
    Succession of Joseph M. White—Ellen Beattie, Appellant.
    To remove a testamentary executrix, an action must be commenced by petition and citation, and the matter conducted in the usual form. C. P. 1017, 1018.
    Appeal from the Court of Probates of New Orleans, Bermudez, J.
   Martin, J.

Ellen Beattie is appellant from a judgment which impliedly removes her from the executorship of the will of her late husband, and appoints Pierre Montreuil Bertin dative executor thereof.

The reasons on which her removal is urged are very cogent. It is alleged that although she was appointed and was qualified as executrix upwards of three years ago, she has nevertheless neglected to file an inventory, or to take any step for the execu. tion of the will, but has removed out of the State, to wit, into the Territory of Florida. Her counsel has claimed the reversal of the judgment on the ground that she never was cited? and he has urged that, on her departure, she appointed him as her counsel; and that he has been always ready to act in her behalf. He has further shown that Bertin was illegally appointed dative executor, as he was so de plano, and without any of the advertisements, or the observance of any of the formalities which the law requires for the appointment of an executor by the judge of Probates. A suit for the appointment of a dative executor was instituted by the ’syndics of the creditors of E. Johns & Co., and by Robert Rose, which was followed by the appointment of Rose as such; but, on his declaring his inability to qualify himself by giving the required sureties, his appointment was rescinded, and, on his motion, Bertin, the appellee, was appointed in his place.

G. Strawbridge, for the appellant.

Blache, contra.

This appointment was certainly illegal; and even if the legal advertisements and ordinary formalities which must follow the removal of an executor, and precede the appointment of a dative one, had taken place, the appointment of the appellee would have been bad, as the appellant had not been removed in the mode expressly provided by the Code of Practice, art. 1018, id est, by petition and citation. Ib., 1017.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed, the appellee paying the costs in both courts.  