Bailey v. Morrison

The judgment of the court was pro- nounced by Rost, J. The plaintiff, Adeline Tufts, was married to Jno. Dowell, in the parish of Ouachita, in November, 1840. In 1843 Dowell died, leaving Henry Bibridge Dowell, his son, the only issue by his marriage with the plaintiff. A few days after his death, the plaintiff was confirmed as natural tutrix to the minor. She removed soon after to her mother’s residence in Massachusetts, and took her son with her. She resided there until the fall of 1847, when she intermarried with her present husband, Joseph Bailey, and removed with him to his residence in Connecticut, and is permanently settled there with the minor. The plaintiff contracted this marriage without having been authorised by a family meeting to retain the tutorship; she was therefore, ipso facto, deprived of it; and the defendant, who is a relation of the minor, caused himself to be appointed by the judge on tire advice of a family meeting, and took possession of the minor’s estate. On the 23 March, 1849, the plaintiff presented a petition to the Court of Probates for the district of Groton, in the State of Connecticut, where she resides, representing that her minor son had inherited an estate in Louisiana, which she desired to remove to Connecticut; she asked to be appointed guardian, and offered to give bond for the safe administration of that estate. She accordingly gave bond in the sum of $5,000, and was appointed. This proceeding was had under the authority of the case of Fisk v. Fisk, 2 An. 71. The plaintiff represents that the defendant is in the possession of her son’s estate; she prays that she may be recognized as guardian; that the defendant [524] may be ordered to render an account, and to pay over to her the funds in his hands. She finally asks for a decree of court to sell the land belonging to the minor, in order that she may remove the proceeds to Connecticut. The defence is, that the plaintiff has been deprived of the tutorship, and could not be legally re-appointed;'that if she .could, she must give bond here as other tutors; that guardians appointed in the other States have no right to interfere with tutors appointed under the laws of this State; that much of the property of the minor is immovable, and cannot be taken care of by a guardian residing out of the State; that this land produces fruits, and the sale of it at this time would work an irreparable injury to the minor. There was judgment in favor of the plaintiff, recognizing her as guardian, and ordering the defendant to account to her for the money in his hands. The court being further of opinion that, the other points raised by the pleadings could not be determined in the present action, reserved the rights of the parties }n relation thereto. The defendant has appealed; and the plaintiff asks that the judgment be amended in her favor, so as to authorise her to sell the land without the intervention of a family meeting, and to remove the proceeds to the State of Connecticut. The plaintiff has, we think, made out a case of bond fide removal to another State; and there is no doubt that she had the right so to emigrate, and to take her infant child with her. Story’s Conflict of Laws, p. 505. 9 Mart. 543. 4 Mart. 715. 7 La. 543. Although the plaintiff lost the tutorship by marrying without being authorized by the judge, on the advico of a family meeting, to retain it, she might subsequently have been appointed dative tutrix, as any other person. This constitutes no objection to her appointment in Connecticut. See Merlin’s Rep. verbo Tutele, §3, art. 3. 2 Duranton, no. 427. Robins v. Wells, 5 N. S. 382. It may therefore be conceded that the plaintiff, under her appointment, stands in the same situation as the foreign 'guardian of a minor born in the State of Connecticut, and inheriting property in Louisiana. The 1st section of the act of 1843, provides: “That hereafter, any person who has been, or shall be, appointed tutor or guardian of any minor residing out of the State of Louisiana, but within the United States, and who has qualified as such, in conformity with the laws of the State where said appointment is made, shall be entitled to sue for, and recover, any property, rights, or credits, belonging to said minor, within this .State, upon his producing satisfactory evidence of his appointment as aforesaid, without being under the necessity of qualifying as tutor of said minor, under the laws of Louisiana.” Under this provision of law there can be no doubt of the right of the plaintiff to compel the defendant to account; and, as it is satisfactorily shown that the debts of the succession through which this property descended to the minor have all been paid, she is entitled, to receive the funds in the hands of the defendant, and to take possession of the immovable property. We are, therefore, of opinion that there is nothing in the judgment of which the defendant can complain. We are further of opinion that the judge did not err, in refusing to order the sale of the lands of the minor without the advice of a family meeting. There is no law to authorize such a proceeding. A foreign tutor has full power to administer the real property of his ward, situated in this State, by an attorney in tact. Chiapella v. Couprey, 8 La. 88. If he neglects to do so, it is made the [525] duty of the courts of this State to appoint a tutor ad Iona, for that purpose; but the rules regulating the alienation of the real property of minors are uniform, and independent of the tutor’s domicil. The 2nd section of the act of 1843, allowing the tutor to remove the property of the minor from the State, applies to cases in which the estate of the minor has been converted into money, and does not authorize the sale of real estate in the manner prayed for. Judgment affirmed.