Succession of Esteves , 182 La. 717 ( 1935 )

Relator, Joseph A. Esteves, is the duly qualified administrator of the succession of Charles Flores Esteves. Respondents are the judge of the Twenty-Fifth district court for the parish of St. Bernard, and the widow and heirs of decedent.

On May 21, 1935, the widow and heirs of Charles Flores Esteves, deceased, filed a rule in the lower court to remove the administrator, on the ground that he had withdrawn funds from bank, without order of court, to pay certain creditors of the succession, whose claims had been opposed on the account filed by the administrator, and while opposition to these claims was still pending and undisposed of by respondent judge.

Relator excepted to the rule on the ground that it was not a proper proceeding to remove relator as administrator, and on the further ground that the rule failed to disclose any right or cause of action.

These exceptions were overruled by respondent judge, and application was then made to this court for writs of certiorari and prohibition.

It is well settled that an action to remove an administrator is not a summary proceeding, but must be brought by ordinary suit. Code Prac. arts. 1013, 1017, 1018; Succession of Boyd, 12 La. Ann. 611; Succession of Guilbeau, 25 La. Ann. 474; Succession of Calhoun, 28 La. Ann. 323; Succession of Feray, 31 La. Ann. 727; Succession of Bertrand, 127 La. 857, 54 So. 127; State v. Tebault, 147 La. 889, 86 So. 320.

An action to remove an administrator must be commenced by petition and citation, and be conducted in the form of an ordinary suit, notwithstanding the answers in this case of respondents to the rule nisi that, if the relief prayed for by relator be granted, it will lie within the power of the administrator to dispose of and squander the remaining assets of decedent's estate.

It is not within the power of this court to change an ordinary suit to a summary proceeding, in direct violation of the articles of the Code of Practice and of the repeated decisions of this court maintaining procedure under these articles. Relator is entitled to the full protection of the law, although his fairness and faithfulness as administrator are at issue.

It is therefore ordered that the rule nisi herein issued be made absolute. It is further ordered that the judgment herein rendered, overruling the exceptions to the proceeding by rule to remove the relator as administrator of the succession of Charles Flores Esteves, be set aside; that a writ of prohibition issue herein directed to respondent judge, the Hon. J.C. Meraux, judge of the Twenty-Fifth district court, prohibiting him from taking further proceedings under the rule to remove relator as administrator of said succession; that the rights of respondents, the widow and heirs of Charles Flores Esteves, if any they have, to remove relator as administrator by ordinary suit be and are hereby reserved; and that the succession of Charles Flores Esteves pay the costs of this proceeding.