
    ADDISON vs. NEW-ORLEANS SAVINGS BANK.
    Eastern Dist.
    
      June, 1840.
    APPEAL PROM THE COURT OP THE PIRST DISTRICT.
    The proceedings of the Probate Court, where the succession of the de-. ceased was opened and administered, recognizing the heir, together with the testimony of witnesses well acquainted with the family, are sufficient to authorize the heir to sue and maintain an action in his own name, for debts owing the succession.
    The lawful heir inherits the succession from the moment it is opened and this right is acquired by the operation of law, alone, before he has tallen any steps to put himself in possession.
    One of the effects of the right of the heir to a succession, is to authorize him to institute all the actions which the deceased had a right to, and to prosecute those already _ commenced.
    
      It is not necessary in all cases to appoint an attorney of absent heirs, and a curator to the vacant estate, contradictorily with whom the heir must claim the estate. And when it is shown, the deceased had no forced heirs, the nearest collateral relation, as a brother, applying, will be entitled to the succession.
    The absence of heirs will not be presumed in all cases of an intestate succession, and less so in a case where the contrary is shown.
    This is an action in which the plaintiff claims a deposit of seven thousand dollars, made in the Savings Bank of New-Orleans, by Mary Amanda Addison, late wife of Nott, on the ground that she is dead, and that he is her only brother and nearest heir. He shows that he has been recognized as the only lawful heir to the deceased, by the Probate Court of the parish of Jefferson, where she died, and where her succession was opened. He prays judgment for the amount of said deposit, and all the accruing interest.
    The defendant admitted the deposit, but denied that the plaintiff was heir, and entitled to receive the money.
    The plaintiff produced the proceedings in the Court of Probates, recognizing him as heir, and also proved his heir-ship by witnesses familiar with the family. There was judgment for the plaintiff for the sum claimed, with interest, and the defendant appealed.
    
      Mi Kinney, for the plaintiff.
    
      May bin, contra.
   Simon, J.,

delivered the opinion of the court.

Plaintiff alleges, that he is the only heir and representative of his sister, having been recognized as such by the Court of Probates of the parish of Jefferson, where she died, and that by a decree of the said court, he has been put in possession of her estate. He further states, that some time before her death, she had deposited a sum of seven thousand dollars with the defendants, which he now claims with interest, &c.

Defendants plead the general issue, admit the deposit of seven thousand dollars, and deny the death of the depositor, and the plaintiff’s heirship and relation as by him alleged. They also aver, that the proceedings had before the Court of Probates, are irregular, illegal and void, the same having been had ex-parte, and maintain that the plaintiff has no right of action.

. The proceedings ot the rrobate Court, cession^'of Stiie deoeas.ed ,W5S opened and administered, rehef” 2'"together ™¡Jy nesses well ac-u?eai family,'are o¡-?ze''t11e°tie7isue and mamtain an action in his own name, fhe succession?5

The lawful heir inherits the succession from the moment it is opened and this right is acquired by the operation of law, alone, before he has tallen any steps to put himself in possession.

The District Court gave judgment in favor of plaintiff, and the defendant appealed.

The only question submitted to our decision in this case, • 1 . 3 is whether the plaintiff’s right of action, as the only heir of his sister, is sufficiently established. For this purpose, he has not only produced proceedings had before the Court of J r , 1 o Probates of the parish where (he succession was opened, and in which he is recognized to be the brother and only lawful heir of the deceased and authorized as such to take possession of her estate, but he has also proven by several witnesses well acquainted with the family, that she had, at the time of her death, no other heir but the plaintiff. It is, however, contended by defendant, that in order to entitle the . . i i » i t Ti \ , . to recover, he must show that he has been legally authorized to take possession of the intestate succession, contradictorily with a curator of absent heirs, to be appointed under articles 1089 and 1091 of the Louisiana Code; that he was himself entitled to the curatorship by article 1114, and that the decree of the Court of Probates, by him produced, is illegal and insufficient, having been rendered ex-parte; and they also urge that this defect in the proceedings, or the absence of legal formalities, cannot be supplied by parole proof of his being the only heir, as he must previously be pronounced to be so by the Probate Court of the domicil of the deceased :

If a person dies, leaving no descendants, nor father nor mother, as it has been shown in this case, the law calls to his inheritance his brothers and sisters. Louisiana Code, article 908; if there be only one, he becomes the only lawful heir, and inherits the whole succession. The lawful heir acquires the succession immediately after the death of fhe deceased person to whom he succeeds, and this right is acquired by the operation of the law alone, before he has taken \any step to put himself in possession; from the moment the succession is opened, le mort saisit le vif, and the right of possession which the deceased had, continues in the person of the heir, as if there had been no interruption, and independent of the fact of possession. Louisiana Code, articles 934, 1 ... . 935 and 936. One of the effects of this right is, to authorize the heir to institute all the actions which the deceased had .... , . . a right to institute, and to prosecute those already commenced : Idem., article 939. It is then perfectly clear, that the plaintiff, who is proven to be the only lawful heir of the deceased, had a right to institute this action, as well as any other, previous to his taking any step to be put in possession ^e estaíe > that there was no necessity for such proceedings before enforcing his right, and that all that could be required of him, was to furnish satisfactory evidence of his right of inheritance. This has been done in this case,

One of the effects of the right of the heir to a succession, is to authorize him to institute all the actions which the deceased had a right to, and to prosecute those already _ commenced.

It is not necessary in all cases to appoint an attorney of absent heirs, and a curator to the vacant estate, contradictorily with whom the heir must claim the estate. And when it is shown, the deceased had no forced heirs, the nearest collateral relation, as a brother, applying, will be entitled to the succession.

The absence of heirs will not be presumed in all cases of an intestate succession, and less so in a case where the contrary is shown.

Bot it is insisted that, the succession of the plaintiff’s sis- , . ter being one ab mtestato, it was necessary first to cause a counsel to be appointed to the absent heirs, and afterwards a curator, according to articles 1091 and 1204, and that the . plaintiff ought to have claimed the succession contradictorily w>fh such curator. This position would be correct, if it appeared that the heirs or part of them were absent, but we are 1 r , not prepared to understand the law to require the appointment of a curator in all cases; to presume the absence of heirs in all successions, and less so in a case in which the contrary has been shown. 12 Louisiana Reports, 80. The Court of Probates received proof of the right of the plaintiff, s0 ^ District, Court, and without attempting to inquire into the legality and validity of the decree of the Court of | Probates, which we are not allowed to question collaterally in this suit, particularly with the defendants who have no i interest in the succession, we are of opinion that the plaintiff has proven all that he was required by law to show, and that the judge a quo did not err in giving judgment in his favor.

It is, therefore, ordered, adjudged and decreed, that thej judgment of the District Court be affirmed, with costs.  