The plaintiff, who for a time administered the succession of Eliza Rabalais in Ms capacity of tutor of her minor heirs, injoins the sale of the property of said succession provoked by the present administrator, E. Bordelon, to pay debts, on the ground that the appointment of the latter was not regular.
*146 First — Because legal notice of Ms application for tlie appointment was not given and made.
Second — -Because the inventory was not legally made, the plaintiff',. the tutor, not being cited to be present at its taking.
Third — Because a creditor in a fiduciary capacity can not demand the appointment of an 'administrator wdien the estate is being administered by the surviving husband as natural tutor. The court gave • judgment for the plaintiff perpetuating the injunction, and the defendants have appealed.
Whenever it is necessary to protect their rights the creditors may demand the appointment of an administrator to manage the succes- • sion and when the application is ponding for the appointment of an administrator, is the time for those claiming preference to assort their rights. The tutor who has been administering- tlio estate can not defeat the right of the creditors to cause a regular administration of the estate to bo opened. That the notary neglected to cite the tutor at the taking of the inventory, is no ground to injoin the sale of succession property to pay debts.
The notice of the application of the defendant-, P. Bordelon, to bo appointed administrator, we deem sufficient.
Let the judgment appealed from be annulled, and let the injunction: herein be dissolved at plaintiff’s costs in both courts.