The judgment of the court (EusUs, C. J. being absent,) was pronounced by
Preston, J.John H. Bruns applied for the ciiratorship of the succession of Henry Block, a deceased minor. Bertha Block,Job aunt, and only heir in this country, made opposition, and was appointed.'
It is urged, that her opposition was made too late, as the application of Bruns had been advertised ten days. But Bruns had litre yet been appointed by an ordex- of court, and, thei'efoi’e, she was in time to oppose the appointment. Succession of McKinney, 4th Ann., 25.
Her appointment is opposed, on the ground that she is a female, and incapacitated by the 25th article of the Civil Code, which -provides that women cannot perform any civil functions, except those which the law specially declares them capable of exercising. Under this provision, it has been frequently held that women could not be appointed the curators of estates. 4th Ann 538. Carraby v. Carraby, 7 N. S. 466.
But the law makes exceptions. Thus, the 1114th article of the code provides, that in contestations for the euratorship of a vacant_succession, the surviving wife shall be preferred to creditors, and we so held, in the case of Sears v. Wilson, 5th Ann., 689. An act of the Legislature, passed in 1840, page 123, also recognizes powers in an administratrix or curatrix, when an heir or legatee of the deceased. We think this a recognition of the capacity of females to perform those civil functions, when thus interested in the property.' The reason of the exception is very forcible. In the present case, it is admitted, that the curati'ix is an heir of the deceased, and, as no other appears,. may be the owner of the whole property. It would be most unreasonable to give its administration to a strangei-, when she claims it herself.
The judgment of the district courtis affirmedvjvith costs.