165 So. 646

#### SUCCESSION OF COCO.

No. 33660.

Nov. 4, 1935.

On Rehearing, Feb. 3, 1936.

*147See, also, 183 La. 517, 164 So. 326.

Couvillon & Couvillon, of Marksville, for relators Jules A. Coco and others.

Lester L. Bordelon, of Marksville, for respondents.

LAND, Justice.

On July 2, 1935, Albert Dominique Coco died intestate in the parish of Avoyelles, where he had his domicile, leaving an estate of personal and real property inventoried at the value of $54,000. Deceased had never married, and his father and mother had died before him. He left as his sole heirs two brothers, Lestan L. Coco and Jules A. Coco, and two sisters, one of whom, Mrs. Emma Coco Bordelon, is one of the applicants with Jules A. Coco for writs of certiorari and prohibition herein sought.

Lestan L. Coco, the senior brother of deceased, applied to be appointed administrator of his estate, and included in his application a prayer that, pending the advertisement of his application, he be appointed temporary administrator. The judge a quo ordered his application for appointment as administrator to be duly published, and, at the same time, appointed him temporary administrator. Lestan L. Coco died before he gave bond as administrator, and A. Blumes Coco, nephew of the decedent, Albert Dominique Coco, and son of Lestan L. Coco, deceased, immediately presented a petition to respondent judge for his appointment as administrator and as temporary administrator. He was appointed by respondent judge as temporary administrator, and his bond was fixed at $69,000. Relators filed a motion or rule to vacate the application and appointment of A. Blumes Coco upon numerous grounds, among which was that he was not a beneficiary heir of Albert Dominique Coco, deceased, but that the relator Jules A. Coco was a brother and beneficiary heir of decedent, and was entitled to be appointed as temporary administrator and administrator by preference, and prayed the court to be so appointed.

Relators’ rule was denied in toto, and A. Blumes Coco was maintained in office as temporary administrator by respondent judge.

Relators then applied to this court for writs of certiorari and prohibition. A rule nisi with stay order was granted, but our order was later modified to the extent of permitting A. Blumes Coco, temporary administrator, to operate the plantation and the mercantile establishment of decedent until final disposition of the application for writs applied for by relators, upon executing a bond with good and solvent surety, to be approved by the district judge, in a sum not less than $70,000.

The judge a quo was, in our opinion, in error in maintaining A. Blumes Coco in the office of temporary administrator, on the ground that he was an heir of the *149deceased.- He had died before his senior 'brother, Lestan L. Coco, who thereby became the heir of decedent, as he had died intestate and without ascendants or descendants. Upon the death of Lestan L. Coco, A. Blumes Coco, his son, became his heir directly, and not the heir by representation of his uncle, Albert Dominique Coco, deceased.

The relator, Jules A. Coco, is without doubt the beneficiary heir of Albert Dominique Coco. He is of age, present in the state, and, as appears from the record, possesses personal fitness for the discharge of the duties of administrator.

. Article 1042 of the Rev.Civ.Code provides that: “In the choice of the administrator the preference shall be given to the beneficiary heir over every other person, if he be of age and present in the State.”

Article 1043 of the Rev.Civ.Code also provides that: “If there be *two or more beneficiary heirs*of age and present in this State, the judge shall select one or two he shall consider *the most solid,*for the administration.” (Italics ours.)

In determining “the most solid,” business capacity, experience, property, integrity, and everything else that goes to make up personal fitness should be considered. Succession of Chaler, 39 La.Ann. 308, 1 So. 820.

But personal fitness in one who is not a beneficiary heir, as in the case before us, cannot be of any avail to the claimant for administration against the beneficiary heir, of age and present in the state, who takes precedence over every other person. Succession of Bulliard, 111 La. 186, 187, 35 So. 508; Succession of Rabe, 163 La. 149, 111 So. 658.

It is therefore ordered that the rule nisi issued herein be made absolute, and that a writ of prohibition issue herein to respondent judge, Hon. C. R. Bordelon, judge of the Twelfth district court for the parish of Avoyelles, and to respondent A. Blumes Coco, prohibiting them, and each of them, from proceeding any further in said cause.

It is now ordered that the application of respondent A. Blumes Coco, to be appointed administrator be dismissed in the court below, and that his appointment as temporary administrator by respondent judge be, and is hereby, vacated and set aside.

It is further ordered that respondent judge forthwith appoint relator, Jules A. Coco administrator of the succession of Albert Dominique Coco, deceased, and that relator Jules A. Coco be permitted to qualify by taking the oath required by law and upon giving bond with good and solvent surety, to be approved by respondent judge, in a sum not less than $70,000.

It is further ordered that respondent A. Blumes Coco pay the costs of this proceeding.

O’NIELL, C. J., is of the opinion that this is not a case for the exercise of the court’s supervisory jurisdiction.

ODOM, J., dissents. This court should not approve an administrator on application for a writ.

*151On Rehearing.

FOURNET, Justice.

