
    No. 5629.
    Succession of Walter O. Winn. On petition of John S. Mayfield to destitute Mary E. Richards, executrix.
    Iohn S. Mayfield, alleging that' he is a creditor of the succession of Walter O. Winn, for reasons stated,'prayed for the removal of the executrix from her trust. It appears from the testimony that in 1862 the executrix sold a portion of a certain plantation belonging to the succession by private sale. It also appears that she is not now a resident of the State, and that she has not given a power of attorney/ duly reoorded as required by law, to any one to represent her. These are sufficient grounds for destituting her of her trust.
    APPEAL from the parish court, parish of Rapides. Sullivan, J.
    
      Thos. MeOay, JR. JE. Hunter, Merrielc, JRaee & Foster, for plaintiff and appellant. M. Ryan and J. Q. White, for defendant and appellee.
   Ludeling, C. J.

J. S. Mayfield, alleging that he is a creditor of the succession, for reasons stated, prayed for the removal of the executrix from her trust. The executrix alleged that Mayfield had no interest in the succession, and denied that he was, a creditor thereof. There was judgment in favor of the defendant .and plaintiff has appealed. A motion has been made to dismiss this appeal, on the ground that the judgment was rendered by consent. The judgment does not so state, and the entry on the minutes, relied' upon by the appellee, does not support the position when taken as a whole. It recites that the exception was disposed of, and “by consent of parties the court proceeded to render the following judgment,” that is, they consented that the court should render judgment on the merits immediately.

The motion to dismiss is refused.

It appears that the notes of Mayfield were acknowledged in November, 1865, since which time there has been no interruption of prescription. The notes were therefore prescribed when the first suit of Mayfield was filed, in 1873. Consequently, he has no interest or right to interfere in the affairs of the succession.

It is ordered that the judgment of the lower court be affirmed, with costs of appeal.

On Rehearing.

Morgan, J.

On the motion to dismiss our opinion remains unchanged.

On the ninth of April, 1874, John Mayfield, alleging himself to be a creditor of the succession of Winn, brought suit in the parish court of Rapides to destitute her from her trust as executrix. The grounds upon which this action rests are : That in a former proceeding he was instructed by the court to institute proceedings to cause her to be removed; that the executrix has left the State without having left any one in charge of the estate under any recorded power of attorney; that.she has had control of property exceeding in value half a million of dollars, and has never filed an account of her administration; that she has disposed by private sale, of the plantations belonging to the succession. He prayed for the appointment of a curator ad hoe to represent her, through whom, or personally, she might be cited, and that she be destituted as executrix.

M. Ryan Was appointed to represent her. He was cited.

Ryan answered, denying that plaintiff is a creditor of the succession; that if he had ever been his debt was prescribed; that she has complied with all of her duties. He also excepted to the jurisdiction of the court raiione materia. Judgment was rendered in favor of the defendant.

As regards the claim of Mayfield it is supported by nine promissory notes of. $5000 each.

These notes are all dated thirtieth of March, 1860, and were payable on the tenth of November and tenth of December following. On the first of November, 1865, they were acknowledged by the executrix in writing, to be a debt of the succession of Winn.

On the tenth of May, 1870, John Mayfield took a rule upon the executrix in which these facts were related, and he asked that the executrix be ordered to file an account of her administration, and if she has not funds enough to pay him, that she be ordered to sell a sufficient amount of the succession property to pay him.

Service was made, in person, of this rule on the executrix on the eighteenth of May, 1870. This takes the case out of prescription.

Upon the merits, it appears from the testimony of her attorney that in 1862 the executrix sold a portion of a certain plantation belonging to the succession by private sale. It also appears that she is not now a resident of the State, and that she has not given a power of attorney duly recorded as required by law, to any one to represent her. These are sufficient grounds for destituting her of her trust.

It is therefore ordered, adjudged and decreed that our former judgment rendered herein, in so far as it maintains the appeal remain undisturbed. It is further ordered, adjudged and decreed that our former judgment in so far as it affirms the judgment of the district court be avoided, annulled and set aside. And it is now ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and set aside, and that.there be judgment in favor of the plaintiff, and against the defendant Mary E. Richards, late widow of Walter Winn, deceased, destituting her from the office of- executrix of the last will and testament of the said Walter Winn, deceased, and that defendant pay the costs in both courts.  