. Bermudez , 13 La. 221 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

In this case we granted a rule on the, judge of the Court of Probates, to show cause why he should not grant an order for the registry and execution of the will of the deceased, as provided in articles 1681 and 1682 of the code.

It is stated, in the petition, that the will was made in England, and has been admitted to probate there; that a copy duly authenticated of the will and probate thereof, has been presented to the judge of the court of probates by the petitioners, who are the testamentary executors, with a prayer for an order for the execution and registry of the will.

They allege, that the judge refuses to give an order for the registry and execution of the will, without coupling with it an order for the appointment of a dative testamentary executor. They pray for a mandamus to the judge of the Court of Probates, commanding him to give an order for the registry and execution of the will, absolutely and unconditionally.

The rule was served on the judge of the Court of Probates, on the 21st of March last.

The judge, in answer to the rule, states, that a final decree was rendered in this case on the 24th of December last, and signed on the 22d of March instant, from which he has always been ready to grant an appeal, which he considers to be the only remedy the applicants are entitled to. It appears that the decree of registry and execution was accompanied with an order appointing Christopher Adams dative testamentary executor of the deceased, on his complying with the requisites of the law.

It does not appear that any application was made to the Court of Probates for the appointment of a dative executor, by a creditor or any person having an interest in the estate; nor does it appear that there are any creditors, heirs, or legatees of the testator in the state ; and it is not denied that his domicil was in the kingdom of Great Britain, nor that the property of the succession within the jurisdiction of the court is moveable.

We are bound to consider the decree of the Court of Probates of the 24th of December, and signed on the 22d of March, after the service of the rule, as a nullity. The rule is made absolute. The judge of the Court of Probates is commanded to order the registry and execution of the will, without any other form than that of registry.