In re Minors Long

43 So. 279, 118 La. 689, 1907 La. LEXIS 787

• Court: Supreme Court of Louisiana
• Decided: March 4, 1907
• Docket: No. 16,501
• Status: Published

Opinion

PROVOSTY, J.

The undertutor, who had consented to the resignation of the tutrix, now recants his consent, and seeks to have the resignation set aside, on the ground that a mother who, having accepted the tutorship of her children, has remarried and been retained in the tutorship on the advice of a family meeting, cannot be allowed to resign her said trust. Whether she can is said by counsel on both sides to be the sole question in this case.

The rule is that tutorship is a trust, which the person called to it is not free to decline. Article 253, Civ. Code, makes an exception in favor of the mother, but the exception is limited to not accepting. Nothing is said about resigning after having accepted.

The French commentators on the corresponding article of the Code of Napoleon (article 394) are divided in opinion. Dalloz, Code Civil Annoté, says the weight of authority is one way. Fuzier-Hermann says it is the other.

Without deciding whether a tutrix may resign or not before she has remarried, we hold that when she has remarried, and been retained in the tutorship, and her husband become co-tutor with her, she is no longer at liberty to resign. The Code certainly does not extend to her husband and co-tutor the liberty thus to retire from the tutorship, and the co-tutor not being permitted to retire, it would seem to follow that she cannot.

Judgment affirmed.