Gary v. Sandoz

Simon J., delivered the opinion of the court. The only question submitted to our consideration in this case is, whether the judge of probates of the parish of St. Martin, decided correctly in refusing to entertain jurisdiction of the application made by the appellant, to be appointed administrator to the estate of J. P. Descuirs, deceased, and in rejecting said application. The record presents the following facts : Descuirs died in New-Orleans; the period of his death is not shown. In October 1831, his beneficiary heirs presented a petition to the Court of Probates of the parish of St. Martin, alleging that his succession was opened in said parish, and praying that an inventory of the property of the estate be made, and that an administrator be appointed. The judge a quo, then entertained jurisdiction ; the inventory was ordered and made accordingly, and on a further application made by Beauvais, one of the heirs, he was appointed administrator to the succession of Descuirs, stated in the order to be “ late of the parish aforesaid, deceasedBeauvais took his oath and gave his bond as administrator, and proceeded as such to administer on the estate. Some time afterwards, Beauvais died, and the estate of Descuirs remained unadministered and unliquidated for a number of years, when in February 1840, the appellant, Sandoz, presented a petition to the court a qud,, alleging that Descuirs’ estate had been opened for some time in said parish, that the property inventoried had never been disposed of, that the debts had never been discharged, and prayed to be appointed administrator. Before the expiration of the ten days, a third person who shows no interest in the estate, made opposition to Sandoz’s application, suggesting to the court that the deceased had his principal domicil in New-Orleans, where he died, and that he had left no property in the parish of St. Martin. The judge of probates, [14] without any proof but an admission found in the record, that Descuirs had died in New-Orleans, was of opinion that he not entertain jurisdiction of the application, and rejected it. From this judgment the applicant appealed. The mere fact of a person’s dying- in another parish, is not hisClU»uooes3\on oughttobeopened and administered there, ought not1 to be administered m where, from an decease/’ left cession has aie/aÜ/pa/tíí/iy a^parisif where the deceased left property, the former proceedsl’dered Aprima ?r!faVtsdeiecesf sary to base the a/apphra/onTo continue and ministration in the same place, The mere fact of Descuirs’ death in New-Orleans, is not, jn 0ur opinion, sufficient to authdrize us to conclude that his * . estate ought to be opened there, or that it ought not to be °Pened in the parish of St. Martin, where, from the inventory, jj jg shown he left property.' It is true, that if a deceased 1 r . , person had no fixed residence in the state, his estate should be opened in the parish in which he died, unless, if he have effects in different parishes, his principal properly be in another parish. Louisiana Code, 929 ; Code of Practice, article 929. But it is equally true, that although Descuirs died in New-Orleans, he may have had his domicil in St. Martin, or he may have owned no property in any other parish. Perhaps, if this were the first application for the acbninistration of Descuirs’ estate, it would have been incumbent on the appellant to show such facts as are legally , . , . , . . . ,. necessary to authorize the judge a quo to entertain junsdic^on > but when we have before us the proof that the estate ^ ab'ea(ty been opened in St. Martin, that legal proceedings had been had in relation thereto, and that an administrator bad been appointed and qualified there, we may fairly presume that the judge of probates did not take jurisdiction without being satisfied that he had a right to do so. We are disposed to consider the former proceedings as prima facie evidence of the facts on which the right of jurisdiction is based ; and as, in our opinion, the present application s but a continuation of the first proceedings, it would reqv very strong proof on the part of any opponent, to desti heir legal effect., and to treat them as nullities. Under this view of the question, we think the judge a quo erred in refusing to maintain his jurisdiction, and in dismissing the appellant’s application. It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed ; [15] thatthe plea to the jurisdiction be overruled ; that the judge of the Court of Probates proceed to take cognizance of the appellant’s petition, and that this case be remanded for further proceedings, the appellee paying costs in this court.