On Merits.
BLANCHARD, J.The dative tutor of the minor heirs of Joseph Wegmann, deceased, administering the estate falling to them, filed in May, 1902, the fourth account of his said administration.
This account showed a balance of $4,184.89 due the minors.. The account was examined and approved in writing by the under tutor.
On June 4, 1902, Joseph Wegmann, one of the minors who had, meanwhile, been emancipated by judgment of the court, took a rule on Peter Wegmann, the dative tutor, to show cause why his share of the said $4,184.89, to-wit: — $836.97, should not be delivered to him, and further “to show cause why all general relief should not be accorded mover.”
And on June 24, 1902, Mrs. A. C. Wegmann, natural tutrix of the minors Elizabeth, Catherine, Pauline and Louise Wegmann, took a rule on Peter Wegmann, dative tutor aforesaid, to show cause why he should not deliver to her the sum of seventy-seven dollars and eighty cents, being a balance due on certain alimony for the support of the minors under her care, which the dative tutor had been ordered to pay her, and why he should not be punished for contempt, and why he should not'be personally liable for certain costs, and why all general and equitable relief should not be granted the mover.
These rules came on for trial on July 3, 1902, and the following judgment was entered up, and the same signed on July 10, 1902, to-wit:—
“When after hearing pleadings, evidence and counsel, for the reasons orally assigned by the court, it is ordered that the rule for contempt be discharged. It is further ordered and decreed that Peter Wegmann, dative tutor herein, be and he is hereby ordered to deposit in the registry of the court on or before Monday July 7, 1902, the sum of forty-one hundred and eighty-four & 89/ioo dollars, stated in his fourth annual account as belonging to this succession, taking a receipt therefor from the clerk of this court.”
From this judgment the dative tutor took, seasonably, a suspensive appeal and it is this appeal that is now before us. -
The record is barren of any evidence, or of any statement of facts made out pursuant to articles 602 and 603 of the Code of Practice.
Lawyers dealing with probate matters and courts of probate will do well to observe the requirements of Code Prac. art. 1042, where it is laid down that the testimony of witnesses in causes before the courts of probate shall be *936taken in writing and made part of the record, and the same with regard to documents filed in evidence.
There being no evidence and no statement of facts upon which the court may act, the appellant filed here, pursuant to Code Prac. art. 897, “an assignment of errors of law appearing on the face of the record.”
He assigns as error that no evidence was offered by the appellees in support of the allegations made in the rule taken on him that the dative tutor (appellant) had failed to invest the funds of his wards, and argues from this that the judgment was rendered without evidence.
• There are two answers to this: First, there appears copied in the record a communication from counsel representing' the appellant, addressed to the clerk of the court a qua in which he is directed, in preparing the transcript of appeal, to begin the transcript with the petition and account filed May 22, 1901, copying all minute entries and the sheriff’s return on certain pleas that are named, and ending with the judgment appealed from and the proceedings relating to taking the appeal. Oounsel for the appellees signs this letter to the clerk, acquiescing in the instructions given.
The clerk’s certificate shows he made out the transcript in accordance with the instructions. He does not certify to a full transcript.
This being the case, how can appellant assign as error apparent on the face of the record that no evidence was taken? For aught we know evidence was taken and omitted from the transcript under the instructions aforesaid to the clerk.
The second answer ,to this assignment of error is that the judgment appealed from, itself, recites it is predicated on evidence adduced.
If that evidence be not in the record, whose fault is it other than appellant’s? Nothing may be assigned as error of law which could have been cured by evidence legally adduced. Succession of Bailey, 25 La. Ann. 580.
He assigns as further error (and this is his main contention) that he (the appellant), the duly appointed and qualified dative tutor of the Wegmann minors, is alone entitled by law to the possession and custody of the property of the minors, and that no law of the State authorizes the probate court to order him to deposit funds, in his hands belonging to the tutorship, in the registry of the court,
While it is undoubtedly true that_the possession and custody of minors’ prop'erty and funds are entrusted by the law to the tutor, who is required to give bond and security, and who is directed to invest their funds, etc., cases may arise out of the ordinary — exceptionable cases — where, owing to peculiar circumstances existing, or imminent, the court may find it advisable, in the interest of the minors, who are under its protection (for a tutor administers as an officer of the court) to order their funds ,deposited temporarily in its registry.
In such case such order may legally be made. Jurisprudence sanctions this. See Burdeau, Tutor, v. Davey, 43 La. Ann. 585, 9 South. 752; Koehl v. Solari, 47 La. Ann. 894, 17 South. 464.
Whether the facts of the instant case were of such an exceptional character as justified the judge, in the exercise of a reasonable discretion, in making the order complained of, we cannot say, for, as heretofore shown, the evidence does not appear in the record, and in its absence we must presume the judge acted wisely and discreetly, and sustain him.
Judgment affirmed.