Mix's Absent Heirs v. Mix's

Bullard, J., delivered the opinion of the court. This is an action brought by the counsel appointed by the Court of Probates, in virtue of article 1654, of the Louisiana Code, to represent thej^absent heirs of the testator, against the legatees and the testamentary executor, in order to caus.e the testament to be declared null on various grounds. Most of the legatees reside abroad, and they, together with a minor [68] living in the state, to whom the testator bequeathed a considerable portion of his estate, are represented in these proceedings by a curator ad hoc. The attorney of absent heirs cannot institute a suit against the testamentary executor and legatees, to annul the will of the testator. His functions are essentially conservatory. The attorney of absent heirs, may, and perhaps generally does, represent the legatees named in the will, when any of them are absent ; hence the absurdity of his suing to annul the will,and with it,their legacies. Although the case on its merits presents no difficulty, yet we view the proceeding as so novel, that we are induced to consider whether the counsel of absent heirs in this case has any legal authority to institute such a proceeding, to provoke an inquiry into the validity of a testament contradictorily with legatees, and an instituted heir. The article of the code which defines his powers, says, that “ when, of the testator’s heirs, some are absent and not represented in the state, the judge shall appoint for them a counsel, whose duty it shall be to assist, for them, at the inventory, &c., to take care of their interests, and to oppose every thing which may prejudice the same.” The next article makes it his special duty to correspond with those whose interests he is to protect. The counsel of absent heirs in vacant successions, ah inlestato, are endowed with larger powers by a previous part of the code, (■article 1204, et seq.) They are expressly authorized to instil ute certain suits of a conservatory character. The reason of this difference appears to us obvious. When the deceased has left a testament, the general interest of the estate is supposed to be confided to an executor, and it is not, perhaps, to be presumed that his legal, differ from his instituted heirs. The attorney appointed to represent the absent heirs may, and, perhaps, generally does represent-the legatees named in the will when any of them are absent. Iu such a case, the absurdity of his suing them to annul the legacies, is too glaring to require any comment,. But,, independently of this incongruity which might arise, and does, for aught that appears to the contrary, actually exist in this case, it appears to us that a general authority “to take care of the interests of the absent heirs and to oppose every thing which may prejudice them,” does not embrace the right standi in judicio, for .any other purpose. His functions appear to us essentially conservative, and, in ■our opinion, the legislature never intended to authorize him to originate litigation either among the heirs themselves, or [69] between them and the legatees, and that a judgment pronounced in such a case, could not have, as to them, the authority of res judicata. * _ The judgment of the Court of Probates, is, therefore, affirmed with costs.