DESHON & AL. vs. JENNINGS,
ante 568.
Form judgment confirm
Workman, for the plaintiffs,
on motion for a re-hearing. The judgment of the court, if carried into effect, will it is apprehended, oc casion great injury to the heirs and creditors of the estate, the care of which has been en*643trusted to the appellant, by his testator, Chain-plin. The suit instituted against Jennings, for the recovery of the property, which he took from the body of the deceased, in Attackapas, may be abated, and he, of course, be left at liberty to walk off with his plunder, wherever he pleases.
East'n District.
July, 1818.
The provisions of the Civ. Code, 242, art. 153, will, we apprehend be found incompatible with, and utterly destitute of, the very important provision of another part of the statute, id. 109, art. 232, in favor of wills made in foreign countries. The former of those articles says expressly, that no testament can have effect in the territory until it has been presented to the judge of the parish, &c. Now this presentation, in case of most wills, made in foreign countries, will be impossible, as the originals of those wills cannot be obtained. So that, unless we admit that the concluding words, in the cases prescribed by law, have reference to the ordering the execution, as well to the opening and proving of the will, we must conclude that foreign wills can have no validity whatever in this state. The article in question consists but of one sentence. Is it not then clear, that the restriction of the concluding words is aplicable to every part, and provision of the article? article? *644So that it should be construed as if written thus: " In the cases prescribe by law, every testament shall be presented to the judge, &c and after being opened and proved, the judge shall order it to be executed."
Then comes the question, what are the cases in which these formalities are prescribed by law? The answer is obvious: the cases of will, made in the state-the only wills which can be presented, opened and proved in the manner directed. Would it not be quite un necessary for the legislature to require proof of that, the proof of which was already made and admitted ? If they had contemplated any thing of this kind, in the case of wills made in fe-reign countries, they would have ordained that the probate of such wills, not that the wills themselves, should he proved here.
The provisions of the 109th article would be completely effectual, if the executor were al lowed to sue, on presenting to the judge or the probate of the will. If a common power of attorney be sufficient to enable one man to sue for another, where would be the danger or inconvenience of allowing an executor to bring suit, under the authority of a probate; an instrument generally executed with many forms and much solemnity. In either case, forgery would un - *645doubtedly be impossible ; but, in that of the probate, it would be much more difficult, and liable to detection, than in the case of the power of attorney. In the one case, as well as in the other, whenever suspicious circumstances occurred, the proceedings might be suspended, until the truth could be inquired into and ascertained.
At all events, trust that the court of probates of this parish may be authorized to appoint a temporary curator to the estate, to save it from dilapidation, until the testamentary executor can be recognized in the manner required by the judgment of the court, should their opinion remain unaltered. According to the opinion already pronounced, it would seem, that the court of probates does not possess this power, so long as there is an executor present, who is willing to act. If the executor cannot act lawfully, and if no curator or administrator can be appointed, the consequence would be, that the succession in question may be plundered with impunity.
Hennen, for the defendant.
The provisions of our code are positive and too clear to be contradicted. A will must be proven before the *646judge of the parish in which the testator died, if the will was made and he died in the state.
A curator can only be appointed by the judge of the parish in which the intestate died. Cham-plin having died within the parish of St. Mary, the judge of that parish alone can appoint a curator to his estate, or approve any will, which may be produced from any other state, provided it be clothed with the requisite formalities.
The only question before this court, in this appeal is, had the judge of the parish of New-Orleans jurisdiction in the case? Certainly he had not, since Champlin died in another parish. All the provisions of our civil code demonstrate if inconveniences arise, under the acts of our legislature, it belongs not to this court to provide and remedy. Its province is only to interpret and enforce the laws. In no state of the union are wills, made abroad, proven with more facility than in this. It is only required that the will be executed according to the laws of the state in which it was made. On the proof of that, it has its full effect here.
