
    RACHAL ET AL. vs. RACHAL'S HEIRS ET AL.
    Western Hist,
    October, 1836.
    APPEAL PROM THE COURT OP PROBATES POR THE PARISH OP NATCHITOCHES.
    The tutrix cannot maintain an action of partition for the share of her pupil, without the advice of a family meeting, together with the special authorization of the judge.
    Co-heirs have an undivided interest in the property of the ancestor, which indivisión, the action of partition destroys, vests in each his share, and extinguishes his right to the rest.
    
      But whore the property of an estate is converted into cash, there is no necessity for a partition, it is a matter of division; and each heir can demand the payment of his share. '
    The wife is deprived of her tutorship ipso facto, if she marries again without having provoked a family meeting. This is an affirmative pregnant with the negative, that her marriage after provoking a family meeting, does not deprive her of the tutorship, even if the proceedings are not homologated.
    This is an action instituted by the natural tutrix of a minor child, to recover its portion of its grandfather’s succession, which is in the hands of the administrator.
    The plaintiff alleges, that her minor daughter is entitled, by representation of her deceased husband, to one seventh part of the succession of her husband’s father, now in the hands of the administrator, in money. That as natural tutrix of her said minor, she has a right to call on the administrator for its share, and to claim the portion coming to her ward, contradictorily with the other heirs. She prays that they be cited, together with the administrator, and that the latter be required to render an account, that a partition be made, and that she have judgment for the amount due to her said ward. • '
    The defendants pleaded a general denial, and denied specially the plaintiff’s quality as natural tutrix, because, as they aver, she was not on her second marriage maintained in the tutorship of her minor daughter. They further averred, that the plaintiff’s quality as tutrix is now at issue in a suit between the under tutor and her; that the under tutor is the only person who, by law, may bring a suit for the removal of the tutrix, and in contemplation of law must be considered the defendant’s representative in that suit, and that the plaintiff cannot institute this suit.
    The administrator of the estate of Radial, pére, filed a tableau of division, which showed the sum of fifteen thousand two hundred and sixty-eight dollars in his hands, and the share of each heir to be two thousand one hundred and eighty-one dollars.
    
      The plaintiff offered in evidence the procbs verbal of a family meeting, maintaining her in the tutorship of her children on her second marriage. These proceedings had not been homologated. After the commencement of this suit in a petition to the judge, an order homologating them was entered.
    Upon these pleadings and evidence, the cause was submitted to the judge of probates, who gave judgment for the defendants.
    The plaintiff moved for, and obtained a new trial.
    The défendants then had leave to file a peremptory exception, alleging that the plaintiff was not authorized to bring this action by the advice and consent of a family meeting, and the approbation of the judge, as required by law. The counsel for the plaintiff objected to filing this exception, on the ground that it came too late, and if pleaded at all, should have been pleaded in limine litis. The court was of opinion that it was a peremptory exception founded in law, and should be allowed. The opinion of the court was excepted to.
    The judge of probates gave judgment of non-suit on this exception, from which the plaintiff appealed.
    Gayoso, for the plaintiff.
    1. The tutrix is the proper person to institute this suit, and to obtain for her ward the share coming from the succession of Rachal, deceased.
    
      2. It has been objected that the plaintiff in her second marriage, lost her right to the tutorship of her minor daughter; on the contrary, she was confirmed in her office by the advice of a family meeting.
    
      3. The judgment of non-suit first rendered having been set aside, the cause should have been tried on its merits. The exception put in, denying the tutrix’s right to sue, because not authorized by the judge upon the advice of .a family meeting, came too late. The defendant is bound to plead in his answer, all the dilatory or peremptory exceptions on which he intends to rely. This he has not done. Practice, articles 330-336. Code of
    
    
      Dunbar, for defendant.
    1. This case stands on a peremptory exception put in by the defendants, denying the plaintiff’s right as tutrix to sue for a partition, without the express authorization of the judge, with the advice of a family meeting; this she has not obtained, and without it cannot maintain her action. Louisiana Code, 1235.
    2. This is a peremptory exception going to extinguish the action, and can be pleaded at any stage of the proceedings. 4 Martin, JV. S., 434.
    3. The party may amend his answer and add to it new exceptions, provided they are not dilatory ones. Code of Practice, article 420. 7 Louisiana Reports, 94.
    