We granted a rehearing in this case on the application of A. Blumes Coco, and, in order to ■ discuss the issues raised, it is necessary to give a brief chronological statement of the facts:

Albert Dominique Coco died intestate on July 2, 1935, leaving as his sole heirs at law two brothers, Lestan L. Coco and Jules A. Coco, and two sisters, Mrs. Emma Coco Bordelon and Mrs. Eliza Coco Wood-ruff. On July 5, 1935, Lestan L. Coco (now deceased) applied to be appointed administrator of the succession and at the same time prayed to be appointed administrator ad interim. On the same day, Jules A. Coco and Mrs. Eliza Coco Woodruff opposed his application to be appointed-temporary administrator, but on July 15, 1935, after due hearing, the court appointed him as such and ordered the publication of his application to be appointed permanent administrator, to which the same brother and sister filed an opposition on the 23d of July and prayed that one or both of them be appointed as administrators. After trial of the opposition, the court rendered judgment appointing Lestan L. Coco as permanent administrator of the succession upon his furnishing bond as required by law. The opponents appealed from that judgment, but, before the appeal had been lodged in this court, and without having qualified as administrator, Lestan L. Coco died on August 18, 1935. We dismissed the appeal. See our opinion of November 4, 1935, No. 33650, 164 So. 326. On August 19, 1935, the judge a quo signed an order for the publication of the application of A. Blumes Coco, a son of Lestan L. Coco, deceased, for letters of administration and, pending the approval or disapproval thereof, appointed him temporary administrator, upon his furnishing bond in the sum of $69,000. The next day, upon the petition of Jules A. Coco and Mrs. Eliza *Coco*Woodruff, a rule issued against A. Blumes Coco to show cause why his application for administration of the succession of Albert Dominique Coco-, dated August 19, 1935, should not be vacated and set aside and Jules A. Coco forthwith appointed administrator of said estate, and, in the alternative, that A. Blumes Coco’s application be dismissed ■ or ordered to stand as an opposition to Jules A. Coco’s appointment because Jules A. Coco’s opposition to the application of his late brother’s appointment was in effect Jules A. Coco’s application to be appointed as such. The rule was made returnable on the 24th day of August, tried on the 26th of August, and on the 7th of September, 1935, judgment was rendered by the lower court declining to vacate its order and retained A* Blumes Coco as temporary administrator of the succession; whereupon the relators, Jules A. Coco and Mrs. Eliza Coco Woodruff, applied to this court for writs of certiorari and prohibition, which we granted (No. 33660 of our docket), and on the 4th of November, 1935, we rendered our decision, setting aside the appointment of A. Blumes Cocp as temporary administrator and ordered the district judge to forthwith appoint relator Jule= A. Coco administrator of the succession of Albert *153Dominique Coco, upon his giving bond in the sum of $70,000. The matter is now before us on rehearing.

Relators Jules A. Coco and Mrs. Eliza Coco Woodruff,'in their petition to the lower court for the issuance of the rule against A. Blumes Coco to have the court’s order of 'August 19, 193S, vacated, ■or, in the alternative, that A. Blumes Coco’s application to be appointed administrator stand as an opposition to the appointment of Jules A. Coco, assigned therefor the following reasons:

> “(a) That the issue of the appointment of an administrator for the above estate having been advertised and taken up by the •court in the matter of the application of Lestan L. Coco, Sr. and Jules A. Coco for ■such appointment, such trial foreclosed the issue of the appointment of any other flian the two applicants and constituted a bar and estoppel to anyone else applying •as long as either of said applicants remained alive, and the filing of said application is, in effect, a demand for a reopening of the issue of the appointment made by one who had not heretofore applied, which the court is powerless to grant .under the law;

> “(b) That since the issue of the appointment of an administrator of the above ■estate was narrowed down by the application of Lestan L. Coco, Sr. and opposition of your petitioners and the application of Jules A. Coco, to either of them ■or both but to no other, and since the said Lestan L. Coco, Sr. has died before qualifying, there leaves and there still remains the application of your petitioner Jules A. Coco as the only applicant for the administration of said estate, there leaves the court no alternative but to appoint him. No other applicant can now enter into the proceedings of the estate and either oppose the appointment of your petitioner, Jules A. Coco or ask the appointment himself, even if he had a right equal to your petitioner Jules A. Coco.

> “(c) That the said A. Blumes Coco, even if an application for the appointment of the administrator of the above estate could be now'entertained as timely, is not a beneficiary heir and has no right in law to compete for the appointment against your petitioner who is a beneficiary heir, and whose application is already filed in these proceedings.

> “(d) That even if the application of said A. Blumes Coco could be entertained at this time which your petitioner, however, denies can be legally done, it could be only done in opposition to the application of Jules A. Coco and not a new application since there has already been one filed by said Jules A. Coco in these proceedings and there can not be two original applications.

