BREAUX, C. J.
Appellants question the validity of a judgment whereby it is held that an exception of vagueness, want of capacity to bring suit, and of no cause of action was well taken and properly before the court for its consideration, and for that reason sustained. Appellants also complain of the judgment in that it holds that there is a conflict of interest between the under-tutor and the minor; also in that it holds that it is the duty of the undertutor to provoke proceedings against the tutor and directs Maestri to file proceedings against the tutor of Gladys Maestri, Marco Desina; also in directing that a suit be instituted to determine whether or not the will of Gladys Desina, deceased wife of Walter Maestri, is null and void, and, if not null and void, that it contains donations in excess of the disposable portion; also in that it directs the under-tutor to institute action for the removal of the tutor on the ground that he has failed to disclose to the court a conflict of interest be[406]*406tween .him and his ward. Appellants also object to the discharge of one of them (that is, B. Sbisa); also in directing that the executor anfl natural tutor opposes the account and in restricting the tutor in the exercise of his functions as natural tutor.
The facts are that Gladys Desina was a minor when she became the wife of Walter S. Maestri in 1912, and of this marriage was born a child on March 25, 1913. Two days later, the mother, Gladys Desina Maestri, departed this life. On the 21st of January, 1913, although not 16 years of age, she made her will bequeathing all her estate to her husband, Walter S. Maestri, and appointing her father-in-law, Natal Maestri, executor of the will.
The father-in-law, appointed executor, presented the will for probate to division B of the district court. It was accordingly probated and letters issued to him.
On April 11, 1913, Marco Desina, maternal grandfather of the child, Gladys Maestri, filed a petition in which he asked that the will be decreed null and void and the order admitting it to probate recalled for the reason that the’ testatrix had given birth to a child subsequent to the making of the will and for the further reason that she was hot 16 years of age at the time that she made the will. He prayed in the alternative that the legacy in favor of Walter S. Maestri be reduced, should the court hold the will legal. He also asked that Walter S. Maestri, father of the child, be excluded from the tutorship owing to the conflict of interests existing between him and the child, and to his unfaithfulness in the duties he owed his child in not renouncing the legacy made in his favor and to the prejudice of the child’s interest. He further prayed for the appointment of a tutor for the child.
Natal Maestri and Walter S. Maestri are plaintiffs in exceptions filed on -the 6th of May, 1913, averring that the petition- is vague and indefinite; that Marco Desina is without right to stand in judgment; and that his petition disclosed no right of action.
The judge of division B was ill on the day that the exception was called for trial, and the question arises at this point whether the exception was timely filed.
We are informed that the account of tutorship was rendered by Marco Desina as tutor of his daughter, Gladys Desina Maestri, who died March 31, 1913.
Marco Desina applied to the court for instructions as to which court his account as tutor of his deceased daughter should be rendered, division B or division O. It was decided that it should be filed in division B. This was done, and he asked that a tutor ad hoe be appointed to represent the minor, Gladys Maestri, in matter of the account, as the minor, as alleged by Marco , Desina, was not represented by any qualified tutor, whereupon we are informed that the judge of division A, acting for the judge of division B, absent, appointed John B. Sbisa tutor ad hoc of the minor, Gladys Maestri.
Natal Maestri and Walter S. Maestri opposed the account.
On June 10, 1913, Natal Maestri, paternal grandfather of Gladys Maestri, executor before named, and Walter- S. Maestri, the father, who had not been confirmed as natural tutor, by motion asked that the order appointing John B. Sbisa tutor ad hoc be set aside, it is stated, on the ground that the account of the tutor, rendered by Marco Desina, should have been rendered to the executor of the estate of Gladys Desina Maestri, and that the appointment of a tutor ad hoc was a mere supererogation.
Marco Desina filed an exception to this motion, urging that the judgment of court whereby a tutor ad hoc was appointed to Gladys Maestri could not be attacked collaterally, and that plaintiffs in rule were without right of action for the reason that [408]*408the will of Gladys Desina Maestri was null and void.
But it happens that Walter S. Maestri petitioned the judge of division B for letters of tutorship on November 11, 1913, and asked at the same time that an undertutor be appointed. The court granted letters of tutorship to Walter S. Maestri, and Caesar Maestri was appointed undertutor. A few days thereafter, to wit, November 24, 1913, Marco Desina appeared in court and asked that the order confirming Walter S. Maestri as the tutor of Gladys Maestri and appointing Caesar Maestri undertutor be recalled and set aside for the reason that his petition was passed on on April 21, 1913, without any notice to him and without a hearing. He claims that he was deprived of a right, as he was entitled to a hearing on the issues presented.
