Berluchaux v. Berluchaux

Mathews, J., delivered the opinion of the court. This is a suit instituted to obtain a partition of certain property situated within the jurisdiction of the court below, which property cannot be divided and partaken in kind, and must consequently be subjected to a sale by licitation, &c. The person appointed to manage and administer minors’ property, on the refusal of the natural tutrix to take that office, is termed a tutor ad bonds and this appointment may be made to minors, ofapei’son other than the natural tutrix, even when she is ^ present and residing in the state. A mother residing in a foreign state or country,with her minor children who inherit property in this, on coming here would be preferred to all others, in obtaining the administration of their inheritance» Where a surviving parent resides in a foreign state or country, with his children who inherit property in this,he could, perhaps,on proof that he had complied with the laws of the country where he resided, and had obtained full authority as tutor, to administer his wards property, appoint an attorney in fact to represent their interests atleast so far as to make partition of a succession, held in common with co-heirs residing here. [543] A difficulty occurred in proceeding to partition, in the manner above stated, in consequence of one of the co-heirs or co-proprietors being a minor, residing out of the state and unrepresented in it. This minor, Amanda Berluchaux, resides with her mother, in St. Jago de Cuba, a place under the government of the laws of Spain. The mother being the surviving parent, according to our law, is natural tutrix, and as such has a right to the guardianship of her children and to assume the management and administration of their property; but she is not bound to accept of this office. Although she may refuse it, still she retains the superintendence of them and the care of their education. A tutor whom she may have caused to be appointed, on her refusal to take that office, in such a case, is merely entrusted with what concerns the administration of their property. La. Code, art. 268 and 271. In pursuance of these provisions of law, it is evident that a tutor ad bona may be appointed to a minor, other than the natural tutrix, even when she is present and residing in the state. A mother residing in a foreign state or country with her children, who inherit property in this, on coming here and making application to the proper authority for that purpose, would be preferred to all others in obtaining the administration of the property thus inherited; or, perhaps, on proof to the tribunal of this state, in a case like the present, which relates only to.the partition of a succession held in common with others by her minor child, that she had taken all steps necessary to give her full authority as tutrix, in relation to the property of her pupil, according to the laws of the place of their residence, she might appoint an attorney in fact, to represent their interests here ; but no proof of this nature is adduced in the present instance. We have said that the minor who is interested in the partition of property, claimed in the present case, resides with her mother in a place governed by Spanish law. Now, although that law has no longer any force in the state of Louisiana, since the repealing act of 1828, yet having been considered previously the law of this country, so far as it was not abrogated or altered by our statutory enactments, we may still, The Spanish law having been in force in Louisian, until the repealing act of 1828, the court will recognise it in relation to cases arising under the government of Spain, without requiring it to be proved as a fact. the^Spaniskíaw° the tutorship of quir^dtobe^onl fermi and eon-firmed by the judge, in the of^a^^odier 'Xomthe°office is cast by law. confer the^utortimatef children by will, which appointment^ duty of the relations of a minor, residinginthis state, appointment of a tutor, whether the minor be or be not domiciliated therein. [544] without violation of the rule which requires foreign laws to be proved as facts, assume some knowledge of it. According to this law tutorship is of three kinds only : Testamentary, by effect of law, or legitima and dative. The right of tutorship granted to a mother comes under the denomination of tutela legitima, and she is to be preferred in the order of relationship before all others, when the father has not provided by will a tutor for his children. Febrero Novisimo, vol. 1, Nos. 7 and 10. Thus the tutorship conferred on a mother by this law is granted in the same manner as that which is given to the nearest relation, and it is made the duty of the judge to confer and confirm the tutorship of a mother as of any other near relation, on whom the office is thrown by law, and tutors of this class can do no act, without this confirmation, which will be valid in relation to the administration of the property of their pupils, unless when the tutorship is conferred by the testament of a father on his legitimate children. Same authority, No 15. The attempt therefore of the mother, in the present instance to appoint an attorney iu fact, to act for ber in relation to tbe interests of her daughter, must be considered as without effect; because there is no evidence of confirmation of tbe tutorship ^e former by any competent tribunal in the place where they reside. Considering the minoras wholly unrepresented in this state jn relation to the administration of her property, the _ . . i • • next inquiry is how this defect is to be supplied m pursuance of our laws on the subject. It is admitted on both sides, that a tutor must be appointed by authority of the competent judge, and one was appointed under all tbe formalities required to constitute a dative tutor ad bona. This appointment ^ complained of as illegal; and in opposition to it, the counsel contends that a tutor ad hoc only could be appointed according to the provisions of the 295th article of the La. Code. That article is found in tbe section which treats of (ja(jve tutorship, and has relation to minors, both those who , . may have no domicil in the state and those who have. It is, however, made the duty of the relations of tbe minor, residing [545] in the state, to provoke the appointment of a tutor, whether such minor be or be not domiciliated therein. In the present instance the appointment of a tutor ad bona has been provoked, and we are of opinion that this appointment is supported by the art. 1092 of the La. Code, and art. 946 of the Code of Practice. Consequently there is no necessity of appointing a tutor ad hoc. Where a minor resides in a foreign country, and inherits property in this state, a tutor ad bona must be appointed to make partition or administer it. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.