Succession of Lally

1 Rob. 269

• Court: Supreme Court of Louisiana
• Decided: January 15, 1842
• Status: Published

Opinion

Garland, J.

Robert Splain, a resident of this state, presented his petition to the judge of the Court of Probates for the parish of New Orleans, together with a duly certified copy of the will of James Lally, deceased, which had been admitted to probate, and ordered to be executed in the state of New York. This order the judge of the Court of Probates refused to give, and the petitioner obtained a rule on him to show cause why a mandamus should not issue, commanding him to admit said will to registry and execution. The respondent has assigned various reasons why the writ should not be issued, all of which have been stated in the cases of Wed-derburn and Lytle, supra 263, 268, and this case differs from, the latter only in the particular, that Splain, the petitioner, is not named executor, nor does it appear that he is an heir, legatee, or creditor ; but he swears that he has an interest in having the will registered and ordered to be executed. We see no reason why this should be refused, as it gives the petitioner no right to administer upon the property, without further authority, which we presume he intends to solicit. It ma.y, on various grounds, be important for him that the will should be registered and made executory, and no injury can be done to the succession by so doing, and thereby preserving it, and enabling all having an interest to use it as a muniment of title, or as evidence in relation to the property situated in this state.

G. B. Duncan, for the petitioner.

This case is so nearly similar to that of Rayburn in the succession of William Lytle, deceased, that the same judgment must be rendered.

The rule is therefore made absolute.