State ex rel. Jones v. City of Shreveport , 33 La. Ann. 1247 ( 1881 )

On Motion to Revive.

The opinion of the Court was delivered by

Todd, J.

The relator having died since the appeal was taken, Thomas Phillips, the tutor of the minor heir and sole heir of the deceased, has filed in this Court a motion to revive the suit in his name, as the representative of the minor and of the succession of his deceased father, the relator.

This application is opposed by the defendant, on the ground that the tutor does not legally represent the deceased or his succession and cannot stand in judgment therefor. The earlier decisions of this Court sustain this position, 2 Hen. S. 11, p. 1476, but they are overborne by a long line of decisions, commencing over thirty years ago, with the case of Bryan vs. Atchison, 2d An. 463, and followed by many others, which settle the principle, that, where the heirs of a decedent are minors, their tutor can, as it were, ex officio, administer his succession, so long as not opposed by creditors, who may require the appointment of an administrator. C. C. 940-41-42, 945; C. P. 976; Bryan vs. Atchison, 2 An. 463; Succession of Story, 3 An. 502; Monget vs. Penny, 7 An. 134; State vs. Heirs of Leckie, 14 An. 641; Succession of Sutton, 20 An. 150.

It is, however, urged that it was admitted by counsel for the relator before this Court, that there was an application pending for the appointment of an administrator to the succession of the deceased, and this showed an opposition to the tutor’s administration oi the estate. Under ordinary circumstances, such fact might be sufficient to deny to the tutor the right of administration; but, it also appears from the record, that this application is made by the surviving widow of the deceased,' who first sought to revive the suit in her own name and who joined the tutor of the minor heir in her application, which was denied, and, thereupon, she applied to be appointed administratrix, thus showing that there is no antagonism between her and the tutor, but that her application for the administration was made to meet the contingency -of a denial of the tutor’s motion to revive in his name as the representative of the sole heir to the succession.

The motion to revive is, therefore, granted.