
    No. 8568.
    Succession of John Burnside. On the Application of the Public Administrator.
    
      A contest involving tlie removal of an executor or administrator of a succession, and the appointment of another, is a mere incident in the settlement of the succession, and not a distinct and separate suit; neither does it fall in the designation of cases at law or iu equity between parties of different States, of which the Federal courts have concurrent jurisdiction with tbo State courts.
    Hence, an application by a party residing in another State for the removal of such a contest to the Federal court will not be granted.
    The Public Administrator for the Parish of Orleans has no authority in law to provoke the removal of an executor or administrator of a succession.
    This right is restricted by law to an heir, a creditor or a legatee.
    The right of the Public Administrator to claim the administration of a succession accrue» only in case of an existing vacancy in said administration:
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.
    
      ■Breaux & Mall, for Public Administrator, Appellant:
    1. The exception that a petition for the removal of the application of the Administrator for appointment as Dative Testamentary Executor, to the Circuit Court of the United States, cannot he maintained, because:
    (a) It was decided in a rule to show cause why the removal should not he made, against the present exceptor, and is conclusive herein.
    (Z>) There is no law authorizing the removal of an application for the appointment of an executor to a succession pending in a State Court:
    2. The Public Administrator is entitled to the appointment of Dative Testamentary Executor of all estates wherein the executor from any cause cannot discharge the duties of the office.
    
      (a) The heir or widow, or surviving husband, can only exclude him, when present in the State, and actively claiming the right to assume the duties of the office. Sec. 3d, Act. 1877, p. 111.
    
      (b) The act only settles as between these parties who shall be privileged to assume the. duties — when urging their several claims before the Courts.
    3. Where the office is vacant thé law imposes upon the Public Administrator the responsibility for the proper administration of the estate: and, therefore, the co-relative right to the appointment.
    4. The executor, must not only commence, hut in a reasonable delay, complete his qualification as executor; which, for one domiciled out of the State, is:
    
      (a) Taking the necessary oath.
    (b) Causing an inventory to be taken, and giving bond as an administrator is requited to give. Rev. Stat. 1460; C. C. 1679 ; Watson vs. Bondurant, 30 An. 4.
    5. The penalty for failing or refusing to do which, is forfeiture of the right to the office. Rev. Stat. 1648; C. C. 1666. Sue. of Feray, 31 An. 727.
    6. Departure from the State of non-resident executor forfeits title to the office, even if he leaves power of attorney. C. C. 1145; Rev. Stat. 1741; Act 1847, p: 115, as interpreted by Y erkes, Guardian, vs. Broom, Executor, 10 An. 359; Dobb’s Succession, 9 An. 354: Watson vs. Bondurant, 30 An. 6.
    
      
      T. Gilmore & Sons, for Defendant and Appellee:
    i.
    On the First Ground op Exception.
    1. This is an original suit between citizens of different States, where the matter in dispute exceeds the value of five hundred dollars, and was, on proper petition and bond, lemoved to the Circuit Court of the United States for the Eastern District of Louisiana. After such removal, all proceedings therein in the State Court are ooram non judice and void. Dillon on Removal of Causes, and authorities there cited.
    2. It was a proper case for removal. Gaiues vs. Fuentes, 2 Otto, 20 ; Craigie vs. McArthur, 4 Dillon, 474; Bonduraut vs. Watson, 13 Otto. 386; Washington Improvement Co. vs. Kansas Pacific Railway Co., 5 Dillon, 490.
    On the Second Ground op Excettion.
    1. Where an executor, who is a beneficiary finder the will, has complied with the order of the court fixing his bond, and has received his letters, and is in the exercise of his functions, or has completed thorn by the payment of the debts, legacies and expenses incidental to the succession, and claims to hold as universal legatee, ho cannot be destituted of bis -seizin on the petition of the Public Administrator, to enable that officer to make a com» mission. Such a case does not fall withing the provisions of Sec. 3, Act 74, p. Ill, of 1877. The executor is not in the position of one who cannot discharge the duties of his office.
    2. Tiie Public Administrator is a stranger to the succession. Be has no right to initiate proceedings to create a vacancy for his own emolument.
    3. Until an executor is removed at the suit of a party in iuterest, the interference of the Public Administrator is officious. Succession of Winn, 26 A. 162; Succession of Poret, 26 A. 157; Succession of Bougere, 30 A. 425; Succession of Dietrich, 32 A. 127; Succession of Henry ; 31 A. 555; Succession of Miller, 28 A. 573-4; Buston and Wife vs. Brugier, 30 A. 482; Succession of Jennie Walker, 32 A. 321; State Bank vs. Evans, 32 A. 466.
   The opinion of the Court was delivered by

Poché, J.

The object of this proceeding is the removal of Oliver Beirne, as testamentary executor of the succession of John Burnside, and the appointment of the Public Administrator as dative testamentary executor of said succession, on the following grounds, substantially:

That immediately after Oliver Beirne had qualified as testamentary executor, by taking the oath and furnishing the bond required by the Court, he left the State permanently, after appointing an agent and attorney in fact to represent him in the administration ; without causing an inventory to be begun, as the law requires, and without furnishing- the bond, required by law to be one-fourth in excess of the value of the prox>ert.y of the succession, alleged to exceed one hundred thousand dollars ; and on the ground that the will of the testator should he executed without delay in the interest of the legatees and heirs of the decedent, who are judicially asserting their rights as such heirs.

Beirne, the testamentary executor, who resides in Virginia, thereupon filed a petition supported hy his affidavit and accompanied by the required bond, for the removal of the cause to the Circuit Court of the United States for the Eastern District of Louisiana, on which the order of removal was refused by the Court, a qua.

