
    
      SEGHERS, ATTORNEY FOR ABSENT HEIRS vs. ANTHEMAN, EX. OF C. ANDRE, F. W. C.
    
    An appeal lies from an order revoking the appointment of an attorney for absent heirs.
    Appeal from the court of probates of the parish and city of New-Orleans.
   Porter, J.

delivered the opinion of the court. The court of probates having directed an instrument purporting to be the last will and testament of Catherine Andre, f. w. c. to be executed, and letters testamentary granted to the person named in it as executor; one of the creditors of the deceased presented a petition, in which he stated that the will had been obtained by circumvention and suggestion, that he had reason to believe the testatrix had left some relations, and prayed that a counsel might be appointed to represent them.

East’n District.

March, 1823.

On this petition the judge ordered an attorney to be appointed, who filed a petition in which he alleged various grounds of nullity in the will, prayed that it might be declared void, and that the executor should be compelled to surrender all the property of the estate which had come into his possession.

Before the period fixed by law for answering this petition, the testamentary executor took a rule on the attorney for the absent heirs, to show cause why his appointment should not be set aside. After hearing the parties, the judge decided, that the order directing an attorney for the absent heirs had issued improvidently, and that it should be reversed.

Before entering on the merits, a preliminary question must be disposed of: It is contended, that the judgment is not such a one as can be appealed from, and that the person whose appointment is vacated, has not been injured to the amount of $300.

But we are of opinion, that should it appear, on the further investigation of this subject, that the present is a case in which an attorney has been legally appointed to heirs who are absent, an order which is avowedly given on the ground that none such exist, and that it is not necessary a person should be appointed to defend them, does form sufficient ground for appeal. The attorney not only applies to this court to have an injury done to himself redressed, but also to maintain a right important to the absentees, and a denial of the exercise of which, might work them an irreparable grievance.

In a case just decided between the present parties, we have expressed our opinion on the validity of the will of the deceased; and that opinion decides this case. Considering the testament good in law, the judge did not err in revoking the power, for the heirs were present.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates, revoking the authority conferred on the appellant as attorney for the absent heirs of the late Catherine Andre, f. w. c. be affirmed with costs.

Seghers for the plaintiff, Denis for the defendant.  