Succession of Penney v. Bloom

10 La. Ann. 291

• Court: Supreme Court of Louisiana
• Decided: April 15, 1855
• Status: Published

Opinion

Spofford, J.

The expression “present in the State,” found in Art. 1035 of the Civil Code, and the word “present” in Art. 1114 seem to have been chosen ex industria, and by way of contrast to the common phrase “ domiciliated in the State.”

This is rendered more probable by a reference to a statute antecedent to the Code, which provided “ that all curators to vacant estates and estates ab inlestato shall be appointed in the parish where the deceased last permanently resided: Provided, however, that the said persons have a domicil within the State.” Act March 22nd, 1822, See, 1, (Sess. Acts, p. 66.)

By the Code of 1825, the beneficiary heirs were required to be placed in the administration, if they are of age, and present or represented in the State.

This presence is required, because, otherwise, they could not take the oath and give the bond before the proper parish officer, within ten'days from their appointment. Sess. Acts, 1842, p. 302.

By complying with these formalities, they subject themselves personally to the jurisdiction of the court.

Like administrators domiciliated in ihe State, they may absent themselves for a time, on the condition that they leave their general and special power of attorney with some person residing in the parish or in an adjoining parish, to represent them in all the acts of their administration, and, before their departure, deposit an authentic copy of such power of attorney in the office of Recorder of Mortgages of the parish. Sess. Acts 1847, p. 115.

As it may beunferred from the record in this case, that the beneficiary heir was present, and as! she cannot qualify without being present, in the sense of the Code,no injury' will result from her appointment as administratrix, subject, of course, to a compliance, on her part, with all the requirements of the law.

Re-hearing refused.