On Rehearing.
LAND, J.On April 10, 1910, Natal Maestri presented a petition to the court below in which he represented that Gladys Desina, wife of Walter S. Maestri, had departed this life, leaving a last will and testament in notarial form, of date January 21, 1912 (1913), in which the petitioner was appointed executor, with seisin of the estate.
The petitioner further represented that the testatrix died on March 27, 1913, leaving a child named Gladys, born two days before her death. The testament annexed to the petition showed that the husband had been constituted as universal legatee, and his father appointed as executor.
The petitioner prayed that said last will and testament be ordered registered and executed ; that the petitioner be confirmed as testamentary executor, and that letters issue to him as such on his taking the oath prescribed by law; and that an inventory of the estate be taken by a certain notary according to law. The orders were granted as prayed for, without notice to any representative of the minor heir.
On April 21, 1913, Marco Desina, the father of the decedent, petitioned the court to decree said testament to be null and void because of the subsequent birth of the child, Gladys Desina, and because the decedent, being at the time under 16 years of age, had no capacity to make a testament.
The petitioner further showed that there was a conflict of interest between the said Walter S. Maestri and his minor child; that the estate of the child will depend on the result of the proceedings; and that said Maestri had been unfaithful in the discharge of his duties towards his said child in not disclosing to the court the subsequent birth of said child, which made said will inoperative and destroyed the universal legacy of the said surviving husband and father.
Petitioner further showed that under such circumstances the said Maestri was not entitled to the tutorship of the minor, Gladys, and that the petitioner, as her grandfather, was willing to accept said trust and_ to furnish all necessary security.
Petitioner further showed that the estate of said minor consisted of mortgage bonds in the registry of the court of the value of about $30,000.
*414Petitioner prayed that said last will be decreed null and void, and that the decree of the court, admitting said will to probate and authorizing letters testamentary to issue, be vacated and recalled.
Petitioner further prayed that the said Maestri be excluded from the tutorship, and that a tutor be appointed to said minor; and that, if the said will should be decreed valid, the universal legacy be reduced to the disposable portion.
Petitioner finally prayed for citation to Walter S. Maestri and Natal Maestri, and for general relief and such further orders, as might be necessary in the premises.
John Sbisa was appointed and qualified.as tutor ad hoc to said minor.
It may be here stated that Marco Desina was the tutor of Gladys Desina, deceased wife of Walter S. Maestri.
Natal Maestri, as executor, and Walter S. Maestri, as natural tutor (not qualified), of the minor, Gladys Maestri, excepted to the petition of Marco Desina on the following grounds:
“That said petition is vague and indefinite. That the petitioner has no capacity to bring this suit, as he is no forced heir.
“That the petition discloses no right or cause of action in his favor.”
Sundry proceedings were had, which culminated in the filing of a final account by Marco Desina as former tutor of the decedent contradictorily with a tutor ad hoe appointed to represent the minor. Natal Maestri, as executor, and Walter S. 'Maestri, as natural tutor not qualified, opposed the proceedings on the ground that they should have been conducted contradictorily with the executor of the estate.
It appears that on November 20, 1913, Walter S. Maestri was confirmed as natural tutor by judgment of the court, and duly qualified as such. On the same day,'Csesar Maestri was appointed and qualified as undertutor.
Marco Desina ruled Walter S. Maestri to show cause why said order and the letters issued thereunder should not be recalled and set aside.
Judgment was rendered on November 28, 1913, sustaining the exceptions against the suit of Marco Desina, and dismissing the same with costs, and ordering and instructing Csesar Maestri, undertutor, to institute an action against the tutor for the purpose of having the will decreed null and void, or for the purpose of having the dispositions reduced to the disposable portion, and to institute such action as might be necessary for the removal of the tutor on the ground of his failure to disclose to the court the conflicting interest between himself and his minor child.
It was further ordered that the report of the tutor ad hoc be filed, and that he be discharged, and that the executor, natural tutor, and the undertutor, severally, oppose the account filed by Marco. Desina.
