Succession of Miller , 28 La. Ann. 573 ( 1876 )

Morgan, J.

John E. Miller died in 1857. He left a will and appointed John Moore and C. Yoorhies executors thereof.

His niece and only heir, as the record shows, was put in possession of the estate since 1859.

The public administrator applied for the administration of the estate upon the ground that it remained unsettled. He is opposed by Mrs. Cordelia Wheeler, the niece and heir of Miller. The parish judge appointed the public administrator to take charge of the estate. Mrs. Wheeler appeals.

The public administrator moves’ to dismiss the appeal on the ground that the appellant moved for and obtained a suspensive appeal, and that a suspensive appeal does not lie from a judgment appointing an administrator. Whether the appeal granted was suspensive or not is a matter of no consequence here. It is sufficient for us to know that the-appeal is before us.

The motion to dismiss is denied.

' On the merits, it is evident that there is nothing for the public administrator to administer upon. As heir, the opponent took possession of the estate, having been formally put in possession by one, at least, of the executors.

The public administrator says in his testimony that he represents no one in this controversy except himself as public administrator, presuming that Mr. Miller’s succession is vacant.

The succession is not only not vacant, but there is no succession to administer, the heir thereof having possession of the same.

It is therefore ordered, adjudged, and decreed that the judgment of the parish court be avoided, annulled, and revérsed; that the opposition of Mrs. Cordelia Wheeler be maintained; that the application of the public administrator be dismissed, and that he pay the costs in both courts.