
    (43 South. 279.)
    No. 16,501.
    In re MINORS LONG.
    (March 4, 1907.)
    Guardian and Ward — Resignation oe Tutrix.
    Whether the mother after having accepted the tutorship of her children may resign it, quaere? But she cannot do so after she has remarried and been retained in the tutorship with her husband as co-tutor.
    FEd. Note. — For cases in point, see Gent. Dig. vol. 25, Guardian and Ward, § 77.]
    (Syllabus by the Court.)
    Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edrington, Judge.
    In the matter of the Minors Long. From an order setting aside the resignation of a tutrix, she appeals.
    Affirmed.
    Howe, Spencer & Cocke and William Henry Byrnes, Jr., for appellants. Alfred Elias Billings, for appellee.
   PROVOSTY, J.

The undertutor, who had consented to the resignation of the tutrix, now recants his consent, and seeks to have the resignation set aside, on the ground that a mother who, having accepted the tutorship of her children, has remarried and been retained in the tutorship on the advice of a family meeting, cannot be allowed to resign her said trust. Whether she can is said by counsel on both sides to be the sole question in this case.

The rule is that tutorship is a trust, which the person called to it is not free to decline. Article 253, Civ. Code, makes an exception in favor of the mother, but the exception is limited to not accepting. Nothing is said about resigning after having accepted.

The French commentators on the corresponding article of the Code of Napoleon (article 394) are divided in opinion. Dalloz, Code Civil Annoté, says the weight of authority is one way. Fuzier-Hermann says it is the other.

Without deciding whether a tutrix may resign or not before she has remarried, we hold that when she has remarried, and been retained in the tutorship, and her husband become co-tutor with her, she is no longer at liberty to resign. The Code certainly does not extend to her husband and co-tutor the liberty thus to retire from the tutorship, and the co-tutor not being permitted to retire, it would seem to follow that she cannot.

Judgment affirmed.  