delivered the opinion of the court.
This is a suit against an executor, to account, and against the attorney for the absent heirs of the deceased, for a partition of the estate.
Dr. William Provan died in the parish of Iberville, leaving only one child. By his will, he disposes of one-half of his estate in favor of his son, and of the other half, in favor of his parents; after their death, their half is to go to the testator’s three sisters. The testament contains, also, several special legacies, and provides for the payment of debts, &c. The testator appoints John Henderson and the defendant, Richardson, as his testamentary executors, and as tutors to his son, imposing upon them certain duties and obligations, which he explains in his will, and particularly expresses the wish, and *73instructs his executors, that his son should be sent to his grand-parents, residing in the city of Glasgow, Scotland, to be placed under their charge and protection ; and finally orders, that the whole of his estate, after delivery of the legacies, be sold ; that the proceeds be invested as by him directed, and that the funds so invested, remain under the control of his executors until the age of majority of his son, under the obligation of disposing of the annual revenues for the use of the minor, in case of sufficiency.
A clause in a testament ■which extends the powers of executors in their mere capacity.assuch, to enable them to keep the funds of the succession in their hands, after they have become functi officio, ought to be considered as not written.One of the executors declined accepting the trust; the defendant, Richardson, on accepting the executorship, refused to act as tutor to the minor, and the plaintiff, who is one of his maternal relations, was regularly appointed tutor.
The defendant, Richardson, answers that he is willing to render his account, but avers, that the plaintiff has no right to receive the funds belonging to the minor, the will of the deceased having provided in what manner and by.whom said funds should be invested and-administered. He prays that his account be homologated, and that he be authorized to continue in possession of said funds, in his capacity of executor, according to the will.
The attorney for the absent heirs joins the plaintiff, so far as relates to the rendition of an account, and pleads that plaintiff has no right to claim the tutelage and personal possession of the minor; that under the will, he is to be sent to his grand-parents, and that until this is complied with, the tutor cannot take possession of any part of the estate of the minor. He prays that this clause of the will be ordered to be executed.
The Court of Probates gave judgment in favor of the plaintiff, and the defendants both appealed.
It appears to us perfectly clear, that the defendant, Richardson, cannot, as executor, keep in his possession and administer the estate of the minor; this is not one of the powers and privileges given by law to testamentary executors, and any clause in a testament which would extend their powers in their mere capacity of executors, to keeping the funds of a succession in their hands after they have become functi officio, *74ought, in our opinion, to be considered as not written. Louisiana Code, articles 1652, 1653, 1659, 1661, 1662, 1663, 1665, and 1666. In this case, however, we do not believe that the testator intended that the defandant should have the estate of the minor under, his control as executor; for he has taken good care to appoint him tutor to his son ; and we understand the clauses of the will concerning the estate of the minor, to remain under the control of the executor, as being written only for the purpose of indicating in what manner, as tutor, he is to administer the éstate of his Ward.
Where the (estator appointed his executor also tutor of his minor child, and directed that he keep the share of his child until he became of age, and the executor renounced the tutorship: Held, that lie is bound to pay over the funds of the minor to the tutor after-wards appointed, as soon as his executorship ends. The new tutor is bound to invest the funds as provided in the will, as the power of administering the estate of a minor is exclusively given, by law, to the tutor. The attorney for absent heirs cannot interfere with the person or share of an estate coming to a minor heir, while he is under the direction and care of a tutor. A provision in a will appointing atutorto the soleminor child and also directing* him to be sent out of the country to his graml-parents until he comes of age, cannot both be executed. If the minor be put under a tutor, he must remain here until majority.*74The defendant, Richardson, having no right, as executor, to keep in his possession the funds of the minor, and having refused to accept the testamentary tutorship, is bound to pay over into the hands of the plaintiff, regularly appointed tutor, the portion of the funds of the minor, proceeding from the sale of the property of the testator, and it will become the duty of the new tutor to invest said funds as provided for by the will. The power of administering the estate of a minor, is exclusively given by law to the tutor. Louisiana Code, 344 and 327. But, we see no reason why he should not, in his administration comply with the instructions given in the will by the testator; there is nothing in them repugnant, or contrary to the laws of the state.
We are unable to perceive any right in the attorney for the absent heirs and legatees, to demand that the minor be expatriated; he has no such power under the laws of the state; the object of bis appointment is to take care of the interests of the absent heirs, and to oppose every thing which may turn to their personal prejudice and not to the prejudice of others. Louisiana Code, articles 1654, 1655. Were the minor’s grand-parents residing in the state, they would be entitled to the tutelle legitime, but being absentees, they cannot claim it by proxy, or through their attorney ; the law has never intended that the tutor of a minor, who is in the state, might reside in another country. Louisiana Code, 351.
It is, perhaps, proper to notice the clause of the will relative to the expatriation of the minor, but we are unable to see how it can be enforced ; the duties, powers and privi~ *75leges of the tutor, under our laws, cannot be divided ; he is to have the care of the person of the minor, and it cannot be taken from him. This subject might, perhaps, be properly submitted to the deliberation of a meeting of the family of the minor, who would authorize the tutor to conform to the wish of the testator, but in case of refusal on the part of the tutor, our courts would be without authority to order it, and without power to enforce their decree.
We do not think that this is such a case as damages for a frivolous appeal ought to be granted.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.