Hook v. Richardson

Porter, J., delivered the opinion of the court. After the decision of the Probate Court in the case of Hook and others against the defendant, by which the heirs of the husband were allowed to accept his succession, with the benefit of an inventory, and the defendant ordered to account [567] with them, the plaintiff applied to the Court of Probates to be appointed administratrix of the estate. This demand was resisted by the defendant, who claimed the right to be continued in the administration until the end of the year. The court sustained the application, and the defendant appealed: Whcr6 heirs come in an¿ ^Uo accept the succession of the d6C6EScd husband with ^admMsteiing as curatrix, and claims to be continued th^yearTif she takes a suspenswe appeal from the decicourt allowing cannot, while pendmg, apply administration of tlie succession. T|ig 580& ^ tide of the tice applies to contes^ex^sts in the first intion to an apthat^Tacant estate is not t0 be without a curator, a mitator7and Uthe kankmf>t’s estate without a syndic, andnot an appointXeady^made and is claimed by another, A suspensive appeal had been taken from the judgement in the case admitting the heirs. The defendant giving bond in the penal sum of thirty thousand dollars. Whilst that appeal was pending and undecided the court erred in aP“ pointing the plaintiff as administratrix; its effect was to open íu • f , „ , . , . , , . the judgement from which it was taken, and to leave the party against whom it was rendered, curatrix of the estate with the same rights she had before it was pronounced, ° Consequently, while she was curatrix no new administrator could be appointed. It has been contended that this case comes within the 580th article of the Code of Practice, which provides for the provisional execution of certain judgements, though appeal be taken and surety given. The cases contemplated by that article we understand to be those where a contest exists in . the first instance m relation to an appointment. If the j udgement were not provisionally executed the succession would be without a curator, the minor without a tutor, and the bankrupt’s estate without a syndic. The law supposes injury to result from the want of a representative to persons or estates so situated, while the appeal is pending, and has, therefore, made an exception to the general rule in relation to them. But the reasons on which these exceptions were ,. -, , , , . . introduced into our practice, do not apply where the suit is not alone in relation to the appointment, but to the renewal of one of these officers already appointed. The estate is not ^ 1 ■ without a representative, and the bond suspending the execution, indemnifies the estate from any loss it may sustain; the language of the article already cited, supports this construetion, and is in accordance with what we conceive to be its .... _ , „ spirit and intention. It speaks oí, and provides for cases, where the nomination of tutors and curators, and appoint [568] ment of syndics, is in contest. An enactment so "worded, , . . , , ’ cannot, on the true principles of construction, be extended to cases, where, though there be a nomination, there is also a renewal, more particularly where the latter is without the mischief the legislature intended to guard against. It is, therefore, ordered, adjudged, and decreed, that the judgement of the Probate Court be reversed, the plaintiff paying costs in both courts.