
    Succession of Margaretha Brinkman.
    The surviving husband has, under the act of 25th of March, 1844, the usufruct of the community property during his life, but this does not entitle him to the administration which belongs to the tutor of the minor ohildren. C. C. 1037, 1114.
    APPEAL by administrator from the Fifth District Court of New Orleans, Buchanan, J.
    
      Roselius, for appellee.
    
      Graihle, for appellant.
   The judgment of the court was pronounced by

King, J.

Mrs. Brinkman died leaving a succession consisting exclusively of her share of the community of acquets and gains, to the usufruct of which her surviving husband is entitled, during his life, under the act of 1844, 99, sec. 31. The surviving husband applied for letters of administration, and his application was opposed by the tutor of the minor heirs of the deceased. The opposition was dismissed, and the tutor has appealed.

We think that the district judge erred. The act of 1844, giving the usufruct for life of the community effects to the surviving spouse, has made no change in the previous laws regulating the order of preference, to be observed in the appointment of administrators, when an administration becomes necessary. That such necessity exists in the present instance, must be assumed, as it has been averred in both the application and the opposition. The heirs of the deceaséd, being all minors, are necessarily beneficiary heirs. The code is express, that “ the tutor of the beneficiary heir can claim the preference for the administration.” C. C. arts. 1037, 1114.

The judgment of the district court is therefore reversed; and it is ordered, that Nicholas Tinner be appointed the administrator of the succession of the late Margaretha Brinkman, deceased. The succession paying the costs of both courts.  