The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-03-28
Supreme Court Of Louisiana.
Condensed Decisions--NEw ORLEANS. March &c, 1S49.
reported for "The Crescent.'J

VOuoe0Seu OeClS1OuSssNEW OkLEANS, Marcn 20, LOSE
reported for "Ths crescsnt."l
The underutor is without capacity to represent the mnon
in proceedings taken to compel rendition of
by the tutor. The right call for accounts belongs
the tutor who may be appointed In an action
brought by the undertuto 20 deprive the tutor of the
tut0hip the accounts Of the tutor may be Investigated
for the purpose of proving his INSTRUMENTATION but
that issue judgement accepting the accounts can be
rendered. The tutor owes his wards in all the
funds he receives belonging to Them with legal interest
and he only shield himself from that responsibility
by investing such funds in their name under the Judge
ment of the Court, rendered the advice of family
meeting.
JOSEPH MoNGET, TUToa, Us. P. A. WALKER,
WIN. 7. TUNNARD AND 5. HI. SHIPLEY. No.
1898. Appeal from the S;xth Judicial District
Court, Parish of East Batca Rouge. Res, J....
Per curiam: In 1885 Parmey A. Walker APP
pointed tutor of the minor children of the late
Alex. Wood and Rebecca Woodruff The properly
of the minors was sold on long credits and the tutor
received the proceeds of the sale.
In lS45 the under-tutor instituted an action to
deprive him of the tutOrship on various grounds
alleged in the petition. There was also a prayer
that he render an account of his administration.
In answer to this petition the tutor consented to
relinquish the tutorship. He further averred that
he had invested the funds of the minors as they
came to his hands, on what was deemed, at the
time of the investments, ample security that in
consequence of the monetary crisis of 1887 some of
those securities had become unavailable, but that
owing to the conventional interest he had received
the assets in his hands exceeded by more than
$1,000 the legal claim of the minors against him,
and were more than sufficient to satisfy it, The
notes and judgements described in his account
were brought into Court and he asked that the &C
count be approved, that the notes and obligations
therein described be received in full satisfaction of
the sum due by him to the minors, and that he be
discharged from all further responsibility as tutor
and Ic bond Hal t. H. a. Il
plaintiff counsel the tutor in person had the case
fixed and tried it &c parte. The judgement rem
dered was in these words: Grinding the account of
the tutor to be correct and the assets offered by
him sufficient to meet his liability, it is ordered
that the account be approved and allowed, and
that the notes, obligations and cash, the cash be-
ing fifty dollars deposited in Court by the defen-
dant, be received in full of all claims against him
as tutor it is further rdered that he be discharged
from further duties, responsibilities liabilities as
tutor, that his bond be cancelled and annued, and
that the legal mortgage resting upon his property be
released
The present plaintiff was subsequently appoint
ed tutor, and large portion of the notes and ac-
counts surrendered by Walker having proved val
ueless, he submitted the matter to family meeting
and, on their advice and recommendation, returned
to Walker such of the claims given by him in paw
ment as were deemed unavailable, and instituted
this action to annul the judgement of the Court of
Probates, SO far as it receives those notes and ac
counts in payment of Walkers Indebtedness to the
minors to compel him to render new account,
and to reinstate the legal mortgage raised by said
judgement. - 80
The answer of the defendant is that the account
rendered by him was duly homologated that he
has been legally discharged by judgement acqui-
esced in by the plaintiff, who has no longer any
right to question its correctness that more than
one year elapsed between the rendition of that
judgement and the institution of the present action
which is therefore barred by prescription.
The Judgement in the first instance was that
the Judgement Of the Probate Court be avoided
and set aside, far as it discharges Walker from
all liabilities as tutor and receives the notes and
his indebtedness to the minors; that the plaintiff
recover of P. A. Walker the sum of S595S Is, with
legal interest; that all the property belonging to
Walker, from the day of his appointment as tutor,
be decreed to be subject to the minors mortgage
and privilege and that certain property described
IN the petition, and shown to belong to Walker be
seized and sold to satisfy this judgement" The
amount of the judgement was reduced by remitt,-
turs entered, and by other credits, to 1859 81.
The defendant then took devolutive appeal.
One of the grounds urged against the validity of
the judgement of the Probate Court is that it was
ntor, who might well institute proceedings to de-
prive Walker of the tutorship, but had no author
ity to appear in behalf of the minors so far as the
suit involved rendition of accounts by the tutor
We hold this objection to be fatal. The under
tutor is without capacity to represent the minors in
such case after the dismissal of the tutor the
right to call for an account belongs exclusively to
the new tutor appointed. MCGEE ps. Dupuy, I'm |
1er-Tutor 7 Rob. 23I. |
In an action to deprive the tutor of the tutorshp
the under.tutor may undoubtedly investigate his |
accounts for the purpose of proving his maadmin- |
stratiOn but on that issue judgement accepting
he accounts can be rendered. The under-tutor |
being disqualified by law from appearing in the suit
20 far as it involved the rendition of the tutors
accounts, the discharge of the tutor the canceng
Of the bond, and the raising of the general mort
gage were unauthorized by law, and the nullity of
he Judgement may be demanded al any time.-C. |
P, art. Cos, 612.
sargued that the judgement cannot be annulled
n part and that if it is entirely annulied, Walker
s still tutor, and the plaintiff has no capacity to
appear for the minors
The nullity being placed by the Court iron the |
want of authority of the under-tutor 10 represent
he minors, there is no reason why the judgement |
should not remain valid, SO far as the authority ex-
sted. But if on other grounds, the entire Judge |
nent was null, the nuty would not avail the de-
endant.
Walker was not deprived of the tutorship by the
Judgement Of the Court against his own consent.
de resigned the trust voluntarily, dealt afterwards
With the plaintiff as tutor, and has taken excer-
ion to his capacity to sue 1t is too late to do So
That the Probate Court could not receive, in pay
nent OF walker Indebtedness to the minors, notes
md judgements which formed no part of their
ssets when he was appointed is too clear for argu-
nent These investments were made upon his own
and it would be strange indeed if he
ould thus be permitted to speculate upon events,
etaining the profits, if any were made, and throw
ng upon his wards the losses attending his private
The tutor owes his wards, in all
asses, the funds which he receives belonging to
hem, with legal interest, and he can only shield
himself from that responsibility by investing those
unds in their name under the judgement OF the
court, rendered on the advice of family meeting.
The plaintiff has the undoubted right to compel
Walker to account and to enforce against him any
may obtain. Walker, after he ceased
be tutor stood as any other debtor of the minors
The defendant contends that if the judgement is
therwise well founded in law, further deductions
hould have been made from it, and lie states in
lis brief the items which should, in his opinion,
ave been allowed.
Weare unable to discover any error in that respect
a the judgement. The evidences of debt were
etumed to Walker as they had been received from
i'm. Those of the notes returned to him, which
riginaily formed part of the minors assets, were
roperly charged to him after he had suffered them
H. L. L. u /