Succession of McGee , 151 La. 225 ( 1922 )

OVERTON, J. J.

Rush Wimberly addressed a petition to the district court for the parish of Claiborne, alleging that he is district attorney for the Third judicial district, of which Claiborne forms a part; and alleging further that Isom McGee died intestate in 1897, leaving his widow, in community, Lona McGee, and an only child, Mattie McGee; that Mattie McGee died intestate and. without descendants in 1903, leaving as her sole and only heir at law her mother, Lona McGee; that Lona McGee died intestate about the year 1905, leaving property consisting of lands in the proven oil field of Claiborne parish, and that her succession is a vacant one, the heirs being unknown. He alleges an administration of the vacant estate of Lona McGee is necessary, that he should be appointed curator thereof to administer it, and prays that letters of curatorship issue to him accordingly. Without alleging any necessity therefor, he also prays that letters of curatorship also issue to him to administer the estates of Isom MeGée and Mattie McGee.

Lillie G. Taylor filed an opposition to the ’ application of Wimberly, in which she denies that the succession of Lona McGee is vacant, and in which she avers that she is the duly acknowledged illegitimate daughter of Lona McGee, deceased, and was recognized as such, and as the sole heir of her mother, and put in possession of her mother’s estate, by the district court of Claiborne parish, in the suit of Lillie G. Taylor v. Angeline Allen; and therefore that there is no vacant estate to administer.

The state of Louisiana also filed an opposition to Wimberly’s application; but, because of the conclusion we have reached, it is unnecessary to state its grounds.

In the lower court, judgment was rendered rejecting the application of Wimberly, and he has appealed.

[1] Nothing more appears in the record concerning the proposed administration of the estates of Isom McGee and Mattie McGee than what has been mentioned. The contest has been over the estate of Lona McGee, for, when Isom McGee died, his half of the community property descended to his daughter, Mattie McGee, and when she died, her estate'went to her mother, Lona McGee, who, at her death, was the owner of all the property.

[2] In the case of Taylor v. Allen (No. 24209) 91 South. 635,¹ we have this day rendered judgment, on rehearing, recognizing that Lillie G. Taylor is the illegitimate daughter of Lona McGee, duly acknowledged by her mother, and affirming the judgment of the lower court, recognizing her as such, and placing her in possession of her mother’s estate. Therefore there is no vacant estate; and hence the application of Wimberly falls, for, when there is no vacant estate, it is self-evident that there is nothing'to which to appoint a curator.

For the reasons assigned, the judgment appealed from is affirmed, at appellant’^ costs.

O’NIELL and DAWKINS, JJ., dissent.

1 Ante, p. 82.