It was further ordered that the powers and functions of the tutor be restricted to the care and custody of his minor child and to representing her in judicial proceedings, until the litigation terminated.
On the same day the undertutor filed a suit to have the last will and testament of the decedent decreed null and void on the same grounds set up in the petition of Marco Desina, and, in the alternative, to have the legacy to Walter S. Maestri reduced to two-thirds of the estate, and the minor recognized, by decree of the court.
Marco Desina and John Sbisa, tutor ad hoc, have appealed.
Article 1705 of the Civil Code reads as follows:
“The testament falls by the birth of legitimate children of the testator, posterior to its date.”
1 In the ease of Buelow, Dative Tutrix, v. Mandal et al., 28 La. Ann. 697, the court held that, in such a case, the testament be*416comes a void instrument, and its probate without legal effect.
In Succession of Senac, 2 Rob. 260, the court, speaking of a similar will, said:
“The will of Senac became absolutely void on the 10th of April, 1837, when the child was born, as much so as if it had been expressly annulled and revoked by the testator himself. 5 Toullier, No. 313. In such a case the testator, who has not made a new will, must be considered as having died intestate."
[6] In the .instant case, the petition of the so-called executor alleged the birth of the child after the date of the testament, and therefore showed on its face the absolute nullity of the instrument and of the probate proceedings.
[7] We assume that the allegation of the subsequent birth of the child was not brought to the attention of the judge below, and that he signed the probate decree in ignorance of that fact. Having, through error and mistake, probated the void instrument as a will, it was the duty of the judge to have vacated the improvident decree, as soon as informed of the fact of the subsequent birth of the child. If the inferior court discover that an order given by it is erroneous, it may itself set it aside. 1 Hennen’s Digest, p. 330, No. 3; In re Albright, 122 La. 275, 47 South. 604.
What the judge may do of his own motion, he may certainly do on the petition of .a relative or friend of a minor, who is,a ward of his court, and entitled to its protection. Hence we conclude that the judge, on the filing of the petition of Marco Desina, should have at once revoked and canceled his order of date April 11, 1913, directing that the last will and testament of the deceased be registered and executed, and confirming Natal Maestri as testamentary executor.
[8] The right of Marco Desina, the grandfather, to exclude or remove the father from the natural tutorship is a different question.
Article 305 of the Civil Code, as amended by Act No. 82 of 1880, reads as follows:
“No cause of exclusion or removal is applicable to the father, except the following: First, Unfaithfulness of his administration. Second. Notoriously bad conduct. Third. Abandonment of his children and failure to support and maintain them for more than one year.”
The undertutor, if there be one, or a curator ad hoc, is the proper person to sue to remove the tutor. Code of Practice, 1015, 1016.
In the case of Birds’ Heirs v. Black, 10 La. 82, the court held that uncles of minor children had no authority to sue to remove their undertutor, and said:
“In regard to tutors, the Code appears to have given to any one the faculty of communicating, to the judge of probates, information of any circumstances authorizing their removal from office; but, to effect this, a suit must be instituted for that purpose by a curator ad hoc, appointed by the judge of probates. A suit brought by a person without legal authority would be nugatory and vexatious, because judgment * * * would not form a res judicata.”
In McGuire v. Ross, 12 La. 575, it was held that the action for the removal of the tutor must be brought by the undertutor, if there be one; and that the appointment of a curator ad hoc in that ease was a nullity. This doctrine was reaffirmed in Welch v. Baxter, 45 La. Ann. 1062, 13 South. 629.
It follows that there is no warrant of law for the suit of Marco Desina, as far as the exclusion or removal of the natural tutor is concerned.
It is therefore ordered that the instrument of date January 21, 1913, purporting to be the last will and testament of the deceased, Mrs. Gladys Desina Maestri, be declared to be null and void, and that all the probate proceedings and orders in the court below relating to said instrument be annulled and canceled, and that the costs of this proceeding be paid by the succession; and it is further ordered that, as thus reversed in part and amended, the judgment below- be affirmed.