Succession of Gorrisson , 15 La. Ann. 27 ( 1860 )

Buchanan, J.

F. A. A. Heisen, tutor of the minor, Catharine Bollenhagen, under the appointment of the District Court of the Parish of Caldwell, took a rule upon the executor of Frederick Gorrisson, whose succession is opened in the parish of Orleans, (the said minor being a legatee and creditor of said Gorrisson,) for an account of administration, and for payment of the legacy bequeathed by Gorrisson’s will to the said minor.

The executor defends the rale on the ground, that the District Court of Caldwell was without jurisdiction to appoint a tutor to the minor, Bollenhagen, rations persona, the domicil of said minor not being in the said parish ; and that the appointment of the mover in the rule, as tutor of the said minor, was null and void, by reason of such want of jurisdiction.

On trial, the rule was modified by consent of parties, as follows :

“ It is understood that that part of the rule which calls for an account, is not insisted on, as the succession is not in a condition to enable the executor to file an account at present, and that five hundred dollars would be sufficient at this time to pay the bills due for the education and expenses of the minor; which said amount is insisted on being paid by the executor to meet the wants of the minor.”

It was admitted that the plaintiff in rule was appointed tutor, as alleged in the rule; that Catharine Bollenhagen is without means for her support, and is in need of some of the money due from the estate of Gorrisson, to pay for her maintenance ; that the estate of Gorrisson is indebted to her in the sum of three thousand eight hundred dollars, as well as can be ascertained at this time, as tutor of the minor, Catharine Bollenhagen ; and that also, by the last will of said Gorrisson, he bequeathed to her the sum of five hundred dollars, the family pictures and jewelry.

There is a bill of exceptions taken by the plaintiff in rule, to the admission by the court, of evidence offered by the defendant, to prove that the appointment of the plaintiff, Heisen, as tutor to the minor, Catharine Bollenhagen, was null and void for want of jurisdiction, and did not authorize proceedings herein against the. executor.

The court erred in admitting this proof. The appointment of a tutor to this minor, was a judgment of a court of competent jurisdiction ratione materia, which could not thus be collaterally drawn into question by a debtor of the minor. So long as that judgment stands unreversed, it constitutes a full warrant for the demand and collection by the person therein named as tutor, of debts due to the minor, Bollenhagen-.

The Second District Court of New Orleans is without jurisdiction, to decree w the nullity of a judgment rendered by the District Court of the Eleventh District, holding sessions in the parish of Caldwell, in a direct action ; still less can it do so collaterally. 1 Hennen’s Digest, 811; 3 Robinson 305; 14 An. Rep. 625.

It is, therefore, adjudged and decreed, that the judgment appealed from be reversed, and that plaintiff in rule and appellant, have judgment against defendant and appellee, in his capacity of executor, for five hundred dollars, with costs in both courts.

Lard, J., concurring. It is true that the domicil of the tutor, so long as he continues to act as such, is the domicil of the minor. It is also true, under the decisions of this court, that the Judge of the parish of the tutor’s domicil, has jurisdiction as to all matters touching the administration of the minor’s property, or affecting his interest during the continuance of the tutorship. But these principals of law are not necessarily decisive of the question now before the court and which is, in my understanding of the cases, still an unsettled and open question.

There is no express law which makes the tutor’s domicil, the minor’s domicil, after the death of the tutor. But there is an express law which makes the last place of domicil of the father and mother, the domicil of the minor, for the purpose of the appointment of a tutor to the minor, and that is the domicil of the minor mentioned and intended in Article 289 of the Civil Opde, as clearly shown by Article 945 of the Code of Practice.

If the domicil of the minor continues by operation, or presumption of law, to be that of the last place of residence of his deceased tutor, until another be appointed, then the enactment of Article 945 of the Code of Practice, was entirely unnecessary, because the last plaee of domicil of the deceased father and mother continued by operation of law, to be that of their minor children, without any express legislation on the subject.

The Legislature, however, seems to have rejected such presumption, and to have acted on the principle, that the minor has no place of domicil after the death of his tutor, and before the the appointment of another iu his stead, and consequently, has provided for such a case, by declaring that the last place of domicil of the deceased father and mother in the State, shall be the minor’s domicil for the purpose of the appointment of a tutor.

For these reasons, I concur in the decree in this case.

Note. — The case of the Succession of Winn, 3 Rob., was properly decided under Article 944 of the Oode of Practice, because the parish of Carrol was the domicil of the surviving mother.