I-Ie then filed an exception, urging :

1. His application to remove the cause to the Federal Court, and the illegality of the Court’s refusal of the order of removal.

2. That the Public Administrator’s petition disclosed no cause of action.

His first ground of exception was overruled, and the second ground was maintained, whereupon the Public Administrator has appealed.

1. The action of the District Judge, in refusing the order of removal and overruling' the first ground of exception, is eminently proj>er, and meets with our unreserved sanction.

Appellee’s position, that thisai>pIication of the Public Administrator is a distinct and separato suit, not essentially connected with the settlement of tho Burnside succession, is too glaringly erroneous to require any argument or authority for its completo demolition.

The appointment of an executor or administrator, his removal for any cause, and the appointment of another in his stead, are all incidents of the settlement or administration of a succession ; and the jurisdiction of the Court which has legal cognizance and control of the succession, cannot be affected by the residence of any of the parties who may urge conflicting claims to the right of administering such succession, and the removal of the administrator must be ordered by the Court which had made the appointment. C. P. 1013.

The substantial issue presented for adjudication in this proceeding, involves the legality of the testamentary executor’s administration of the Burnside, succession, the question of his removal, and the right of the Public Administrator to be appointed dative testamentary executor.

The relief asked depends exclusively upon the probate jurisdiction of the Court, and cannot be considered by a Court which has no such jurisdiction.

It is well settled that the Federal courts have no probate jurisdiction, a conclusion flowing from the existing legislation of Congress.

This doctrine is recognized and favorably commented on by the U. S. Supreme Court in one of the cases quoted by appellee in support of his own opposite theory. Gaines vs. Fuentes, 2 Otto 18.

The following language, which we quote from that opinion, supports the conclusion which we have reached on this question : “ The reason lies in the nature of tho proceeding to probate a will as one in rem, which does not necessarily involve any controversy between parties, indeed, in the majority of instances no such controversy exists. In its initiation all persons are cited to appear. * * * From its nature and from the want of parties, or the fact that all the world are parties, the proceeding is not within tlie designation of cases at law or in equity between {parties of different States, of which the Federal courts have concurrent jurisdiction with the State courts under the Judiciary Act.”

It. is clear that this reasoning applies with equal force, to all. proceedings in the settlement, of successions, and it is elementary that all conflicts between heirs, legatees, or creditors of a succession, as well as between parties claiming contradictorily the right of administering a succession, are mere incidents of the settlement of the estate, and as such fall exclusively within the jurisdiction of a court having probate jurisdiction, and in which the succession was opened.

2. From the petition of the Public Administrator, it appears that the testamentary executor is sought, to be removed, for the main reasons that he has failed to malee an inventory within the time required by law, or to qualify according to law, and because he has left the State permanently; and the question presented is whether, assuming these averments to be true, the Public Administrator has any authority to urge these derelictions, and to claim the removal of the testamentary executor.

The office of Public Administrator is not an institution of the civil lawq and was unknown to our law's previous to the legislation of 1870, which introduced this new.element into our system for the settlement of successions.

It follows, therefore, that .such a functionary can claim only the rights which are clearly conferred on him by the legislation which created his office; and that none of the provisions of our laws regulating the mode of settling successions, and of appointing and removing curators, administrators, or executors of successions, are applicable to 1ns office, unless .so made by the law which created and governs that particular office.

Now, the only law under which thePublic Administrator can rest his right of action in his present application, is Section 3 of Act No. 7A, approved April 17, 1877, which reads as follows :

“ That in all testate successions in the Parish of Orleans, when from aiiy cause the executor cannot discharge the duties of his office, the Judge, shall appoint the Public Administrator dative testamentary executor, when there is no surviving husband or wife, or heir present or represented in the State, who is qualified to assume, and who claims to assume the duties of said office.”

It does not appear from the Public Administrator’s petition that Oliver Beirne cannot or does not discharge the duties of testamentary executor of the Burnside succession, and that, such being the case, the decedent has left no wife or heir preseiit or represented in the State who is qualified to assume, and who claims to assume, the duties of said office.

If it he true that Oliver Beirnc has not qualified according- to law, lias failed, oris evon opposed, to have a proper inventory made, ho may be summoned on proper showing- by parties in interest, such as heirs, creditors or legatees. But no complaint is made by any sncli parties, and if they are satisfied with Beirne’s qualification or administration, of what concern is that to the Public Administrator ? He has no authority in law to supervise the administration or settlement of successions, or the legality of tho appointment of administrators, executors or curators.

His powor to act arises only in the oases provided by the law which created his office. The utility of liis office arises according to law, and his services are required only -when a testate succession is not bein',) administered at all. His office was intended to fill a vacancy, but be has no power to provoke a vacancy. We know of no law, and wo have been referred to none, authorizing the Public Administrator to judicially seek to remove an executor or administrator.

These conclusions are supported not only by reason and law, but are sanctioned by authority, as shown by a decision of this Court, in tlie case of Succession of Winn, 26 A. 102, where it was distinctly held that a Public Administrator could not provoke the removal of an executor, and that this right could bo exercised only by lieirs, legatees or creditors, and are in keeping with the textual provisions of our Code, which confers the right of praying for the removal of testamentary executors or other administrators of successions, to the heirs, creditors, or other persons concerned. C. P. Art. 1018.

We, therefore, conclude, that the Public Administrator’s petition discloses no right in him to ask the removal of Oliver Beirne as testamentary executor of the Burnside succession.

'The judgment appealed from, is, therefore, affirmed’with costs.

;Levy, J., absent.  