Magdeleine v. Mayor ( 1811 )

By the Court.

Mathews, J. alone.

The plaintiff demands'an account of certain property left to her children by the will of George Olivar, their natural father, contending that she is by law and by the will, tutrix or guardian of her said children, and that therefore, she is the only person entitled to the administration and management of their property, and further, that she has, by the will, an indisputable title to a portion of the property during her life.

The answer admits the existence of the will, but traverses her right to the guardianship, which she claims under the appointment of the court of probate of Pointe-Coupec.

Two questions arise, 1st, is the plaintiff by the will or by law, guardian of these children ?

2. If she is, could the tutorship be given to another person, to her exclusion ?

I. It appears, on the face of will, that the testator ordered that the plaintiff should remain in possession of the property, to cultivate and manage it, till the age of majority of her children. It, therefore, may be fairly inferred that although she be not expressly named as guardian, the intention of the testator was that she should act as such.

II. It appears, by the record produced by the defendant, that he derives the guardianship from the civil commandant of Pointe-Coupee and that he received it in the month of November, 1804, at which time it is very doubtfull, whether any other tribunal, than the superior court sitting at New-Orleans, was competent to appoint to the office, which the Spanish laws, then in force, call a tutor dative, which is not to be given, when there exists a testamentary or legitimate tutor.

The plaintiff was, therefore, if not expressly by the will, at least by the said law, the tutrix or guardian of her children, and the appointment of the civil commandant is consequently void.

Judgment for the Plaintiff.