
    No. 3242.
    Succession of Josiah Huie—Contestation for Dative Testamentary Executorship.
    "Where several parties apply for the appointment of dative testamentary executor, the judge may exercise a sound legal discretion in making the appointment, and if the record discloses nothing showing that the discretion has been improperly exercised by the judge a quo, his judgment will not be disturbed on appeal.
    APPEAL from the Parish Court of Rapides.
    
      J. H. 0. Barlow, Parish Judge, if. 8. Losee, executor, in person, appellee.
    
      B. J. Bowmam, for opponent and appellant.
   Taliaferro, J.

By the decease of the executrix appointed by the will of Josiah Huie, the office became vacant, and the affairs of the -estate requiring a representative, three applicants presented themselves for the office of dative testamentary executor. The judge appointed the first applicant after hearing the two opponents. It is settled that, 1n cases like the present, the judge may exercise a sound legal discretion in making the appointment. We find nothing in the proceedings that authorizes us to conclude that the discretion has in this instance been improperly exercised. The succession is small and consists entirely of landed property-. The case in 3 An. 566, is closely in point_ Both the opponents have appealed. We see no good reason for altering the judgment:

Judgment affirmed

On Rehearing

Howe, J.

A rehearing was granted in this case on the suggestion that one of the applicants for letters of dative executorship was the beneficiary heir of the deceased, and therefore entitled to a preference in appointment. C. C. 1035,1037,1038; 6 An. 811; 10 An. 290; 18 La. 402; 2 R. 395.

We find, however, on examining the record that this beneficiary heir •did not apply for the appointment. He merely opposed the appointment of Losee in favor of the other applicant. Rec. page 22. As between Losee and the other applicant, the judge a quo had the right to exercise a wise discretion, which we are not prepared to say has been improperly exercised in this case.

It is therefore ordered that our judgment heretofore rendered remain undisturbed.  