Succession of Winn

On Rehearing.

Morgan, J.

On the motion to dismiss our opinion remains unchanged.

On the ninth of April, 1874, John Mayfield, alleging himself to be a creditor of the succession of Winn, brought suit in the parish court of Rapides to destitute her from her trust as executrix. The grounds upon which this action rests are : That in a former proceeding he was instructed by the court to institute proceedings to cause her to be removed; that the executrix has left the State without having left any one in charge of the estate under any recorded power of attorney; that.she has had control of property exceeding in value half a million of dollars, and has never filed an account of her administration; that she has disposed by private sale, of the plantations belonging to the succession. He prayed for the appointment of a curator ad hoe to represent her, through whom, or personally, she might be cited, and that she be destituted as executrix.

M. Ryan Was appointed to represent her. He was cited.

Ryan answered, denying that plaintiff is a creditor of the succession; that if he had ever been his debt was prescribed; that she has complied with all of her duties. He also excepted to the jurisdiction of the court raiione materia. Judgment was rendered in favor of the defendant.

As regards the claim of Mayfield it is supported by nine promissory notes of. $5000 each.

These notes are all dated thirtieth of March, 1860, and were payable on the tenth of November and tenth of December following. On the first of November, 1865, they were acknowledged by the executrix in writing, to be a debt of the succession of Winn.

On the tenth of May, 1870, John Mayfield took a rule upon the executrix in which these facts were related, and he asked that the executrix be ordered to file an account of her administration, and if she has not funds enough to pay him, that she be ordered to sell a sufficient amount of the succession property to pay him.

Service was made, in person, of this rule on the executrix on the eighteenth of May, 1870. This takes the case out of prescription.

*689Upon the merits, it appears from the testimony of her attorney that in 1862 the executrix sold a portion of a certain plantation belonging to the succession by private sale. It also appears that she is not now a resident of the State, and that she has not given a power of attorney duly recorded as required by law, to any one to represent her. These are sufficient grounds for destituting her of her trust.

It is therefore ordered, adjudged and decreed that our former judgment rendered herein, in so far as it maintains the appeal remain undisturbed. It is further ordered, adjudged and decreed that our former judgment in so far as it affirms the judgment of the district court be avoided, annulled and set aside. And it is now ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and set aside, and that.there be judgment in favor of the plaintiff, and against the defendant Mary E. Richards, late widow of Walter Winn, deceased, destituting her from the office of- executrix of the last will and testament of the said Walter Winn, deceased, and that defendant pay the costs in both courts.