The curator appointed in one parish can act in every other, and have an inventory of the intestate’s property made wherever it is situated. So may the executor. All that the judge of *647this parish could do, would be to make an inventory of Champlin's property found in it.
Martin, J.
delivered the opinion of the court. In this case a re-hearing has been granted to the appellants.
They contend, that the provision of the civil code, that “no testament or codicil can take effect in the territory, until it has been presented to the judge of the parish, in which the testator died, if he died within the territory, or in which his principal estate lies, if he died out of the territory, and the said judge shall order the execution of the said testament or codicil, after its being opened and proved in the cases prescribed by law,” (Civ. Code 242, art. 453,) applies only to testaments and codicils made in the state.
This is said to be rendered clear from the latter words, "the said judge shall order the execution, &c. in the cases required by law.” These cases are said to be those of testament’s and codicils, made in this state and no other. And it is added, that when testaments or codicils are made according to the laws of, and with all the formalities required in, other states and countries, and are there proven, they do *648not require to be proven here, and we are re-ferre to the civil Code 232, art. 109.
The distinction taken by the counsel does not appear to us within the letter nor within the spirit of the code, in which we are told that no testament or codicil can take effect in this territory until, &c. and this whether the testator died within or without it. Testaments made and proven abroad are not, produced to the judge to be proven: but yet the execution of them may be ordered. This appears particularly necessary in case of foreign wills, that copies, or the originals in some cases, may be exhibited in the court of probates and there registered, in order to perpetuate in favor of persons who may pay monies to the executor, the evidence of his authority. Foreign wills, which have been proven abroad, are to be presented although they require no additional proof, any more than authentic wills made here. And this article speaks of testaments to be presented to the judge, which the law does not require to be either opened or proven, after their being opened and proved in the cages prescribed by law.
In the other part of the code relied on, after the provision that the formalities, required in the confection of wills in the state, are matters of rigor, and the absence of any of them avoids *649the will, the legislator next proceeds, “provided always that the testaments and codicis made in foreign countries, &c. shall take effect, if they be clothed with all the formalities prescribed in the place where they have been respectively made.’’ Civ. Code 232, art. 109.
Nothing here militates against the necessity of producing such testaments to the judge, in order that, if they be clothed with such formalities, the execution of them may be ordered.
II. It is next contended that the Civil Code 174, art. 127, requires the judge of the parish or of the parishes in which the deceased had moveable or unmoveable property, debts or credits, to make inventories of the same, &c. and the counsel contends that it follows, as a necessary consequence, that a curator is to be appointed in each of these parishes. This by no means follows. The parish judge cannot act out of the limits of his parish, he cannot go into a neighboring or distant one to make an inventory. Each judge must do so in his parish ex-necessitate rei, but these inventories must be cumulated in that parish in which the curator is appointed. He may go or send, and act by himself or attorney in every part of the state.
This curator is to be appointed by the judge *650of the parish in which the deceased shall have died, if he died within the territory, or, if he died abroad, by the judge in whose parish the greatest portion of his estate shall be situated. 174, art. 131.
The counsel further complains that our judgment does not decide whether the parish judge of New-Orleans can retain in his hands the property which he has caused to be inventoried, or appoint a provisional curator thereto, until a person shall appear properly authorized to administer the estate.-Farther, that the judgment simply affirms the judgment of the court of probates; that we do not say what is to be its operation, and we do not determine what is to become of the injunction granted below.
The appellants prayed for the absolute curatorship of the estate-it was refused them-they appealed to this court, who think the curator-ship was properly denied. If there be any particular feature in the case, which requires the interference of the court of probates in any measure; this interference must be specifically prayed for, and we entertain no doubt that what ought to be, will be done. If it be not, the way to this court will remain open.
Upon the whole, it is ordered, adjudged and *651decreed, that the judgment heretofore rendered in this case shall remain in full force and vigor, in the same manner as if no re-hearing had granted.
*** There was not any case determined in the month of August.