Ferrari's Administratrix v. Lambeth

Martin, J., delivered the opinion of the court. This is a petitiory action, and the defendants are appellants from the judgment which decrees the premises to the plaintiff. The facts of the case are these; both parties admit the premises to have once been the property of Gravier. The plaintiffs claim title in the deceased, whose beneficiary heir and administratrix she is, under a conveyance from Gravier to Roche, and from Roche to Ferrari. The defendants claim under a probate sale of the succession of Roche’s widow They show that the premises were mortgaged by Graviei te her. That she provoked a sale of them, on an order of seizure obtained on her mortgage, at which she became the purchaser. A woman is incapable of exercising any civil functions, except those especially declared by law: So, a woman cannot be appointed curatrix of the estate of an absentee. It does notfol-low}thatbecause a woman cannot be appointed cu-ratrix, she cannot, as a female beneficiary heir, have the administration of the succession of her ancestor. . But a court of ordinary jurisdiction cannot inquire into the correctness and validity of the appointment of an administra-trix,collaterally. It has no authority to review the judgments of the Probate Court, conferring such appointment. Where the evidence shows simulation in certain sales from the first vendor to his vendee, yet, when the purchaser from this vendee was ignorant of the simulation, and the sale to him was a real one Jt will be valid. In an action or claim for the rescission of a sale, im the score of simulation, it is ^sary Uto put the „ Party . ia mora, previous to the demand [108] They called in warranty the heirs of the widow, who are also those of Roche. An objection was made to the right of the plaintiff of standing in judgment as administratrix of the estate of her ancestor; it being contended, that the administration could not be granted to a female, and the case of Carraby vs. Carraby, 7 Martin, N. S., 466, is relied on, in which we reversed the judgment of the Court of Probates, appointing a woman curatrix to an absentee. It does not follow that because a curatrix cannot be appointed to such a person, a female beneficiary heir cannot have the administration of the succession of her ancestor. This, however, could not be inquired into by the Parish Court, which was without authority to review the judgment of the Court of Probates, granting the administration to the plaintiff. The case of Carraby vs. Carraby was that of a direct appeal to us from the judgment of the Court of Probates, appointing the curatrix. The objection to the plaintiff’s right to the administration was therefore correctly overruled. On the merits, the defence was, that the conveyances from Gravier to Roche, and from him to Ferrari, were simulated ; and that if the simulation was not decreed, the sale to Ferrari ought to be rescinded, because he had failed to pay the last instalment of the price. It appears to us, the defence was correctly disregarded. Evidence has indeed been introduced, from which it may be inferred, that Roche was an agent of Gravier, making, to his principal, advances of money, for the security of which the latter made conveyances of land, which were to be rescinded on his paying any balance which' he might appear to owe from time to time, on a settlement of accounts. But there is not the least tittle of evidence that Ferrari was acquainted with this circumstance, nor that the conveyance from Roche to him was not a real one. The rescission of the sale was properly overruled, on the ground of the absence of any evidence of the plaintiff having been put inmorfi,, a circumstance which must essentially precede a demand for the rescission of a sale. It has been contended that the party was put in mora by the plea claiming the [109] rescission of the sale, and the absence of any tender on her part of the balance of the price due. To this it has been correctly objected, that those who have succeeded to the rights of Ferrari’s vendor, have manifested an unwillingness to receive this balance, and consent to a rescission, if they could succeed in repelling the plaintiff’s claim on the score of simulation, or any other. h'»*™ Cíllinn* be legally called on to pay any debt she^dmbisleri p^obat^Court^ So, she is not the^aiance^of ^aet^fkn^'to avoid being put vendor’s plea for aiersaie?SI°n °f . i It is doubtful whether an administrator who manages an estate under directions of the Court of Probates, without whose authority he cannot make any disbursement, may be i i, i, , , , legally called on out of court for the payment of any sum due by the deceased, whose succession he administers; if the call cannot be legally made, it cannot have any legal effect, In a very late case, we held, that the curator of the deceased person who .was the maker of a promissory note, need not be called on before the expiration of the year, in order to charge the endorser, the curator not being legally bound or autho-l'ized to pay. The plaintiff in this' case, as administratrix, cannot be called upon to pay any debt of the succession, except before the Court of Probates. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.