      Winn, for the plaintiff in reply.
    1. The defendant having joined issue on the merits, cannot afterwards except to the plaintiff’s capacity to sue. This is waived. The plea of the defendant is nothing more than the general issue. The exception denying her authority to maintain an action of partition, should have been specially pleaded in limine litis. 2 Martin, JY. 3., 389.'
    2. This is not a peremptory exception, but a dilatory or declinatory one, relating to the forms of proceeding, and came too late. Code of Practice, article 330, et seq. 7 Louisiana Reports, 265.
    3. This is a suit requiring the administrator to account and pay over the share coming to the minor, represented by the plaintiff; she has an undoubted right to maintain her action on this trance of the subject.
   Martin, J.

delivered the opinion of the court.

This is an action by the plaintiff, as natural tutrix of her minor daughter, against the co-heirs and the administrator of the ancestor’s estate. The estate is alleged to have been administered, reduced into cash, and forms a gross sum in the hands of the administrator. He is called upon to produce his accounts, and judgment is sought for the share of the minor in the balance.

The tutrix cannot maintain an action of partition for the share of her pupil ■without the advice of a family meeting*, together with the special authorization of the judge.^

Co-heirs have an undivided m-terest in the property of the an-indivisión whthe action of partition destroys, vests in each his tinguishesd his right to the rest,

property16^ edatinto°0ncash there is no ne-títion^ f°itaisaia idon^and each heir’can demand iiis share?6”1 °f

The defendants denied that the wife had been legally maintained in her tutorship on her second marriage. This plea was sustained, and judgment rendered in favor of the defendants. The plaintiff obtained a new trial.

The defendants then, with leave of the court, filed a plea alleging, that the plaintiff could not maintain an action of partition, without its having been recommended by the advice of a family meeting, and the special authorization of the judge.

This plea was sustained, and judgment rendered in favor of the defendants, as in case of a non-suit; from which the plaintiff appealed.

We will proceed to examine the last plea first, which relates to the right of the plaintiff to maintain the action of partition.

It is true the petition concludes with a prayer for the partition of the estate of the common ancestor, and if the succession consisted of any other things than money, the , ,,, it»** . ^ . plea would be good. Jout it is averred that it consists of a sura moneY iQ the hands of the administrator. Co-heirs have an undivided interest m each and every part of the , , . ... property of the ancestor, lhe object of a partition is to destroy that indivisión, by vesting in each the exclusive property of that part of the estate which falls to his share, aQd of extinguishing his right to the rest. If a sum . of money’ the j“nt ProPerty of two persons, be in the hands of a third, there is no necessity for a partition ; each may de-mand the payment of half of it. A sum of money is an ideal or *nc°rp°real thing, which is not susceptible of actual partition, but it is of division. The court therefore erred in sustaining the plea and giving judgment, as in case of non-suit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and this plea overruled.

The wife is deprived of her tutorship, ipso facto, if she marries again without having provoked a family meeting. This is an affirmative pregnant with the negative, that her marriage, after provoking a family meeting, does not deprive her of the tutorship, even if the proceedings are not homologated.

Proceeding to give such a judgment, as in our opinion ought to have been given in the court below, our attention is called to the first plea of the defendants. It appears that the plaintiff, before her second marriage, provoked a family meeting, and was maintained by it in the tutorship of her minor daughter, but this court has been unable to find the evidence of the homologation of the proceedings of this family meeting on the record.

The Louisiana Code provides that the tutrix shall be deprived of her tutorship ipso facto, if she marries without having provoked a family meeting to retain her in the tutorship. This is an affirmative pregnant with a negative, that her marriage, after she has provoked a family meeting, does not deprive her of the tutorship. If the family meeting maintains her in the tutorship, and the judge homologates the proceedings, it is clear that her right to the tutorship will not be impaired by the marriage. If the meeting declines to retain her in office, it is equally clear that this circumstance will authorize her destitution. But perhaps this destitution must be pronounced contradictorily, because the law has not said that it shall take place ipso facto, as in case of her neglect to call a family meeting.

It is, therefore, ordered, adjudged and decreed, that the first plea of the defendants be overruled, and the case be remanded for further proceedings according to law; the costs of the appeal to be paid by the defendants.  