Flint v. Wells

Mathews, J.,

delivered the opinion of the court.

This suit is brought by the curator of one O’Daniel’s estate, against the defendant, who had obtained the administration of it from tbe judge of the Court of Probates of the parish of Rapides, where he was styled administrator of a vacant estate, which, according to law, is to be administered by an officer denominated a curator, the evidence found in the record does not show; he, however, took on himself the management of the estate submitted to his charge, and the present action was commenced by his successor, to compel him to render an account of his said administration. The cause was tried by a jury in the court below, who found a verdict against the defendant, and judgement being thereon rendered, he appealed.

Where a suit is commenced by the curator of a vacant estate, on his predecessor’s bond, and the penalty is not claimed, the action will be considered as one to compel the previous administrator to account and pay over such sums as he may be responsible for in relation to his administration.

for want of j£ the^iahitRNs c°?ts- „ The Court of Probates has diction to corn-Pel a, cm'atOT tor of a vacant count and pay °versuchsums found responSo if such a suit be brought in the District Court, it will be J!~~• — J

The petition sets out the bond given by the administrator, for the faithful performance of his duties; but the penalty appears not to be the gist of the action, as it is not claimed. This is, in truth, a suit to compel the defendant to account and pay over such sums of money as he may be responsible for, in relation to the estate by him administered.

A plea or exception was made in limine lites, to the jurisdiction of the District Court, which was overruled, and the defendant required to answer on the merits. We are of opinion, that the court below erred in its decision on this exception. By the Code of Practice* article 997, it is declared, . ' mat the judges of the Court of Probates shall alone • have power to compel officers, by them appointed, to administer successions, to account and pay over what they may be found te owe. This suit was commenced under the Code of- Práclice, and must be decided according to its provisions; and by these, the judges of the Court of Probates have exclusive jurisdiction in cases similar to the present.

The case of Ryan vs. Young, relied on by the’ plaintiff, and reported in 7 Mar. N. S. 294, has no relation to the present; that case was decided under the old Civil Code. But the decision in the case of Baldwin vs. Rills, (found in the same volume, at page 105), is based on the principles which have directed our opinion in the instance now before the court.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be avoided, reversed, and annulled; and it is further ordered, adjudged, and decreed, that this suit be dismissed at the cost of the plaintifi in both COUrtS.