The judge of division B of the district court rendered judgment on November 28, 1913, dismissing the petition of Marco Desina, filed April 21, 1913, and maintaining the exceptions of want of capacity and of no right of action filed against the petition. And he further held that Marco Desina was without capacity to attack the will of Gladys Desina Maestri and without capacity to demand the reduction of the legacy made in favor of Walter S. Maestri, her husband. The reasons urged were that the said Marco Desina is not a forced heir of his deceased daughter. The judgment further directed Csesar Maestri, undertutor, to bring suit for the purpose of annulling the will of Gladys Desina Maestri and the removal of Walter S. Maestri tutor of the minor, Gladys Maestri; and the judgment further discharges John Sbisa tutor ad hoc and restrains the tutor from exercising the powers of tutor except to the extent necessary to the care and custody of the minor.
Marco Desina and John B. Sbisa, as before stated, are appellants from the. judgment of November 20, 1913, confirming Walter S. Maestri as tutor and appointing Csesar Maestri under tutor; and they are also appellants-from the judgment of December 15, 1913, which dismissed Marco Desina’s petition, filed April 21, 1913, and discharged John B. Sbisa as tutor ad hoc.
1. Exception of Walter S. Maestri, the father of Gladys Maestri. Want of capacity of Marco Desina to stand in judgment, not being an heir of the late Gladys Maestri, wife-of Walter S. Maestri.
2. That his petition discloses no cause of action; a default was entered on the petition of Marco Desina, the grandfather of Gladys. Maestri.
3. Taking up the grounds of defense, raised by Marco Desina to this exception:
[2] He urged in the first place that the exception was filed after the default.
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BREAUX, C. J.
Appellants question the validity of a judgment whereby it is held that an exception of vagueness, want of capacity to bring suit, and of no cause of action was well taken and properly before the court for its consideration, and for that reason sustained. Appellants also complain of the judgment in that it holds that there is a conflict of interest between the under-tutor and the minor; also in that it holds that it is the duty of the undertutor to provoke proceedings against the tutor and directs Maestri to file proceedings against the tutor of Gladys Maestri, Marco Desina; also in directing that a suit be instituted to determine whether or not the will of Gladys Desina, deceased wife of Walter Maestri, is null and void, and, if not null and void, that it contains donations in excess of the disposable portion; also in that it directs the under-tutor to institute action for the removal of the tutor on the ground that he has failed to disclose to the court a conflict of interest be[406]*406tween .him and his ward. Appellants also object to the discharge of one of them (that is, B. Sbisa); also in directing that the executor anfl natural tutor opposes the account and in restricting the tutor in the exercise of his functions as natural tutor.
The facts are that Gladys Desina was a minor when she became the wife of Walter S. Maestri in 1912, and of this marriage was born a child on March 25, 1913. Two days later, the mother, Gladys Desina Maestri, departed this life. On the 21st of January, 1913, although not 16 years of age, she made her will bequeathing all her estate to her husband, Walter S. Maestri, and appointing her father-in-law, Natal Maestri, executor of the will.
The father-in-law, appointed executor, presented the will for probate to division B of the district court. It was accordingly probated and letters issued to him.
On April 11, 1913, Marco Desina, maternal grandfather of the child, Gladys Maestri, filed a petition in which he asked that the will be decreed null and void and the order admitting it to probate recalled for the reason that the’ testatrix had given birth to a child subsequent to the making of the will and for the further reason that she was hot 16 years of age at the time that she made the will. He prayed in the alternative that the legacy in favor of Walter S. Maestri be reduced, should the court hold the will legal. He also asked that Walter S. Maestri, father of the child, be excluded from the tutorship owing to the conflict of interests existing between him and the child, and to his unfaithfulness in the duties he owed his child in not renouncing the legacy made in his favor and to the prejudice of the child’s interest. He further prayed for the appointment of a tutor for the child.
Natal Maestri and Walter S. Maestri are plaintiffs in exceptions filed on -the 6th of May, 1913, averring that the petition- is vague and indefinite; that Marco Desina is without right to stand in judgment; and that his petition disclosed no right of action.
The judge of division B was ill on the day that the exception was called for trial, and the question arises at this point whether the exception was timely filed.
