The opinion of the court was delivered by
Bermudez, O. J.The children of Thos. W-. Bothick, an interdicted person, appeal from a judgment appointing his wife (theiistepmother) as his curatrix.
They complain that the District Judge had no power to make the appointment in the absence of a family meeting. In support, they contend that the curatorship of interdicted persons is dative, unless in the case of the wife, when the husband is, of course, of right, the curator of the wife, the curatorship then being legal.
The article of our Code which is invoked as justifying the appointment by the judge without the intervention of a family meeting, is. Article 418, R. C. C. (400 C..of 1825), which reads:
“The wife may be appointed curatrix to her husband, if she has, in other respects, the necessary qualifications. She is not bound to give security.”
The first sentence is taken from the Code of 1808.' The second is an addition to it by the compilers of the Code of 1825.
The main portion of the first sentence was borrowed from the Napoleon Code, Article 507, which is in these words: “La femme peut étre nommée tutrice de son mari.”
The difference between the two texts, thus far, consists in this, that the word curatrix is used in our Code, instead of the word “ tutrice ” found in the original.
The French Code, however, contains another sentence, which is:
“En ce cas, le conseil de famille réglera la forme et les conditions de P administration, sauf le recours devant les tribunaux de la part de la femme qui se croirait lésée par l’arrété de la famille.”
*550That sentence was not retained by the framers of the Code of 1808, who replaced it by the provision, “if she has, in other respects, the necessary qualifications.”
It is apparent that, when the first sentence was imported into our system, it was borrowed with the meaning attaching to it.
A review of the commentators of the jurisprudence relative to it ■establishes conclusively that the curatorship of interdicted persons has always been considered as dative, with the exception stated, when it is legal. See Duranton, Vol. 3, pp. 683, 752; Demolombe, Vol. 8, p. 370; Favard, Vo. Interdiction, Sec. 2, No. 10; Delvincourt, Vol. 1, p. 481; Maguin, Vol. 1, 866; Chardon, Puiss. Marit., No. 87; Mourlon, Vol. 1, No. 1296; Marcadé, Vol. 2, p. 312, note; Baudry Lacantinerie, Dr. Civ., No. 1172; Delsol, Vol. 1, p. 393, No. 677; Cour de Cassation, 27 Nov. 1816. They are all to the same effect.
Dative tutorship, or dative curatorship, is that which is conferred by a family meeting on a person having charge of a minor, or of an interdict.
The wife is not of right the tutrix or curatrix of her interdicted husband; but she may be chosen by the family meeting. The law has taken care to say expressly that she can be appointed, because, on principle, women are excluded from the tutorship, unless in stated cases. The French law declares that, in case the wife is appointed (by the family meeting), the family meeting will prescribe ■or regulate the mode of administration.
An attentive 'consideration of these authorities shows that they do not rest upon the second provision of the law, but solely on the first, which declares that the wife may be appointed. Indeed, the second •sentence may be treated as surplusage, and it is perhaps for that reason that it was not engrafted in the Code of 1808.
The words: en.ce cas, etc., mean that, in case the wife is appointed, the family meeting will direct or regulate the mode of administration. They refer to matters occurring subsequent to the appointment, which is presupposed as a condition precedent.
The appointment of the wife by the family meeting has been ■deemed as required by the first sentence, for the reason that it is, as .a rule, dative' and not legal, particularly in the case of the interdiction of the husband, although it be the latter when the wife is the interdicted person.
*551When the family meeting appoints, it may, at the same sitting and during the course of the same deliberations, regulate the administration by the wife, under reserve of her right to claim redress eventually.
By conferring on the wife the privilege of appointment, the law has merely relieved her from the incapacity otherwise absolute, and enabled her for the appointment, thereby placing her on an equal footing in the class of persons susceptible of being appointed to the charge of the person and property of the incapacitated unfortunate being.
It is perfectly clear that the second sentence of the French article.' confers op the family meeting no rights which it would not have possessed had the permission not existed; for it is apparent that a family meeting has the unquestionable right to direct how the person of the interdicted shall be taken care of; how his property shall be administered, as. interdicted persons are assimilated to minors, and family meetings advising on the interest of minors are vested with such powers. It would have taken prohibitory legislation to strip them of those powers, and surely there- exists none on these subjects.
The article of the Code of 1808 has remained intact up to the present time, with the exception that it was enlarged in 1825, by the compilers of the Code of that year, so as to relieve the wife, when appointed, from the obligation of furnishing security. It contains, ah initio, a fragment of sentence which is to the effect that the wife may be appointed curatrix of her interdicted husband, if she possesses, in other respects, the necessary qualifications.
This addition may itself be considered as surplusage,-for the obvious reason that, had it not been made, it could not be denied that the wife could not be appointed, if she did not possess the necessary qualifications.
So that Article 418, R. C. C., received in the light -of the interpretation placed by the French jurists on Article 507, N. C., may be construed as meaning that the wife may be appointed curatrix of her interdicted husband on the recommendation of a family meeting, and, in that event, will not be bound to give security.
It appears in the present instance, that the children of the interdicted, all of age, save the minors of a deceased daughter, oppose *552the appointment of their stepmother, and agree that one of themselves should be entrusted with the curatorship of their father.
Articles 405 and 415, R. O. 0., prescribe that the appointment of a curator and his administration shall be regulated as in case of minors.
It is wise, in cases of this description in which there is competition and one of the aspirants may be relieved from security, that the choice be left not to the judge alone, but to the family meeting, who are more competent to determine to which of the applicants the trust shall be confided.
This view of the ease relieves the court from the necessity of ‘considering the cross charges of incompetency set ug by the parties.
It is therefore ordered and decreed that the. judgment appealed' from, appointing Mrs. Bothick curatrix of her interdicted husband,, be reversed, and her demand for appointment be rejected; reserving the right of the parties and of any one else to be appointed to the-trust, on the recommendation of a family meeting, in due course of law, the said judgment in other respects to remain undisturbed, appellee to pay costs in both courts.