The under-tutor, William. W. Whittington, has appealed from a refusal of the District Judge, to accept his resignation and discharge him from his office of under-tutor to said minor.
The question of the right to such discharge was considered by our predecessors in 1842, in the case of the State v. The Judge of the Court of Probates of New Orleans. The court said of the question then before them : “ It seems to us rather as resolving itself into the question, whether one can be compelled to serve as under-tutor ; for he who cannot be compelled to serve, may, at any moment, resign, and we have no doubt that the resignation must be notified to the Judge of the domicil of the minor. That part of the Code which treats directly of the appointment of the under-tutor, does not provide that any class of persons shall be compelled to act as such.” * * * * * * *
“ The office of under-tutor is essentially and always dative, and we know of no provision of law which compels any citizen to accept such an appointment, more especially where his domicil is different from that of the minor. We cannot but view the office in this case, as vacant by the resignation of the under-tutor, signified in a formal manner by petition, and that it is the duty of the Court of Probates to make the appointment.” 2 Rob. 423.
We see no sufficient reason to depart from the conclusions of this court on that occasion. The under-tutor is not bound to allege and prove his excuses, but may resign.
It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that the resignation of said under-tutor be accepted, and that the said tutor pay the costs of the appeal and of this proceeding in the lower court.