We are informed that the account of tutorship was rendered by Marco Desina as tutor of his daughter, Gladys Desina Maestri, who died March 31, 1913.
Marco Desina applied to the court for instructions as to which court his account as tutor of his deceased daughter should be rendered, division B or division O. It was decided that it should be filed in division B. This was done, and he asked that a tutor ad hoe be appointed to represent the minor, Gladys Maestri, in matter of the account, as the minor, as alleged by Marco , Desina, was not represented by any qualified tutor, whereupon we are informed that the judge of division A, acting for the judge of division B, absent, appointed John B. Sbisa tutor ad hoc of the minor, Gladys Maestri.
Natal Maestri and Walter S. Maestri opposed the account.
On June 10, 1913, Natal Maestri, paternal grandfather of Gladys Maestri, executor before named, and Walter- S. Maestri, the father, who had not been confirmed as natural tutor, by motion asked that the order appointing John B. Sbisa tutor ad hoc be set aside, it is stated, on the ground that the account of the tutor, rendered by Marco Desina, should have been rendered to the executor of the estate of Gladys Desina Maestri, and that the appointment of a tutor ad hoc was a mere supererogation.
Marco Desina filed an exception to this motion, urging that the judgment of court whereby a tutor ad hoc was appointed to Gladys Maestri could not be attacked collaterally, and that plaintiffs in rule were without right of action for the reason that [408]*408the will of Gladys Desina Maestri was null and void.
But it happens that Walter S. Maestri petitioned the judge of division B for letters of tutorship on November 11, 1913, and asked at the same time that an undertutor be appointed. The court granted letters of tutorship to Walter S. Maestri, and Caesar Maestri was appointed undertutor. A few days thereafter, to wit, November 24, 1913, Marco Desina appeared in court and asked that the order confirming Walter S. Maestri as the tutor of Gladys Maestri and appointing Caesar Maestri undertutor be recalled and set aside for the reason that his petition was passed on on April 21, 1913, without any notice to him and without a hearing. He claims that he was deprived of a right, as he was entitled to a hearing on the issues presented.
The judge of division B of the district court rendered judgment on November 28, 1913, dismissing the petition of Marco Desina, filed April 21, 1913, and maintaining the exceptions of want of capacity and of no right of action filed against the petition. And he further held that Marco Desina was without capacity to attack the will of Gladys Desina Maestri and without capacity to demand the reduction of the legacy made in favor of Walter S. Maestri, her husband. The reasons urged were that the said Marco Desina is not a forced heir of his deceased daughter. The judgment further directed Csesar Maestri, undertutor, to bring suit for the purpose of annulling the will of Gladys Desina Maestri and the removal of Walter S. Maestri tutor of the minor, Gladys Maestri; and the judgment further discharges John Sbisa tutor ad hoc and restrains the tutor from exercising the powers of tutor except to the extent necessary to the care and custody of the minor.
Marco Desina and John B. Sbisa, as before stated, are appellants from the. judgment of November 20, 1913, confirming Walter S. Maestri as tutor and appointing Csesar Maestri under tutor; and they are also appellants-from the judgment of December 15, 1913, which dismissed Marco Desina’s petition, filed April 21, 1913, and discharged John B. Sbisa as tutor ad hoc.
1. Exception of Walter S. Maestri, the father of Gladys Maestri. Want of capacity of Marco Desina to stand in judgment, not being an heir of the late Gladys Maestri, wife-of Walter S. Maestri.
2. That his petition discloses no cause of action; a default was entered on the petition of Marco Desina, the grandfather of Gladys. Maestri.
3. Taking up the grounds of defense, raised by Marco Desina to this exception:
[2] He urged in the first place that the exception was filed after the default.
There is no force in this ground of exception urged by Marco Desina by reason of the fact that the exception was one that could be filed after the entry showing a default, ordered by the court, as it was an exception of no cause of action.
[1] This point being disposed of, the next, point is taken up for decision, which is:
Tli^it Marco Desina, not being an heir of the late Gladys Desina Maestri, has no interest as an heir in the succession. Not being an heir, he cannot demand reduction. Civil Code, 1504.
Quoting from the syllabus, which is full on the question in the decision:
“The father, as forced heir, has no interest to annul donations made by his daughter to her husband, in a * * * larger share than he would have inherited if such donations had not been made.” Succession of Desina, 123 La. 470, 49 South. 23.
