By the court: (Slidell, J., absent.)
Eustis, C. J.No. 2416. — By the will of the late John McDonogh, seventeen persons were named executors, of whom eight resided in New Orleans, and six resided in Baltimore, and three elsewhere.
*473Four of the residents of New Orleans were qualified as executors, received their letters testamentary, and took upon themselves the performance of their trust. Five of the non-residents, viz : Messrs. Gurley, Howard, Mayer, Gibson and Smith, were also qualified as executors, received their letters, and entered upon the performance of their duties.
This appointment has given rise to several appeals, from decrees rendered by the Court of the Fifth District of New Orleans. The questions involved in each case, though dependent, it will be necessary to examine separately, leaving out of view all matters not necessarily connected with them.
An appeal is taken by the New Orleans executors of the succession of John McDonogh, from two decrees, by which R. R. Gurley, Benjamin C. Howard and Brantz Mayer, were admitted to be qualified as executors of said succession, and letters testamentary were directed to be given to them, without their being required to give security.
The third section of the Act of 1842, amending the article 924 of the Code of Practice, and for other purposes, provides, “that whenever the testamentary executor named in the will, shall be present in the State, but be domiciled out of it, the judge shall only grant him the letters on the execution of his bond, with a good and solvent security, for such a sum, and under such conditions as are required by law from dative testamentary executors.” Acts of 1842, 302.
This law is plain, free from doubt, and imperative. The residence of the gentlemen is alleged, in their petitions, to be in Baltimore, and those. appointments, without being required to give security, cannot be maintained. The decrees appealed from, must therefore be reversed; the appointment of Messrs. R. R. Gurley, B. C. Howard and Brantz Mayer, as executors, vacated ; the appellees to pay the costs of the appeal.
By the court *.
Eustis, C. J.No. 2456. — On the 1st December, 1851, a judgment was rendered, by which the letters of testamentary executorship, heretofore granted to R. R. Gurley, Benjamin C. Hoivard and Brantz Mayer, of the city of Baltimore, in the succession of John McDonogh, were revoked. This judgment was rendered on the application and petition ,of Thomas J. Durant, Esq., attorney, appointed by the court to represent the absent heirs of the deceased. Messrs. GurUy, Howard and Mayer, have appealed from this judgment.
The residence of Mr. Gurley, was in the district of Columbia, and that of Messrs. Howard and Mayer, in Baltimore. These gentlemen, as we have seen, were appointed executors by the will, and were admitted to be qualified, under decrees, of date the 11th and 13th of December, 1850. The effects of the succession having been subjected to process of sequestration, at the instance of the State, these gentlemen, who had come to New Orleans for the purpose of attending to their duties as executors, returned to their homes a few days after, and have not since come back to Louisiana.
On departing from the State, they left no power of attorney to represent them in the administration, as required by the Act of 1849, and for this reason, the district judge revoked their letters testamentary.
The decision which we have rendered, concerning the validity of the decrees, by virtue of which the appellees claim to act as executors, renders the decision in this appeal unnecessary. It falls with that decision.