> “(e) That your petitioners Jules A. Coco and Mrs. Eliza Woodruff can not be thrown to oppose an application made subsequent to that of your petitioner Jules A. Coco for the appointment of an administrator of this estate, and the said application of said A. Blumes Coco should, therefore, be dismissed at least, or ordered to stand as an opposition to your petitioner Jules A. Coco’s application, this ground and showing being made herein only in the *155alternative, and in the event the court should deem the other grounds hereinabove set forth without support in law.”

On motion to dismiss the appeal taken by relators herein from the judgment of the lower court appointing Lestan L. Coco administrator of the succession of Albert Dominique Coco, 164 So. 326, 327, we held that “our conclusion * * * is that the appeal must be dismissed, in order that the district judge may proceed anew, as if the proceeding had become abated before it could be decided in the district court.” Therefore the issues raised by relators in their petition to set aside the order dated August 19, 1935, are clearly disposed of by our decree.

While it is true, as provided by article 1012 of the Revised Civil Code, that “in the choice of the administrator the preference shall be given to the beneficiary heir over every other person, if he be of age and present in the State,” and by article 1043 that, “if there be two or more beneficiary heirs of age and present in this State, the judge shall select one or two he shall consider the most solid, for the administration of the succession,” nevertheless, these are matters to be determined in a proper proceeding. In other words, the court is not authorized ex propria motu to appoint or select an administrator. Code of Practice, arts. 966 and 967; King v. Lastrapes, 13 La.Ann. 582; Girod’s Heirs & Legatees v. Girod’s Ex’rs, 18 La. 394; Succession of Gusman, 35 La.Ann. 404; Pfarr v. Belmont, 39 La.Ann. 294, 298, 1 So. 681. Any creditor, heir, or party in interest may apply to be appointed administrator of a succession. It is only when beneficiary heirs assert their rights that it is the mandatory duty of the judge to select the beneficiary heir over a stranger, and, as between beneficiary heirs, the most solid, according to the judge’s discretion.

We are therefore of the opinion that the district judge, in his ruling, properly declined to set aside his order of August 19, 1935, ordering the publication of the, application of A. Blumes Coco to be appointed administrator.

“If there be several heirs to a succession, some of whom have accepted unconditionally, and others claim the benefit of the term for deliberating, the judge of the place where the succession is opened shall, notwithstanding, cause an inventory to be made of the effects of the succession, and *shall appoint an administrator to manage them,*until a partition of the same be made among the heirs.” Rev.Civ.Code, art. 1047. (Italics ours.)

Under articles 944 and 945 of the Revised Civil Code, the rights of Lestan L. Coco to accept or renounce the succession of his brother Albert Dominique Coco, were transmitted upon his death to his son, A. Blumes Coco.

In the Succession of Pavey (In re Coco et al.), 124 La. 520, 50 So. 518, this court held, as is well expressed by its syllabus:

> “Under the provisions of Act 109, p. 173, of 1906, relative to inheritance taxes, it is made unlawful for any heir or legatee to take or be in possession of property composing the inheritance until he shall *157have obtained the authority of the court to that effect. This statute places all successions in gremio legis, and by necessary implication empowers the court to conserve the property of the estate by the appointment of a temporary keeper until an administrator can be appointed or the heirs or legatees sent into possession.”

It is our opinion that the lower court was not only authorized to appoint an administrator ad interim in the instant case, but a review of the record discloses that one was necessary. The estate consisted of a large farm, which was being actively operated, a syrup mill, and a general mercantile business, which had given credit to a number of farmers in the vicinity, and collection from them depended upon the operation of the syrup mill and the sale of the proceeds of the manufactured products of the debtors of the estate.

The dismissal of the appeal taken by relators, Jules A. Coco and Mrs. Eliza Coco Woodruff, to the lower court’s judgment appointing Lestan L. Coco administrator of the succession, had the effect of placing the status of the matter as though no application had ever been filed, and necessarily proceedings had to be started anew. Succession of Coco, supra. Therefore, if the relators, as beneficiary heirs, desired to be appointed administrators of the succession, it was their duty to formally oppose the appointment of A. Blumes Coco as ad interim and permanent administrator and pray for the appointment of either of them or both and the matter tried contradictorily with applicant, A. Blumes Coco, Having failed to do so, that matter was never at issue in the lower court, and we are powerless to raise the issue here for them. We were therefore in error in our decree of November 4, 1935, in setting aside the appointment of A. Blumes Coco as temporary administrator and ordering the district court to forthwith appoint Jules A. Coco permanent administrator of the -succession of Albert Dominique Coco.

For the reasons assigned, our decree and judgment herein, dated November 4, 1935, is hereby set aside, and it is now ordered, adjudged, and decreed that the rule issued herein be recalled, and the writs of certiorari and prohibition against respondents, Judge C. A. Bordelon and A. Blumes Coco, are dismissed, with full reservation of the rights of all parties concerned to have the issues with reference to the appointment of a permanent administrator of the succession of Albert Dominique Coco determined in a proper proceeding in the district court; all costs of this proceeding to be paid by the relator Jules A. Coco.