«On the Merits.
Theresa Baumgarden died on February 5th, 1832, leaving a last will and testament which was ordered to be executed on the 14th of the same month, on which day Charles Zimmerman and Charles Hummel, appointed testamentary executors, were confirmed as such. On the 16th of the same month they were sworn as executors, and letters testamentary were issued to them, whereupon they proceeded to have an inventory made of the effects of the succession, which had been ordered on their petition on the 14th of that month.
At this stage of the proceedings, on a petition of the three heirs of age, an order was rendered by the court placing said heirs in possession *131of tlicir shares of the estate, from which order Zimmerman and Kummcl, as executors, and Zimmerman, as testamentary tutor of the fourth heir, a minor, have taken an appeal. They have also appealed from a judgment dismissing an exception of no cause of action, a suit which they had instituted for the nullity of the judgment placing the heirs of age in possession of the succession.
The question involved in both appeals is the legality of the judgment rendered ex parte on the 20th of February, 1832, placing the heirs in possession and practically doing away with the administration of the succession by the executors appointed by the will.
This question presents the issue as to the necessity of an administration of the succession under the circumstances shown by the record.
In her will Mrs. Baumgarden made the following special legacies:
1. To her daughter Marietta, she bequeathed over and above her legal share, the house and lot occupied by the deceased.
2. To her brother Charles Zimmerman, she bequeathed a house and lot adjoining her residence above mentioned.
3. To her daughter Lilly, yet a minor, she bequeathed over and above her legal share, all her bod and table linen, silverware and jew'elry.
And in the will she appointed her brother, Charles Zimmerman, as tutor of her said minor daughter, Lilly Baumgarden.
The distribution of these various legacies to the legatees must be preceded by an inventory, showing the total amount or value of the property depending upon the succession, and the value of each item of property made the subject of a special legacy, for the purpose, among others, of ascertaining whether the legacies would or not exceed the disposable portion of the property of the testatrix. This inventory was also necessary for the qualification of the tutor of the minor, Lilly Baumgarden, who could not be qualified before recording his bond of tutorship, (Section 2360 Revised Statutes,) and who could not furnish a legal bond before ascertaining by an inventory the amount of the minor’s credit, money and other movable effects, as well as the value of the special legacy accruing to her under the terms of the will. C. C. Art. 318.
These are all acts necessary to a proper settlement of the succession and to the execution of the will of the deceased, and under the will, which is the law of the case, these acts must be performed by those persons to whom she has conferred the mandate and who are willing to accept the trust.
It is, therefore, clear that the practical effect of the ex parte judgment complained of is to defeat the execution of the will in the manner and form of execution indicated by the testatrix, to remove a portion *132of the estate from the control and administration of the executors, and to leave in their hands that portion which accrued to the minor, wh o has not asked through a proper representative to be placed in possession of the share accruing to her either as heir oras legatee. As shown above, her testamentary tutor could not be legally qualified before inventory, and the record shows no appointment of a special tutor to her. As a minor, she must by the force of the law claim the benefit of inventory, and hence she could not as yet be placed in possession of her share of the estate, unless it should be under the exceptional circumstances of the case of Soye vs. Price, 30 An. 93, which are- not here presented.
That circumstance, coupled with the necessary acts of administration to be performed under the will, placed the succession directly under the operation of Article 1047 of our Civil Code, and in the absence of an administration provided for in the will, would have necessitated the appointment of an administrator. Blake et al. vs. Kearney et al., 30 An. 388.
Appellees contend that the succession owes no debts, and that, therefore, an administration is unnecessary, and that the costs of the same should not be inflicted on the heirs and legatees, and they rely upon the decisions in the Succession- of Story, 3 An. 502; Succession of Dupuy, 4 An. 572; Succession of Walker, 32 An. 321.
In the first place, the record fails to bear them out in the assertion that the estate is free of debts. True, none are shown. But in their petition for the nullity of the order complained of, the executors allege the existence of debts; that petition was met by an exception which of necessity admitted the truth of the allegations contained therein. But admitting, for the sake of argument, that the succession owes no debts, the facts of this case place it beyond the reach and scope of the decisions quoted.
In the succession of Walker, the deceased made no testamentary dispositions and left an only child, her sole and forced heir, and by -the mere operation of the law, the succession property fell in the possession of the heir, without the necessity of an administrator or executor.
In the succession of Dupuy, the only legatee had died before the testator, and the court held that the appointment of an executor thus became inoperative, and appointed a curator for the absent heirs.
The succession of Story was not a testate succession, and the Court saw no necessity of an administration for a succession in which there were no testamentary dispositions to execute and no debts to pay.
From that case we quote the following language :
‘‘Even in case there are no debts .due by a succession, we do not undertake to sáy that an administrator cannot be appointed. There *133may be oases in which such an appointment would be advantageous, nay necessary, to the interests of a succession, and the propriety of subjecting the succession to this charge would rest with the discretion of the Judge on the facts before him.”
We believe that the facts shown by the record in this case, as herein-above recited, dictate the necessity of an administration in the premises and that the order complained of should not have been issued. Under these views we pretermit the question of the illegality of the order because it was rendered ex parte, without notice or citation on the executors.
Nothing contained in this opinion must he construed as a denial of the right of the heirs, appellees herein, to obtain the legal seizin from the testamentary executors, in accordance with the provisions of law.
It is, therefore, ordered that the judgments rendered by the lower court on the 20th of February, 1882, and on the 5th of April, 1882, and herein appealed from, be annulled, avoided and reversed, and that the matter of the succession of Theresa Baumgarden be remanded to the lower court to be proceeded with according to law and to the views herein expressed; and that appellees pay costs of appeal, and all costs incurred by these proceedings for possession of their shares of the succession, and in the suit instituted by appellants for nullity of the order placing them in possession.