The of the court was pronounced by
King, J.The administrator of Henrietta Serret, deceased, with a view to a final liquidation and partition of her succession, presented to the Probate court, as it formerly existed, a tableau exhibiting the debts of the estate, the balance remaining for partition, and the share falling to each of the heirs. The amount due to the succession by Hypolite Hebert, surviving husband of the deceased, arising from sales of the separate property of the wife during the marriage, was also set forth. This tableau was accompanied by a petition, in which the administrator prayed, that the heii’s of the deceased, and Hypolite Hébert, in his own right, as surviving partner, and as tutor to his minor child, also an heir, be cited to show cause why the liquidation and partition should not be made the judgment of the court, tie also prayed that Hypolite Hébert be condemned to pay the sum which he appeared by the settlement to owe, and that the administrator be authorized to distribute the sum, when collected, among the heirs, in the .manner proposed in the partition. The heirs, in their answer, admit the tableau tobe correct, and unite in the prayer for its homologation.
Hébert excepted to the jurisdiction of the Probate court, avering that the question of his indebtedness could only be determined by a court of ordinary jurisdiction, and that it could not be cumulated with a proceeding for a liquidation and partition of the succession, to which the administrator and heirs could alone be made parties. The exception was still pending when our present judicial system went into operation, and the cause was transferred to the District .court. The judge sustained the exception, and dismissed the action against Hébert. The administrator.has appealed.
The defendant cannot complain that he is called into a proceeding having for its object the final liquidation of the succession. As the tutor of one of the heirs, and as the surviving partner of the community, he was properly made a party. Indeed we do not understand his exception to extend beyond the competency of the court to inquire into his indebtedness.
But as far as relates to the demand against him individually for the price of dotal property of the wife alienated during the marriage, which he is alleged to have received and appropriated to his own uses, the action is one of the administrator against him to coerce the payment of a sum of money for distribution among the heirs. The ascertainment of the fact of his indebtedness arising from this cause, does not depend upon the liquidation and partition, but may be determined in a separate action. The defendant stands in the attitude of any other debtor, and it is obvious that the cumulation of a suit against the heirs for a settlement and partition, with actions against debtors for payment, is irregular, and that its tendency is to embarrass judicial proceedings. Although the District court, as at present organized, had jurisdiction of all the matters involved in the-proceeding, it did not, in our opinion, err in driving the administrator to his separate action against the defendant.
Judgment affirmed.