Succession of Vennard , 44 La. Ann. 1076 ( 1892 )

The opinion of the court was delivered by

Fenner, J.

This is a controversy as to the tutorship of the minor,Henry V. Smith, the son of Francis C. and Alice M. Smith, residents •of the city .of New Orleans.

Francis O. Smith died in 1884, leaving this minor son as his sole heir. His succession was opened in the Civil District Court, and was allotted to Division O, and in.that proceeding, the mother Alice ■C. Smith, appeared and was qualified as natural tutrix, with Henry T. Vennard, grandfather of the minor, as under-tutor, under an inventory showing a small estate appraised at $877.80.

The natural tutrix subsequently died, and the minor was then sent to an aunt in Melrose, Mass., “ for the purpose” (as stated in the admitted facts) “ of receiving a proper education, and being undér proper moral training.”

No new tutor was appointed to the minor.

In 1862 the grandfather and under-tutor, Henry T. Vennard, died, leaving a large estate, in which the interest of the minor, as one of his heirs, was appraised at $55,049.68.

The succession of the grandfather was opened in the Oivil District Oourt, and was allotted to Division B of that court. *

The minor-was thus left without either a tutor or under-tutor, and the bulk of his estate was embraced in the succession of his grandfather, under administration in Division B.

No proceedings were taken to fill the vacancy in Division 0, where the original tutorship vras opened; but George H. Vennard, maternal uncle of the minor, filed an application for dative tutorship’ in the succession of the grandfather before Division B.

The usual formalities were fulfilled, an inventory of the minor’s estate was taken, and a family meetingwas held, which recommended the appointment of the applicant.

While this application was pending, Dr. Julius S. Olark, of Massachusetts, presented a petition in the same proceeding and before the same Division B, exhibiting letters of guardianship which had been issued by the Probate Oourt of Middlesex county, Mass., where the minor remained under charge of his aunt, and praying to be recognized as such under the law of this State relative to foreign guardians.

Dr. Olark did not appear by way of opposition to the application of Geo. H. Vennard for tutorship, but the latter did appear and file an exception to the petition of the guardian, on the grounds that it exhibited no cause of action, and no legal authority to represent the minor.

The matters seem to have been tried and submitted together on evidence adduced by both parties, and judgment was rendered refusing to recognize the Massachusetts guardian, and appointing George H. Vennard as tutor, from which judgment the guardian appeals.

The eorrectness of the judgment on the merits of Clark’s application does not admit of serious controversy.

The textual provisions of our codes fix the domicil of the minor at the domicil of his father, mother or tutor. R. C. O., Art. 39. The father, mother and tutor of this minor never had any other domicil than this city. These provisions further direct that the appointment of tutors belongs to the judge of the domicil of the father or mother, if either is living, or if dead, to the judge of their last place of domicil. Rev. O. C., Art. 307; O. P., Arts. 944, 945.

The law fixes the domicil of minors and attaches it to that of their parents or tutors. Minors are incapable, by any act of their own, to change their domicil.

The instant case runs on all fours with that of Succession of Stephens, 19 An. 499, where after the death of the parents who were domiciled here, and after the death of the tutor who had been appointed here, the minors were removed to another State by their nearest relations, who had themselves appointed guardians in said State, and then applied to the court here to be recognized as such. This court rejected the application on the grounds that the removal of the minors did not change their domicil, and that no court other than that of the domicil had power to appoint a tutor or guardian. See also Sue. Shaw, 13 An. 265; Story’s Conf. of Laws, Sec. 46; 5. Am. and Eng. Ency. of Law, p. 866.

In the succession of Shaw, just cited, the court weightily said:

*c With all the respect which we entertain for the acts of the authorities in our sister States, we ean never admit the least validity in the appointment of a guardian by the courts of another State to a. minor whose domicil is here. As a consequence, in virtue of such foreign appointment, such supposed guardian can not stand in judgment nor exercise any right in our courts in reference to the minor which any other stranger could not exercise.”

The judgment appealed from is a double one: first, rejecting the application of the foreign guardian; second, appointing Yennard as tutor.

On the firsr branch we consider that the correctness of the judgment is conclusively demonstrated, and this conclusion, as we think,, puts an end to the rights and interest of the appellant in this appeal.

He undertakes, in this court, to attack the judgment appointing the tutor, on the ground that Division B of th’e Oivil District Court was without jurisdiction to appoint the tutor.

He urged no such objection in the lower court. Not only so, but he never made any issue of any kind on that application, and can not be properly considered as even a party thereto. The applicant for tutorship had complied with all the requirements of the law; no opposition had been or was ever filed thereto, and, on the face of the papers, nothing stood in the way of his appointment in due course, except the pendency of the separate and independent application by the foreign guardian. When that was rejected, under the issues before the court, every apparent obstacle to the appointment of the tutor disappeared, and, naturally, the appointment followed.

Clark never appeared in any other capacity than as foreign guardian, and never claimed any other relief than to be recognized as such. When the existence of that capacity was negated by the decision of the court he disappeared as a party to the cause, unless, by appeal, he could reverse that judgment; and now, that decision having been affirmed, his obliteration as a party must stand good.

His right as appellant is exhausted when the only issue tendered by him, or in which, in the capacity in which he appeared, he had any interest, is determined adversely to him.

If, as an individual or third person, he has any right or interest to appeal from the judgment appointing the tutor, he must conform to the rules prescribed for appeals by third persons not parties, which he has not done.

While not meaning to cast any reflection upon the validity of the judgment appointing the tutor, the above views indicate the logical necessity that we should abstain from passing thereon on the present appeal.

It is therefore adjudged and decreed that the judgment appealed from, in so far as it rejects the application of appellant as guardian, be and the same is hereby affirmed, and that, in other respects, the appeal be dismissed.

Rehearing refused.