Dissenting: Opinion.
Fenner, J.The decedent, Mrs. Dumestre, left, as her sole heirs, ten children, two of whom were majors and the other eight minors.
Arthur Grastinel having been recommended by a family meeting as dative tutor of the. minors, presented a petition praying for an inventory of all the property of said minors, which was ordered accordingly.
Their property consisted exclusively of their interest in the estate of their deceased mother, and the inventory embraced all the property of said deceased.
After filing and homologation of the inventory, GUstinel was duly appointed and qualified as dative tutor.
He thereupon presented a petition to the court, solely in his capacity as tutor, representing “ that the inventory shows that the property of the minors consists in the main of real estate, in which their co-heirs (the two major children) have an undivided interest; that besides the minors’ mortgage of $15,204.32, there are other debts due by deceased amounting to upwards of $6000 that it is necessary to sell the whole or a part of said estate in order to pay the debts of deceased and settle the claims and interest of the major heirs; that as to the terms of sale and other matters, he desires the advice of a family meeting,” etc. A family meeting was accordingly ordered and held, which, with the approval of the under-tutor, recommended the sale of all the property at public auction on the terms therein fixed.
The proceedings of the family meeting were presented to and duly homologated by the judge, and the tutor prayed foi an order of sale in conformity therewith, which prayer was, in writing, concurred in by the two major heirs. Thereupon the judge made his order as follows : “ In accordance with the advice of the family meeting and the concurrence of the major heirs herein, let the entire property of the succession of Mrs. B. E. Dumestre be sold,” etc.
The sale was accordingly made and Mrs. Delia Joyce became the adjudicatee of part of the property. She declined to accept the title and to comply with the terms of the adjudication, and her present appeal is taken from a judgment ordering her to comply.
Her objection is based on the allegation contained in the petition for *577sale that it is necessary “in order to pay the debts of the deceased to settle the claims and interest of the major heirs.” They contend that the latter clause converts.the proceeding into a partition sale, and that, as' such, it is null and void for want of complianpe with the requirements of the law in the conduct of partition proceedings.
Her apprehensions as to the defectiveness of the title tendered are in my opinion groundless.
This is not an administrator’s sale as to which it is settled that an administrator has no right to provoke a sale for the mere purpose of effecting a partition between heirs, when there is no necessity therefor for the payment of debts. Hebert vs. Hebert, 22 Ann. 309; Hotchkiss vs. Dodd, 13 La. 86; Pipkin vs. Thompson, 14 La. 272; Bank vs. Delery, 2 Ann. 648; Succession Morgan, 12 Ann. 153; Monition of Dickson, 6 Ann.
Even if it were an administrator’s sale, however, it might find protection under the doctrine of a recent case in which we held that where the petition alleged a necessity for the sale in order to pay debts it would not be invalidated because accompanied by a further suggestion as to its necessity also for settlement between the heirs. Nesom vs. Weis, 34 Ann. 1004; see also succession of Weber, 16 Ann. 420.
But, as said before, this is not an administrator’s sale. The tutor has not acted as administrator, either actual or constructive. As his wards were notthe sole heirs, he could not have authority to assume administration of the whole succession. He has scrupulously confined his official action within the limits of his authority as tutor, extending it only to the interest of the minors. While the sale of the remaining interest is expressly based, both by' ljinlself and the judge, upon the concurrence of the major heirs.
Who, then, can assail the title tendered to appellant? Not the creditors for whose payment the sale is expressly made. Certainly not the major heirs, who are sui juris and have joined in provoking the sale.
We have, then, only to consider whether the sale is binding as divesting the interest of the minors.
Of this there can be no doubt. The proceedings comply strictly with every requirement imposed by the law for a valid sale of minors) property. These requirements are prescribed by Articles 339, 340, 341 and 342 of the Civil Code, and are, substantially, as follows :
1. That a family meeting shall advise the sale as advantageous to the minors. This has been done
2. That the judge should, on consideration, approve the advice of *578the family meeting, and fix the terms and other conditions of the sale. This he has done.
3. That the sale should be made at public auction after due advertisement. This was fully complied with.
4. That the property should not be sold for less than the appraised value as shown in the inventory. The price here was considerably larger than the appraisement. There are no other requirements prescribed bylaw, and, these being complied with, the minors are fully concluded.
Under such proceedings the minors’ undivided interest in the property might have been validly sold separately. The- advantage derived by the minors from a sale of the whole property, under the consent of the major heirs, is evident.
Neither appellant nor we, under her appeal, are concerned with the reasons of the family meeting for advising the sale, or of the judge for approving them and ordering it. It is sufficient that the family meeting, the tutor, the.under-tutor and the judge have, in the exercise of the discretion vested in them by law, concurred in the sale, and that it has been made in compliance with all legal requirements.
Even considering this as a proceeding for partition, a close study of the codal provisions on that subject reveals no valid objection to the sale here made. The sale is not a partition, but only a step preliminary thereto, and the actual partition and the proceedings in reference thereto take place upon the proceeds, and are subsequent matters with which appellant has no concern. Dees vs. Tilden, 2 Ann. 412; Kohn vs. March, 3 Rob. 48.
The Code gives to every heir the right to demand a partition. R. C. C. 1289, 1307.
Tutors of minors have the right to sue for a partition, provided they are thereunto authorized by the judge on the advice of a family meeting. R. C. C. 1235; Rachal vs. Rachal, 10 La. 458; Segur vs. Sorel, 11 La. 446.
Minors who do not demand a partition inter se of the share they are to receive, may be properly represented by their common tutor. Succ. of Aiguillard, 13 Ann. 97.
The first thing to be determined in a judicial partition is how it shall be made, whether in kind or by licitation or sale.
The Code gives to each heir the privilege of claiming his share in kind, Art. 1337, but it does not require an heir to make such claim.
If a tutor, with the concurrence of a family meeting and the approval of the judge, concludes that it is for the advantage of the *579minors that the partition should be made by sale, he would have the right to urge that it he so made, and if the major oo-heirs concurred in the same view, then there would be no controversy, and the judge, •also concurring, would surely he authorized to. order the sale.
The Code invests the judge with full authority and discretion to determine this question. Art. 1339. Kohn vs. March, 3 Rob. 48.
In his order of sale, he would be required, on the advice of a family meeting, to fix the terms of credit and security. Art. 1341.
Now, in the instant case, we find the tutor of the minors, the under-tutor, the judge and the major co-heirs all concurring that the property should be sold. It has been sold under judicial order, at public auction, on terms of credit fixed on the advice of a family meeting, and has brought a price exceeding the appraisement. What requirement of a valid sale, even for partition, is lacking, is not apparent.
In a former case we said: “We think the law exhibits sufficient watchfulness over the interest of minors in the granting of such orders, in requiring, first, an application by the tutor usually supposed to be concerned for the interest of his wards; second, a reference to a meeting of their relatives and friends to consider, advise and report for or against it; third, the action of their under-tutor, specially appointed to protect their interests against any improper action of their tutor; fourth, the final approval of the judge with all the prior proceedings before him.” Tutorship of McCormick’s heirs, 32 Ann. 958.
These requisites concur in the'instant case. It is obvious that upon new proceedings presenting the same coaditions, a re-sale may be had, and I can see no reason for subjecting the minors to this unnecessary expense and to the additional detriment of losing the advantage of a bargain which would not be litigated by the purchaser if it were not to his interest to be let out of it.
I, therefore, dissent from the opinion and decree herein.