Rost v. Executors of Doyal , 15 La. Ann. 180 ( 1860 )

Buchanan, J.

This is a suit for a partition of certain slaves which belonged, at the time of the death of Stephen Henderson, to the succession of the said Henderson, and to Henry Doyal, jointly.

The plaintiffs sue in their individual names, professing to act in discharge of a duty imposed upon them, as the late executors of Stephen Henderson.

The defendants except to the action on the ground, among others :

That the plaintiffs herein arc no longer the executors of the late Stephen Henderson, and consequently are without right or interest in the premises, and, therefore, incompetent to maintain the present suit.

On the trial of this exception, it was proved that the plaintiffs qualified as testamentary executors of Stephen Henderson, and took out letters testamentary, in the Court of Probates of Now Orleans, on the 15th of March, 1838 ; and that they were finally discharged from their trust as such testamentary executors, by decree of the same court, signed by the Judge of the same, on the 21st of June, 1839.

It was, perhaps, unnecessary to make the proof of the discharge of the plaintiffs as executors of Henderson’s will, inasmuch as the petition declares that they had ceased to be such executors. We are not informed by the pleadings or evidence of any other quality held or possessed by the plaintiffs, which entitles them to maintain this action of partition.

It is, therefore, adjudged and decreed, that the judgment of the District Court, dismissing this suit, be affirmed, with costs.