This disposes of the point adversely to-the plaintiff in exception.
[3] We pass to the next question for decision : The alleged nullity of the will. This has not been touched upon by the lower court in its decision. Moreover, that court held [410]*410that the duty of the grandfather of the' minor and her tutor came to an end after the conditions of the succession had become judicially known to the court save to.- render a proper account to the court of his administration as tutor.
The judge has full authority in the premises; when there is a conflict of interests between the tutor and his ward, it is the court’s duty to see that the undertutor attends properly to the exposed interests of the minor. He may even appoint a curator ad hoc, if necessary to the protection of the minor’s interests, when there is no undertutor and, we will add, when the undertutor fails to perform and discharge all the duties incumbent upon an undertutor acting ex officio as tutor. Welch v. Baxter, 45 La. Ann. 1064, 13 South. 629.
Properly in the cited case, the undertutor expressed his entire willingness to perform his duty as undertutor to the minors and obey all orders of the court.
We have no reason to infer that it is otherwise in the present case; if it be otherwise, the court will doubtless take all necessary steps.
We agree with the district court: It is the duty of the undertutor to act when there is a conflict of interests. Alba v. Provident Savings Bank, 112 La. 551, 36 South; 587; Barbin v. Schwartzenberg, 110 La. 467, 34 South. 606, citing several decisions.
See, also, Carbajal Case, 111 La. 949, 36 South. 41.
It is not in the power, even' if so inclined, of Natal Maestri, named executor in the will of the decedent, Gladys Desina Maestri, to enforce all of the provisions of the will, if there are illegal provisions. The undertutor has been ordered to bring suit in the succession to have the will annulled.
If it is not null, for reduction of the legacy, and he is further directed and ordered to institute suit against Walter S. Maestri for his removal from the tutorship for the reason that he failed to inform the court-of the conflict of interests between himself and his daughter.
In his desire to protect the interests of the minor, the court adds:
“The orders hereinbefore issued by the judge of division C, and the order issued by this court on April 21, 1913, ordering Thomas Connell, clerk of this court, to retain in his possession all the bonds and other securities belonging to and which he holds for account of said minor is to remain in full force until the further orders of this court.”
But it is said by the learned counsel for the appellant that Marco Desina, grandfather of Gladys Maestri, claims nothing whatever personally; that he sues for the benefit of his minor grandchild; that her fortune may be dissipated and lost, and the purpose is to protect the minor from this harm.
There is no law giving this sanction. The close tie of grandfather does not confer upon him the right he claims. The relief sought will have to be obtained through the selected agent of the court, who can be held responsible in case he fails in properly protecting the minor’s interests.
[4] The learned counsel for the appellant urged that the district court erred in annulling the order of court appointing John B. Sbisa tutor ad hoe to the minor, Gladys Maestri, in connection with the filing of the account of tutorship rendered by her grandfather, Marco Desina.
The special tutor was appointed and has served the purpose of the appointment that is at an end; he was discharged; there is no good reason to reinstate him. He acted until the undertutor was appointed. Moreover, he cannot be reinstated, for “there is no such person designated by law.”, Succession of Walker, 32 La. Ann. 324.
[5] The counsel for appellant state in argument that the court erred in granting an order directing letters of tutorship to issue to Walter S. Maestri and in appointing Osesar [412]*412Maestri undertutor of the minor without notice to Marco Desina, who opposed the appointment, and without trial of his opposition.
The court limited the authority of Walter S. Maestri, tutor, to retain the possession of his child, to care for her, and permitted him to sue and be sued; in all other respects the order of appointment is to be held in abeyance until the suits brought are disposed of, and until such time the tutor is not to take possession of any of the minor’s property. He can only act in matters personal to the minor, not in. matters relating to her property rights.
This limited order could be issued without trenching upon any of the demands made by the grandfather.
We are referred to Succession of Walker, 32 La. Ann. 324, as authority upon the nearest male relative.
In the cited case, the court recognized in the nearest male relative the right to sue for a writ of sequestration in the ihterest of the minors. The present case is different. It is proposed to supersede an undertutor by permitting the nearest male relative to raise the questions before stated. They must now be presented and decided.
The judgment of the 15th day of December, 1913, and the judgment of November 28, 1913, will be affirmed.
Eor reasons stated, it is ordered, adjudged, and decreed that the judgments appealed from are affirmed, at costs of appellants in both courts.