New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-04-29
NEW ORLEANS, FRIDAY, APRIL ~, 1870

an authentic and identified copy of
which is annexed to said petition. which
said will has been duly admitted to probate,
by the Probate Court within and Tor the
county of Hamilton, Ohio, on the twenty
sixth November, 1869. The petitioner fur
ther represents that letters of adtninistra'
tion were duly issued to him, and he has
been duly qualified by the Probate Court at
Cincinnati, Ohio, the testamentary execu-
ter appointed by the will having declined TO
act. He further alleges that he l5 deslrous
Of being appointed, confirmed ana recoS-
nized as dative testamentary executor OF l1e
deceased, and qualified according to law.
He therefore prays for due notices to be pup
lished of his application, and 10 De sp1c
pointed dative testsmentary executor OF
said succession, and for inventory, etc.
The court on this application ordered the
will to be approved registered and executeo,
! and that petitioners application tor letters
of dative testamentary eXecutorshlp on TINS
estate be advertised according to law.
! On the eighth of April, 1870, ?. 5. t'ouke,
| public administrator appointed by virtue OF
! al act approved March 5, 1870, intervened IL
! these proceedings and prayed for the posses
/ sion of said succession to be administered
| by him, according to the provisions Of tne
! third section Of the law above cited.
! Upon this said John 7. Hickey has filed
rule, in which he alleges that he has been
| duly appointed and sworn datiye testament
tary executor of the deceased by the Probate
| Court IN and for the county Of Hamilton,
! Ohio. and that he is an applicant IN thls
court for recognition and COZ trmation; that
this court has err oneousiy and inadvertently
granted an erpdTte order IL favor CT tie
! public administra tor. unWarranted by law
aud against the spirit and meaning OF SAID
statute, it is ordered that the public admin
istrator do show cause why the said order
should not be revoked, led and re-
seindsd on the following grounds;
l. That the applicaat herein is the culy
appointed and sworn dative teatamentary
| executor of the last will and testament OF
the deceased, by judgment and appoint
ment made by q probate court OF sister
State, and he is here present praylug to be
| recognized and confirmed rs such under IN
comfy OF States aud the constitution OF the
United States, and that this succession ls
not contemplated or embraced by the pro
visions of the act appointing public admin
| istrator. and his Interference therein Is IN
authorized by law.
2. That the provisions OF the sad ac'
must be strictly construed, being in deroga'
| tiCn Of common right, and was clearly IN
| tended to apply to cases where there wa
20 one willing to ACT as an executor; thai
il was not intended to and does not repea
the right Of this court to recognize forelgI
executors under the settled Jurisprudence 0
| this State.
3. That the act OF the Legislature, ap
pointing a public administrator and the ap
pointment, are b-equent in date to th'
decease Of the testator, and the appoIntmen
!. of the applicant herein by the probate cour
of a sister State can not be retrospectivel,
INTERPRETED so as to interfere with the ad
ministration of an ancllary succession.
! After citing at length the law appllcaol
to the case, The Judge concludes as follows
The court must leave the parties Wher
they have placed themselves, the plaintln i
rule having applied to be appointed datlv
; testamentary executor OF the Will OF the de
ceased, in accordance with the laws OF thi
: State, must abide by the consequences re
I I | sulting from his application. He has there
4 by confessed that he had 10 flght, unde
the comfy Of States, to be appointed. con
Il firmed and recognized the admlDlstrato
Of the estate by virtue OF his appoint
J. meut made by the Judge OF tn
" | court Of probate of Hamilton county
. | Ohio, and as an ordinary applicant ne ca
:, | not compete with the officer appointed b
) law to take charge of the administration {
! an estate under such circumstances, nc
;" even with a creditor of the deceased.
, must BE- stated here that this succession
u entirely separate succession from the on
} opened in Hamilton county, Ohio, and To
| administration of which must be goVerne
!, exclusively by the laws of this State.
!, It is therefore ordered, adjudged and a.
4 | creed, that the rule herein taken be dl
= missed with costs.
D. L. Labatt and J. Aroni for plaintiff
u rule; Hays & New for public administrator
= defendant il rule.