Succession of Cordeviolle

Howell, J.

Two parties, Ferdinand de Luca, as agent and attorney in fact of the “ Commune de Lavagna,” of Italy, a legatee of the deceased, and John Dawson, who was agent of the deceased prior to-his death, have appealed from a judgment appointing Mrs. Commagere, a married woman'and the sister and a legatee of the deceased, dative testamentary executrix.

Their main ground of objection is her alleged disqualification as a married woman not separated in property. They contend that article-25 of the Code disqualifies women for any civil functions except those which the law specially declares them capable of exercising, and that articles 1663, 1664, 1678 and 1679 (R. C. C.) do not specially declare a married woman capable of exercising the functions of dative testamentary executrix.

It is provided in article 1664 that a married woman may accept the testamentary executorship with the consent of her husband. The appellee lias such consent, and we are unable to perceive tlie distinction between tlie power to accept tlie testamentary executorship and the dative testamentary executorship. If the testator can confer such appointment, tho judge is vested by article 1678 R. C. C., article 924,* No. 7, C. P., and section 1459 R. S., with the same power, to be exercised on a proper occasion. The dative executor is the substitute when there is no testamentary executor, and in our opinion the various articles of the two Codes construed together clearly authorize tlie appointment of a married woman, with the consent of her husband, dative testamentary executrix.

We think tho judge a quo did not err in giving the preference to the appellee.

Judgment affirmed.

Rehearing refused.